New legislation fails the needs of the most vulnerable children in society

new legislation fails the most vulnerable

New legislation fails the needs of the most vulnerable children in society

The pandemic has plunged more young people into the care system, placing pressure on all relevant legal and social work professionals, including the courts and local authorities. It has been reported that three-quarters of children’s residential settings in England are privately run, which can mean that they can choose whether a child fits their criteria rather than questioning whether the placement actually fits the welfare needs of the child.  This means that the most vulnerable children could be placed in unregulated and unsuitable placements.

Senior Associate Nicola McDaid explains further.

 

On Friday 19th February 2021 the Department for Education announced that it will ban the use of unregulated accommodation (this is accommodation which is not Ofsted approved, registered or inspected by the council) for children in care aged 15 and under. This means as from September 2021 through amending

The Care Planning, Placement and Case Review (England) Regulations 2010

it will be illegal to place children in unregulated accommodation.

Vulnerable children

The government’s change in legislation is intended to ensure that the most vulnerable children are cared for in placements which best meet their needs.

However, this ban does not affect the thousands of 16 and 17-year-olds who already reside in unapproved, unregistered and unregulated placements which can be known as semi-independent or supported accommodation and are not inspected by a regulator in England or Wales.

Sadly, many children aged 16 and 17 years old, having already experienced abuse, trauma and/or exploitation and who may end up in these unregulated settings, are also the most vulnerable children who clearly need the additional support which will not be provided to them under this new legislation.

New legislation

Many legal professionals have already expressed concern that this new legislation won’t meet the welfare needs of these children, at a time when they need it the most, as they progress to adulthood. There is a feeling amongst legal and social work professionals that this could create a two-tier system, with the state effectively washing its hands of young people when they get past a certain age.

The government has promised it will look to introduce national standards for unregulated accommodation for older children in care and care leavers (a child 16 years old or above) to ensure the standard of placements are a high quality and that will meet the welfare needs of these children, but unfortunately such legislation is not yet in force.

Without question this is a very worrying time when the burden on the system means that more unregulated placements are having to be utilised, and it is hoped that the government will make this a priority to ensure that all children of all ages have the best possible care when they are unable to reside with their families.

We are here to support you. Come to us with your questions and our expert team of family lawyers are on hand to give you the assistance you need. Please get in touch today – we’re here to help.

Divorce is not your only option

divorce is not your only option Louise Redknapp

Divorce is not your only option

Louise Redknapp has been reported this weekend as saying she has regrets about divorcing her husband Jamie: “I should have paused for a minute and thought about other people and had just a bit more time to work out why I felt I couldn’t do it anymore. All I know is, I wish I’d tried [to save the marriage].”

She added: “I want to say to anybody who is thinking of running: ‘Just slow down. Don’t run.’ Because once you run too fast, you can’t make up the ground you’ve lost.”

People make decisions that they believe are right at the time, and nobody is criticising Ms Redknapp for taking the path she did. However, it is sobering to think that perhaps the Redknapp’s marriage might still be going strong today had decisions not been made so quickly. Divorce is not your only option.

Our managing partner, Amanda McAlister, explains there is another option available to those unsure as to whether or not they want press the divorce button.

“As a family lawyer of many years’ experience, and someone who has herself been divorced, I can say with certainty that although you will have heard stories of acrimony and bitterness, it doesn’t have to be that way. Being transparent about your emotions, and managing your expectations are two key areas to focus on.

“But for those couples not ready to bring an end to their marriage through a divorce or dissolution of their civil partnership, or who want to allow a period of reflection, there is the option of a Legal Separation.”

What is a Separation Agreement?

A separation agreement, entered into by both parties, is an agreement setting out how the couple’s assets should be divided and whether there should be any ongoing financial support – it can be tailor-made to the couple’s individual circumstances.  Within the document the parties commit to commencing divorce proceedings after they have been separated for two years.

Is a Separation Agreement legally binding?

In a word, no. But if it has been properly drawn up with full financial disclosure, and various safeguards have been met, then the court could hold the parties to it, unless their circumstances have changed substantially since the agreement was signed.

What are the advantages?

It can provide a sound basis for the ultimate financial consent order that should be presented to the court once the divorce or dissolution has reached the appropriate stage. And entering into a separation agreement is far less uncertain that simply deferring the question of the financial settlement until the divorce proceedings are initiated.

And the disadvantages?

In brief, a divorce brings closure, a separation agreement doesn’t. And closure can be extremely important, particularly for children who need certainty, and for the wider family who will then be able to accept that the marriage ending is final.

Remember that although the No-Fault Divorce Act received Royal Assent in June 2020, the reforms have not yet come into force. This means that your divorce petition must prove the marriage has irretrievably broken down by evidencing one of five, specific, statutory facts:

  • adultery
  • unreasonable behaviour
  • desertion (in practice, this is rare, and difficult to prove)
  • two years’ separation, with agreement by both that there should be a divorce (and it’s worth considering that this two years of separation in itself provides a “cooling-off” period – a time for reflection)
  • five years’ separation (the consent of the Respondent is not needed)

“To summarise, whist the prospect of commencing a divorce is incredibly stressful and upsetting, it does provide closure not only to the adults but also children, allowing the whole family to move on. A divorce also allows a binding financial settlement to be achieved ensuring that both parties are provided with financial certainty and security for the future.”

 

We are here to support families, whether they are making up, or breaking up. Nobody knows what the future holds, but we want to assure you that you are not alone. Come to us with your questions and our expert team of family lawyers are on hand to give you the assistance you need. We’re here to help.

When parents can’t agree on vaccinating their child

child vaccination

When parents can’t agree on vaccinating their child

Parents, married or separated, will quite naturally disagree on many things. As family lawyers, we see these disagreements a lot but there is a worrying rise of cases where parents cannot agree on vaccinating their child.

Vaccinations have already proved to be a tricky subject for some parents: you may remember parents disagreeing about the MMR vaccination in late 1990s and the now disproven theories about the connection to autism.

It is important to bear in mind that the starting point regarding childhood vaccinations is that everyone who holds ‘parental responsibility’ for a child should be consulted and should consent to children receiving any vaccination.

A recent case has brought the issue regarding whether or not children should receive vaccinations to our attention again.

In December 2020, the court handed down Judgement in the case of M v H (Private Law Vaccination) [2020] EWFC 93, [2020] All ER (D) 115 (Dec)

The court determined whether two children should receive the vaccinations as set out in the NHS vaccination schedule.

The parents concerned had been separated for some time, and had two children from their relationship. The father’s initial application sought a Specific Issue Order, requiring that the children have the MMR vaccine. However, this was later extended to include any further childhood vaccines as per the NHS schedule, any vaccinations that may be required before foreign travel, and any vaccination against COVID-19 (should that become a government recommendation).

However, the mother opposed this application. The Judge hearing the matter, Mr. Justice MacDonald,  decided he would limit his Judgement to only those vaccinations on the NHS schedule, stating it would not be appropriate to determine at present vaccinations for foreign travel, which may or may not be required in the future, and likewise the COVID-19 vaccination. He found there was no evidence before the court on these vaccinations, and therefore it would not be appropriate for him to decide on this.

COVID-19

When giving his Judgment in relation to the COVID-19 vaccination, Mr. Justice MacDonald did however state in paragraph four of his Judgment:

“I wish to make abundantly clear to anyone reading this judgment that my decision to defer reaching a conclusion regarding the administration to the children of the vaccine against the coronavirus that causes COVID-19 does not signal any doubt on the part of this court regarding the probity or efficacy of that vaccine. Rather, it reflects the fact that, given the very early stage reached with respect to the COVID-19 vaccination programme, it remains unclear at present whether and when children will receive the vaccination, which vaccine or vaccines they will receive in circumstances where a number of vaccines are likely to be approved and what the official guidance will be regarding the administration of the COVID-19 vaccine to children.”

Children Act

The parents were going through private Children Act proceedings regarding contact arrangements, however on the recommendations of the children’s guardian, it was agreed this issue should be dealt with separately. The mother represented herself as a litigant in person (it should be noted she did apply for an adjournment to seek legal representation, this being refused by the Judge, who said he did not feel the mother would be prejudiced by matters proceeding without her being legally represented, and that the two statements she had filed demonstrated her understanding of the issues and her ability to argue and put forward her case and position).

The court relied on the statements of the parties only, that is, without any expert evidence, and having nothing from a jointly-instructed medical professional.

The arguments put forward

The mother was opposing the children having their NHS scheduled childhood vaccinations saying her opposition was based on six years’ research; she also referred to an article she had found suggesting a link between the MMR vaccine and autism. The mother directed the court to various articles and papers, including an American paediatrician, Larry Palevsky, and American nephrologist, Dr Suzanne Humphries. It was commented by the Judge that both individuals were vocal advocates against vaccinations. The mother suggested it was not in the children’s best interests to have the vaccinations, suggesting this put them at risk of further health issues, and children whom had not been vaccinated had a better natural immunity to illnesses.

The mother put forward nine arguments:

  • Referencing the comments of Lady Justice King in the case of Re: H (A Child: Parental Responsibility; Vaccination) that, “vaccination is not immunisation”. She submitted that the administration of a vaccination is to help the body develop an immune system to protect from the disease and is therefore not 100% effective. The mother’s submissions were that between two and 10% of cases a vaccination was ineffective
  • That the vaccination did not prevent a party carrying the disease
  • That the diseases which the children were being vaccinated against are generally mild and cause limited difficulties for healthy, well-nourished children
  • That further investigation was required into the ingredients in the vaccinations and, listing the ingredients in the MMR vaccine, the mother stated she objected to these ingredients being injected into her children
  • That the recommendation by Public Health England that children should be vaccinated was out of date, and had fallen behind further research and developments and advances in science, which were suggesting the vaccines caused long term health issues in children
  • That the vaccines cause damage to the children, with the side effects being more detrimental to the children than the benefits. The mother suggested there have been only two deaths of children under 10 from measles in the last 10 years whereas, by comparison, a far greater number of claims have been made for damages against the UK Vaccine Damages Programme Unit
  • That the children should be tested for ‘natural immunity’ before being given any vaccinations
  • That any order forcing her to have the children vaccinated would be an unnecessary and disproportionate breach of Article 8 of the Human Rights Act, right to a family life, and asserting forcing the children to be vaccinated would constitute an assault or grievous bodily harm

This case can be distinguished from previous authorities where vaccinations have been directed on the grounds that the previous case referenced by the Judge Re: H (A Child: Parental Responsibility: Vaccination) was a public law case. The mother submitted in this case there were wider welfare concerns, which did not apply in this matter.

The Children’s Guardian supported the father’s position that the children be vaccinated, stating this was in accordance with the recommendations of Public Health England and NHS Guidance.

The Judgment

In giving his Judgment, Mr Justice MacDonald considered the Guidance on Parental Responsibility and where those holding parental responsibility could not agree on the immunisation of a child, this should be determined by the court.

Mr Justice MacDonald made reference in his Judgment to the case of Re H (A Child: Parental Responsibility: Vaccination), stating the Court of Appeal undertook “a comprehensive review of this area” and reached the following conclusions:

 

  • It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guidelines but there is at present no legal requirement in this jurisdiction for a child to be vaccinated
  • Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated, the current established medical view being that the routine vaccination of infants is in the best interests of those children and for the public good
  • All the evidence presently available supports the Public Health England advice and guidance that unequivocally recommends a range of vaccinations as being in the interests both children and society as a whole
  • The specific immunisations which are recommended for children by Public Health England are set out in the routine immunisation schedule which is found in the Green Book: ‘Immunisation against infectious disease’, published in 2013 and updated since
  • The evidence base with respect to MMR overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases
  • The clarity regarding the evidence base, with respect to MMR and the other vaccinations that are habitually given to children, should serve to bring to an end the approach whereby an order is made for the instruction of an expert to report on the intrinsic safety and or efficacy of vaccinations as being necessary to assist the court to resolve the proceedings pursuant to FPR Part 25, save where a child has an unusual medical history and consideration is required as to whether the child’s own circumstances throw up any contra-indications
  • Subject to any credible development in medical science or peer reviewed research to the opposite effect, the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects
  • Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare
  • This approach to the medical issues does not act to narrow the broad scope of the welfare analysis that is engaged

Mr Justice MacDonald held:

“With respect to the vaccines with which I am concerned, in the absence of new peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed.”

The future

This case reaffirmed the previous Judgment and guidance of Re H (A Child: Parental Responsibility: Vaccination) which still applies in cases where there is a dispute about a child being vaccinated. The court confirmed there is nothing, either in this jurisdiction or abroad, that goes against the recommendations of Public Health England that it is in the best interests for children to be vaccinated.

Although the Judge was very careful to try and avoid setting any precedent in relation to any possible COVID-19 vaccination, due to the timing of this Judgment, this case may have set a precedent and guidance that could prove highly relevant should it be suggested that children be vaccinated against COVID-19 and this form part of the NHS’s schedule and recommendations. If this was to be recommended by the NHS, it may appear likely that the court would find it difficult to direct children should not be vaccinated.

If you are affected by any of the issues raised here, please seek the advice of an experienced family lawyer. Get in touch with us today. We are here to help.

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