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What’s next for NHS Maternity Services?

On 11 August 2021, the Independent held a virtual event to discuss what improvements need to be made to NHS maternity services. ‘NHS maternity scandal: Inside a crisis’ was attended by two of our clinical negligence solicitors, given the large amount of maternity claims Lanyon Bowdler is pursuing against The Shrewsbury and Telford Hospital NHS Trust spanning across a number of years.

The speakers included midwife and chair of the independent investigation into the maternity services at The Shrewsbury and Telford Hospital NHS Trust, Donna Ockenden, the president of the Royal College of Obstetricians and Gynaecologists, Dr Eddie Morris, patient safety campaigner and bereaved father, James Titcombe, and the Independent’s, Shaun Lintern.

Donna Ockenden provided an update of her review, noting the review closed to new applications in July 2020 with a total of 1,862 families involved. Donna explained that her interim Emerging Findings Report was released in December 2020. This interim report did not contain any recommendations, but rather contained ‘must do’ immediate actions written by real doctors and midwives who are still working within the NHS. Donna likened the interim report to a call to action. Important areas, which were highlighted in the Emerging Findings Report, included the lack of listening to families, the lack of risk assessment, issues with obtaining informed consent, lack of training for staff and a lack of collaboration between staff.

James Titcombe was a member of the panel. He is a patient safety specialist following the death of his 9 day old son, Joshua, at Furness General Hospital. Joshua’s death sparked the Morecambe Bay maternity investigation. James explained that the most shocking factor for him involving the events with his son was how their family was treated after Joshua’s death. He explained there was an unkindness towards families. James felt the overzealous pursuit for vaginal birth had gone too far and the campaign for having a natural birth was unhelpful. James also recalled the lack of communication between the staff with the doctors and nurses not talking to each other. James explained that people thought the Morecambe Bay incident was an isolated issue rather than there being issues affecting maternity units across the country. He believes that systemic change is needed in every maternity unit.

Dr Eddie Morris considers that the resources put into maternity units have not kept up with rapid pace of change of expectant mothers in the UK. Dr Morris explained that there are increased risks for pregnant women with raised BMIs. Those women with raised BMIs risk developing gestational diabetes, having larger babies and there is an increased risk of needing intervention during labour. Dr Morris noted that during COVID maternity staff were being redeployed, which was inappropriate given that pregnant women were continuing to give birth to babies.

Donna Ockenden considers one of the major issues is that maternity units are not treated in the same way as accident and emergency units. Donna believes that maternity units should be treated as women’s accident and emergency units as the NHS staff do not know who is going to enter the front door on a day-to-day basis and must be responsive.

The NHS maternity services were granted £96 million in funding this year. Donna believes that with this funding maternity services have made some progress and more staff have been recruited. However, issues remain with the retention and wellbeing of staff. The retention of staff has to be an ongoing focus for the NHS.

Although the UK is considered one of the safest places to give birth, if you have been affected by any of the issues raised in this blog or indeed any wider issues relating to maternity care, please get in touch with our team, who are experienced in dealing with claims of this sensitive nature and will guide you at every stage.

SSP Rebate Scheme to Close

The COVID-19 SSP Rebate Scheme will close with effect from 30 September 2021.

This scheme has allowed employers with fewer than 250 employees (as of 28 February 2020) to apply to HMRC for reimbursement of up to two weeks’ statutory sick pay (SSP) per eligible employee for absences taken due to COVID-19. After 30 September, the funding of SSP will revert back to being met entirely by the employer: any absences after that date, which are related to COVID-19, will not be eligible for rebate.

It is also worth noting that employers will not be able to make a claim for any eligible SSP costs incurred up to and including 30 September after the earlier of (i) 31 December 2021 or (ii) one year after the last qualifying day in the period of incapacity for work to which the SSP costs relate.

For the government’s updated guidance to employers for claiming under the scheme, click here.

If you would like any advice in relation to the above changes, please contact a member of our employment team to arrange an appointment.

COVID-19 and the Impact on Cancer Diagnoses

It is no secret that the last 18 months have been difficult for us all with the COVID-19 pandemic hitting our global community and specifically the UK enduring numerous lockdowns from March 2020.

The COVID-19 outbreak has greatly affected the UK’s economy, education, and travel industry but specifically it has put immense pressure onto our healthcare services. The NHS has and continues to go above and beyond to care for patients during these difficult times and remains dedicated and focused, which we should continue to recognise. However, with the rise of COVID-19 patients in hospitals the NHS has been chronically understaffed and overworked, which has unfortunately caused a huge impact on cancer diagnosis, referrals, and treatment.

As of June 2020, MacMillan Cancer Support estimates that nearly 50,000 cancer diagnoses have been missed during the COVID-19 outbreak with 650,000 cancer patients suffering disruption or delays in their treatment, a number which is still rising today with an ever-increasing backlog of cancer treatments. MacMillan Cancer Support is referring to those suffering as the forgotten ‘C’ and is calling on the government to acknowledge the scale of the cancer backlog and commit the additional resources required to tackle it.

Early diagnosis is critical to increasing the chances of survival and treatment is more likely to be successful before the cancer has had chance to spread. Below are some examples of how an early diagnosis can really make a difference.

Early Diagnosis of Bowel Cancer

In England, more than nine in 10 bowel cancer patients survive the disease for five years or more, if diagnosed at the earliest stage.

Early Diagnosis of Breast Cancer

Almost all women diagnosed with breast cancer at the earliest stage survive their disease for at least five years.

Early Diagnosis of Ovarian Cancer

More than nine in 10 women diagnosed with ovarian cancer at its earliest stage survive their disease for at least five years. This falls to just over one in 10 women when ovarian cancer is diagnosed at the most advanced stage.

Early Diagnosis of Lung Cancer

Almost nine in 10 lung cancer patients will survive their disease for at least a year if diagnosed at the earliest stage. This falls to around one in five people when lung cancer is diagnosed at the most advanced stage.

Cancer Research UK conducted a survey of cancer patients early in the pandemic (1 – 28 May 2020) to understand their perspectives on the initial impact COVID-19 was having on their testing, treatment and care. Some key findings include:

  • Around one in three (34%) cancer patients reported that their testing had been impacted since the start of the pandemic.

  • Almost one in three (29%) cancer patients reported that their treatment had been impacted since the start of the pandemic.

  • Cancer patients who experienced delays and cancellations reported waiting on average 13.4 weeks for tests and 13.5 weeks for treatment.

In January 2019 the NHS Long Term Plan (LTP) was published and set out stretching ambitions and commitment to improve cancer outcomes and services in England over the next ten years. Their key ambitions state that by 2028, 55,000 more people each year will survive their cancer for five years or more and 75% of people with cancer will be diagnosed at an early stage (stage one or two). There is hope for our future, but this does not take away the significant delays in treatment and diagnoses that patients faced in 2020/2021.

Lanyon Bowdler Solicitors support clients daily in pursing clinical negligence claims relating to delayed diagnosis and/or treatment, some of which are sadly fatal claims. If you would like to investigate the care you or a loved one received, please feel free to contact a member of our clinical negligence team. In our latest podcast episode, Beth Heath and Katherine Jones from our clinical negligence team talk about the delay in diagnosis of cancer, using fictitious, but typical cases to illustrate the challenges people are facing.

For additional information from MacMillan Cancer Support regarding their findings of missed cancer diagnoses, please click here.

To receive more information about early diagnosis, visit Be Clear on Cancer - a campaign that aims to improve early diagnosis of cancer by raising public awareness of signs and/or symptoms of cancer, and to encourage people to see their GP without delay.

Drug Driving Convictions under Review Because of Faulty Lab Tests

It has recently come to light that, because of faulty lab tests, hundreds of drug driving convictions may now need to be reviewed.

In December 2020, Synlab Laboratory Services Limited discovered that there were issues with the way in which it analysed drug driving samples.

As a result, over 800 tests have now been deemed unreliable. For some this will mean the investigation against them will not continue.

However, for hundreds more, they may have already been convicted by the courts based upon this unreliable evidence.

The consequences of such a conviction will have resulted in a mandatory disqualification of at least 12 months.

Fallout from the driving disqualification, may have led to people losing their employment, accommodation and, maybe even relationships.

For many, they may not have been legally represented in court and they will now need assistance in lodging appeals to the crown court out of time to overturn unsafe convictions.

Please contact our crime team for more information.

Temporary Right to Work Checks Extended to 5 April 2022

It is unlawful to employ someone who does not have the right to reside and work in the UK or who is working in breach of their conditions of stay. Employers have a duty to prevent illegal working and must carry out certain right to work checks on all prospective employees before their employment starts (and should undertake follow up checks for current employees with time-limited permission to live and work in the UK).

As we have previously reported, on 30 March 2020, due to the COVID-19 outbreak, the government made the following temporary changes to the right to work checks to simplify the process for employers:

  • Checks can be carried out via video call (rather than in person).
  • Job applicants and existing workers can submit scanned copies or photographs of identity documents for checks (instead of providing original documents).

The end date for these adjusted checks was originally set as 16 May 2021, and this was then put back to 21 June, and then to 31 August. However, the government announced on 26 August that the end date has been deferred again, to 5 April 2022.

The government has said that it made this decision following positive feedback about the ability to conduct checks remotely, and that it intends to introduce a new digital solution to include many who are unable to use the Home Office online checking service, including UK and Irish citizens, that will enable checks to continue to be conducted remotely, but with enhanced security.

Click here for the full government guidance or if you would like to discuss this further, contact a member of Lanyon Bowdler’s employment team.

Footpath Diversion Means No Need to ‘Moooove’

I am a specialist agricultural associate solicitor with Lanyon Bowdler, having joined at the start of the year. I have specialised in agricultural property matters since I qualified as a solicitor in 2007, having grown up on a farm in Oxfordshire.

I was recently contacted by an NFU member with a view to diverting a footpath in Shropshire. The footpath was in an unfortunate location, immediately adjacent to a large cattle shed and also very close to a site, behind which was earmarked for an additional cattle shed of the same size.

It was necessary for the two sheds to be parallel to maximise the benefit. There had also been instances of members of the public disturbing the cattle. The NFU member considered that it would be better for the footpath to be diverted, both from a health and safety perspective for members of the public using the footpath, but also, and a crucial point for the NFU member, for the long term sustainability of the farm (where the proposed development might otherwise have been stifled by the location of the footpath).

I worked with the NFU member and submitted the application to ensure that the footpath was diverted away from the farm buildings and the main yard. I then liaised with the council’s public rights of way team and ensured that the footpath was diverted under 119 of the Highways Act 1980 and also under section 53A (2) of the Wildlife Countryside Act 1981.

I achieved a successful result in a short time, and was granted the exact diversion modification requested within the application. The NFU member was delighted and the additional barn is now in place, looking fabulous, with lots of happy farmyard residents!

I attained Fellowship of the Agricultural Law Association in 2009 and have experience in a wide variety of agricultural property transactions, including land sales and purchases.

I also act for lenders, advising on partnership agreements, rights of way issues, adverse possession matters, sports and recreational sales, deeds of easement, option and overage agreements, contract farming agreements and share farming agreements.

I have been listed within the agricultural sections of Chambers UK since 2015 and The Legal 500 publication since 2018 (the two main legal ‘go to’ directories).

For more information about this or any other agricultural matter, please contact our agricultural team.

Could it be Sepsis?

A warning has been issued to NHS trusts across the country to ensure that their sepsis screening tools are up to date. The Royal College of Emergency Medicine has recently highlighted the danger of using out of date triage tools following several reported incidents in emergency departments.

Sepsis is the body’s abnormal and extreme response to an infection which sets off a reaction that can result in tissue damage, multi-organ failure and death. For reasons that we don’t fully understand, the body goes into overdrive as a response to an infection which can start anywhere in the body. The infection could be from a chest infection, UTI or from an infected cut or wound.

Sepsis affects more than 250,000 people in the UK every year and is more common than heart attacks. It kills more people than bowel, breast, and prostate cancer and road traffic accidents combined, totalling 52,000 per year including 1000 children.*

Despite these staggering facts, awareness of the signs of sepsis are low and symptoms are often mistaken for other illnesses meaning that there are up to 14,000 preventable deaths in the UK every year.

Symptoms of sepsis include:

Slurred speech or confusion

Extreme shivering or muscle pain

Passing no urine (in a day)

Severe breathlessness

It feels like you’re going to die

Skin mottled or discoloured

Symptoms in babies and small children varies slightly but includes breathing very fast, having a ‘fit’ or convulsion, looking mottled, bluish, pale or having a rash that does not fade when you press it. Being very sleepy, cold to touch, not feeding or vomiting repeatedly and not passing urine for 12 hours are all signs of sepsis in babies. If you spot any of these signs then call 999 and just ask, “could it be sepsis?”

Unfortunately sepsis is a very serious and life-threatening condition and can develop very quickly. As soon as a patient has been diagnosed as possibly having sepsis, there is a “Golden Hour” when medical staff will, amongst other things, start antibiotics, give IV fluids and measure urine output.

NHS staff are currently working incredibly hard in very difficult conditions but the sooner that treatment can start, the better the patient outcome. Sadly one in four people who develop sepsis suffer permanent, life-changing after-effects, including amputations.

For more information on sepsis or further support, contact The UK Sepsis Trust.

(Source: The UK Sepsis Trust).

Can you Dismiss an Employee who is not Vaccinated against COVID-19?

It was widely reported on 6 August 2021 that CNN dismissed three employees for attending one of its offices without having been vaccinated against COVID-19. Reportedly, CNN had informed its employees that vaccines were mandatory if they report to the office or out in the field where they come into contact with other employees. Whilst this occurred in the United States, which has a different legal system to the UK and different employment laws, it raises the question: can an employer take a similar approach in the UK?

Unfair dismissal

As we reported in our recent blog, it will be compulsory for care home staff in England to be vaccinated from 11 November 2021, unless they have a clinical reason for not being so. But in the absence of a vaccination being a legal requirement, can an employer have a mandatory policy and dismiss an employee who refuses to get vaccinated?

In the UK, employees with over two years’ service have unfair dismissal protection.

Tribunals are likely to consider that it will be unfair to dismiss an employee for not being vaccinated, unless it is essential and necessary for the employee to carry out their role. A lot will depend on the type of workplace and the level of risk, and in particular whether there is contact with clinically vulnerable people.

One scenario which might make a dismissal of an employee who refuses to be vaccinated fair is where there is pressure from third parties, e.g. if a client or customer of the employer will only allow people on site who are vaccinated. If this were to arise, in the case of employees with more than two years’ service, the employer would still need to look at the possibility of alternative work for the employee and also make reasonable representations to the third party before proceeding to dismiss.


No minimum length of service is required for an employee to bring discrimination claims, and protection is also afforded to job applicants during the recruitment process.

Certainly, to apply a policy of mandatory vaccination to those who have a clinical reason for not being vaccinated will expose employers to claims of unlawful indirect discrimination on grounds of disability.

It is also possible that those with certain religious or moral objections to the vaccine might bring claims if they are dismissed, or overlooked for a position, for refusing to be vaccinated. For example, some religious groups may be concerned that animal products have been used in the vaccines. Although there is no gelatine in the COVID-19 vaccines currently available, shark liver oil is being considered as an adjuvant for one of the new vaccines. Some people may reject the vaccine because embryonic tissue was used to test or develop the vaccine. Others may have a strongly held belief that vaccines are harmful to public health (anti-vaxxers), and although this is unlikely to amount to a protected belief, such claims can still be time consuming and costly to defend.

If there is found to be indirect discrimination on a protected ground, this will not be unlawful if it is justified as being a proportionate means of achieving a legitimate aim. The legitimate aim part of the defence should be straightforward, as the employer would be seeking to protect the health and safety of staff, clients/customers and other third parties. However, employers outside of the health and social care sectors would struggle to persuade a tribunal that a mandatory vaccination policy would be a proportionate means of achieving that aim, as there are less discriminatory methods that could be applied such as regular testing and implementation of COVID- secure guidelines.

Employers who would like more information on these issues should contact a member of Lanyon Bowdler’s employment team.

Vaccinations for Care Home Staff Will Be Compulsory from 11 November 2021

The government passed legislation on 22 July requiring CQC-regulated care homes in England to take steps from 11 November to ensure that all those who enter their premises are fully vaccinated against COVID-19, unless they cannot be vaccinated for clinical reasons or are exempt.

The restrictions are aimed at workers, as exempted categories include residents, their friends and relatives or otherwise those visiting dying residents, those providing comfort or support to a bereaved resident, and all those under the age of 18.

Categories of worker who are exempt are restricted to emergency services personnel and otherwise those providing “emergency assistance”, and those undertaking urgent maintenance work. As well as care home staff, therefore, a variety of tradespeople who might need to visit a care home will also be subject to the requirement to be fully vaccinated, unless they cannot be for clinical reasons.

Care homes have been provided with a 16 week period before the legislation comes into effect to encourage their workers to get vaccinated, warn of the consequences if they do not, and make any necessary alternative staffing arrangements in the light of refusals.

We would remind employers that whilst refusal to be fully vaccinated without a clinical reason will be a potentially fair reason for dismissing an employee with over 2 years’ service, a dismissal must still be reasonable in all the circumstances, including that a fair procedure must be followed.

The government is reportedly considering whether vaccinations should also be compulsory for other health and social care settings.

Employers who would like more information on these issues should contact a member of Lanyon Bowdler’s employment team.

Employment Tribunal Cases Published in Response to COVID-19 Health and Safety Concerns in the Workplace

An issue for many employers during the pandemic has been how to deal with concerns raised by employees about health and safety and returning to the workplace.

The below two cases involve employees who were dismissed early on in the pandemic and who had not been employed for the two years needed to obtain ordinary unfair dismissal protection. Both of the employees claimed their dismissal was automatically unfair under s100(1)(e) Employment Rights Act 1996 (for health and safety reasons). For such a claim to be successful an employment tribunal must find that the employee took appropriate steps to protect themselves in circumstances of danger which they reasonably believed to be serious and imminent and that they were dismissed as a result. Employees do not need to have any particular length of service to be able to make such a claim.

Accattatis v Fortuna Group (London) Ltd

Mr Accattatis was employed on 8 May 2018 as a sales and project marketing co-ordinator by Fortuna, a company that sells and distributes PPE.

During the first lockdown, Mr Accattatis expressed that he felt uncomfortable commuting to work by public transport and attending the office, due to concerns for his health. He made repeated requests to work from home or to be placed on furlough. Fortuna denied his request to work from home as the nature of his role meant that he needed to be on the premises, dealing with daily deliveries. Fortuna suggested that Mr Accattatis took holiday pay or unpaid leave if he wanted to self-isolate. Mr Accattatis declined this proposal and asked three more times to be furloughed. He was dismissed on 21 April 2020.

Mr Accattatis made a claim, amongst others, for automatic unfair dismissal. The tribunal took into account Mr Accattatis’ emails expressing his concerns and the government announcement on 14 February 2020, classifying COVID-19 as a serious and imminent threat to public health. The tribunal accepted that there were circumstances of danger which Mr Accattatis could have reasonably believed to be serious and imminent. It then went on to consider whether Mr Accattatis took appropriate steps to protect himself and was of the view that not only wanting to stay at home (which had been agreed) but also demanding that he either be placed on furlough or be allowed to work from home were not appropriate steps to protect Mr Accattatis from the danger. His claim therefore failed.

The tribunal also went on to state that, even if it had found that Mr Accattatis had taken appropriate steps to protect himself, his claim still would have failed because its finding was that the sole or principal reason for Fortuna’s decision to dismiss was not that Mr Accattatis took or proposed to take the appropriate steps to protect himself. Instead, the tribunal found that the reason Fortuna dismissed Mr Accattatis was because it perceived him to be a difficult and challenging employee who wrote impertinent emails and it wanted to prevent him from achieving two years’ qualifying service and therefore protection against ordinary unfair dismissal.

Gibson v Lothian Leisure

Mr Gibson commenced employment as a chef with Lothian Leisure in February 2019. As a result of the first lockdown, the restaurant closed temporarily and Mr Gibson was put on furlough. Mr Gibson was later asked to undertake some work at the restaurant in preparation for the re-opening. Mr Gibson expressed concerns about the lack of PPE or other COVID-secure measures in place and communicated to his employer that he was worried about catching COVID-19 at work and passing it onto his father, who was clinically vulnerable and shielding. The employer's response to this was robustly negative, and he was told to "shut up and get on with it".

Mr Gibson was dismissed by text message with immediate effect on 30 May 2020, with no prior discussion or process. The message stated that Lothian Leisure were changing the format of the business and would be running the day-to-day business with a smaller team. Mr Gibson did not receive any notice pay or pay for accrued untaken annual leave.

Mr Gibson brought a number of claims, including one for automatically unfair dismissal. The tribunal found that Mr Gibson was dismissed either because he had taken steps to protect his father as he reasonably believed the pandemic posed serious and imminent danger, or by unfair selection of redundancy as he had taken those steps to protect his father.

The tribunal held that Mr Gibson had been automatically unfairly dismissed and also awarded Mr Gibson pay in lieu of notice and untaken holiday and payment in relation to underpaid furlough pay and pension contributions.

What do these cases mean for employers?

These cases, although not binding on future tribunals, provide helpful guidance for employers in a situation where an employee is refusing to attend the workplace as a result of the pandemic or for other health and safety reasons.

Complying with relevant workplace COVID safety guidelines and ensuring that there is clear communication with employees about safety measures in the workplace and return to work plans will be key to defending such claims. Workplace guidelines remain in place in England and in Wales respectively, notwithstanding relaxations in certain elements of the public health guidance.

Employers should carefully consider employees’ concerns regarding health and safety at work before making any decisions regarding their employment, regardless of the amount of time they have been employed.

For further information, contact a member of Lanyon Bowdler’s employment team.

What is a Deputy?

Many people will be familiar with the terms ‘Power of Attorney’, whether that be Lasting Powers of Attorney or Enduring Powers of Attorney. A person can give as much or as little authority as they wish to their attorney providing they have the capacity to do so, but what happens when a person lacks capacity to manage their finances and they haven’t appointed an attorney?

A person may become incapacitated suddenly and unexpectedly, for example acquiring a brain injury in an accident or they may have an illness, such as Alzheimer’s or dementia causing a slow deterioration of their mental capability. It doesn’t matter how someone becomes incapacitated but it does matter how their affairs are managed. Unfortunately it isn’t as straightforward as being someone’s next of kin. Being next of kin does not legally authorise someone to manage a person’s affairs however, this does not mean that hope is lost; the Mental Capacity Act 2005 provides that an incapacitated person’s property and affairs can be managed by a court appointed deputy.

What Is a Deputy?

A deputy is appointed by the Court of Protection to manage the property and affairs of someone who lacks capacity to act for themselves.

What Do Deputies Do?

As a deputy you will be responsible for making best interests decisions regarding an incapacitated person’s (“P”) finances and property. Deputies are expected to manage the day-to-day finances and liaise with the necessary third parties such as banks and utility companies to ensure P’s finances remain in order. The court order will detail what you are authorised to do, for example it is common that a deputy will be authorised to manage P’s bank accounts, savings and investments but not authorised to sell or buy property belonging to P without express permission from the Court of Protection.

How Do I Apply to Become a Deputy?

In order to become a deputy an application must be made to the Court of Protection. The application must evidence that P lacks capacity to manage their property and affairs and that the proposed deputy is a suitable person to manage P’s affairs.

What If Someone Needs a Deputy but There Is No One Suitable?

Usually deputies are relatives or close friends of P. However, if there is no one suitable, or P’s affairs are complex and therefore no one wishes to take on the responsibility of being a deputy there are alternative options. In these circumstances a professional, such as a solicitor can be appointed as a professional deputy. This is a service which is offered at Lanyon Bowdler and the team would be happy to discuss this with you should you wish to enquire for further information regarding this service.

Who Can Assist with an Application?

Between January 2020 and March 2020, 3,885 applications were made to the Court of Protection for the appointment of property and affairs deputies. Although the application papers are intended to be user friendly, we understand that they can often seem difficult and overwhelming. We have a dedicated, specialist Court of Protection department at Lanyon Bowdler, all of whom have a wealth of knowledge on hand to assist with any deputy enquiries you may have. Whether you require assistance making the application or guidance on your role and responsibilities as a deputy the team is on hand to assist.

Parental Responsibility Update

The removal of parental responsibility is the subject of many client enquiries. There are a large number of cases whereby one parent is looking to remove the other parent from the birth certificate and/or remove the parental responsibility they hold for a child. The process for removing parental responsibility can be long and expensive due to the serious implications that the decision can have. Given this, there is a high threshold that must be met for the court to agree to remove such rights. Generally speaking, if domestic violence or child abuse is involved, the court is more likely to lower this threshold.

In a recent undisclosed case, a judgment was passed down by HHJ Vincent with regards to the removal of parental responsibility and the change of surname for the children in question. It was stated within the judgment that orders which deprive a parent of parental responsibility and remove their surname from a child should only be made by a court if there is a solid and secure evidential and factual basis for doing so. Also, and more importantly, any order that is made by the court must be in the best interests of the child.

Subsequently, within the judgment, certain criteria are set out to help the court establish whether it is appropriate to remove parental responsibility and/or change a child’s surname.

In respect of parental responsibility it was highlighted that:

  • The child’s welfare is to be the court’s paramount consideration.

  • Under Section 4(2A) of the Children Act 1989, only the court can make a decision to bring an end to a person’s parental responsibility.

  • Parental responsibility describes an adult’s responsibility to secure the welfare of a child, which is to be exercised for the benefit of the child, not the adult.

  • The relevant factors to be considered by the court include: the degree of commitment which the parent has shown the child, the degree of attachment which exists between the parent and the child, and the reasons why the application has been made.

  • Article 8 of the European Convention is triggered in respect of all of the family members and any interference to these rights needs to be justified.

In respect of change of name it was highlighted that:

  • The case of Dawson v Wearmouth is relevant. Within this judgment it was stated that changing a child’s surname is a matter of importance and that the welfare of the child is of upmost importance. As well as this, it was highlighted that factors need to be considered in the present and the future.

  • From previous case law, it is standard that the following are importance considerations: the reasons for the initial registration of the surname, future and present factors, the reason for the request to change the surname and any changes of circumstances since the original registration.

  • The marital status of the parents is important. If they were married, there would have to be strong reasons to change the name if the child was so registered. If they were not married, the mother had control over the registration and hence, if the child was registered, the degree of commitment to the child and the quality of contact will be important considerations.

Furthermore, criminal convictions were considered within this judgment and overall it was held that a criminal conviction is to be accepted as evidence of any underlying facts which are to be relied on. Therefore, except in exceptional circumstances, the family court will proceed on the basis that a criminal conviction is correct.

If you require any further information regarding parental responsibility and/or changing a child’s name, please contact the family team to book an initial appointment.

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