Supreme Court: Iraqi Criminal’s Appeal Dismissed

“This is the lengthier of the two judgments. Indeed, Lord Kerr’s dissent alone stretches to more than 90 paragraphs and he clearly went to great lengths to differentiate his views from those of his esteemed colleagues. He gives the lead judgment in Makhlouf [2016] UKSC 59, which is discussed next. Overall, there is a stark mismatch between the weaknesses exposed by the facts of these two cases and the seriousness of the legal issues involved. The lack of uniformity invites the question whether the interests and welfare of a child with an active relationship with a foreign criminal parent may have been overlooked by the fact that the court provided no concrete new guidance on how to treat children’s interests.

The Supreme Court did point to ZH (Tanzania) as the high water mark in the field but that decision is now almost five years old and seems to belong to a different generation of case law; a time when the present hostile “deport/remove first, appeal later” environment did not exist and abuses of power were less intense in comparison to today.

Equally neither case addresses the ongoing conflict in the courts between the article 8 and public interest provisions of the Immigration Act 2014, which have modified Part 5 of the 2002 Act and are binding on judges unlike the Immigration Rules. These tensions have already been exposed by the rulings of the Court of Appeal in MM (Uganda) [2016] EWCA Civ 450 (see here) and MA (Pakistan) [2016] EWCA Civ 705 (see here) which seem destined for adjudication by the Supreme Court. It will ultimately be for its justices to decide whether Elias LJ’s child-centred approach in the latter case is to be preferred over Laws LJ’s more restrictive pronouncements in the former judgment.

However, Ali nevertheless contains a salutary reminder that decision-makers are obliged to consider other relevant factors – such as a vulnerable child’s best interests – where the factual matrix of a deportation case lies outside the mechanics of the Immigration Rules.”

United Kingdom Immigration Law Blog

Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 (16 November 2016)

The linked cases of Hesham Ali (an Iraqi) and Zouhair Ben Belacum Makhlouf (a Tunisian) concern the contentious theme of foreign criminals. Lord Neuberger, Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes and Lord Thomas heard both appeals. The outcome reflects the increasing reluctance of the courts to permit the right to respect for family life to aid undeserving individuals who are involved in drug dealing or violent offending. Both men were foreign criminals within the meaning of the UK Borders Act 2007. Makhlouf received a sentence of 39 months’ imprisonment after pleading guilty, in 2005, to offences of assault causing grievous bodily harm (GBH) under section 20 of the OAPA 1861 and possession of an offensive weapon, relating to an incident in 2003. Ali’s appeal was dismissed by a majority…

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Children’s Rights Are Not Passports Against Deportation

“Makhlouf stressed that Berrehab v Netherlands (1988) 11 EHRR 322, Ferrari v Romania [2015] 2 FLR 303 and Sylvester v Austria (2003) 37 EHRR 17 respectively indicated that (i) despite potentially significant loss of contact, the absent or invisible parent’s family life with the child does not end with divorce and separation (ii) lengthy and deliberate denial of contact by the custodial parent cannot be used to deny the absent parent’s ongoing article 8 rights and (iii) effective respect for family life meant that the passage of time alone was not determinative of future family relations between parent and child. Equally, low tolerance for causing parental alienation also exists in domestic courts because of the child’s entitlement to evolve with the participation of both parents.

Makhlouf claimed that the family care system required robust case management unless it wants to be held responsible for violating the child’s article 8 rights by not allowing a relationship to develop with both parents. He submitted that the loss of a possible future relationship with him potentially resulted in a deprivation of a sense of cultural identity in his children. The situation exacted a scrupulous assessment by reference to fresh social welfare reports, especially because his son’s mother Charlene McManus was no longer averse to facilitating contact with him.

It was equally clear that the United Nations Committee on the Rights of the Children (CRC) demanded in General Comment no 14 (2013) – on article 3(1) of the Convention on the Rights of the Child – that focus must be provided to the holistic development of the child concentrating on full and effective enjoyment of the rights recognised in the Convention. A rights-based approach must prevail and decisions must be tailored to fit the specific needs of the child in question. Legislators, judges and other authorities are obliged to make specific inquiry as to the particular circumstances of an individual child and take action accordingly.”

United Kingdom Immigration Law Blog

Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59 (16 November 2016)

Makhlouf entered the UK in 1997 as the spouse of settled person and was granted indefinite leave to remain in 1999. He was the father of two children born out of two separate relationships. His first child Sarah-Jayne was born out of his marriage to Ruth Henderson, a British citizen. They separated, but never divorced, because she claimed he was violent. Makhlouf pleaded not guilty to causing intentional GBH under section 18 of the OAPA 1861. But as seen in the last post he pleaded guilty – at the earliest opportunity – to the lesser GBH offence under section 20 and received 39 months’ imprisonment in 2005. While drunk, he attacked two people over a dispute related to a gambling game. He accused his victims of being loyalist paramilitaries who had not…

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The Casey Review: From the Jewish to the Muslim ghetto

“The Bosnian Muslims in the 1990s are perhaps the model that some policy makers may desire. White Muslims, with Westernised names, dress codes and dietary habits and 60% inter-marriage rates between Muslims and Serbs, with 500 years of co-existence. Yet the Muslims were on the end of genocide fueled by the rising tide of nationalism, anti-Muslim rhetoric and myths about Islamic extremism.

That type of politics is exactly what has fueled racial tensions and hate aimed at Muslims/foreigners in the UK, Europe and USA. The uncomfortable truth that Casey ignores is and that today Europe is in a dangerous place, not because of Muslims, but because its age-old demons of racist populism, nationalism/isolationism, and economic decline which are demonising minorities and foreigner sonce more. And British politicians and the media have played the main role in fueling those views.

Casey recommends attaching more weight to the teaching of British history in schools. Perhaps teaching British politicians and policy-makers about the history of political reactions to British ghettos might be a better starting point!”

CoolnessofHind

bradford-mosques

This succinct piece covers most of my contentions admirably.  My detailed analysis is to follow in the coming days.


CROSSPOST: Jahanghir Mohammed

Jahanghir Mohammed argues that this week’s Casey Review on integration, which placed the blame on Muslims for failing to integrate into British society, is a classic case of victim-blaming. 

“The ghetto is never white, it’s always Jewish, black or Asian,” my line manager in the Council use to say. The word ghetto of course has an anti-semitic and racist history, and is avoided these days; but when politicians and policy-makers talk about “parallel lives” and “segregated” communities they now mean Asian or Muslim ghettos.

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Recommended Assessment Protocol

“The narcissist as a child, when faced with this same dilemma of having to bond to a frightening attachment figure (which creates the core disorganized attachment), chose to avoid bonding to the frightening attachment figure, which created the anxious-avoidant overtones to the fundamentally disorganized attachment. The narcissist sacrificed intimacy for safety. This allowed the narcissistic personality to structure at a more stable level because there is less anxiety fragmenting the personality formation, but the sacrifice of intimacy leaves the core personality empty inside – there is no core self-structure to the narcissistic personality. Instead, at their core, the narcissistic personality experiences a profound emptiness created by the absence of psychological intimacy during childhood, an emptiness they try to fill through the “narcissistic supply” of social adulation and grandiose self-opinion.”

Dr Craig Childress: Attachment-Based "Parental Alienation"

I’ve recently been working with several attorneys as an expert consultant regarding their cases of “parental alienation.”  In this capacity as an expert consultant, I developed a generic letter that the attorney, or their client, could provide to the involved mental health professionals describing the pathology of concern and my recommended assessment protocol.

This generic letter may be of use to other targeted parents and to attorneys representing them, so I have posted it to my website:

Recommended Assessment Protocol

I am appending to this blog post the content of this letter which describes my recommended assessment protocol :


Re:  Standard Recommended Assessment Protocol

I have provided professional-to-professional consultation with therapists and child custody evaluators regarding an attachment-based formulation for the pathology traditionally called “parental alienation” surrounding divorce (AB-PA: attachment-based “parental alienation”).  In addition to discussing the nature and development of the family pathology of AB-PA, I recommend a specific…

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DISPUTING SERVICE: USING THE RIGHT PROCEDURE: THE APPLICATION OF CPR 3.10

“The means which CPR offers to dispute service is via Part 11. This is reflected in paragraph 5.01 of Briggs, “Civil Jurisdiction and Judgments” (6th ed.) to which both parties referred for their different points:
“If it may be shown that service has not been properly made, it will be open to the defendant to dispute the jurisdiction and to ask the court to declare that it has no jurisdiction; it may be open to the claimant to ask the court to cure or overlook any shortcoming which may be regarded as an irregularity.”
It also reflects both the structure of the CPR and the notes to Part 11 which indicate that any challenge to jurisdiction (including service) should proceed by way of Part 11 challenge. This position was recently confirmed by Popplewell J in IMS SA and others v Capital Oil and Gas [2016] EWHC 1956 (Comm).”

Civil Litigation Brief

In Bank of Boroda, GCC Operations -v- Nawayny Marine Shipping FZE [2016] EWHC 3089 (Comm) Ms Sara Cockerill QC (sitting as a Deputy Judge of the High Court) considered issues in relation to disputing service. What is interesting  here is that the judge exercised her discretion under CPR 3.10 in a case where the defendant had (correctly) made an application under CPR Part 11.

KEY POINTS

  • In disputing service the defendants had correctly made an application under CPR Part 11.  Part 11 was the appropriate mechanism.
  • The filing of an acknowledgement of service did not act as a waiver of the defendants’ right to take issue with service.
  • It was, however, appropriate for the court to make an order under CPR 3.10. to rectify matters.

THE CASE

The defendant issued an application to dispute service.  There were a number of defendants, however the claimant only served one original claim form…

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PROVING THINGS 43: HOW THE COURT DECIDES: A PRIMER

“”How the court decides
There are three general points about the way that English civil courts reach their decisions which I should make at this early stage. The lawyers in the case undoubtedly know them, but their clients may not. They are subject to a qualification which I shall mention after making them. The first is that, in our system, it is for the parties to seek out and place before the court the material which they consider will assist the court and promote their case. It is not for the court to investigate of its own motion. Other relevant material may possibly exist somewhere else, but it is not the duty of the court to look for it. In general terms, the court makes a decision only on the material put before it by the parties.
The second point is that, in English civil procedure law, one party or the other bears the burden of proving any particular matter in issue between them. If the person bearing that burden satisfies the finder of fact (judge or jury), after considering the material before the court, that on the balance of probabilities a thing happened, then, for the purposes of deciding the case, it did happen. If that person does not so satisfy the fact finder, then that thing did not happen. The system is binary, and the judge decides on the basis of the burden of proof. There is thus no room for maybe: see Re B (Children) [2009] 1 AC 11, [2], per Lord Hoffmann.
The third point is that, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the Court to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing: see Wisniewski v Central Manchester Health Authority [1998] PIQR 324, CA; Jaffray v Society of Lloyds [2002] EWCA Civ 1101, [406]-[407]; Thames Valley Housing Association v Elegant Homes (Guernsey) Ltd [2011] EWHC 1288 (Ch), [19].”

Civil Litigation Brief

The judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160 (Ch) includes a useful primer on how the court goes about the task of deciding civil cases.

“…the decision of the court is not necessarily the objective truth of the matters in issue. Instead it is the most likely view of what happened, based on the material that the parties have chosen to put before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to”

THE CASE

The action was a probate claim relating to whether the defendant was lawfully married to the claimant’s mother.  The claimant’s case was (a) the defendant and her mother had never lawfully been married; (b) any marriage that took place was polygamous, the defendant having never divorced his previous wife.

HOW THE COURT DECIDES

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CIVIL COMMITTAL PROCEEDINGS: STILL A MATTER FOR GRAVE CONCERN

““32 … Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says:

“The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) –

(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.””

Civil Litigation Brief

I have written several times about the problems in obtaining representation and funding for civil committal proceedings.   The judgement of the Court of Appeal yesterday in Devon County Council -v- Kirk [2016] EWCA Civ 1221 exemplifies the difficulties and dangers.   It also shows the tenacity of counsel, acting pro bono.” It shows the failure of a system.

“Of greatest concern, however, is the fact that, in circumstances where she should never have been committed at all, Mrs Kirk languished in prison for almost seven weeks before being released. And, as my Lord has pointedly observed, how much longer might she have remained there had Mr Challenger not intervened and been so tenacious in his pursuit of her release? A proper system should not permit this to happen. The fact that it did happen here suggests that the systems in place are not adequate.”

THE CASE

The Court of…

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The Particular Problems of Hearing the Voice of the Child in cases of Parental Alienation.

“In the UK, it is incumbent upon those delivering public services, such as social workers, to implement this into their work with children. In the field of family separation, this often leads to disastrous results when a child is in the care of a parent who is influencing the child and who may have an undetected mental health condition.”

“Hello UK…..are there any adults left with the moral courage to stand up and argue against this madness? Children’s wishes and feelings, in a case of parental alienation, are not their own wishes and feelings but those of the psychopathology of the parent they are enmeshed with. The voice you hear is not the child but the unwell parent speaking through the child. That is why they speak in borrowed words and phrases. That is why their speech pattern is odd and often adult sounding. That is why their reasoning is poor and brittle, that is why when you have an alienated child in the room it is as if the influencing parent is being channelled.”

Karen Woodall

The Voice of the Child has become a world wide phenomenon in which the wishes and feelings of children are sought in the family courts, in matters concerning the care of a child and in areas of health and well being which affect the child. Article 12 of the United Nations Convention on the Rights of the Child  states that –

You have the right to an opinion and for it to be listened to and taken seriously.

children and young people have the human right to have opinions and for these opinions to matter. It says that the opinions of children and young people should be considered when people make decisions about things that involve them, and they shouldn’t be dismissed out of hand on the grounds of age. It also says children and young people should be given the information they need to make good decisions.

In the…

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Supreme Court rules against exposing Israel’s role in Bosnian genocide

“The Supreme Court’s ruling might lead one to conclude that the greater the crime, the easier it is to conceal. The more arms sold and the more genocide perpetrators trained, the greater the damage to the state’s foreign relations and security should such crimes be exposed, and the weight of such supposed damage will necessarily override the public interest. This is unacceptable. It turns the judges – as the petitioners have put it – into accomplices. The justices thus also make an unwitting Israeli public complicit with war crimes, and deny them the democratic right to conduct the relevant discussion.”

The Ugly Truth

USUAL SUSPECTS HAPPY MERCHANT BENJAMIN NETANYAHU

Sabba – Thank you to ML for this link.

972 MAG – Citing potential damage to Israel’s foreign relations, the Supreme Court rejects a petition calling to reveal details of the government’s arms exports to the Serbian army during the Bosnian genocide.

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