MckenzieBlog

I’ve only done one.

I still won it though, saving my client over £13,000, by proving that it was an ‘official error’, and therefore not repayable.

In the process I’ve become quite a whizz at distinguishing Hinchy (Respondent) v. Secretary of State for Work and Pensions (Appellant), [2005] UKHL 16, the leading and in my view, poorly decided case around a claimants duty to disclose a material fact, and to whom. It’s the type of case that caused Professor Smith to call the House of Lords judical panel ” a luxury the UK can ill afford”. Or something like that. In one of them there criminal law books I read at uni. I think it was a casebook.

I’m going to give some tips for any of you Googlers who have landed on my page looking for information on Hinchy. Firstly, thanks for coming, your hair looks lovely. Where did you get it cut? Oh really? It takes years off you. That top’s never out of Primark (pronounced Preee-mark in Belfast) is it? Wow. Can we date? My number is 07814 422231. Really it is. You can also get me at help@mckenziefriend.com . Text me. Love you.

What I also discovered was that the appeals process at first instance is a bit easy to be successful in if you know what you’re doing. Here are a few comments:-

  • There are rarely any lawyers on the other side
  • The presenting officers are employees who don’t see it as their job to fight the department’s case tooth and nail
  • There is a dearth of academic discourse on decided cases. That was a big big shock to me. No journal articles. Nada. For the average person anyway.
  • If you contacted the Department by phone, on the date the material fact came into being In Northern Ireland, at time of writing, there is no way to check that info. This is a huge mistake on the part of the Department. It wasn’t a factor in this case by the way, so don’t think that I won that case by default.
  • You need a good book as most of the stuff on the interwebs is crap, and not really relevant. You spend weeks going through forum posts and not making much progress. Get your hands on Social Security Law in the UK by Partington or the Welfare benefits and tax credits handbook by CPAG .
  • The tribunal panel is very informal with not much that passes for opening and closing submissions, examination in chief or cross examination. Its very chatty, and you will get your chance to talk. When you do, don’t ramble and don’t be irrelevant. Your good points may get lost in your indignation or back story.
  • You wont be sworn in. There is no witness box. You’re just there at a table. The legally qualified person is in front of you. If its about medical evidence there will be more than one person there.
  • Talk about what a material fact is
  • Get your file under a subject access request under that Data Protection Act
  • Make sure that you get the medical file as well as it may contain info that you disclosed the material fact, and to who

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Firstly, its important to say that I am not an apologist for anyone who assaults any parent or child, let alone anyone who sexually assaults a parent or child. However, this needs to be said…

The vast majority of the public have absolutely no idea what goes on the secret family courts, so I am going to tell the public at large that false allegations are part and parcel of residence and contact disputes in the United Kingdom.  I can’t quantify the percentage of cases where allegations are made against the father, but I have been involved in many dozens of cases as a McKenzie friend or lay advocate, and spoken to  hundreds of mostly men on the phone, so I know allegations aren’t uncommon.

So concerned was I that a theoretical serious allegation made against a client of mine could be true, I decided that anyone who came to Family Court Support with an allegation of a sexual nature that I wasn’t sure about, that they would have to get a polygraph before I took the case on.  I did get a first in my evidence at uni, and I’ve questioned many thousands of parents over the years, but even I have my doubts at times, and need a bit of help to get a sense of whether someone is being honest with me.

Despite the difficulties in divining the truth, it’s my firmly held view that the family justice system actually invites allegations by how it deals with and disposes of allegations in family proceedings. To help those of you who haven’t been caught in the machinery of the family courts, I’m going to take you through a typical scenario by way of explanation. Those who have been over course and distance know exactly what I’m talking about.

Dad is either seeing kids or mother has stopped him seeing kids, and then an allegation is made. If contact is taking place it stops. usually but not always, unilaterally, by the mother. Often times the parents have a difficult relationship prior to the allegation being made, and frequently there have been difficulties around contact.

There’s a hastily arranged and poorly informed court hearing, where the view is wrongly taken that any current or future criminal strand should take primacy. The family law process then becomes a prisoner to two even more bureaucratic and glacial systems, the police and the prosecution service. I have no idea why, especially if the case is at the circuit level when the same judges both ‘fact find’ in family cases and try criminal cases.

The strange thing here is that the answer to this abuse of process by some parties to family law cases lies in the standard of proof. My view is that if you cant prove the allegation on the lower standard in family proceedings, then you have less than zero chance of proving it to the criminal standard of proof, which is beyond reasonable doubt.

Therefore, I would prefer that the family law case is allowed to proceed at an accelerated pace, with a 30 day limit to gather and hear the evidence (if there is any corroborating evidence), and a further 30 days in which to hear the case. Not the 12 to 18 months that it currently takes when the family court is derelict in its duty to both the ‘bests interests of the child’ and the ‘no delay principle’, by handing primacy of the case to others.

By way of a footnote, I absolutely understand that if the allegation is about the harming of the child that contact should change, but should not automatically cease, especially when the child makes no disclosure after a Joint Protocol Interview, or the allegation is made by the mother despite her not having witnessed anything.

It is arguable that the state’s action is disproportionate in stopping contact, as the state doesn’t automatically remove those accused of the rape or sexual assault of an adult from their children’s lives, so it can’t be the fact that there is an extant rape allegation that is the ‘reason’ for contact ceasing. The ‘reason’ is that the parents no longer live together, and one chooses to act tactically by pressing for contact to cease, or not to be considered until the allegation is eventually adjudicated on.

And what of the false allegers? What happens to them? In a word, “nothing”. They don’t get charged with perjury or with wasting police time, and suffer no penalty in costs. They don’t get their legal aid stopped, or even get sent on a course. Their work isn’t allowed to be told that they attempted to have an innocent person charged with a serious crime. They don’t even have to apologise. Their lawyers don’t have to give their fees back, despite knowing that their client’s case was weak. The only people that suffer are the father and the child, who are deprived of each other until the court says otherwise.

It’s little wonder that false allegations are so prevalent in family proceedings, when there is no punishment for bringing them. That needs to be corrected as a matter of legislative and judicial urgency.

I understand that not every allegation is false, and not every father innocent. They are however, innocent until proven guilty.

 

 

 

 

 

 

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I’ve just gotten agreement in another access case without any solicitor involvement. Great result for the parents and the public purse.

The standard response in a dispute over children is to go to a solicitor. What folly and cost that can be for everyone involved. It is also a huge burden to a struggling legal aid system, in a county that is trapped in a Great Depression era moment.

An alternative to a solicitor is to go to a mediator, but that can be worse than a solicitor as there is such demand for mediators, and in my experience, they aren’t much use to man nor beast when you get there. Sorry all you mediators out there, but in my experience its true. You try so hard to be impartial that you get hamstrung even when confronted with bare faced lies. There is an additional problem in that you are mostly from Helen’s Bay, and your clients are more Tigers Bay, so it’s a mismatch and children, parents, and other relatives are being badly served as a result.

” So brainbox, what do you suggest?? Huh…huh?” .

Well Mr or Mrs Heckler, I suggest a community level solution. People trained to resolve disputes on the Shankill and Falls and other working class areas throughout the UK. People with experience of rearing children who can knock heads together. Straight talkers who take no BS. A peoples court, for the people, by the people, of the people and accountable to the people. Not another elite of judges, lawyers, social workers and mediators, all people who are unable to understand the position that the working class parent finds themselves in at that time.

Here’s the catch. The existing elites don’t want it to happen, as they need your money to drive flash cars with personalised number plates, and to send their children to fee paying schools. And they don’t like it up them. They love the conflict of family law, with the public and private payers money rolling into their bank accounts. While you cant get to tuck your kids up in bed, and suffer delay after delay.

Let’s hit them where it hurts, in the client account. Solve it yourself. It’s not that difficult to do. We do it at www.familycourtsupport.co.uk

 

 

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Contact Centres – Less is More

February 29, 2012

Before I get into the body of my views on contact centres, you, the reader best take a look at this press release from Alison Houston, Judicial Communications Officer at the Lord Chief Justice’s Office, which purports to contain comment from Mr Justice Stephens. Here’s the link, but I’ve replicated it in full underneath. It […]

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The Three Text Trick – An Ultra Quick Resolution to a ‘Contact Dispute’

September 21, 2011

  The background to the above Tweet is that I had a dad call in to see me today who had not seen his child for 3 weeks, and who had convinced himself that he wanted to make an application to court to get to see his son. He was certain that his ex couldn’t […]

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The Peoples Friend – Master Bell

September 20, 2011

Lest anyone get the impression that I am a crane climbing, superhero costume wearing, purple powder throwing, card carrying member of any of the F4J’s; unable to say anything positive about members of the judiciary, this post should go some way to disavow readers of that notion. Regular readers of the blog will recall that […]

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Leave to Remove conference at Families need Fathers Liverpool offices

May 22, 2010

Just in the airport lounge at Liverpool after a most excellent seminar on ‘Thorpe’s Law’, otherwise known as the Leave to Remove law in the UK after Payne -v- Payne. Excellent organisation by Emlyn Jones and top quality contributions from Mike R0binson of Custody Minefield fame. This seminar had particular resonance for me as on […]

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Part 2 of The Children, Schools & Families Act 2010– The Lord Chancellor’s Confidence Trick

April 28, 2010

PART 2 OF THE CHILDREN, SCHOOLS & FAMILIES ACT 2010– THE LORD CHANCELLOR’S CONFIDENCE TRICK by Dr Michael J.Pelling 0. INTRODUCTION This briefing note examines the newly enacted Part 2 of the Children, Schools & Families Act 2010 (c.26) ["CHSFA"] which originated from Lord Chancellor Mr Jack Straw and the Ministry of Justice and which […]

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“Your numbers up Payne v Payne” Time for change?

April 27, 2010

Sorry for the hiatus, but was on paternity leave after the wonderful Mrs McKenzie produced yet another beautiful baby McKenzie. I have been doting on my son, as new father’s should do. I did keep one case in my list though; a Leave to Remove case at Circuit level in England. How I wish I […]

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Grandfather gets Interim Residence Order – Coronation Street

March 11, 2010

It could only happen on TV… An ex parte (without notice to the other side for the non legals) Interim Residence Order granted for a grandfather in his late 60′s/early 70′s. Best bit was that there is a hearing next Wednesday where a final decision will be taken! Oh how I laughed. In reality it […]

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Post Traumatic Stress Disorder and Contact

March 4, 2010

This article is likely to offend most people who read it, and I don’t make apology for that as most people who read this blog are legally minded people including those in the legal profession, judiciary and expert witness pool. It is their Karmic duty to be offended for some of the questionable things they […]

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No sombrero required

February 25, 2010

Regular readers will remember the Mexican stand-off I had with Master Redpath a few weeks back. Was back in front of him today and had a totally different experience, and in the interests of fairness I thought I should tell you about it. A very endearing barrister came round and spoke with me. No posturing […]

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A judicial climbdown on McKenzie friending in Scotland – almost, but not quite… YET

February 24, 2010

Who needs the final series of Lost when we have Lord Hamilton to keep us on the edge of our seats, not knowing what’s coming next? First it was that McKenzie friends should sit behind and not beside the litigant in person… In preparation for taking the short journey by ferry from Belfast to Stranraer […]

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Book review ” The InFighters Guide to Divorce ” by Richard Marsden

February 21, 2010

I asked for a review copy of the InFighter’s Guide to Divorce quite some time back, and the author very promptly dispatched it to me. I very promptly misplaced it and only came across it last week under a Hayne’s manual at my office. The first thing that strikes you is the size of the […]

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Post Traumatic Stress Disorder and Contact – an updated view from the trenches

February 21, 2010

Gosh Doesn’t social media move fast! I had hardly had time to post and Tweet about PTSD and contact when someone emailed me on help@mckenziefriend.com to tell me about a case they were involved in where the mother alleged that she had PTSD and couldn’t countenance contact! More on that story to come when I […]

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Post Traumatic Stress Disorder and Contact – a view from the trenches

February 21, 2010

Been extremely busy recently with both work and family and haven’t had much time to spend on the blog. Apologies for that. Hopefully normal service will resume. Now that I am back in Belfast, my phone and Inbox are filling up with the ‘same old same old’ of hard done by stories about the Magistrates […]

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