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Hershman and McFarlane: Children Law and Practice

"The practitioner's 'Bible' on all aspects of public and private child law".

Sarah Forster, Head of Chambers, Fourteen

As part of the acquisition process of Jordan Publishing by LexisNexis, Hershman and McFarlane: Children Law and Practice has been divested to a third party publisher, Bloomsbury Publishing plc.  

New points of contact are 01444 416119 or richard.price@bloomsbury.com

For more information about the acquisition by LexisNexis please click here.

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Authoritative, comprehensive, practical and written by two leading child lawyers, advised by a board of eminent child law experts, Hershman and McFarlaneChildren Law and Practice is firmly established as the leading reference work on the subject and is available as both a print and online subscription.

Conceived and written around the Children Act 1989, the work is regularly commended for its user-friendly approach and for concentrating on the issues that really matter in both public and private law. Clear narrative is complemented by numerous time-saving checklists, procedural tables and flow-charts. Relevant statutory materials are included and the whole work is extensively cross-referenced.

Used by all sectors of the profession including solicitors, the judiciary, barristers, local authorities and social services, this work is relied upon daily in all levels of court. Here's why:

  • Authoritative Commentary
    Detailed and practical advice is written by The Hon Mr Justice McFarlane and Madeleine Reardon, Barrister
  • Easy-to-Use Layout
    Flow-charts, checklists and procedural tables take you step-by-step through all the procedures relevant to your application
  • Comprehensive Legislation
    Includes all the relevant statutes and statutory materials
  • Frequent and Economical Updating Service
    To keep pace with all of the latest changes in this important area of practice the work is updated three times a year by Madeleine Reardon, a barrister who is in the thick of undertaking the work in day-to-day practice, and The Rt Hon Sir Andrew McFarlane, who is now a Court of Appeal judge and was a member of the Norgrove Family Justice Review Panel
  • This binder contains all the essential procedural narrative that you need to take to court, which along with Hershman and McFarlane: Children Act Handbook, makes the perfect portable library of practical information for court proceedings
  • FREE Hershman and McFarlane Children Act Handbook 
    Includes a free copy of the latest Hershman and McFarlane: Children Act Handbook, published annually, providing a single volume source of key legislation and guidance materials.

Update 74 (March 2016)

This update incorporates changes to legislation and case-law to state the law as at 1 January 2016.

In addition to general updating arising from case-law and statutory amendment, this update incorporates the following important recent developments into the text:
  • Re J (A Child) (1996 Hague Convention) (Morocco) [2015] UKSC 70, which establishes the scope of the Article 11 jurisdiction of the English court under the 1996 Hague Convention to make orders in ‘cases of urgency’;
  • Re B (A Child) [2016] UKSC 4, on determining the habitual residence of a child;
  • Re C (Internal Relocation) [2015] EWCA Civ 1305, which holds that the approach to applications of internal relocation within the jurisdiction of England and Wales should mirror that relating to cases of international relocation;
  • Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, which, in addition to seeking to reduce the use of CA 1989, s 20 accommodation very significantly, analyses the basis for the court in England and Wales to have jurisdiction in adoption proceedings that have an international element;
  • the President’s Guidance on Radicalisation Cases in the Family Court issued in October 2015;
  • the creation of new criminal offences relating to female genital mutilation inserted in the Female Genital Mutilation Act 2003 as ss 3A and 5B.

Personal message from the authors

The publication of this update coincides with a watershed moment in the life of Hershman and McFarlane: Children Law and Practice. Since the first stirrings of the idea for a book on child law in the youthful minds of the two original authors, the work has been developed and nurtured in partnership with the excellent team at Jordan Publishing. The relationship between publishers and authors, which is marked this year by the 25th anniversary since publication, has always been entirely supportive and positive. As the covering letter accompanying this update explains, Jordan Publishing has now become part of the LexisNexis publishing group and, in accordance with requirements made by the Competition and Markets Authority, Hershman and McFarlane is now to be published separately by Bloomsbury Publishing Ltd. This moment cannot pass without a public expression of our heartfelt thanks to all at Jordan Publishing for everything that they have done to support this work over the past 25 years.

Looking to the future, following compulsory removal from our parent company, we are confident that Hershman and McFarlane has now found an excellent and welcome adoptive placement at Bloomsbury Publishing. Many of the team who have supported Hershman and McFarlane in the past will continue to work on the publication at Bloomsbury. We have taken substantial steps to ensure that the experience of the reader, either in print or online, will not be diminished by the move; in particular, the electronic link in our text to the Family Law Reports will remain in place, notwithstanding that FLR is now a LexisNexis publication. We are excited by the prospects that now open up for Bloomsbury Publishing to develop in the field of family law publishing and we look forward with confidence to working as closely and as effectively with the team at Bloomsbury as we have done in the past with Jordan Publishing.

Andrew McFarlane and Madeleine Reardon

February 2016


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How the looseleaf is set out
Find out how to use this looseleaf

The new Division designation is as follows (the four main narrative divisions remain unchanged at A to D except that the previous Division J on Guardianship has now been added to the end of Division A):

Binder 1

 Tables
 Division A Parental Responsibility and Guardianship
 Division B Private Law Proceedings
 Division C Public Law Proceedings
 Division D Adoption
 Division E Appeals and Judicial Review
 Index

Binder 2


 Division F Local Authority Responsibility
 Division G Child Abduction and Injunctions
 Division H Fostering and Family Placement
 Division I Non-Statutory Materials

Binder 3


 Division J Statutes

Binder 4


 Division K Statutory Instruments
"The practitioner's 'Bible' on all aspects of public and private child law"
Sarah Forster, Head of Chambers, Fourteen


"Children Law and Practice does stand out in our view with regard to ease of use, reference, range, thoroughness and 'user-friendliness'"
Civil Justice Quarterly


"Straightforward and readable. The flow-charts, tables and checklists are particularly good"

Practitioners' Child Law Bulletin


"Definitive and practical ... all those concerned with the care and welfare of children will find it immensely valuable"

The Rt Hon Sir Stephen Brown

 Always reliable; up to date and with sensible and practical advice ...As a practitioner who was involved in the bill stages of the Children Act 1989, I have grown up with the looseleaf by my side since 1991. The vision of David Hershman and Andrew McFarlane to provide ‘a clear, detailed and comprehensive analysis of the law relating to children’ has been more than met by this text – that Andrew has maintained that commitment following David’s premature death in 2004 is testament to their joint project in 1991 and testament to Andrew’s seemingly inexhaustible energy and commitment since – that we as practitioners can continue to benefit from this resource helps not only us, pressed increasingly by public funding cuts in many areas of this work, but most importantly the children who deserve the best-informed legal advice they can have. Texts like this make all of us do our job better … anyone who thinks the internet does as well is simply wrong!

     Read the full review

Peggy Ray, Goodman Ray LLP

Our aim in writing this book has been to provide a clear, detailed and comprehensive analysis of the law relating to children. The text is intended to be as ‘user friendly’ and accessible as possible, while remaining within the confines of a book which is also easily portable.

The advent of the Children Act 1989 and the new court rules has led us to approach the arrangement of the text in a way which does not make a bold distinction between the private and the public law relating to children. Consequently, Division C considers all orders with respect of children (both private and public) and Division D considers all the relevant procedure. It is our hope that this method of organising the material not only reflects the fresh approach generated by the Children Act 1989, but also presents the text in a useful way for practitioners.

We have been extremely fortunate in having a consulting editor and advisory editors who have made themselves available to us at no small cost to their own free time and family life. In the early stages, the sage advice of Sir Alan Ward as consulting editor, was particularly helpful in defining the scope of the work and the way in which the material within it should be organised. Thereafter, he has been a source of detailed advice and constructive criticism from which the book has greatly benefited.

Our two advisory editors, Clive Major and Paul Evans, have read and reread the draft text and commented upon it in detail, both on paper and at a series of very enjoyable Saturday meetings. It is no exaggeration to say that it is unlikely that there is a page in this work which has not benefited in some way from an alteration suggested by either Clive or Paul. Their contributions have been directed to ensuring that not only is the law correctly stated, but also that it is stated in a clear and accessible fashion.We are grateful to them, and to their families, for their commitment to this project.

Throughout the development of this book we have enjoyed working very closely with the staff of Jordans. During this three-year period their advice and guidance on matters both of technical detail and of substance have been of great value from first to last.

 A sign of their achievement is the publication of this major and complex work by 14 October 1991, despite the fact that many of the Statutory Instruments and court rules which are referred to in the text were only published during the last few weeks. We are very grateful to Sir Stephen Brown, The President of the Family Division, for agreeing to write a Foreword. We have been encouraged by his interest and support in the book over the past three years.

With the writing of this Preface, the book has now ‘gone to press’. The greatest contribution by far to the fact that we have reached this stage has been made by our respective families and, in particular, our wives, Abi and Susanna. They have become single parents and ‘word-processor widows’ to the extent that it is hard now to remember what normal family life was like before we started typing. Despite all the strain and stress, Abi and Susanna have never wavered in their support for us. For all that they have done, we are more grateful than it is polite to express in the Preface to a formal textbook.

 David Hershman and Andrew McFarlane
 Priory Chambers, Birmingham
 September 1991
 -------------------------

From Update 39

David Hershman QC died suddenly on 4 September 2004 at the age of 45 years. His contribution to the practice of the law relating to children over the past 20 years has been great as an adviser, an advocate, a lecturer and latterly as a deputy High Court Judge. It is, however, his work upon this book, Children Law and Practice, which has the most significance and is likely to become his enduring legacy to current and future family lawyers.

 In 1988 David and I, then junior barristers in Priory Chambers, Birmingham, had written three short articles for the Family Law journal and thought that a small textbook was within the scope of our talents.

 The aim was to provide a detailed practitioner’s text on care proceedings, similar in depth to a work, which we much admired, by Nigel Lowe and Richard White on ‘Wards of Court’. It was only after we had been signed up by Jordans to produce a book that the Children Bill was published and the scales were lifted from our eyes by our Editor-in-chief, Sir Alan Ward. We realised that it would no longer be possible to write a discrete text solely on ‘Care Proceedings’ and with stunning naivety we agreed that we would deliver a book covering the entire gamut of child law. We then went out and bought an Amstrad PC each and started to learn how to type!

David brought many things to our partnership. During the period of writing the text, David’s dynamic approach to the scale of the task before us was crucial. He was undaunted by the amount of work required. There was never any doubt in his mind that the book would be completed and completed on time, no matter how much graft was required to achieve this goal. The result was that the book was published on 14 October 1991, the day that the Children Act 1989 was implemented.

In the 13 years since publication, David and I have continued to work together writing each of the thrice-yearly updates, advised by our indispensable band of consulting editors.

We also worked closely together in our professional life and through many lecturing engagements. Because of the way in which the Bar is structured, such a close and enduring working relationship is a rare and special thing. We were engaged in a joint adventure and we were, above all, great friends. I was a lucky man to have experienced such a friendship. David’s death has occurred during the preparation for ‘Update 39’, which marks the long-planned reorganisation of the book into three volumes. He had played a full part in achieving these changes. Looking to the future, the authorship of Children Law and Practice will now be my sole responsibility, however, such was the close and intuitive nature of our collaboration that in a real sense I will feel that the task is a continuation of our partnership.

 Andrew McFarlane QC
 One Kings Bench Walk, London
 October 2004
 ----------

From Update 60

The issue of Update 60 marks two major milestones for Children Law and Practice in the lead-up to the book’s 20th anniversary in October 2011.

The first milestone relates to content. The coming into force of the Family Procedure Rules 2010 has required a comprehensive updating of the whole work to remove reference to the previous provisions and to integrate the new Rules and Practice Directions fully within the narrative. The text that is now issued is fully up to date with the new procedural provisions as at 6 April 2011 and reflects the substantive law as at 1 February 2011.

The second milestone relates to structure. In 2004, when the work moved into three volumes, the aim was that Binder 1 would contain the four main narrative divisions and the core statutes and statutory instruments.

This was always an adventurous goal and the volume of material soon rendered it impossible to maintain. The sequence of divisions had, however, been organised to achieve this move. The result was that the core statutory material became oddly marooned at the beginning of Binder 2 before the remainder of the narrative. The need to reissue much of the work in this Update has provided the opportunity to regularise the sequence of divisions and to reorder the work into four, rather than three, binders. This has necessitated renumbering the divisions from Division E onwards. We hope that subscribers will find the new layout more straightforward.


 Andrew McFarlane and Madeleine Reardon
 April 2011
The authors, who are practising barristers, have produced a truly comprehensive work on the law and practice relating to children. It is both definitive and practical. Lawyers, both practising and academic, social workers, guardians ad litem and all of those concerned with the care and welfare of children will find it immensely valuable. Its publication, which coincides with the implementation of the Children Act 1989, marks an outstanding contribution to the development of family law.

 The Rt Hon Sir Stephen Brown
 President of the Family Division
 September 1991
Authors
The late David Hershman QC

 One of Her Majesty’s Counsel

The Right Honourable Sir Andrew McFarlane
One of Her Majesty’s Lord Justices of Appeal

Editor-in-chief
Katherine Gieve

 Partner, Bindmans LLP

Update Editors
The Right Honourable Sir Andrew McFarlane

One of Her Majesty’s Lord Justices of Appeal
Madeleine Reardon
Barrister, 1 King’s Bench Walk

Consultant Editors
Liam Gribbin
Barrister, Plymouth City Council Legal Services
Richard Harrison QC Barrister, 1 King’s Bench Walk
Katie Smith Senior Lecturer, Nottingham Law School

Division G Child Abduction and Injunctions. Section 1 Child Abduction within England and Wales. G[1] 1 Introduction: 

The unauthorised removal of a child from the care of a person with whom he normally lives (‘child abduction’), or the threat of such a removal, is a situation which may require the practitioner to act speedily to protect or recover the child, or otherwise to protect his client’s interests. The remedies available with respect to child abduction are piecemeal, rather than being part of a unified scheme, and vary depending upon the location of the child at any particular time. 1 In this Division, the private law relating to child abduction is considered under four headings: child abduction within England and Wales (including the prevention of abduction) (see [1]–[90]) child abduction within the UK (see [91]–[144]) child abduction between Convention countries (see [145]–[196]) child abduction and non-Convention countries (see [197]–[210])

 ----------

Division C Public Law Proceedings  > Section 3 Care Orders  > C[1000] 3 Application for a care order

The Public Law Outline[1031]

The original Public Law Outline (‘PLO'), in the form of a ‘Practice Direction: Guide to Case Management in Public Law Proceedings' issued by The President, applied to all levels of court dealing with Public Law proceedings under CA 1989 until 6 April 2010. The Public Law Outline replaced the Protocol for Judicial Case Management, issued in 2003. A revised form of the Public Law Outline applied from 6 April 2010 until 1 July 2013: Practice Direction: Public Law Proceedings Guide to Case Management: April 2010 and appears as FPR 2010, PD12A.

From 1 July 2013 until the implementation of the revised statutory scheme under the Children and Families Act 2014 on 22 April 2014, a further revised version of the PLO was in force as a Pilot Scheme under FPR 2010, r 36.2. From 22 April 2014, the Pilot Scheme is superseded by the provisions of the CFA 2014 and amendments to the core provisions of the FPR 2010 and in particular a new, revised PD12A.

The PLO applies to all ‘public law proceedings' which means all ‘Part 4 proceedings' and the proceedings listed in FPR 2010, r 12.2. ‘Part 4 proceedings' are defined as follows:

  • a care order or the discharge of such an order under CA 1989, s 39(1);
  • an order giving permission to change a child's surname or remove a child from the UK under CA 1989, s 33(7);
  • a supervision order, the discharge or variation of such an order under CA 1989, s 39(2), or the extension or further extension of such an order under CA 1989, Sch 3, para 6(3);
  • a contact order under CA 1989, s 34(2) to (4) or an order varying or discharging such an order under CA 1989, s 34(9);
  • an education supervision order (or the extension or discharge of such an order);
  • an order varying directions made with an interim care order or interim supervision order under s 38(8)(b) of the 1989 Act;
  • an order under CA 1989, s 39(3) varying a supervision order insofar as it affects a person with whom the child is living but who is not entitled to apply for the order to be discharged;
  • an order under s 39(3B) of the 1989 Act varying or discharging an interim care order insofar as it confers a power of arrest attached to an exclusion requirement; or
  • the substitution of a supervision order for a care order under CA 1989, s 39(4).

The purpose of the Public Law Outline is to streamline the court timetable in care proceedings, with the aims of avoiding unnecessary delay in resolving issues and of ensuring that those cases that can be ‘fast-tracked' move more swiftly through the system. There is an emphasis on pre-proceedings preparation by local authorities, which it is hoped will enable proceedings to be avoided entirely in some cases.

Find out how to use this looseleaf

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- Paragraph numbering
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