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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.

Discrimination

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.

Group B Streptococcus

July is Group B Strep Awareness Month, an annual campaign to highlight the importance of group B strep awareness, education and research.

Many people may not have heard of group B streptococcus (GBS). It is a type of bacteria that is very common in both men and women and usually lives in the bottom (rectum) or vagina. It affects two to four women in 10. GBS is normally harmless and most people will not realise they have it.

GBS is common in pregnant women and rarely causes any problems. However, it is the most common cause of severe infection in newborns and can lead to sepsis, pneumonia or meningitis.

Infection in newborns may be divided into two types:

Early Onset Disease (EOD)

This occurs in the first week of life and is usually acquired through bacteria from the mother.

Late Onset Disease (LOD)

This occurs between the seventh and ninetieth day of life. In these cases the baby is presumed to have been infected after birth, and infection may have been acquired while in hospital. The exact mode of transmission in late onset disease is unclear although outbreaks in hospitals are known to occur.

According to the Royal College of Gynaecologists on average, in the UK, every month 43 babies develop early-onset GBS infection. Of those, 38 babies make a full recovery, three babies survive with long-term physical or mental disabilities and two babies die from their early-onset GBS infection.

Data from Public Health England reveals that rates of group B strep infections in babies have risen by 77% in the past 24 years.

In the UK GBS is not routinely tested for, but may be found during tests carried out for another reason, such as a urine test or vaginal swab. If GBS is found in the urine, vagina or rectum during pregnancy, or a previous baby has been affected by a GBS infection, you may need extra care and treatment such as antibiotics.

The charity Group B Strep Support is trying to raise awareness and has called for action to educate parents, doctors and midwives about the bacteria and potential problems for newborns.

If you are worried about group B strep, speak to your midwife or GP for advice. Talk to them about the risks to your baby and ask their advice about whether to get tested.

Most babies with a group B strep infection make a full recovery if treated.

For more information, please contact our clinical negligence team.

Wingardium Lawyerosa

Lucy Speed and I recently led a workshop with Idsall School and this is what one of their students, Matthew Jones, had to say.

On 6 July, the worlds of law and Harry Potter collided in the Year 12 negotiation workshop task, where we investigated a personal injury case involving Ron Weasley.

We were given a booklet which related our activity to the working world of law, containing law terms such as ‘contributory negligence’ and ‘capacity’, while outlining the boundaries for what the claimant can realistically argue from the defendant - if the injured person has never bothered to buy a car before, they do not now need a flying lamborghini.

The booklet then shifted from the muggle world to the facts of the case: in this universe, Ron Weasley is thirty, alone, living in a two bedroom flat, owns a dog called Fluffy, works as a barman at the Leaky Cauldron and made the reckless decision to travel with Harry Potter.

On the afternoon of Wednesday 24 January 2018, Harry crashed his BMW i8, leaving Ron, who did not put on his seatbelt, with severe head injury, fractured pelvis, broken left wrist, dislocated left shoulder and fractured left ankle - I thought there was a spell for that.

The experts - everybody from Professor Snape to Dean Thomas - gave us more vital information, such as the prices of nearby accommodation, and the cost of a case manager, while Ron’s friends relayed his current condition - sleeping 12 hours a day, and unable to keep money, while Ron said he does not know if anybody would want to be with him now.

After having an hour to read over the booklet, each group took on roles as claimant and defendant to crunch the numbers to get a realistic estimate of how much each part of the case would cost, highlighting the need for numeracy skills and being able to give a confident argument in the world of law, effectively taking skills from opposite ends of the curricula.

My team - the only one containing two defendants and one claimant; and yet the claimant still defeated the defence’s point nearly all of the time - relayed our agreed figures first, including the controversial £0 for a dog walker, since we thought Ron shouldn’t have Fluffy anymore, with the primary goal to be as perceptive as possible into the conditions of the case in our argument.

Subsequent groups perhaps did this better than ours, picking up on obscure details that passed our minds - such as Ron not needing 16 hour care when he’s only awake for 12 hours, while taking the claimant and defendant figures and compromising on a number that followed a logical course of thinking, rather than our approach of choosing either the claimant or defendant figures and hoping one would magically be right.

Overall, every team spoke about a detail of the case others did not get to, implying a sense of individuality in law: in being equally analytical but reaching different, but equally correct, conclusions, while getting a taste of being a lawyer in a case that would probably never happen - a former wizarding chess champion falling victim to a car crash.

Even if some of us do not end up in the field of law, the skills in practice at the workshop are key to nearly all professions - reading carefully, working well with other people, arguing your point succinctly, handling numbers and being a confident speaker.

Thank you very much to Matthew for an informative, entertaining and insightful blog, and to everyone at Idsall School who took part.

As Matthew has outlined, extra curricular activities, such as mock trials and mooting competitions, are an excellent way to develop skills and experience. We regularly run mock trials for local schools.

Please contact us if you are would like to find out more. If you are interested in work experience, please click here.

COVID-19 & The Coroner’s Court

As the UK approaches another grim milestone of registering nearly 130,000 deaths due to COVID-19*, significant pressures have been placed upon those working for Her Majesty’s Coroner Service nationally, as different regions have had to cope with a considerable increase in death referrals being made.

*128,222 deaths as at 04/07/21, where death occurs within 28 days of a positive test (statistics here).

Under s.1(2) of the Coroners and Justice Act 2009 (“CJA”), a coroner is under a duty to investigate a death where there is reason to suspect that:

  • the deceased died a violent or unnatural death,
  • the cause of death is unknown, or
  • the deceased died while in custody or otherwise in state detention.

Anyone can refer a death to a coroner, but The Notification of Deaths Regulations 2019 set out the duty of medical practitioners to refer certain deaths to the coroner. The Notification of Deaths Regulations 2019 were also relaxed during the pandemic by The Coronavirus Act 2020 to allow a medical practitioner, who attended the deceased within 28 days before death (a new longer timescale, and could be by video call), or attended after death, to register the death in the normal way, by the medical practitioner completing a Medical Certificate of Cause of Death (“MCCD”).

Ordinarily, as COVID-19 is a naturally occurring disease, any death arising from COVID-19 would constitute a “natural death”. Where a person dies a natural death, a coroner has no duty to investigate under s.1(2) CJA because there is no reason to suspect that the death is “unnatural”. This is confirmed in the Chief Coroner's Guidance No. 34 paragraphs 17-23.

However, a coroner’s duty to investigate may be engaged where a natural death becomes “unnatural” due to some form of human error or mistake. The question of what amounts to a death by “natural causes” was considered in the case of R (Touche) v Inner London Coroner [2001] QB. In that case, on 6 February 1999 Laura Touche gave birth to twins, delivered by caesarean section. On 15 February 1999, tragically, she died. She was only 31. She died from a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The medical evidence suggested that had her blood pressure been monitored in the immediate post-operative phase, her death would probably have been avoided.

In Touche, it was held by the Court of Appeal that a death by “natural causes” should be considered an “unnatural death” where it was wholly unexpected and would not have occurred but for some culpable human failing. Lord Justice Brown stated that: “It is the combination of their unexpectedness and the culpable human failing [emphasis added] that allowed them to happen which to my mind makes such deaths unnatural. Deaths by natural causes, though undoubtedly they are, should plainly never have happened and in that sense are unnatural…”

In the context of COVID-19, this will be a fact-specific issue. It is well known that patients could contract the disease whilst in hospital as they are effectively “hubs” where the disease can spread from COVID-19 positive patients. Simply because a patient contracts COVID-19 whilst in hospital does not necessarily mean that the death was “unnatural” – it must be shown that the natural death was turned unnatural by a culpable human failing.

It would be fair to say that during the first wave, hospitals struggled to deal with the influx of COVID-19 positive patients and how to safely treat and isolate them away from the general hospital population, in addition to the difficulties of sourcing lack of personal protective equipment (“PPE”) for staff. Over time, proper PPE was sourced and provided; “Red zones” were set up for high risk patients (such as those who tested positive for COVID-19) who were isolated and treated by staff wearing full personal protective equipment; whilst “green zones” were established to treat patients considered at a medium to low risk.

Take one hypothetical example: Patient A is admitted into hospital with symptoms of stroke and is cared for on a low risk “green” ward. This ward had no COVID-19 positive patients when Patient A was admitted, and Patient A himself was COVID-19 negative upon admission. However, within a week, doctors and patients in the adjacent beds began to test positive and soon after Patient A also tested positive. He subsequently developed respiratory symptoms, and died 10 days later from hospital acquired COVID-19 pneumonitis. An internal investigation carried out by the hospital afterwards confirmed that staff members were not adhering to social distancing and that they were not changing PPE between patients, which caused an outbreak of COVID-19 on the low risk green ward.

In the above scenario, it is clear that the “culpable human failure” was the failure to adhere to social distancing and not changing PPE between patients, thus increasing the risk of staff-to-patient infection.

However, a coroner would then have to consider if that failure was causative – i.e. it was the failure to comply with social distancing and not changing PPE between patients that caused Patient A to become infected from COVID-19, and that he did not contract it naturally from some other means.

The question of causation was discussed in the case of R (Chidlow) v Senior Coroner for Blackpool and Flyde [2019] EWHC 581 (Admin) 12 March 2019 where it was determined that the culpable human failing must have contributed more than “minimally, negligibly or trivially” to the death, on the balance of probabilities.

In Patient A’s case, if it can be proven that the failure to comply with social distancing and not changing PPE between patients more than minimally, negligibly or trivially contributed to Patient A contracting COVID-19 and dying, this would render the death unnatural. In these circumstances, the coroner may then return a narrative conclusion which highlights the failings and causative link, and which would then be recorded for posterity on a Record of Inquest.

In summary, COVID-19 has posed significant challenges to Her Majesty’s Coroner Service – not only due to the sheer volume of deaths being referred, but also complex factual, medical and legal issues which a coroner is required to consider. As the death toll continues to rise (albeit at a slower rate than in 2020), it is likely that these pressures will continue for some time to come.

For more information, please contact our medical negligence team.

No Fault Divorce New Legislation

The Divorce, Dissolution and Separation Act received royal assent on 25 June 2020. The government has recently committed to implementing the said Act from 6 April 2022. They state the delay in implementing the said Act of Parliament is primarily to allow time for the necessary IT changes to be made to the HMCTS online divorce system.

New Divorce Process

One of the main aims of the new legislation is to provide a new divorce process which will “work to reduce conflict”. The main changes being the introduction of a ‘no fault divorce’.

The sole ground for obtaining a divorce remains irretrievable breakdown of the marriage. However spouses will no longer have to prove one of the previous five facts required such as adultery or unreasonable behaviour.

The legislation introduces the ability for spouses to make a joint application, where the couple both agree that the marriage has irretrievably broken down. It also removes the ability of the other spouse (respondent) to contest a divorce.

Terminology

Other significant changes include changes in terminology. For example the petitioner will now be known as an applicant, the decree nisi will be known as a conditional order and the decree absolute will be known as a final order.

Time Estimate

Unlike the current process, the applicant will not be able to apply for the conditional order (formerly known as a decree nisi) until 20 weeks have passed since the date the divorce proceedings had been commenced. They will also still have to wait six weeks from the date the conditional order was made before they can apply for the final order (formerly known as the decree absolute). Therefore the minimum time a divorce will take (as from April 2022) will be six months, save for exceptional circumstances where applications can be made to expedite the conclusion of divorce proceedings.

If you would like to know more about the new divorce process, please contact a member of our family team.

National Bereaved Parents Day – 03 July 2021

This blog is written by Chloe Forrester in our clinical negligence department.

Losing a child is an unimaginable loss and something no parent should have to go through. Sadly, in the UK 14 babies are stillborn or die within four weeks of birth (1) and in 2018 there were 2,488 infant deaths (aged under one year) (2)

Saturday 03 July 2021 is National Bereaved Parents Day, hosted by charity A Child of Mine based in Stafford, UK. The focus of this day is to raise awareness of any and all parents, who have sadly lost a child of any age under any circumstance. Throughout the year A Child of Mine hosts various fundraising events to raise money to continue to offer families within the UK the support they need. They run pop-up café events which welcome anyone affected by the death of a child, miscarriage support groups and playgroups for bereaved parents and their children born before or after loss.

It is important to find support during this incredibly difficult time. There are numerous charities, helplines and support groups to help any parent with grief and other children within your family, who may need some support following the loss of a sibling.

Occasionally, the grief of a parent or guardian can be exacerbated by concerns that their pregnancy, birth or subsequent medical care was not managed appropriately. If you would like to investigate the care you or your child received, please feel free to contact a member of our clinical negligence team.

Other support available:

SANDS, still birth and neonatal death charity;

Young Minds, a charity to help support young people with grief and loss;

When a child dies. A guide for parents and carers (NHS England); and

(1) https://www.sands.org.uk/about-sands/media-centre/news/2019/11/significant-fall-number-babies-dying

(2) https://bit.ly/2SGf0bE

More Avoidable Suffering for Parents and Their Babies as Another Maternity Scandal Comes to Light

At Lanyon Bowdler we work on behalf of a significant number of families affected by the maternity failings at The Shrewsbury and Telford Hospital NHS Trust. Therefore the recent news coverage regarding Nottingham University Hospitals NHS Trust tells a highly concerning, yet familiar, story.

An investigation into the maternity services at Nottingham University Hospitals NHS Trust (“the trust”) has revealed that dozens of babies have died, or were left with severe brain injury, following errors made during their mother’s pregnancy and labour. The findings mirror the recent maternity scandals at The Shrewsbury and Telford Hospital NHS Trust and East Kent Hospitals University NHS Foundation Trust.

Investigations

An investigation has concluded the services provided by the trust over the past decade fell below the reasonable standard of care expected and that the deaths and the injuries to a large number of babies were avoidable.

It is alleged that that the trust failed to investigate concerns, altered reports to divert the blame from the maternity unit and/or lessen the severity of incidents, and key medical notes were missing or never made.

It is reported that there have been 201 clinical negligence claims against the trust’s maternity services since 2010, with half of those being made in the last four years. Those claims included 15 neonatal deaths, 19 stillbirths, 46 cases of brain damage and 18 cases of cerebral palsy. Most of those claims arose from one or more of the following: a delay in diagnosis and treatment; a failure to escalate; a failure to recognise complications and inadequate monitoring.

CQC Findings

In October 2020 The Care Quality Commission (CQC) carried out an inspection whereby they identified numerous failings where staff had failed to interpret, classify and escalate concerning foetal heart rates.

The CQC identified between July and September 2020 that there was 488 reported incidents at the trust’s maternity unit. The CQC found a number of incidents were inappropriately graded. In one instance, as recently as 2020, the death of a mother was categorised as a low harm incident and babies or women who were admitted to intensive care were labelled the same.

In May 2021 the CQC inspectors determined that despite improvements there were still areas to address.

Lessons to Be Learnt

The CQC has reported that there are concerns about the safety of maternity units across the country with 41 per cent being rated as inadequate or requiring improvement on safety.

At Lanyon Bowdler we are astutely aware of the importance of lessons being learnt and this is something we believe is imperative for these maternity units across the country.

We have extensive experience of dealing with maternity cases. If you have concerns about the maternity care you have received, our team is happy to discuss the matter with you and guide you through the process sensitively.

A Collaborative Approach to Resolving Financial and Children Issues

We have recently reported that the Divorce, Dissolution and Separation Act is hopefully coming into force, heralding the availability of no-fault divorces, in around April 2022. So in this era where blame is being cast aside in favour of enabling couples to recognise when the marriage has irretrievably broken down and to get a divorce purely on that basis, might it also be a good time to focus on a collaborative approach to sorting out the financial and children issues that arise?

At its heart the collaborative process, which has in fact been available to all separating couples (save where domestic abuse or other exceptions apply) for over a decade now, enables separating couples to discuss options and work towards constructive solutions around a table, each with a specialist, collaboratively-trained solicitor to support and advise them. There are no adversarial court proceedings. The couple choose the collaborative process and agree that they will negotiate in good faith and in a transparent and open way. Each has his or her own collaborative lawyer by their side to provide advice and support. The issues are resolved in face-to-face meetings called four-way meetings and correspondence will generally be kept to a minimum. The parties and their lawyers sign a participation agreement. This confirms that they will work in a respectful way with dignity, and agree to provide financial information openly to enable legal advice to be given, negotiations to proceed in the four-way meetings and, at the end of the process, for the court documentation to be drawn up and submitted to secure a binding court order. This is just as enforceable as an order that has been obtained through the formal court process but usually at about a third of the cost and importantly, enabling the parties to maintain a good co-parenting relationship, retaining goodwill towards their former partner and knowing that they had been an integral part of a client driven process.

The collaborative approach still enables the parties to have expert advice and guidance from independent financial advisers, pension actuaries, family therapists and, if necessary, neutral evaluations from collaboratively trained barristers or determination of any tricky legal points through arbitration. Professionals can join the four-way meetings and speak directly to the couple answering their questions there and then so keeping meetings fluid and speeding the process along. Often collaborative cases are resolved in around a quarter of the time that formal financial remedy or children act proceedings can take.

How to Retain a Collaborative Lawyer.

All collaborative lawyers are members of Resolution, the body of family lawyers committed to resolving matters in a non-inflammatory, constructive and cost-effective fashion. Collaborative lawyers can be found on the Resolution website. Shropshire has an active collaborative group with seven lawyers, plus a collaboratively trained independent financial adviser and a specialist relationship therapist. A list of members can be found here.

At Lanyon Bowdler Lisa Grimmett is the collaboratively trained lawyer and is happy to speak to any interested potential clients for an initial telephone chat.

Once the collaborative lawyer is engaged, he or she will then make contact with the spouse of the client and invite them to consider a collaborative resolution. Ideally that party will then consult a collaboratively trained lawyer as the collaborative process is only open to parties who both recruit collaboratively trained solicitors. The lawyers will then agree with the parties an agenda for the first meeting and look at drafting up anchor statements setting out the aims of the parties and drawing out the areas of common interest; most usually the approach towards the care of the children and the recognition that both parties are striving to secure a fair outcome for each other.

The first four-way meeting enables introductions to be made and the participation agreement to be discussed along with the general aims of the collaborative process and how it differs from the court approach. Collaborative law is more client-focused, client-driven and tailor-made to the clients’ specific requirements. Importantly all discussions are “without prejudice” which means that they cannot be referred to should the process break down. This gives the couple confidence to share ideas and proposals that may have been thought of as possible options for resolving things, without having to be concerned that that information might be used against them in any way. All financial disclosure provided through the process is on an open basis which means that it can be relied upon as true and accurate and used in support of a consent application once an agreement has been reached.

If you would like any more information about a collaborative approach to matters, whether you are in the process of divorce currently or choosing to wait until the no-fault divorce option becomes available next spring, please do not hesitate to contact us.

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