Alison Fielden & Co. - News

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February 2018Office News

New Staff Member

We are pleased to welcom Graeme Gaston as a new arrival to the firm. Graeme is a highly experienced Licensed Conveyancer who will be assisting Alison in the firm's Property & Business department. Graeme previously worked for five years with a local firm before leaving to embark on a prolonged period of travel, and is very much looking forward to re-establishing previous contacts, as well as to making new ones.

December 2017Office News

Cirencester Sparkles

We were delighted to be part of the town's advent celebrations again this year. The event seemed better than ever and was supported by a large number of businesses and organisations. We were the main sponsors and very much enjoyed celebrating with everybody who had contributed time or effort to make the event a success. The switching-on was performed by This Country stars Daisy and Charlie Cooper and entertainment was provided by various local musicians.

Alison Fielden holds the button as Daisy Cooper and Charlie Cooper prepare to switch on Cirencester's Christmas LightsAlison Fielden holds the button as Daisy Cooper and Charlie Cooper switch on Cirencester's Christmas Lights
Photographs by Elliot Dyer

November 2017Legal News

Concessions for first time buyers

There are new concessions for SDLT for first time buyers. Please see here for details.

November 2017Office News

New Staff Member

We are pleased to welcome Kim Hathaway as a new member of staff. She is the secretary of the Wills/Probate department, assisting our Wills/Probate solicitor, Tina Amid.

October 2017Legal News

Marriage law reform will have to wait, Justice Minister Dominic Raab says

Now is not the right time to fundamentally reform marriage law, the Ministry of Justice has said, after sitting on a government-commissioned Law Commission report for nearly two years.

In December 2014 the government asked the commission to review the law governing how and where people can marry in England and Wales. The commission published a scoping paper a year later, which concluded that the current law is 'outdated, uncertain and needlessly complex'.

However justice minister Dominic Raab told Professor Nick Hopkins, a law commissioner, that 'now is not the right time to undertake further work on such fundamental reform'. Raab, in his letter dated in September, said the family justice system 'is under significant pressure at present from a sustained increase in public and private law cases', which the government is trying to alleviate.

'Accordingly, we need to focus on reforms in this area of the system in order to meet the unprecedented increases in demand. Any opportunities for primary legislation will need to support that aim,' he added.

'I realise that this decision may be disappointing, but I am not ruling out the option of further work in this area in a future programme of work, and I am happy to keep this under review.'

Responding to Raab's letter, Hopkins said this week that the pressure to change marriage law, or at least comprehensively review legislation, 'is unlikely to diminish'.

Hopkins highlighted high-profile campaigns by humanist groups, who have successfully challenged weddings legislation in Northern Ireland, and those concerned about religious-only marriage, which is being considered by the sharia law review, set up by Theresa May when she was home secretary.

He added: 'This is a complex area of the law with a need for wide consultation, so any law reform options would take time to formulate.

'Allowing the commission to undertake work would help to identify the issues and have solutions ready for implementation in the medium term, if government agreed at that stage that reform was warranted. Our work could be structured to give government options for reform, including more limited reform that could be implemented via the special parliamentary procedure for Law Commission bills.'

October 2017Legal News

Figures show rise in divorce for opposite-sex couples

The number of opposite-sex couples divorcing in England and Wales increased by 5.8% in 2016, according to the latest statistical bulletin released today by the Office for National Statistics.

The figures show that there were 106,959 divorces of opposite-sex couples in 2016 and that the divorce rate for opposite-sex couples was highest among men aged 45 to 49 and women in their thirties (ages 30 to 39). There were 112 divorces of same-sex couples in 2016; of these 78% were among female couples.

October 2017Legal News

Supreme Court find local authority vicariously liable for abuse committed by foster carers

In Armes (Appellant) v Nottinghamshire County Council (Respondent) [2017] UKSC 60, the Supreme Court held Nottinghamshire County Council were vicariously liable for the physical, emotional and sexual abuse committed by foster parents to the appellant (Armes) during her time in foster care. The local authority can be held vicariously liable only in situations involving placements with foster carers, such vicarious liability does not extend to the local authority in situations involving child placements with family members.

Armes was placed in the care of Nottinghamshire County Council between the ages of seven to 18. The council placed her into foster care with two families:

  • Mr and Mrs A between March 1985 and March 1986; and
  • Mr and Mrs B between October 1987 and February 1988.

Armes was physically and emotionally abused by Mrs A, and sexually abused by Mr B. In both cases the abuse took place in the foster home in the course of day-to-day care.

The High Court and the Court of Appeal dismissed claims that Nottinghamshire County Council was vicariously liable or in breach of a non-delegable duty.

Supreme Court decision

The Supreme Court had been asked to rule on whether Nottinghamshire County Council was liable for the abuse suffered by Armes, on the basis of being in breach of a non-delegable duty, or whether it was vicariously liable for the wrongdoing of the foster parents.

The judgment considered the threshold to be passed to establish a non-delegable duty of care. The council was found not to have reached the threshold for a non-delegable duty to ensure that reasonable care is taken for the safety of children in care while they are in the care and control of foster parents. The court deemed this to be 'too broad, and fixes local authorities with too demanding a responsibility'.

However, following principles established in Cox v Ministry of Justice [2016] UKSC 10, [2016] All ER (D) 25 (Mar), the court found the council vicariously liable for the acts of the foster parents. This was for reasons including, among others:

  • integration and business activity - the abuse committed by the foster parents against the Armes was committed by the foster parents in the course of an activity carried on for the benefit of the local authority
  • the local authority carried out the recruitment, selection and training of foster parents, paid their expenses, and supervised the fostering. Therefore, the foster parents were not carrying on an independent business of their own
  • creation of risk - children are particularly vulnerable to abuse as they are placed with foster parents creating a relationship of authority
  • control - the local authority exercised a significant degree of control over the foster parents; it exercised powers of approval, inspection, supervision and removal. Micro-management, or a high degree of control, are not necessary for the imposition of vicarious liability.

Vicarious liability is only of practical relevance in situations where:

  • the principal tortfeasor cannot be found or is not worth suing;
  • the person sought to be made vicariously liable is able to compensate the victim of the tort.

As most foster parents have insufficient means to meet a substantial award of damages, 'the local authorities which engage them can more easily compensate the victims of injuries which are often serious and long-lasting'.

July 2017Office News

Alison Fielden & Co victorious in the UK Supreme Court

On 26th July 2017 the UK Supreme Court delivered its Judgment in the case of Birch v Birch finding that the Court did have jurisdiction to hear the Wife's Application to discharge her Undertaking, which would have required the sale of the family home, where the Wife and children live, as she had been unable to secure the release of the Husband from the mortgage.

Alison Fielden & Co acted on behalf of the wife in an Appeal against a decision that the Court had no power to make such an Order. Stephen Hockman QC and Jane Campbell, instructed by Alison Fielden & Co, succeeded in persuading the country's highest Court to reverse the decision of the Courts below, a District Judge, a Circuit Judge and the Court of Appeal, that there was no power to hear the Wife's Application.

The case will now return to the Circuit Judge for further consideration.

For further details of the Courts decision click here.

April 2017Office News

New Solicitor joins Alison Fielden & Co

Alison and the staff at Alison Fielden & Co are very pleased to welcome Jude Owen to the team.

Jude qualified as a solicitor in 2011 and has Higher Court advocacy rights in civil cases. She specialises in Employment Law and Litigation, General Litigation and Debt Recovery. She can be contacted on 01285 653261 or by email at jude@alisonfielden.co.uk.

April 2017Legal News

No more holidays in School Term? Well you may well get a fine however good your child's school attendance is

Supreme Court rules in Isle of Wight Council v Platt "regularly" means "in accordance with the rules prescribed by the school"

Background

The facts of this case are well known, Mr Platt's successes being headline news since the day he managed to convince the Isle of Wight Magistrates Court that he had no case to answer and evaded conviction and payment of the Fixed Penalty Notice issued upon him.

Mr Platt and his former wife both applied to their daughter's school for authorisation to take her out of school for holidays. Coincidentally, they both applied on the same day, both were refused permission to go and both went anyway. As a result, both parents were issued with Fixed Penalty Notices by the Local Authority. The mother paid, but Mr Platt refused and was prosecuted under s.444(1) of the Education Act 1996 for failing to secure the regular attendance of his daughter at school between 13 and 21 April 2015.

Argument

Mr Platt argued that the whole of his daughter's attendance record should be taken into account. On that basis, he argued, her attendance - even after the holiday - was 90.3%. The magistrates in fact did take into account the full record of attendance, as well as a document from the Local Authority which stated that satisfactory attendance is 90-95%, and found that Mr Platt has no case to answer. The Local Authority appealed by way of case stated and the following question was asked of the Divisional Court:

"Did we err in law in taking into account attendance outside of the offence dates (13 April to 21 April 2015) as particularised in the summons when determining the percentage attendance of the child?"

On 13 May 2016, the Divisional Court answered: no, was the answer. The Magistrates, in taking into account the child's attendance outside the charging period, had not erred in law.

The Divisional Court certified a point of law of general public importance, one which was slightly different to the Magistrates:

"Whether, on an information alleging a failure by a parent over a specified period to secure that his child attends school regularly contrary to section 444(1) of the 1996 Act, the child's attendance outside the specified period is relevant to the question whether the offence has been committed."

Decision

The Judgment of the Supreme Court, given by Lady Hale and unanimously supported by the Justices.,

Lady Hale looked at the three different meanings of the word 'regularly' and decided which was the one intended by Parliament in the Education Act 1996: 'At regular intervals', 'sufficiently frequently', or 'in accordance with the rules'.

Lady Hale stated that the first interpretation was wrong as it would enable a child to regularly attend only one day a week. The second was wrong as it did not follow the clear tightening of the law on school attendance which started with the Education Act 1944 and was "too uncertain to found a criminal offence," as a parent does not know for certain whether on any given day taking a child out of school commits a criminal offence. Therefore, the answer must be the third interpretation: "in accordance with the rules."

Conclusion

The definition is now fixed and clear: "regularly" means "in accordance with the rules prescribed by the school".

It is important to note that Lady Hale does not deal with the other part of the question; namely can the court take into account the child's attendance outside the charging period? Yet, in light of the now very clear definition of regularly, that question has become academic, as now even a single day of missed school, if not done in accordance with the school's rules, is capable of incurring criminal liability.

March 2017Legal News

£3 billion of child maintenance arrears are 'uncollectable'

The Department of Work and Pensions has reported that there are approximately £4 billion arrears of child maintence and has assessed that around three-quarters of that balance is uncollectable. It assesses arrears as uncollectable when there has been no recent contact with the non-resident parent and no payment against arrears in the last six months. The Department has not yet set out how it will manage the £3 billion of uncollectable arrears.

The Department actively promotes a choice to write off older arrears. The Department has the legal power to write off arrears in limited circumstances. As part of the case closure process it sends a letter to parents advising them they can make a fresh start by writing off arrears owed to them. As a result, in 2015-16 parents asked the Department to write off £12 million in arrears.

Parents do not always understand how and why the Department has calculated arrears when it closes 1993 and 2003 scheme cases. The Department's research found some non-resident parents were dissatisfied with how the Department calculates arrears. This was due to: not being told earlier that arrears had been building up; not enough information on how the arrears had built up and a slowness to answer queries; and delays in being told how to repay.

Since 2012 the Department has reduced its overall enforcement actions to recover arrears on the 1993 and 2003 schemes, in excess of the reduction in case volumes. When a parent owes arrears the Department can deduct up to 40% of their salary after tax, using a deduction from earnings order. It issued 69% fewer orders between 2012-13 and 2015-16. The Department is also taking fewer actions to have debt recognised by a court, which allows, for example, the case to be referred to bailiffs. The Department does not fully review the impact and outcomes of its enforcement activities.

March 2017Legal News

Calls for Parliament to introduce 'No Fault' Divorce

The Court of Appeal recently upheld the decision of a lower Court in a case involving a marriage of some 40 years, where the Wife had Petitioned for a divorce based on her Husband's unreasonable behaviour. The Court had refused her divorce petition after concluding that her husband's behaviour towards her had not been unreasonable. It was the Wife's position that this left her trapped in a 'loveless and desperately unhappy' marriage. There are only two facts on which a divorce petition can be based, which do not involve a period of separation of 2 years or more. These are adultery and unreasonable behaviour. There have been some calls since this case for Parliament to introduce a 'no fault' divorce.

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Alison Fielden & Co.
The Gatehouse
Dollar Street
Cirencester
Glos. GL7 2AN
DX 39418 Cirencester
Tel 01285 653261
Fax 01285 885372
alison@alisonfielden.co.uk