Hershman and McFarlane: Children Law and Practice

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

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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
Portable Core Narrative Binder
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.

2013 SUBSCRIPTION INFORMATION

4 volume loose-leaf
£540.00 main work inc mainland UK p&p
3 updates per year (annual subscription November – October approx £390.00)

Authors

The late David Hershman LLB (HONS)
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, Head of Family Department, 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

Deborah Cullen Solicitor, Formerly Secretary to Legal Group, British Association for Adoption and Fostering
Richard Harrison QC, Barrister, 1 King’s Bench Walk
Katie Smith, Senior Lecturer, Nottingham Law School
Catherine Williams Solicitor, Coram Children’s Legal Centre

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

"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

Update 65 (March 2013)

In this Update, in addition to general amendment of the text to take account of developments in case-law, substantial narrative has been introduced to describe the following:

The new rules and practice directions at FPR 2010, Part 25 regarding expert evidence in children cases.
The 1996 Hague Convention on the Protection of Children.
The new procedure governing appeals set out in CPR 1998, PD52A to 52E.
Re TG (Children) [2013] EWCA Civ 5, in which Sir James Munby P describes the wide discretionary base for the court’s inquisitorial role in making case management decisions in children cases.

This Update marks the departure of Sir Alan Ward as the Editor-in-chief of Children Law and Practice, a post that he has held since the very earliest days when the idea of writing this book was still but a wishful thought in the minds of its two naive authors. Soon after his appointment to the High Court bench, Mr Justice Ward was persuaded by the then President, Sir Stephen Brown, to guide and assist two young barristers from Birmingham, whom Sir Alan had never met, in formulating the plans for a book about ‘care proceedings’. David Hershman and I were eternally grateful that Ward J accepted this unlooked-for task with charm and good humour. We greatly valued his wisdom in encouraging us to expand the scope of the work well beyond our original modest aim; a decision that became inevitable once it was clear that our publication would coincide with the implementation of the Children Act 1989. Throughout the ensuing 21 years, Alan has been a stalwart supporter and sage companion in this joint endeavour. It has, above all, been great fun to have had him as our team leader for all of this time. David, Madeleine and I, together with the whole team, have been most fortunate to have had such a star as our Editor-in-chief for so long. We all wish Sir Alan a long and very happy retirement.
Finally, this Update also marks the departure of Sir James Munby as one of our Consulting Editors. We are extremely grateful to Sir James for his support and wisdom over the past decade and offer him our heartfelt congratulations and good wishes on his appointment as President of the Family Division.
Andrew McFarlane
February 2013

Foreword

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

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Preface

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

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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

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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

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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])

Hershman and McFarlane Children Law and Practice is also available online as part of the Family Law Online Service.

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How to use this work

Looseleaf updating
The looseleaf arrangement of Children Law and Practice enables the book to be kept constantly up to date by the removal and insertion of updating pages. These are supplied at least three times a year in the form of Updates. Each Update is accompanied by filing instructions, which should be followed carefully to ensure that your book is fully and correctly updated. At the end of Binder 4 you will find a Filing Record, which should be filled in each time an Update has been filed. A checklist of pages is sent with each updating issue, to be filed at the back of Binder 4. You should use this to check that your copy of Children Law and Practice has been correctly updated.

Arrangement of the work
Binder 1 contains the core narrative text, divided into five Divisions, all of which are separated by plastic divider cards. The combined contents of Binder 1 are intended to provide the essential procedural information the reader is likely to require in court. Binder 2 contains a further three Divisions of narrative text and the Non-Statutory Materials, while Binder 3 holds the Statutes and Binder 4 contains the Statutory Instruments. Details of the contents of each binder and division will be found in the preliminary pages at the front of each binder and at the beginning of each division.

Paragraph numbering
The narrative text in Binders 1 and 2 is divided into numbered paragraphs. Cross-references to material in other divisions are to the paragraph numbers in those divisions. For example, a reference in D[1127] directs the reader to para [1127] in Division D. Where no letter appears, the reference is to a paragraph number within the same division.

Tables and index
The work contains tables of cases, statutes and statutory instruments. These are located towards the front of Binder 1.
An index to the entire narrative in Binders 1 and 2 will be found at the end of Binder 1.
Tables and index are reissued with every update.