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Human Law Mediation Blog: Recent Posts

Thursday August 28, 2014 at 12:35pm
The recent report of the Rotherham Child scandal has not only uncovered failings with the police and child services but also exposed defects in legislation drafted by the Coalition government.

The Prime Minister, the Home Secretary, the Deputy Prime Minister and others may be calling for a certain Shaun Wright to resign/consider his position from his £85,000 per annum as Police and Crime Commissioner(PCC) but there is little they can do.

Under the legislation that created the roles in 2012, a PCC can only be suspended if:

(a) the commissioner has been charged in the United Kingdom, the Channel Islands or the Isle of Man with an offence, and

(b) the offence is one which carries a maximum term of imprisonment exceeding two years

Did they think the legislation through when it was drafted?

We are left to a Labour MP John Mann who has written a letter to the Home Secretary Theresa May calling for multiple misconduct charges to be brought against those responsible.

He said: to the BBC "Having looked at the misconduct law it clearly can apply in situations like this and the severity of the issue makes a misconduct in public office charge appropriate for those who sat on reports in the council and in the South Yorkshire police. Multiple charges need to be considered.
"As Shaun Wright is one who needs investigating I will be asking the Home Secretary to use another police force to investigate."

Nice try but I would imagine it would be very difficult to prove criminal charges against Mr Wright and politicians do not have exactly the greatest record in conducting legal cases.

Just ask Shadow Chancellor, Ed Balls in connection with the dismissal of Haringey Head of Child Services, Sharon Shoesmith. Here the employee could (theoretically be sacked) but this was messed up with severe financial consequences for the taxpayer.
Tuesday August 12, 2014 at 1:41pm

So, the government has made the commitment that from the age of 10, children and young people involved in all family court hearings in England and Wales will have access to judges to make their views and feelings known.

The announcement was made following calls from young peoples representative group, the Family Justice Young People’s Board, that for too long children have been pushed and pulled through the family justice system with little or no say on what happens to them.

This is clearly to be welcomed and good luck to the government will also work with mediator sector so that children have appropriate access to mediators in cases which affect them.

The age of 10 has been used to be consistent with other existing policy and practice in this country. It is the age of criminal responsibility for young people in England and Wales.

Children are already having to go through a lot as they negotiate their parents divorce and if a Judge can get involved (sooner rather than later) it may not only help the child but may encourage parents to act with more sense.

Monday August 4, 2014 at 4:18pm
Dealing with probate it  is interesting to note that according to the High Court, claims for mishandling a deceased’s estate have more than tripled over the last year.

The data shows there were 368 claims lodged for breach of fiduciary duty in 2013, up from 107 on the previous 12 months.

The claims range from theft of assets by the executor to fraudulent distribution of assets to favour certain beneficiaries of the will above others.

The Law Society Gazette refer to Matthew Evans, a partner in the Cardiff office of Hugh James, who believes that this is due to the rise to the increased use of acquaintances or family members as DIY executors and trustees, rather than instructing solicitors.

Matthew Evans is probably right.

People want to save costs.

Many people are still scared of lawyer's fees and some people are still intimidated by seeing a lawyer.

They try to use family members or sometimes they use unregulated will writers who can charge more than lawyers, which rather defeats the point.

DIY lawyers do not just have problems with say irate beneficiaries instructing lawyers to sue them.

There are other potential threats and this focuses on tax.

Earlier this year it was reported that the HMRC has seen a 23pc rise in the amount raised by challenging estates over inheritance tax. The take from death duty has been climbing steadily in recent years. In the last full tax year, ending April 2013, £3.1bn was collected, up from £2.9bn the year before. But research had shown that an increasing slice of that total derives from challenges made by HMRC over the correct valuation of estates.

It found HMRC raised an extra £108m through these challenges in the in the year to April 2013, up from £88m in the previous tax year.

You can understand individuals wanting to save on lawyer fees; the problem is that many people do not know what they are getting themselves in for.
Friday July 25, 2014 at 7:53am
It has been recently reported that sacked Haringey Children's Services Boss, Sharon Shoesmith secured a  payout of more than £600,000

There is a confidentiality agreement in place but according to the Guardian the sum includes £217, 266 in compensation for loss of office and £377,267 for salary, fees and allowances.

This followed the conviction of, Peter Connelly's(Baby P) killers which led to one of the biggest child-protection controversies of recent years.

Peter, who was on Haringey's child-protection register, died after months of abuse. His mother, Tracey Connelly, her boyfriend, Steven Barker, and his brother, Jason Owen, were convicted in November 2008 of causing or allowing his death.

A financial settlement between Haringey and Shoesmith was agreed last October but the sum was not disclosed which is the normal state of play. However Haringey's published accounts enabled the press to put two and two together.

It is worth reflecting that one of the key reasons why Ms Shoesmith was in such a strong legal position was due to the sheer trigger happy conduct of Mr Ed Balls who effectively removed Miss Shoesmith from her statutory role at Haringey with no warning and flouting the most basic legal procedures.

Mr Balls was Children's Secretary at the time of Ms Shoesmith's sacking.

What I do find pretty surprising is that Mr Balls who is a would be Chancellor next year said this week that whilst he was "frustrated" by the court's ruling, he said that he would make the same decision again.

He is reported to say "I had a duty to children in Haringey and across the country to act. It was my judgment that that was the only way to keep confidence in children's services."

Such a statement ignores the fact that Ms Shoesmith was by no means solely responsible for the death of the baby Peter and illustrates an unwillingness to learn the facts.

Moreover, it is not great to know that someone does not care too much if he saddles the tax payer with more than £600k of damages to an employee.

To boot, the council previously revealed it had spent £196,000 on legal costs fighting Shoesmith's appeal.

Expensive stuff.

But dealing with Ms Shoesmith's figures, why were they so high bearing in mind that the claim for unfair dismissal is capped at compensatory award: lower of £76,574 or 12 months' gross pay?

One of the key reasons why Miss Shoesmith was be entitled to such a high pay out was because she obtained what are known as McLaughlin damages, due to the fact that the decision to remove her from her post was held to be void.

A McLaughlin-type order refers to an order where it declared that an employee’s purported dismissal was ineffective in law to end his tenure in office and so (s)he was “entitled to recover arrears of salary and payment of pension contributions until he resigns or his tenure of office lawfully comes to an end”.

Since Ms Shoesmith never received formal notice, unless and until she either gave notice herself or notice was given to her, she remained in post and continued to be paid as such.

As she was on such a high salary and was not subject to a cap the claim jumped up.
Tuesday July 22, 2014 at 2:11pm
In the aftermath of the plane crash that killed all 298 people aboard Malaysia Airlines Flight 17 on Thursday 17th July,  it is worth considering that beyond all the grief,  the victims’ families and countries are likely to being drawn into a lengthy court process.

My mind is taken back to the Lockerbie bombing and the fact that it took more than 20 years for the victims to obtain compensation.

With all the journalists and politicians grandstanding, you do wonder how effective the families will ultimately be. I suppose obtaining some compensation is better than none.

Whether there is actual justice is another matter. Jim Swire who took a high profile after his  23 year old daughter died at Lockerbie became convinced that the convicted Libyan bomber was innocent.

Dealing with the money,  despite some contrary reports it is tempting to view the airline will be the initial focus of potential litigation from the grief strucken passangers. I have read that initial mandatory pay outs are virtually guaranteed to approach $50 million with of the Montreal Convention, which governs the rights of passengers in international travel. Apparently Malaysia Airlines automatically will be responsible for about $150,000 per passenger.

For Malaysia Airlines to avoid liability beyond the initial pay out mandated as part of the Montreal Convention, it will have to prove that it was not only following international airspace protocol but also that it did everything in its power to protect the passengers.

Although the airline was minding its own business and was flying in international skies, 1,000 feet above the 32,000 feet claimed as official Ukrainian airspace, it will be legally vulnerable as  it was widely known that three military planes had been downed in that airspace just prior to the shooting down.

It seems that the quest for justice may be determined by the airline's insurers' Allianz and Atrium.

If the airline is sued and both pay out, they could probably would pursue a right of subrogation against either Ukraine or Russia, which means it would pay Malaysia Airlines for its liabilities, and the country responsible would be sued for those expenses.

Even if the separatists or Russians are found to be at fault, that does not  mean reparations will be forthcoming. It is unlikely that claimants would collect any money from the separatists. The Russians may not even turn up to Court.

As one lawyer said on the issue  "Anybody can sue anybody they want, but that gets you some headlines for a day or two and then frustration for years."

Depressing stuff.
Monday July 7, 2014 at 9:17am
I am currently doing some work with a leading brand and helping to advise their elderly clients on their key legal issues.

One of the issues which is of primary concern is how to avoid liability for care fees.

The issue is getting a lot of attention with the implementation of the new Care Bill which has introduced a cap on care fees of £72,000.

However anyone who has scrutinised the Bill knows that it  may  take almost five years for elderly people to hit the cap, which will be introduced from April 2016, during which time they could have spent more than £150,000 on the costs of care. Indeed, the Institute of Actuaries even bandies the figure of £250,000 though this number may be too high.

The reason for such high numbers is because the cap does not cover accommodation and living expenses, and care costs only count towards the limit at the rate the local council would pay for a place in a residential home.

Therefore the cap of £72,000 is a mirage.

Therefore you still have a lot of people concerned over care fees.

Yes, you can take avoidance measures but the thing to bear in mind is that if you do not pay privately for care fees you put yourself in the hands of the local authority e,g you lose choice.

If you still wish to go down the avoidance route, you can get a life time interest trust where you put your home into trust or you can do other things in your will such as giving your share of your property as a distinct share to your children with a lifetime living interest to the surviving spouse.

All this may be an option but is certainly not a guarantee of care home fees avoidance.

On the ground,  I am aware of members of the public being offered products which purport to guarantee care home avoidance and are being charged at RIP off rates.(say £5,000 for a service a solicitor would charge £1,000 at most) 

The organisations offering these services knock on doors, sound convincing and play on people's fears. They are not regulated so recourse against them is low.

A better bill by the Government for dealing with care fees would mitigate this happening.
Monday July 7, 2014 at 8:26am
It is now two months now since the European Court of Justice (ECJ) ruled that Google should heed those seeking the “right to be forgotten” and hide embarrassing stories from search engine results.

The rationale was to help ordinary people escape their past, especially if caught in compromising situations.

This began with Mario Costeja González, a Spaniard who was rather embarrassed that anyone searching his name online could find that he had been forced to sell his house in order to settle debts some years ago. He asked Google to remove the story and they declined. His case went all the way to the ECJ and he won.

Google has now quite a bit of work to do and remove some things from the web.

As ever this is a balancing act between the potency of the search engine which can remember many details about us and the right to some privacy.

Now we are facing the fact that a number of people are trying to hide their past and some of it looks pretty unpleasant.

Some recently reported example of trying to remove web links include.... 

A politician who had been caught fiddling his expenses has applied to Google, asking for links to the story to vanish.

An actor has been in touch, keen to cover up his affair with a teenager.

Google has also heard from a company anxious to cover up any online discussion pertaining to its ripping off customers.

In theory, anyone can request the removal of stories from search engines if these are deemed “inadequate, irrelevant or no longer relevant”.

These are conditions vague enough to have encouraged 70,000 requests so far.

We will have to see what actually happens but there is bound to be more litigation on this.

Those of us uncomfortable about this and who would wish us to have leave the EU have more ammunition by looking at the decision from the EU judges.

That said, this decision could have been made in the Uk anyway by a  UK Judge.

Irrespective of where you stand on the issue, perhaps the ideal is to follow our US cousins and have a bill of rights embedded in our constitution.

At least we would get some clarity on this issue.

In the US, no judges are telling search engines what to do, as the First Amendment of the Constitution guarantees freedom of speech, and protection from all such interference.

That is clarity.

Of course with the primacy of EU law this right of freedom of speech may turn out to be a pipe dream as long as we remain in the EU.
Monday June 30, 2014 at 10:35pm
As is poitnted out in the Guardian, on my way to Poland for a book festival the other week, the book reviewer I was going through security at Heathrow behind a man of advanced years who walked with a crutch. He went through the metal detector leaning on his wife, having left the crutch next to the conveyor belt. The detector beeped, so the man was given his crutch and forced to go back through to remove his shoes, a procedure that obviously caused him some annoyance and discomfort. Now in socks, he was ordered to pass through the metal detector again.

But he wasn't allowed to take his crutch with him, and his wife wasn't allowed to go back through the detector. Eventually, the security guard himself reached a hand through the detector to help him and the man, grimacing, limped through, while his crutch passed through the baggage scanner. My fellow travellers and I were all mightily relieved when the implement came out the other end, indicating, reassuringly, that the man was not a maniacal terrorist with a cunning crutch-bomb.

In the Interests of Safety: The absurd rules that blight our lives and how we can change them
by Tracey Brown, Michael Hanlon

We've all seen such examples of what the writer Bruce Schneier calls the meaningless "security theatre" at airports. One pilot had his butter knife confiscated, just before taking the controls of an enormous metal machine packed with flammable fuel. Liquids were banned in carry-on baggage even though the inciting incident – a "plot" to mix innocuous chemicals in the plane's toilet and thereby produce explosives – almost certainly wouldn't have worked. And yet, as Tracey Brown and Michael Hanlon point out in this book, passengers are not only allowed but encouraged to buy and take on board large duty-free bottles of alcoholic spirits, which could easily be turned into Molotov cocktails.
Monday June 30, 2014 at 9:49pm
Currently I am doing some consultancy with a well known organisation in addition to my traditional firm activities. Often I am finding myself aadvising either beneficiaries and/or executors who have problems with an executor. Typically the relationship has broken down and the desire is to remove the executor.

Easy peasy, or not. Not is the answer though it is not insurmountable and it requires some great skill.

Overall except when there has been actual wrong doing or fraud, the judge will be reluctant to remove an executor.

Just because someone is slow, inefficient, possibly negligent does not automatically lead to removing an executor.

What are your options? Should you give up?

In the first instance you should try to engage with the Executor and apply as much personal influence as possible to get what you want. An overt threat rarely fits the bill.

Legally, the judge will only remove the executor if it is the proper interests of the administration of the estate.  My legal tip is to set out in open correspondence a detailed account of what has gone wrong yo date and what needs to be done.

And that is a skill.....

Only then should you as executor consider court action which is a risky business.

Good luck.....

Wednesday June 18, 2014 at 6:50am

According to recent statistics, the number of employment tribunal claims lodged in the first three months of 2014 fell by more than half compared to the same period last year.

Between January and March 5,619 single claims were made compared to 13,739 during the same three months last year - a 59% fall.

Big numbers.

The statistics follow on from a 64% fall in single employment claims and a 79% fall in all employment claims submitted over the final three months of last year.

As I have previously written, it goes to show that the number of claims has been significantly impacted by the fees regime.

I still believe that a successful challenge will be launched by one of the trade unions but it is going to take time. Moreover, a number of employment lawyers will have left the industry by then due to lack of work.

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