Edward Fennell’s Legal Diary – Edition 79

Friday October 29 2021 

Diary news, commentary, insights, appointments and e-vents from the legal world

SHORT THOUGHT FOR THE WEEK – NO COPPPING OUT PLEASE

COP26 – is it all over bar the Glaswegian rats invading the Ovo Hydro at the Scottish Events Centre and gobbling up all the canapes? As Fitch Ratings commented earlier this week, a key risk is if outcomes from COP26 are seen as underwhelming, with policy resolve from major signatories to the Paris Agreement wavering from their commitments, and specifically the 2030 commitments, which require more immediate and expensive actions.

There is no need for any further apocalyptic visions of what might happen if nothing substantial is extruded from the next two weeks. We know the story. But what is clear is that – along with the scientists and the engineers – the lawyers also have a role to play in trying to make stick whatever agreements are eventually made. Because failure to do so will only encourage the likes of Insulate Britain (but on a larger scale) to take matters into their own – very sticky – hands.

And (almost) no-one wants that.

The LegalDiarist

In this week’s edition

+ LEGAL DIARY OF THE WEEK

– We’re Going to Build a Wall, says Hogan Lovells

– Stop Polluting – That’s the Law according to CMS

– Black Young Professionals backed by Browne Jacobson

– Paralegals Getting Ahead

– Crossing Continents

+ LEGAL COMMENT OF THE WEEK on THE BUDGET AND SPENDING REVIEW

+ LEGAL ANALYSIS OF THE WEEK

– Covid vaccinations for children: Who decides? by Kate Elliott

– Cracking the Family Court backlog: Can arbitration help? by Hannah Gumbrill-Ward,

– Transparency Review leaves Children too Exposed by Mark Harper

APPOINTMENT OF THE WEEK at the UK2000 Group

LEGAL DIARY OF THE WEEK

We’re Going to Build a Wall, says Hogan Lovells

The great fear about COP26, obviously, is that it will be mostly hot methane and not much of ‘the beef’ (so speak). That’s why it is encouraging that Hogan Lovells seems to be doing something very practical by involvement in the GREAT GREEN WALL project. ‘Building walls’ has acquired a rather acid taste of late. But not in this case. The Great Green Wall is an African-led initiative that aims to build an 8,000km barrier of plants and trees at the southern border of the Sahara desert, from Senegal in the west, to Djibouti in the east, in the hope of rebuilding what used to be a thriving and fertile region. As Susan Bright, the firm’s Global Managing Partner for Diversity & Inclusion and Responsible Business, explains, “The Great Green Wall presents solutions to many of the challenges facing Africa and the global community as a whole, including climate change, drought, famine, conflict and migration. We are very proud to be supporting this pioneering project. Delivering on our commitments to being a Responsible Business is one of our firm’s five strategic priorities.”

The project is burnishing its credentials as a member of the Legal Sustainability Alliance, the Net Zero Lawyers Alliance and the American Legal Industry Sustainability Standard.The trailer for the Great Green Wall documentary can be viewed here. For further information on the firm’s pro bono impact see “Earth Fixers” a special series on climate and biodiversity action in partnership with Pioneers Post. Earth Fixers | The Social Enterprise Magazine – Pioneers Post

Stop Polluting – That’s the Law according to CMS

You cannot accuse the younger generation of being laggardly over climate change. Led by Greta Thunberg their activism has been striking (sometimes literally). But maybe it needs to be finessed somewhat because in democratic societies it is the rule of law – for the time being at least – which counts. That is why it is helpful that CMS has partnered with Young Citizens, an education charity, to create ‘Climate action: Using the law to drive change’, a new educational programme which aims to develop UK secondary school students’ understanding and critical thinking around climate action.It also tackles the United Nation’s Sustainable Development Goals (SDGs), why they are important and how they are monitored.

“We are proud to have a long-standing partnership with Young Citizens,” says Penelope Warne, CMS’s Senior Partner, “With this latest programme, we are working to help young people better understand climate action and the role of the law in driving change. Achieving climate goals is a collective responsibility and, as a future facing firm, CMS is actively working to make a positive impact in the communities in which we work and live. We have aligned our Responsible Business programme with the SDGs and have committed to Net Zero by 2025.”

Black Young Professionals backed by Browne Jacobson

Taking place virtually over yesterday and today has been this year’s Black Young Professionals (BYP) Network Leadership Conference. The event focuses on ‘empowering and equipping young black professionals to become future leaders within their organisations’ and it aims to offer a platform for young black professionals and students to make ‘long lasting and impactful career and community connections’.

Supporting the event is Browne Jacobson which will be running a virtual recruitment stall at the event where those e-attending will have the opportunity to engage and network with members of the firm’s recruitment team and volunteers from its internal Race Ethnicity and Cultural Heritage community (REACH).“We are incredibly proud to support BYP, its allies and its community partners on this fantastic event which strives to elevate black professionals and promotes equity and equality in the workplace,” said Browne Jacobson partner, Bridget Tatham who is an Executive Sponsor for Race. “These themes really resonate with us as a firm. We are passionate about enabling our people to be authentic by striving to create an inclusive, diverse and vibrant workspace where everyone is celebrated for their differences. In doing so, our aim is to ensure that everyone has fair and equitable access opportunities ahead.”

Paralegals Getting Ahead

It’s not often that the recruitment of paralegals gets name-checked by a law firm in its public relations activity. But that was what happened this week when Berkeley Rowe announced that it had recruited two litigation paralegals, Anita Niaraki and Berivan Genc and went on to provide their career background.

Maybe that is a sign of the growing appreciation by law firms of the importance that paralegals make to the success of their businesses. Which is why it is good news that NALP (the National Association of Licensed Paralegals) has announced that its courses will now be available at seven more colleges across the UK. “This will provide paralegal students with more options when it comes to where to study and what method of study works best for them,” said Amanda Hamilton, Chief Executive of NALP said. “We have been giving people access to Ofqual-recognised paralegal qualifications since 2009 and are delighted to be extending that opportunity to people across the country with the new colleges that are coming on board. Paralegals have an increasingly important role to play in the legal system, as well as within other organisations, and it is a genuinely great choice for people looking for a career in law, who may not have the time or finances to go down the traditional routes to becoming a solicitor or barrister. We are very much looking forward to working with these colleges and the new paralegal students.”

The new centres are Guildford College, City of Oxford College, Bracknell and Wokingham College, Leicester College, South Thames College, Walsall College, Manchester College and the courses are available both online and on campus. For more information see: https://www.nationalparalegals.co.uk/training-centres/

Crossing Continents

Anyone who knows anything about English history understands that the natural state of Anglo-French relations is mutual belligerence rather than peace and co-operation. So a punch-up in the Channel (or La Manche if you prefer) over fishing is a just a return to normal custom and practice.

Oddly enough, however, there is a current example of harmony between the English and French ways of doing things – and it is in the law. The catch is that it’s in Africa. This is where Gide, the emblem of French lawyers at their most elegant, has signed a strategic co-operation agreement with Bowmans, a Kenya-based firm. Gide, of course, has extensive clients in francophone Africa while Bowman does business in the anglophone countries. “This is a very exciting development” said Bowman’s Senior Partner for Kenya, Richard Harney, “We have a long-standing relationship with Gide and have worked with their lawyers for a number of years. The co-operation agreement strengthens this relationship and will help us to better serve our clients in West and North Africa, with particular emphasis on francophone countries.’

 Meanwhile Jean-François Levraud, Managing Partner of Gide commented, ‘We have known the Bowmans team for more than a decade. We both share the same values and professional excellence. We have a long history of successful joint assignments that have always benefited our clients. This next step in our co-operation will allow us to support our clients in their most complex pan-African transactions.”

If only the two of them could be brought together on Jersey.

LEGAL COMMENT OF THE WEEK

on THE BUDGET AND SPENDING REVIEW

 “The announcement by the Chancellor today is a step in the right direction but there will still be a shortfall of funding to tackle the justice crisis, restore public confidence and reduce the backlogs in our courts and tribunals. Moving forward the Bar Council will be engaging with the profession, courts service and Ministry of Justice to rebuild our justice system.”

 Derek Sweeting QC, Chair of the Bar Council

 “Rishi Sunak’s announcement in yesterday’s budget that part of an allocated £324m would be given to the Family Courts over the next year will be positive news for anyone currently dealing with the Family Courts in England.  Whilst it still remains to be seen how much of the £324m the Family Courts will receive, it is hoped that this much needed injection of cash into the Family Court system will help increase capacity and tackle the enormous backlog of cases that have been exacerbated by Covid-19.  To this backlog have been added 66,357 newly issued cases between April and June 2021, an increase of 14% on the same quarter in 2020 according to the latest Family Court statistics. These new cases have included most case types including financial remedy (76%), private law children (11%), adoption (11%) and matrimonial (7%) cases, although there has been a decrease in domestic violence and public law cases.

“Sunak also confirmed that £200m has been granted to complete the flagship £1.3bn court reform programme by 2024/25.  This is particularly welcome just a week after the Farquhar Committee, instigated by Family High Court judge, Mr Justice Moylan earlier in 2021, published its reports.  The Farquhar Committee is headed by His Honour Judge Farquhar, Lead Judge of the Kent, Surrey & Sussex Financial Remedies Court, and made up of a geographically diverse collection of judges at all levels of the judiciary and practitioners.  It was asked to consider and report on how the Court should continue once the pandemic is finally over and parties are free to attend Court buildings. Mr Justice Mostyn also asked them to consider whether the processes and procedures that are in existence in the Financial Remedies Court could be improved and to consider this alongside the function that remote hearings may have to play in the future.  Many of the suggested changes put forward by the Farquhar Reports, including helpful amendments to financial disclosure forms in financial proceedings and having dedicated members of staff at the court to deal with financial remedies would most definitely help reduce the legal costs of the parties involved in family proceedings and shorten proceedings but would be costly for the court to implement.  Hopefully with the announcement of the additional funds allocated in yesterday’s budget, we will see steps taken towards the rolling out of at least some of the suggested measures raised by the Farquhar Committee in the next year or so.”

Sarah Ingram is a Partner at Winckworth Sherwood

LEGAL ANALYSIS OF THE WEEK

Covid vaccinations for children: Who decides? by Kate Elliott

The battle against Covid is now being fought largely in schools and colleges rather than in care homes. But mass vaccination is a sensitive subject.

In September 2021, Professor Chris Whitty (Chief Medical Officer for England) confirmed that 12 to 15 year-old children who do not have underlying health conditions, would be offered a single dose of a regulator approved COVID-19 vaccination.  This decision came despite the Joint Committee on Vaccination and Immunisation not recommending mass vaccinations of this age group, as the vaccine would provide only marginal benefit given that they are at low risk from the virus. 

As we enter the winter season, and with concerns about rising cases particularly amongst school-aged children, childhood vaccinations remain a live issue.   If parents (whether separated or together) cannot agree whether their child should be vaccinated, or the parents and the child cannot agree, then the court will need to intervene. 

Children under the age of 16 do not have the automatic right to consent or refuse medical treatment.  A child’s opinion may however override that of their parents if a court finds them to be Gillick competent.   A healthcare professional will consider the child’s age, maturity, and their understanding of the decision they wish to make, to include any risks, before advising the court on whether they are Gillick competent and therefore able to override their parents’ decision. 

In the first instance, whether a child should be vaccinated is primarily a decision for those with parental responsibility. When those individuals cannot agree, one may apply to the Court for a Specific Issue Order that the child should receive the vaccine or for a Prohibited Steps Order to stop it.

The Court’s approach to childhood immunisations in most cases focuses on whether the immunisation is in the child’s best interests, backed by significant scientific research.  The approach that the court will take to the Covid-19 vaccination programme is yet to be seen given how recent an issue it is but based on the current scientific research, it will be difficult to claim that having the vaccination offers a medical benefit to those children without underlying health conditions. 

However, the weight given by the Court to the health benefit issue versus the emotional, psychological, and educational benefits that may flow from children of this age being vaccinated is going to be interesting to see.  If the government were to impose restrictions on those that are unvaccinated, it would likely add weight to the court ordering a child to be vaccinated.  Family circumstances may also be relevant, such as whether the child lives with a vulnerable or elderly relative.

One thing is for sure, the volume of information and debate circulating on the vaccination programme for children is only compounding the confusion.

 Kate Elliott is a Partner at Family Law Partners.

Cracking the Family Court backlog: Can arbitration help?

With a 72% rise in the number of applications made for a financial remedy to the Family Court over the past year, the relatively under-utilised method of arbitration may offer a solution says Hannah Gumbrill-Ward, Solicitor at Winckworth Sherwood

“The Family Court is not currently in a good place” stated Sir Andrew McFarlane, President of the Family Division, at the recent Jersey International Family Law Conference, later adding that “the substantial backlog that existed before the pandemic has now grown very substantially”. Indeed, the latest Family Court Statistics revealed that there were 66,357 new cases started in the Family Court in April to June 2021, up 14% on the same quarter in 2020, with the most notable increase seen in the number of applications made for a financial remedy, which rose by a huge 72% from April to June 2021, when compared with the same quarter in 2020. Unsurprisingly, given this backdrop, it is becoming more and more important for people to engage with forms of alternative dispute resolution rather than relying solely on the Family Court to help them resolve their disputes.

Many people new to the Family Court system will have at least heard of mediation, not least because it is a requirement for most prospective applicants in proceedings to attend a mediation information and assessment meeting (MIAM), even if they subsequently chose not to engage with the process further. But few will be aware of arbitration and it is relatively under-utilised in family law proceedings. Despite this, it is a vital and incredibly effective way to resolve disputes and many practitioners are increasingly calling for the greater use of this valuable resource.

What is arbitration?

Arbitration is often described as a mirror alternative to court proceedings as the parties appoint a suitably qualified person to make a decision about their dispute outside of a formal court room. The parties agree to be bound by the reasoned written decision of the arbitrator which is called an Award in financial matters or a Determination in children matters.

The arbitrators Award or Determination will be binding upon the parties but if the decision is wrong or unfair in law, it can be appealed in the same way that a party could appeal a judgment made in traditional court proceedings as confirmed by Mr Justice Mostyn in July 2021 in A v A (Arbitration Guidance) [2021] EWHC 1889 (Fam).

What are the benefits of using arbitration?

1. Time savings. Not only do you avoid the backlog in the Family Courts, where it will most likely take in excess of a year for your matter to get to a final hearing, but you are also guaranteed that your matter will be heard on a certain date. All too often now we are seeing final hearings vacated by the court at the last minute due to judicial unavailability with no guarantee of when the matter will be relisted.
2. Cost savings. By speeding up the process and guaranteeing a hearing date, there are significant savings on ongoing legal fees.
3. Emotional cost savings. It also cuts down on the stress of court proceedings.  Rather than matters dragging on for an extended period of time, they can be dealt with quickly and with more certainty.
4. Control. The parties can select the arbitrator, the date and time of the arbitration and the venue. There is also less time pressure on the arbitrator and the arbitration itself, which means that the arbitrator will have adequate time to prepare and read all the relevant documents, and that time will not be limited by court sitting hours or another matter suddenly appearing in the judges list.

Can you use arbitration in disputes involving children?

Although perhaps more known for its use in financial proceedings, it is possible to use arbitration in disputes involving children and generally speaking, any issue between parents or other persons holding parental responsibility will be covered by the Children Arbitration Scheme. This includes:

• Where a child should live, including shared living arrangements;
• Visiting arrangements including holiday time to be spent with a non-resident parent;
• Decisions about a child’s education.

Often, arbitration in children matters is suited to those cases which involve a single-issue determination, such as whether a child should attend a certain school or in relocation cases (which are covered under the scheme provided the relocation is to certain foreign jurisdictions).

While many people will view arbitration as just additional expense and will not initially be willing to bear the cost of the arbitrators’ fees, the overall cost (and other) savings that can be gained by utilising this method of ADR cannot be underestimated.

Hannah Gumbrill-Ward is a solicitor at Winckworth Sherwood

Transparency Review leaves Children too Exposed

The Family Division’s Transparency Review will allow for more media/public access and reporting in the Family Courts. Not such a good idea, says Mark Harper

 “The current law in this respect is a mess. Although this review will provide more transparency on family proceedings, it also opens the door to potentially dangerous outcomes for children – from mental health to hesitancy to testify, who, through no fault of their own, are forced to have one of the most difficult times of their lives made publicly available for years to come.

“Justifying decisions in children’s cases should not take priority over protecting children and the identities of them and their parents.

“Almost all of the children and young people in a survey for the 2010 Children’s Commissioner for England’s report on the views of children and young people on media access to family courts were opposed to the decision to permit reporters into family court hearings, with the majority feeling the issues addressed by court hearings are private. These issues are considered ‘painful, embarrassing and humiliating’ for children and the majority of respondents said they were not the business of newspapers or the general public.

“Most worryingly about this report were findings that children will be unwilling or less willing to talk to a clinician about ill-treatment or disputes about their care, or about their wishes and feelings once they are told a reporter might be in court. This could have significant implications on the future well-being and safety of the child.”

 Mark Harper, is a Partner at Hughes Fowler Carruthers.

 APPOINTMENT OF THE WEEK at the UK2000 Group

Peter Stafford, the Managing Director of Cartmell Shepherd Solicitors, has been elected as chair of the UK200Group Lawyers’ Group which consists of sixteen law firms from across the country. Launched in 2020, the Group is composed of independent, quality assured chartered accountancy and law firms and provides a forum for member law firms to promote their expertise and share best practice.The appointments were announced ahead of the UK200Group’s Annual Conference which will be held in Edinburgh on November 10-12

Stafford said, “I am delighted to have been asked to be chairman, and this is a great platform for the law firm members and an opportunity to expand the business we do. Cartmell Shepherd Solicitors became a member of the UK200Group around five years ago and it’s an invitation only group where you have to go through a rigorous approval process so we feel honoured to be in the company of such high esteemed businesses.

The previous chairman was Mark Lello of Parker Bullen Solicitors

E-VENTS

View email online

The in-house lawyer – working effectively across the organisation   In conjunction with Thomson Reuters, please join us for a discussion led by experienced lawyers, on the role of the in-house lawyer and how to make the transition from private practice to in-house work. Date:  23 November 2021  Time: 2.00pm-3.30pm (GMT) This session is for all in-house lawyers and may be of particular interest to those in their early years of in-house work and those thinking of moving in-house.  In this discussion we expect to explore a range of issues relevant to this important topic, including:What is the core role of the in-house lawyer? Working with your managers and colleagues.The wants and needs of internal clients.What happens if they don’t seek necessary advice?Using external lawyers.Making a contribution across your organisation; andThings I learned the hard way.  Please click the Accept button to register for this webinar. Once you have registered you will be sent a confirmation email with full details.If you have any questions, queries or comments, please contact us at admin@legalleadership.co.uk ACCEPTDecline invitation