What is Public Law and Judicial Review?

June 4th, 2011

What is public law? 

Public law is the law relating to the exercise of power by public bodies. It is a specialised area of the law. Almost everybody is affected by public law, whether or not they are aware of it.

What are public bodies?

There are many public bodies of various kinds. Public bodies make decisions every day which affect the lives of millions of individuals. Simple examples of public bodies include local authorities, Government ministries, the Prison Service, NHS Trusts, coroners’ courts, minsiters and even Parliament itself. There are literally hundreds of public bodies and it is almost impossible to list them all. Public bodies make decisions which affect us all and sometimes those decisions are ‘unreasonable’ or simply unlawful. In England & Wales we are lucky in that we can challenge decisions of public bodies where we feel that these are unreasonable or unlawful decisions or where the decision making process was flawed. It may be a decision again the local authority plans to extend a motorway, through to the decision to deny someone a legal remedy, or housing or the right to live somewhere. Public law covers all the decisions made by public bodies. Citizens can seek redress for some of these bad decisions through the courts. Public law provides various ‘remedies’ that can be applied for through the courts.

What are public law remedies?

Public law remedies include many procedures by which citizens can challenge the legality of decisions made by public bodies. These often comprise of the following:

• Judicial review: court proceedings in which a judge is asked to review the lawfulness or reasonableness of a decision made by a public body or an official acting for a public body;
• Complaints procedures; and
• Ombudsman schemes such as the Local Government Ombudsman, and the Parliamentary Commissioner for Administration as well as many others.

What can we do to help?

Mansouri Solicitors specialise is all aspects of public law and Judicial Review proceedings. We also have a franchise in Public Law from the Legal Services Commission which allows us to grant Legal Aid to certain individuals to pursue their claims in public law through the courts. Of course Legal Aid in public law is subject to various requirements, but we will discuss those details with clients, when the time comes. Public Law is often the solution for some of the most disadvantaged people in society and it can offer a very powerful remedy. In our opinion, public law isthe cornerstone of a democracy. It allows any citizen to challenge a decision of a public body which can often seem to be a daunting challenge. Some people refer to public law as the ‘poor man’s law’. In a way it is because it allows very ordinary people to challenge decisions made by very powerful people. Public law is the essence of what makes us all ‘equal’.

If you are facing the consequences of what you perceiveto be a ‘bad’ or ‘unreasonable’ decision by a public body, call us on 020 8401 7352 for a free consultation with an expert solicitor and where we feel that we can offer you help, we will arrange an appointment to see you to discuss the matter and we may even be able to offer you Legal Aid in this very special area of law.

Posted in Children, Immigration, Solicitors Firm | No Comments »

The Family Procedure Rules 2010

April 7th, 2011

We are providing you with this page so that you can download a complete copy of the Family Procedure Rules 2010

However; if you need any assistance in relation to a Family Law matter including Divorce or Children Act 1989 proceedings in England & Wales, we offer a free 30 minute telephone consultation to assist you. Call us during office hours on 020 8401 7352 for your own personal free advice session, in the strictest confidence.

Posted in Children, Divorce, Divorce Grounds, Injunctions, Solicitors Firm | No Comments »

Do you need a divorce solicitor

February 5th, 2011

Do You Need a Divorce Solicitor?

Probably the first question anyone facing diorce will ask themselves is, do I need a divorce lawyer to handle everything for me?  Have you ever searched for ‘divorce solicitors’ on Google? Well try it and see what comes up. Thousands upon thousands of divorce service providers ranging from expert family law solicitors through to cheapie online divorce sites offering a do-it-yourself divorce for less money than an outdated second hand mobile phone. It’s horses for courses out there! In some cases, these cheapie online form fillers might be a viable option for you and one that just may save you money. In most cases though they will frustrate you, complicate issues, never be accessible by phone, answer emails in obscure terms and surely demand more money from you for asking questions. Also, most of the cheapest of the cheap are not even lawyers, so as soon as the divorce starts getting remotely complicated, they will quickly send you and email advising you to take your case elsewhere. That’s where we solicitors come in. We are the experts in family law. You may not like it, but cost usually defines quality. Cheap is cheap for a reason! However; please don’t getthe impression that we mind all that much. After all, as specialists we prefer to provide our services to clients who can differentiate between solicitors and online form sellers.

Nevertheless, we accept that there are situations when you just might get the result you want without a solicitor, so we are providing this short guide to help you decide for yourself whether you need a lawyer or you can just do-it-yourself.

Do You Absolutely Need a Lawyer or Solicitor for Your Divorce or Custody Case? 

The fact is your interests will always be better represented by a solicitor. You already know that. Just like your car will always be better serviced by a mechanic rather than a butcher. But are there times when self-representation is, perhaps, “good enough“.

The following are some very general guidelines about the safest situations in which you might choose to represent yourself and the riskiest situations where self-representation is likely to result in problems. Remember, only you can decide ultimately what is best for you. Don’t buy a product because it is cheap, buy it because you need it and you know that it is fit for it’s purpose.

Safest do-it-yourself cases: 

1. A short marriage where both parties worked throughout the marriage, earn similar salaries, have no minor children together and have accumulated no property together�
    
2. A short marriage in which neither partner worked steadily or earns much money, there are no minor children together and the parties have accumulated no property�
    
3. A marriage in which both partners worked throughout the marriage and earn similar salaries, have accumulated limited property together and where both parties are on decent talking terms and are excellent, involved parents to their minor children and, each parent wants the other parent to stay very involved in the life of their children
    
4. A marriage in which neither partner works steadily or earns much money, they have accumulated no property and both parties are excellent, involved parents to their minor children and, each parent wants the other parent to stay very involved in the life of their children
    
5. Any marriage in which the partners have no children together and they are aware of and able to agree on how to divide all property�
    
6. Any marriage in which the parties are able to agree on how to divide all property, their agreement provides adequately for the care of the children and reasonable contact arrangements are agreed�
    

Riskiest do-it-yourself cases (or Do Yourself a Big Favour and Figure Out A Way to Retain an Expert Solicitor): 

• the matrimonial assets are considerable
• the parties cannot agree on anything
• the parties own more than one property
• there are allegations of fraud, deceipt or misconduct by either partner
• there are overseas properties or assets or income
• the marriage has been a long marriage
• either partner has contributed disproportionately to the marriage
• either partner owns or runs a business or has a limited company
• either partner stands to inherit or has inherited under a Will
• either partner has a criminal record
• either partner is accused of domestic violence
• either partner is accused of sexual abuse
• either partner is accused of non-physical abuse or harassment (verbal, emotional, psychological, psychic, etc.)
• either partner is neglectful and/or irresponsible
• either partner suffers from mental illness
• either partner has a physical disability or other significant health issue
• either partner does not have mental capacity
• either partner abuses legal or illegal substances
• either partner is accused of poor parenting
• either partner has an uncertain immigration status
• either partner is on the verge of bankruptcy
• either partner owns a privately held business
• either partner has a history of avoiding financial obligations
• either partner is believed to be hiding assets orthere are allegations of financial impropriety
• either partner is believed to work for cash payments
• either partner has a history of refusal to work for a living
• either partner is planning to move to another country
• either partner has threatened to abduct the children
• either partner has tried to limit or interfere with custody or contact with the children
• either partner has badmouthed the other to the children
• either partner has stated that the other is able to support the children without assistance
• either partner has indicated that they will avoid providing any financial support, even if the court orders it
• either partner is just painfully disagreeable just for the sake of it
• the other partner’s lawyer is consistently extremely aggressive, contentious and intimidating
• the case has already started and the judge has strongly advised you to seek legal representation
• the case has already started and the judge really doesn’t seem to be seeing things your way at all
• or; you just simply feel overwhelmed and confused…

Please note that this article contains only general information and does not comprise specific legal advice. If you wish to discuss any aspect of your matter with an expert family law solicitor, we offer a free 30 minute telephone consultation on 020 8401 7352 which may prove to be the best call you ever made. It’s not cheap, it is simply free! By the end of the consultation you will know pretty well where you stand and what, if anything, you have to gain from instructing an expert family law solicitor over an online divorce form filler.

Posted in Children, Divorce, Divorce Grounds, Solicitors Firm | 1 Comment »

Amicable divorce financial settlements

February 4th, 2011

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Grandparents Grandchildren and Residence Applications

October 11th, 2010

Cyrus Mansouri, Solicitor, reviews recent developments affecting the legal status of grandparents in Children Act 1989 proceedings for Residence and Contact.

Grandparents have an vital role to play in the upbringing of children. However; often when parents separate, the custody of the children can become an issue and an area where grandparents feel increasingly isolated and ignored. The courts in England & Wales do recognise that contact with a grandparent can be beneficial for children but the complextities faced by grandparents wishing to have residence of their grandchildren are often significant. Grandparents Plus conducted a study of the role played by grandparents in the welfare of their grandchildren and found that almost one in three families rely on grandparents for child care, with almost half of all single parent households relying on grandparents to help out with childcare. Despite this the Children Act 1989 does not provide particular rights to grandparents wishing to apply to court for contact with their grandchildren or, as is often the case, to apply for a residence order asking that the court order that the children reside with the grandparents after the breakdown of their parents relationship. 

Research by Families Need Fathers indicates that some 42% of grandparents lose contact with their grandchildren when the childrens parents separate. Clearly therefore there are huge numbers of grandparents wanting to have contact with their grandchildren and not being assisted directly by the law. In this article I consider the position for grandparents seeking to apply to court for an order to have their grandchildren live with them.

When deciding where a child should normally live after separation, the courts generally take the view that, where possible, the children should remain with the parents to whom they were born. However recently the case of B (A Child) [2009] UKSC 5 re-asserted the importance of the welfare principle as the paramount consideration when making decisions regarding the upbringing of the child, and stated that the presumption in favour of the natural parents, although still a consideration, is secondary and that the primary consideration should always be the best interests of the child. This case will have huge implications for grandparents and possibly even other relatives, seeking residence orders or even contact orders in respect of their grandchildren. 

The Government has published a Green Paper ‘Support for All – the Families and Relationships’ and makes proposals for additional support for adults and children following the breakdown of a relationship. A number of these proposals are directed towards grandparents, including proposed reform to improve their ability to apply for contact. 

Therefore the current law surrounding the rights of grandparents is evolving. The current position is summarised below, however; as with any legal issue, you are advised to seek specific advice from us applicable to your circumstances as this article only sets out the general principles.

The Requirement for Permission of the Court

Often contact between a child and grandparents can be negotiated away from the courts and amicably. However in many situations this simply never happens, not least because of animosity between the parents and perhaps very poor relations. Sadly substantial numbers of grandparents lose all contact with their grandchildren after the childrens parents separate, and many of those grandparents are now turning to the Children Act 1989 to obtain orders for a defined contact order. 

Sadly, grandparents do not have an automatic right to apply to court for contact as parents have. Grandparents require leave of the court meaning permission of the court to apply for a section 8 order, unless they already have a residence order, or the child has resided with them for a period of three years or more or where the grandparents already have the consent of those with parental responsibility, being usually the natural or adoptive parents. Infact you do not need to be a grandparent to seek leave of the court as anyone who can satisfy these requirements can apply. There are no presumptions made by the court for or against such applicants. The courts will always investigate each case on it’s merits and the courts will look closely at the surrounding welfare of the child which is the most important factor. Clearly the greater the involvement of the applicant in the child of the life and the stronger the ‘bond’, then the greater the strenght of such an application.

In practice applying for leave is not usually the biggest hurdle where the case has other merit. However; many grandparents quite rightly ask why they should have to apply for leave at all? Some grandparents have exceptionally close relationships with their grandchildren and merely having to seek permission of the court to apply for contact can seem unfair and be a ‘put off’. In my experience many grandparents are simply unaware of their rights in respect of exercising contact with their grandchildren and very often they place too much reliance upon the parents hammering out an agreement between them, which sadly often never materialises or, more likely, takes a very long time. Therefore part of the challenge is educating grandparents about the rights afforded to them in law when their children separate and they wish to maintain contact or perhaps even more, residence of the grandchildren.

The Government has published a Green Paper called ‘Support for All – the Families and Relationships’ which suggests a package of proposals to improve the legal position of grandparents. One of these proposals is to remove the requirement to apply for leave by grandparents and to permit applications for section 8 orders by grandparents automatically. The changes proposed will require an Act of Parliament to take effect. The purpose of a Green Paper, is to invite suggestions, comments and contributions. These proposals are to be welcomed, not least because they will encourage grandparents to play a bigger role in the welfare of their grandchildren and, in turn, these proposals will reduce the costs of such applications for grandparents. There Green Paper also invokes a consultation as to the impact of the leave requirement on other family members. The Green Paper does not stop there either and, goes forward to suggest proposals for improving the accessibility of children’s centres and increasing the advice and support available for grandparents in caring for grandchildren. 

Residence Orders and the Presumption in favour of Natural Parents

Until now there has been a presumtion by the courts in favour of the childs natural parents in applications for residence by grandparents. However all of this was recently thrown into question in the case of the Supreme Court in Re B (A Child) [2009] UKSC 5 has placed the natural parent presumption in an important context and challenged the perceived weight of this argument. In this case the child had lived with his maternal grandparents almost constantly from birth and was 3 years old at the date of the appeal. The childs mother was unable to provide suitable parenting and, the father, having enjoyed contact with the child, applied for a residence order that the child should now be living with him. Initially the lower courts had found in favour of the childs grandmother, the father appealed that decision and was successful in the Court of Appeal in overturning that decision, however; the maternal grandmother appealed to the Supreme Court where her appeal was allowed. The Supreme Court stated that :

‘All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.’

The Supreme Court was cautious to state that this was not necessarily a move away from the old law, but that it was an endorsement of the ‘welfare principle’. However; this decision removes the widely held perception in residence application by grandparents that there must be some compelling reason for the court to move away from the almost automatic presumption in favour of the natural parents. What this means in practice is that although there is still a view that there are clear advantages to a child being brought up by the natural parents, this is no longer the determining factor in residence applications brought by grandparents. There is in effect a much wider balancing exercise that must be carried out by the courts in assessing what precisely is in the best interests of the child.

Summary

The role played by grandparents in the upbringing of a child cannot be overlooked. Many parents rely on grandparents to lend a hand in looking after their children and in providing child care and any loss of that bond for the child after the breakdown of the parents relationship is clearly damaging. The current legal position of grandparents appears to have been strengthened by the case of Re B. The courts are now looking at such cases in their entirety when determining where the child should live and assessing the best outcome for the child, whilst placing less automatic reliance on the natural parent presumption. Re B represents a significant milestone in the recognition of the importance of grandparents in assessing the welfare of a child. 

The proposals outlined in the Government Green Paper are to be welcomed as they too provide for an opportunity for children to maintain lasting relationships with their grandparents after family breakdown. There may now be a move toward making applications for residence by grandparents less gruelling by recognising that family breakdown can have a harrowing effect on children and very often grandparents provide the essential bond that helps to maintain stability for the children whilst the parents resolve their differences.

Posted in Children, Solicitors Firm, Unmarried Couples | 3 Comments »