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Designated Family Judge’s Newsletter – June 2015

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  1. I am sending out this newsletter to ask people please to ensure that they are aware of two things. Firstly, the orders that may be made under the inherent jurisdiction of the High Court to retrieve children who have gone missing; these are commonly called ‘Tipstaff orders’. Secondly, to give some help in relation to Section 98 of The Children Act 1989.
  2. Under the inherent jurisdiction of the High Court, orders can be made to assist in retrieving children. Amongst the wide range of orders that are available there are three very specific types of order. They are called collection orders, location orders and passport orders. Each order has two parts. One is the directed to the Tipstaff and directs the Tipstaff to assist in implementing the court’s order. The collection order provides that the child is to be found and placed in the custody of a named person until there is a further hearing before the court (which must take place within three days of the child being found). The order usually permits the Tipstaff to enter premises to retrieve the child and to arrest anyone whom he has reasonable cause to believe has disobeyed or obstructed the order; anyone so arrested must be brought before the court as soon as practicable but in any event no later than the working day immediately after arrest. The collection order also contains other ancillary provisions.
  3. A location order is similar to a collection order but provides for the child to be located, rather than collected. Thus it is a less invasive order. A passport order involves control of passports. All three orders may provide for the surrender of passports and the prevention of applications for further passports in relation to the child.
  4. The Tipstaff keeps draft forms of each of those orders. The drafts may change from time to time and that is why standard draft forms should always be requested from the Tipstaff himself before any such orders are made; they are not held by the court offices and are not for general release. The Tipstaff, Richard Cheesley, can be contacted by the court from the global email address facility or may be reached by telephone – 0207-947-6200. He, or one of his assistants will be available at any time (‘24/7’). There is a brief explanation of his role in Paragraph 7 of PD 12B of The Family Procedure Rules 2010.
  5. These orders can only be made by a High Court Judge (which includes a Circuit judge with High Court authorisation). It is imperative that any orders that are made should be drafted in the correct form. Once made, they are very effective indeed.
  6. Please also ensure that you are aware of the port alert procedure under PD12F, paragraph 4 of The Family Procedure Rules 2010; it is in the Red Book.
  7. As to section 98 of The Children Act 1989, this is the provision that relates to self incrimination in public law proceedings. It does not apply to private law proceedings. A lawyer acting for a client where the issue of self incrimination might arise must give advice to that client about it. I have been asked for some guidance about the possible wording of a warning that might be given. I do so with some hesitation because I need to stress that the guidance that I am giving is not necessarily the correct terminology for all cases and it therefore remains the duty of individual lawyers and courts to consider the case before them and adapt the wording of any warning that is given. However, with that strong caveat, I have attached some possible draft wording that might be used in a public law case.
  8. Please can you consider that wording. If there are amendments that you think should be made to it please inform me. The wording is as follows:

1. I need to explain to you now a rule of law. It is important that you understand what I am saying. If you do not, you should ask me to explain it to you further.

2. As you know allegations are made against you within these proceedings. These are family proceedings and not criminal proceedings and it is not for this court to decide whether you should be convicted or acquitted of any criminal offences. Within these proceedings however, the court will have to decide whether the allegations made against you by the Local Authority are true or not. If those allegations were shown to be true that would mean that, insofar as these proceedings are concerned, you would have committed misconduct of a criminal nature.

3. I have to warn you therefore that, within these proceedings, you are not permitted to refuse to give evidence or file documentation on the basis that to do so might tend to show that you have engaged in conduct of a criminal nature. When and if you give evidence or file documentation, you may not refuse to answer any questions (or refuse to provide documentary evidence) that might tend to show that you or your spouse (or civil partner) have engaged in such conduct either.

4. If you do give evidence that suggests that you have committed criminal misconduct, that evidence would not be admissible in criminal proceedings against you, except in relation to any prosecution against you for perjury. Section 98(2) of The Children Act 1989 states that that is so. If you were to lie deliberately within these proceedings that could lead to you being prosecuted for perjury and what you had said could be put before the criminal court against you.

5. However, it is important that you understand that, if the court gave permission, anything that you do say or file in these proceedings might be released to the police for them to use during their enquiries into any allegations that you have committed any criminal offence (and by ‘any offence’ I am not referring just to perjury). Further, if you were to be prosecuted there could be applications in the criminal court for the prosecution (or any co-defendant) to cross examine you about anything that you had said in these proceedings. It would be for the criminal court to decide on whether they should be permitted to do so.

6. Your lawyers will explain this warning to you further. It is their duty to do so.

His Honour Judge Stephen Wildblood QC

7th June 2015

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Guidance for Litigants in Person

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Lawyers bodies have published some guidance for lawyers dealing with litigants in person, for litigants in person on what to expect from lawyers representing other people involved in their case, and to help people who do have lawyers to understand what is expected of their lawyer when dealing with an unrepresented party in the case.

You can find the guidance on the Bar Council website here.

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Free Family Law Class Postponed

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UPDATE – This event has been postponed due to lack of interest, but it is planned that it will be run on a future date. Please contact Rebecca Cobbin if you would like to attend when rescheduled.

 

At 4.30 p.m. on 20th April 2015 local family lawyers (Ben Jenkins, Lucy Reed & Judi Evans) will run a conference that is open to members of the public in which he will explain some of the basic law and procedure that is applied by the family court. The conference will be held at the Civil and Family Justice centre, 2 Redcliff Street, Bristol and will end by 6 p.m. It will not be possible for the lawyers to discuss individual cases, of course, nor will they wish to express any opinions about whether there should be any changes in the law. The intention of the conference is to encourage a better understanding of how the court currently operates and some of the dilemmas that it faces. There will be opportunities for discussion and for questions to be asked. If you wish to attend please can you leave your name, the organisation that you represent (if any) and your contact details by emailing the Family Delivery Manager, Ms Rebecca Cobbin on rebecca.cobbin@hmcts.gsi.gov.uk.

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Welcome from HHJ Wildblood QC

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HHJ Stephen Wildblood QC

HHJ Stephen Wildblood QC

This website makes a very important contribution to the system of family justice in this area. It has been created by a team of lawyers who are dedicated to the promotion of the welfare of those that the family court and legal community seek to serve. The team has worked under the outstanding leadership and guidance of Lucy Reed, a barrister from St John’s Chambers in Bristol, who designed the website herself. Like the members of that team, I am determined to ensure that the system of family justice in this area is both accessible to all and optimal. Therefore it has been my privilege to offer my support to that team, to work with them and witness Lucy’s leadership and drive.

This is a website for the community as a whole, not just lawyers. It is intended, in particular, to help people who may find themselves involved in distressing family disputes. A key feature of it is that it helps people to access legal, emotional and social support which, hopefully, may help them to avoid litigation. Family litigation has to be a last resort because it is both emotionally and financially very demanding. If the demands of that sort of litigation are to be avoided or mitigated people need to have access to as much information and support as possible. It is only in that way that they will know what to expect and how to avoid some of the pitfalls. If the litigation cannot be avoided then we all need to make it as just, intelligible and accessible as we can.

I will use this corner of the website to publish information about the running of the court in this area in my role as Designated Family Judge. I want to do my best to ensure that people know what we are doing and how we are all striving to do our best for the local community in these difficult times. The website is not a court service website (that is, it is not a site that speaks in any way on behalf of Her Majesty’s Courts and Tribunals Service). It is not a Ministry of Justice website either. It is a website that has been created by the dedicated and independent team that I have described. I pay tribute to them for what they have done and wish to say how grateful I am to them.

HHJ Stephen Wildblood QC
Designated Family Judge for Avon, North Somerset and Gloucestershire

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Supporting Separating Parents in Dispute Pilot

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The Supporting Separating Parents in Dispute is a pilot programme being run by CAFCASS (Children and Family Court Advisory and Support Service). It aims to help separating parents in dispute access information, guidance and support about the most appropriate dispute resolution pathways available to them. It is open to people living in the following postcodes : BS1-11, BS13-16, BS20, BS22-24 BS30-37, BS41. The pilot is running for 6 months from November 2014.

If you live in a pilot area, you can access the ‘Supporting separating parents in dispute’ freephone telephone based service which will discuss your situation, identify your needs and then match these to the local services which can provide advice and support. The number is 0800 380 0040 and the helpline hours are 9am -5pm.

Each parent who calls the helpline will be allocated a case worker, who will help with access to the most appropriate services and where possible, arrange appointments for parents. Wherever it is appropriate the service will encourage you to access a suitable form of dispute resolution service – referred to, under the pilots, as a local out of court pathway.

The initial telephone support will be followed-up by a further phone call, around three weeks later, to assess progress on the efforts to resolve the dispute and provide further assistance where necessary.  As this is a pilot, callers may also be contacted at later points for evaluation purposes.

As this is a pilot, the telephone based service to help parents find the most suitable local service depending on their needs, is only available in the following areas.

You can find out more about the pilot here.