Fostering and Adoption as Means of Securing Article 6 Rights in England

This article considers the English Law relating to fostering and adoption in the light of Article 6 of the UN Convention on the Rights of the Child. State foster care and domestic adoption are in principle means by which a child’s Article 6 can be secured where state intervention is necessary to protect the child. The article will nevertheless argue that recent judicial decisions relating to child protection prejudice the law’s ability, as implemented by local authorities, to secure Article 6 rights through foster care, but also that the UK Government’s preference for adoption for those children who are taken into care (reflected in recent legislation) might cause difficulties as regards the other requirements of the UNCRC, including the right to know and be cared for by one’s parents as far as possible.This is the final version of the article. It first appeared from Juta Law in the Stellenbosch Law Review, Vol. 26 Issue 2, pp. 363-379

Informal Care and Private Law: Governance or a Failure Thereof?

The provision of care for elderly and disabled people is an issue of enormous public importance, particularly in the context of an ageing population. There is currently much discussion, in light of the UK Government’s attempts to implement an approximation of the Dilnot Commission’s recommendations on care funding, about the provision of formal care for those who require it and how it should be funded. But care recipients, and ultimately wider society, continue to rely heavily on care provided informally (i.e. in the absence of a legal duty) in the home. Many of the people providing such care suffer signifi cant financial and health-related disadvantages as a result of their responsibilities, though in principle some are able to seek (in addition to limited support from the state) a form of ‘compensation’ from their care recipients via a private law claim. Th is paper asks whether private law remedies for carers, such as those remedies identified and to an extent advocated in the author’s recent monograph, Informal Carers and Private Law, are inevitably related to an inadequacy of state support for carers and care recipients and a failure to properly grapple with the issue of care on the part of government and society. It evaluates the alternative proposition that such remedies are normatively appropriate irrespective of the level of state provision of care or state support for informal carers.This is the final published version. It first appeared at http://www.cjccl.ca/informal-care-and-private-law/

POST-ADOPTION CONTACT REFORM: COMPOUNDING THE STATE-ORDERED TERMINATION OF PARENTHOOD?

AbstractThe Children and Families Act 2014 pursues the twin policies of increasing the number of children adopted out of compulsory state care and reducing the scope for court-ordered contact between such children and their birth families. Building upon previous work by Dr. Kirsty Hughes and me, this paper critically evaluates these reforms to post-adoption contact in view of the fact that adoption terminates the legal relationship of parent and child. Aspects of the analysis include the impact of the proposals on “open adoption” and child welfare in the light of the available empirical evidence, and their compatibility with both the European Convention on Human Rights and the UN Convention on the Rights of the Child.This is the author's accepted version. The final version is published by CUP in The Cambridge Law Journal here: http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9303450&fileId=S0008197314000439

Unjust Enrichment Claims by Informal Carers

This is the author accepted manuscript. The final version is available from Jordan Publishing in Elder Law Journal, Vol. 1(3), p. 298-302

Family Provision Goes to the Supreme Court

The Supreme Court has given permission to appeal to the charities involved in Ilott v Mitson [2015] EWCA Civ 797, [2015] 2 FLR 1409: https://www.supremecourt.uk/news/permission-to-appeal-decision-01-march-2016.html. Unless the case is settled before the hearing, it is believed that it will prompt substantive consideration of the Inheritance (Provision for Family and Dependants) Act 1975 at the highest judicial level for the first time.This is the author accepted manuscript. The final version is available from Jordan Publishing via http://www.jordanpublishing.co.uk/practice-areas/family/publications/family-law-0#.VyDLXnrigg4

Trusts and anti-avoidance under the Care Act 2014

The ageing English population is likely to generate increased demand for social care, which “supports people of all ages with certain physical, cognitive or age-related conditions in carrying out personal care or domestic routines”. Local authorities can seek contributions from capable individuals towards the direct costs of social care by assessing relevant capital and income, which “can give rise to heated social and political debate about the scope of the ‘Welfare State’ and the extent to which it was expected to provide free care from the cradle to the grave.” The Care Act 2014 sought, inter alia, to limit the amount that one person can be expected to contribute towards his or her lifetime care costs, albeit that a £72,000 cap due in April 2016 has been delayed until April 2020. Despite the Care Act’s reforms, many individuals will be expected to contribute a significant sum towards care costs once its funding provisions have fully commenced, even if such costs are ultimately borne by their estates after death. While the threshold below which means-tested help is provided was to increase to £118,000 from £23,250 in April 2016, there were a number of significant limitations on the cap’s effect even before the delay was announced. This continuing potential liability is likely to lead to attempts to shield assets, including via declarations of trust, from local authorities in order to provide for dependants and others (including informal carers) who would have a legitimate claim to the care recipient’s estate. This article’s aim is to evaluate the Care Act 2014’s anti-avoidance provisions, particularly whether the Act achieves an adequate balance between ensuring that the costs of necessary care are equitably distributed and protecting the property-related interests of care recipients and those who would otherwise be the beneficial recipients of their assets. It includes an analysis of those provisions in light of similar mechanisms in other areas of the law applicable to individuals in a familial context. Whatever the inherent difficulties in a doctrinal legal scholar’s questioning the structure and funding model of a social care system, this article will argue that the anti-avoidance provisions in the Care Act 2014 are very broadly drawn, and that the Act over-relies on discretion and statutory guidance to ensure that local authorities exercise anti-avoidance powers in a nuanced manner. It demonstrates that incorporating care fee avoidance into financial planning risks being both ineffectual and expensive.This is the final version of the article. It first appeared from Sweet & Maxwell in The Conveyancer and Property Lawyer, Vol. 6, pp. 489-503. The full text may be found via Westlaw UK (http://legalresearch.westlaw.co.uk/), with a valid subscription

Re C (A Child) (Adoption: Duty of Local Authority) – Welfare and the rights of the birth family in 'fast track' adoption cases

In Re C (A Child) (Adoption: Duty of Local Authority), the Court of Appeal had an opportunity to explore the relationship between parental interests and the paramountcy of child welfare in adoption decisions. This commentary critically examines the court’s reasoning, arguing that it utilised an unnecessarily narrow conception of welfare and gave undue weight to the interests of the child’s mother.This is the author accepted manuscript. The final version is available from Jordan Publishing via http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/re-c-a-child-adoption-duty-of-local-authority-welfare-and-the-rights-of-the-birth-family-in-fast-track-adoption-cases-2009-cflq-87#.VxXzbnErKU

Conflicting rights: English adoption law and the implementation of the UN Convention on the Rights of the Child

This is the author accepted manuscript. The final version is available from Jordan Publishing via http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/Sloan2013CFLQ40#.VxYOaHpKYsIThe welfare of the relevant child became the 'paramount' consideration in adoption decisions as a result of the Adoption and Children Act 2002. This ostensibly brought English law into line with Article 21 of the UN Convention on the Rights of the Child 1989 (UNCRC), which requires states inter alia to 'ensure that the best interests of the child shall be the paramount consideration' in the context of adoption. This article considers the scheme of the 2002 Act and conducts a survey of the domestic adoption case-law under it in the light of some of the requirements of the UNCRC, with particular reference to the implications of the Act for the child's relationship with his or her birth family. It argues that the judiciary's approach to the Act is not necessarily compatible with certain provisions of the Convention, but that in any event the Convention suffers from internal inconsistency in this context that reduces its normative force

Due rewards or undue influence? – Property transfers benefitting informal carers

This is the author accepted manuscript. The final version is available in Restitution Law Review Vol. 19, p. 37

THE “DISINHERITED” DAUGHTER AND THE DISAPPROVING MOTHER

MELITA Jackson died in 2004, leaving an estate worth £486,000. In 2002, she had made a will in which she left a £5,000 legacy to the BBC Benevolent Fund and divided the remainder of her estate between the Blue Cross, the Royal Society for the Protection of Birds, and the Royal Society for the Prevention of Cruelty to Animals (“the Charities”). Mrs. Jackson had also written a letter of wishes in which she explained her decision to exclude her only daughter, Heather, from her will. Heather had left home in 1978 at the age of 17, without her mother's knowledge or agreement, in order to live with Mr. Ilott, whom Heather later married. Mrs. Jackson clearly disapproved of her daughter's choice of lifestyle. Heather and her husband had five children (the last one living at home, being due to go to university in 2015) and lived in straitened financial circumstances. For example, Heather never went on holiday, found it difficult to afford clothes for the children and a range of food, and possessed many items that were old or second-hand. Despite attempts at reconciliation, mother and daughter were estranged for some 26 years, and Heather was fully aware before Mrs. Jackson's death that she was due to be excluded from the will.This is the author accepted manuscript. The final version is available from Cambridge University Press via http://dx.doi.org/10.1017/S000819731600018