Month: March 2016

The Mental Capacity Bill: A Good Day at Stormont

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LJohnston

Linda Johnston, is a Partner in Francis Hanna & Co Solicitors. Whilst she specialises in many areas of law, Linda has a particular interest in areas geared towards assisting those who are vulnerable in our community such as the elderly or those with a learning disability. 
Here in this guest blog for Life Law NI, Linda discusses briefly the importance of the passing of the Mental Capacity Bill at Stormont on 15th March 2016.

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For most of my life, Stormont has symbolised political strife and dysfunction. However, on 15th March 2016, from the visitor’s gallery, I witnessed the Assembly at its best, passing ground-breaking legislation with constructive cross-party support. What a refreshing change!

Hard as it may be to believe, the NI Assembly has pulled off a global first by passing the Mental Capacity Bill.   The unique aspect of this complex legislation is its breadth, in that it covers both adult mental health issues and mental capacity issues.  The average citizen would presume that matters concerning mental health and mental capacity should surely overlap, but until now these have been issues that have been professionally separated by lawyers, medical professionals and the justice system.

The new legislation is a fused Bill which overarches all mental health issues affecting our adult population. It has the potential to touch on the lives of each and every citizen, either personally or in their capacity as a carer to another.

Key to the legislation is the recognition of a fundamental right for each of us to make as many independent decisions as possible, for as long as possible and if necessary with support from others.

The 10-year lead up to the passing of the Mental Capacity Bill was recognised by the Health Minister who acknowledged the high level of engagement with stakeholders and experts throughout the process, right from the initial steps of the Bamford Review. Both the Health and Justice Departments should be congratulated on their extensive consultation.

Let’s hope that the quality of this Mental Capacity Bill is followed by good implementation. That will be dependent of significant funds and a major programme of education and training. Much more work will be needed on Codes of Practice and Regulations, but the foundation is now in place.

Although there were few in the public gallery, and not many on the floor of the Assembly, something momentous happened in the Assembly on 15th March 2016. I am glad I was there to see it.

If you would like to learn more about issues surrounding mental capacity or matters affecting the eldery or learning disabled, please feel free to contact Linda Johnston on 028 9024 3901 or email her at lj@fhanna.co.uk

 

 

New Child Protection Disclosure Arrangements for NI

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childbubbles.jpgOn 14 March 2016 new arrangements were put in place in Northern Ireland to help make it easier for anyone who has concerns about someone who might be posing a risk to children to find out if that person has a criminal record for sexual offences, or for violent offences which could indicate a risk to children.

The provisions which are contained in the 2015 Justice Act, have been added to existing methods of disclosing conviction information under the public protection arrangements.

Under the new law, a member of the public has the right to apply at a police station for disclosure of relevant conviction information regarding a person with access to a particular child or children.

Any information which is available about relevant criminal convictions will only be provided to the person who has primary care responsibility for the specific child or children. The information will be released only if considered as necessary to protect that child.

The scheme builds on existing processes by the agencies involved in the Public Protection Arrangements for Northern Ireland to manage sexual and violent offenders. Agencies with public protection and child protection roles – police, probation, social services – already disclose information about criminal convictions when it is necessary to protect a child.

This new statutory provision adds to these arrangements by offering a direct route for a member of the public to bring any concerns they may have to the police about someone they know who has access to a child.

Can anyone apply for disclosure under these arrangements?

Yes. But they must be able to identify a specific child and a named individual about whom they have concerns. They will not automatically be the person to whom information is disclosed.

How long will it all take?

It is anticipated that the police will undertake initial checks within 24 hours and complete the process within 28 days. However, if there is an immediate risk of harm to a child, this will be addressed through current child protection protocols and procedures.

You should NOT use this scheme as a way of reporting imminent/current child protection concerns or offending.

How do people apply for information under these arrangements?

The application form is available on the PSNI website at www.psni.police.uk/child-protection-disclosure-arrangements. The form should be completed and brought to the local police station with ID.  The police may ask you to remain at the station to answer any clarification questions and sign the declaration regarding disclosure.

What if there is an immediate risk?

 If you believe that a child is at immediate risk then you should call 999 in an emergency to report your concerns, the non-emergency number 101, or contact Crimestoppers confidentially on 0800 555111 and/or your local Social Services Gateway Teams (see http://www.nidirect.gov.uk/reporting-child-abuse-and-neglect)

LIFE BITE : Ilott v Mitson: Inheritance dispute case goes to the UK Supreme Court

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apple-150579_1280The UK Supreme Court has granted permission for a challenge of the decision of the England & Wales Court of Appeal in the inheritance dispute case of Ilott v Mitson.

This case made media headlines last year following a Court of Appeal decision regarding the estate of the late Melita Jackson.   Ms Jackson, who died in 2004, had expressly stated in her Will that she did not wish her daughter, Heather Ilott, to receive anything from her estate upon her death. 

Ms Jackson went so far as to have a letter of wishes professionally drafted and placed alongside her Will explicitly discouraging her daughter from making any claim on her estate.   Among the reasons stated by Ms Mitson for disinheriting her daughter were that they had been estranged for many years after Ms Ilott had left home at 17 to live with (and later marry) a man her mother did not approve of.

Following Ms Jackson’s death, her daughter did make a claim on her estate under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that she was on a very low income of state benefits and required reasonable financial provision to be made to her from her  late mother’s estate.  This claim was opposed by the three charity beneficiaries named in the Will.

The Court upon hearing the case initially awarded Ms Ilott £50,000 from her mother’s estate however this award was later overturned by the High Court.   Ms Ilott subsequently appealed this decision to the England & Wales Court of Appeal and in July last year, she was awarded an increased share of £163,000.   In the Judgment, the Court found that Mrs Jackson had acted in an ‘unreasonable, capricious and harsh way’ towards her daughter.

Lady Justice Arden said Mrs Ilott’s income was so low that it overrode the 1975 Act’s usual requirement that the applicant was dependent on the deceased. The award given was to facilitate Mrs Ilott in purchasing her housing association house and it was structured by the Court in a way that would allow Mrs Ilott to preserve her state benefits.

The charity beneficiaries have now obtained leave to appeal to the Supreme Court. In the appeal the Supreme Court will consider whether the Court of Appeal’s approach to providing Ms Ilott with maintenance was wrong and also whether the Court of Appeal was flawed in its decision to structure Ms Ilott’s award in such a way that she would keep her entitlement to state benefits.

This is an important case which raises questions about the extent to which the Courts should be permitted to interfere with testamentary freedom.   It will also be interesting to see the Supreme Court’s view on structuring an award to ensure that the recipient retains access to state benefits.

For more information on Wills or on Inheritance Provision Claims, please feel free to contact us at kconnolly@fhanna.co.uk or on the contact form below

LIFE BITE: Material Girl Madonna fights for custody of son in Court

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apple-150579_1280Madonna and her former husband Guy Ritchie are in the midst of a transatlantic custody battle over the parties’ 15 year old son Rocco.

Legal proceedings began when after Rocco left Madonna’s world tour in December and went to live with his father in London.

Madonna claimed that Rocco had lived with her in New York since she divorced Mr Ritchie in 2008.   Attempts by the singer to get her son to return to her care were unsuccessful, and she took the matter to a New York Court in December. The Court made a ruling that Rocco should be returned to his mother’s custody but this was ignored by the teenager.

The matter has been adjourned until later in the year by the US Courts and today it has since been reported that Madonna has issued further proceedings in the English Court for the return of her son. The US Judge dealing with the case urged both parties to “consider what is the best interests of their son”

It might surprise you to hear that most child abduction cases in the UK do not involve strangers.  Parental child abduction has become a more common problem in recent years than most of us would like to believe.

Parental child abduction is an issue which has been addressed by the Courts on an international level.  The 1980 ‘Hague Convention on the Civil Aspects of International Child Abduction’ is an agreement between various countries which aims to ensure the return of an abducted child to the country where he or she normally lives, so that issues of residence (custody) and contact (access) can be decided by the Courts of that country.

It is important for any parent to be aware of their rights under The Hague Convention and the legal proceedings they can issue to ensure the return of their child should the unthinkable happen.

You should seek legal advice as soon as possible if you are worried that:

  • Your child has been abducted from overseas to Northern Ireland
  • Your child has been abducted from Northern Ireland and taken abroad
  • You are being accused of abducting your child

If you would like more informaiton on this area, please feel free to contact us on kconnolly@fhanna.co.uk or leave your comments below

Mediation: A Practical Guide

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pointing-mediationMany people may believe that going to Court is their only option to resolve a dispute.  Court proceedings can often be not only expensive but also stressful and antagonistic.

Thankfully, there are in fact other alternatives to Court proceedings – one of which is the process of mediation.

Nigel Martin trained as a Mediator at Harvard Law School. In his first of a series of guest blogs for Life Law NI, Nigel provides us with some practical information on mediation

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­­­­­­­­­­­­­­Many people who are involved in a dispute are concerned about the uncertainty of the outcome of formal Court proceedings. They are naturally worried about the open-ended costs of going to Court. They would also like to have more control over the resolution of the dispute and the time-frame for resolution.

Those of you who share those concerns will be pleased to learn that there are some alternatives to Court proceedings, sometimes referred to as “Alternative Dispute Resolution” or abbreviated to “ADR”.  There are two principal alternatives to formal Court Proceedings, namely Mediation and Arbitration.

The key difference between Mediation and Arbitration is straightforward.  With Mediation, a Mediator is appointed to facilitate a process in which the parties try to reach an agreement between them to resolve their dispute. With Arbitration, the parties agree to appoint an Arbitrator to actually determine the dispute for them and they agree to be legally bound by that determination.

In this first part of my guest blog for Life Law NI, I would like to concentrate on looking at the area of mediation. I will look at what mediation is and how it works.

What is mediation?

Mediation is a voluntary process in which an expert neutral, (the Mediator) allows each party a full and fair opportunity to express what is really important to them – not just what might be regarded by lawyers as “relevant” under the strict rules of evidence. Each party has the opportunity to hear the other party and, most importantly, to be heard themselves. The parties and the Mediator can examine the parties’ real interests and look creatively at all the options for resolution by way of agreement.

How does mediation work in practice?

 The parties can approach and appoint a Mediator directly, however most parties instruct a solicitor both for legal advice and to retain the Mediator on their behalf.

The parties are free to retain their solicitor to appear or advise them during or in tandem with the mediation. Sometimes where mediation takes place at an advanced stage of Court proceedings and the parties have already retained legal representatives, those legal representatives can attend the mediation and provide an analysis of the legal issues. However, it is important to stress that mediation is very different from Court proceedings and requires the direct engagement of the parties rather than their respective lawyers.

Typically, the Mediator will ask the parties to sign an ‘Agreement to Mediate’. This protects confidentiality and usually preserves each parties’ formal legal position pending the outcome of mediation. The parties then agree a time and place for mediation and provide the Mediator with any relevant documents in advance. The mediation takes place in private at a venue chosen by the parties. The parties control the timetable for mediation – it can take place over a series of short sessions or on an ongoing basis on consecutive days in more complex disputes.

What happens at mediation?

There are two primary models for mediation:

  • The Caucus Model – this sees each party occupy a separate room for most of the time with the Mediator shuttling between the rooms trying to “negotiate” a settlement.
  • The Model of Understanding – this is a model developed and taught by the Harvard Negotiation Institute at Harvard Law School in the USA. In this model, parties spend most of the time in joint session together with the Mediator. Working together in one room can increase mutual understanding and help model an agreement.

In each model, where the parties reach a consensus, the Mediator will assist them in either drawing up a simple agreement which will be legally binding and enforceable. If it is a complex matter, the Mediator will instead assist the parties in drawing up Heads of Agreement which their respective lawyers can flesh out with detail.

In either case, the goal is to have an agreement in writing signed by both parties which will be legally enforceable and binding of itself without the need for a Court Order. If Court proceedings are already underway, the agreement reached can thereafter be made an Order to conclude the proceedings.

Why choose mediation before litigation?

Court Proceedings rarely provide a real resolution of the underlying dispute or the emotions that drive it.  The Court must determine a legal claim within the strict legal framework and based on strictly admissible evidence. What you feel or what you regard as most important may never be heard by the Court or may have absolutely no relevance to the legal criteria.

The process of litigation is intensely competitive and highly oppositional, a bit like a Tug of War.  Litigation demands your time, focus, energy and increasing financial resources.   It is a process controlled by the Court and not the parties. The determination of a legal claim at first instance does not guarantee an end to the dispute as typically each party will have an automatic right to appeal to the next tier of the Court.

More information can be found on mediation, arbitration and litigation at www.nigelmartin.co.uk.

 

 

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