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Help for hoarders in the Court of Protection

People with hoarding disorder acquire and store a lot of belongings in a manner which is chaotic.

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5 July 2023
Jenny Mansell
Partner
Blog Community Care Housing

You may have a loved one who is at risk of eviction or who social services have concerns about because of the number of belongings in their property.

When someone has a hoarding disorder, they acquire and store a lot of belongings in a manner which is chaotic and which affects their ability to live their everyday lives. Sometimes the state of someone’s home can cause concern to professionals or family members because it poses a risk to the person living there or others. This can be because (due to the level of belongings), the property is difficult to access, keep clean and carry out repairs and because it can pose a fire risk.

Social services are likely to be under a duty to support the individual under the Care Act 2014. These types of cases require thoughtful and detailed input from professionals including mental health services, social services and the person’s landlord to support the individual in the least restrictive way possible. These situations can often be difficult to resolve because the individual may not always have insight into the risks that their behaviour poses and there can be a significant emotional impact on them if the belongings are removed (even if they have little monetary value).

It may be the case that because of their mental health condition, the individual does not have the mental capacity to make decisions about their belongings and the support required to address the concerns. In those circumstances, professionals may need to make best interests decisions to enable the individual to be supported to dispose of perished items and to either remove to storage or dispose of hazardous levels of belongings.

In the case of Re: AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39, the Court of Protection set out the relevant information that should be considered when determining whether someone has the mental capacity to make decisions about their belongings. These are:

  • Volume of belongings and impact on use of rooms: the relative volume of belongings in relation to the degree to which they impair the usual function of the important rooms in the property for the person (and other residents in the property) (e.g. whether the bedroom is available for sleeping, the kitchen for the preparation of food etc). Rooms used for storage (box rooms) would not be relevant, although may be relevant to issues of (3) and (4).
  • Safe access and use: the extent to which the person (and other residents in the property) are able or not to safely access and use the living areas.
  • Creation of hazards: the extent to which the accumulated belongings create actual or potential hazards in terms of the health and safety of those resident in the property. This would include the impact of the accumulated belongings on the functioning, maintenance and safety of utilities (heating, lighting, water, washing facilities for both residents and their clothing). In terms of direct hazards this would include key areas of hygiene (toilets, food storage and preparation), the potential for or actual vermin infestation and risk of fire to the extent that the accumulated possessions would provide fuel for an outbreak of fire, and that escape and rescue routes were inaccessible or hazardous through accumulated clutter.
  • Safety of building: the extent to which accumulated clutter and inaccessibility could compromise the structural integrity and therefore safety of the building.
  • Removal/disposal of hazardous levels of belongings: that safe and effective removal and/or disposal of hazardous levels of accumulated possessions is possible and desirable on the basis of a “normal” evaluation of utility. If you are concerned about someone who you think might be at risk because of their hoarding and/or you have concerns about their capacity to make decisions about their belongings, our specialist team of lawyers can represent your or the loved one. Please contact us on 020 3440 8000 or enquiries@tvedwards.com to make an enquiry.

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Housing and financial support for destitute pregnant migrants

TV Edwards recently helped secure accommodation and financial support for a homeless client who was heavily pregnant.

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29 June 2023
Caroline Bird
CILEX Practitioner
Blog Community Care Housing

TV Edwards recently helped secure accommodation and financial support for a homeless client who was heavily pregnant and without any other form of support in the UK. Our client did not have any leave to remain in the UK and was in the process of applying to the Home Office to regularise her immigration status. This meant the law excluded her from support from the local authority and mainstream benefits. She also could not claim asylum support directly from the Home Office as she had not made a claim for asylum.

Our client was 35 weeks’ pregnant and experiencing a high-risk pregnancy that could have been exacerbated by the stress of her situation. She had been sofa surfing but after she was asked to leave the accommodation, she became street homeless, relying on food and money from strangers. She was then provided with accommodation by a charity, but they could not afford to support her much longer. The charity had asked the local authority social services department to assess our client’s needs and provide her with support, but there was a dispute between Adult and Children’s social services as to who should carry out the assessment.

Before the Care Act 2014 came into force pregnant destitute migrants were able to rely on section 21(1)(aa) of the National Assistance Act 1948, which gave local authority social services departments the power to provide expectant and nursing mothers with residential accommodation. The Care Act 2014 does not include a similar power and it also specifically prevents social services providing support to someone without status in the UK when their need for support arises solely as a result of her destitution or the physical effects of being destitute. This means that it can be very difficult to persuade local authorities that they should support expectant mothers without status.

In our client’s case, we argued that the local authority should exercise its power under s19(3) of the Care Act 2014 to meet her urgent needs for care and support pending a full assessment. We also relied on there being a potential breach of our client’s rights under the Human Rights Act 1998 if accommodation was not provided, since the lack of support would arguably be a breach of articles 3 (freedom from inhuman or degrading treatment) and 8 (respect for private and family life). We had to threaten judicial review to ensure the local authority acted quickly to prevent any harm coming to our client and her unborn child.

Fortunately, the local authority responded quickly to our correspondence and agreed to accommodate our client and provide her with financial support pending the assessment of her needs, and birth of her child. This support was transferred to children’s services and extended upon the birth of her child.

If you or someone you know is facing a similar situation, then please do not hesitate to contact our team on enquiries@tvedwards.com or 020 3440 8000 to see if we can help.

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Simplify your summer: your legal rights to international travel with a child

Knowing your legal rights can help simplify your summer.

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21 June 2023
Sarah Inchley
Partner
Blog Children Law Family

The sun is out and the school summer holidays are on the horizon. As the temperature heats up, so can tensions in co-parenting relationships. For children, the long summer break can mean rest and relaxation. For some separated parents, it can mean difficulties and drama in negotiating a child’s international travel.

Knowing your legal rights can help simplify your summer. So, what do you need to know?

I’m a parent…surely I can take my own child on holiday?

The law is clear – a child cannot be taken abroad without first obtaining permission of all those with Parental Responsibility or a Court Order. There is one exception – if you are parent with a Child Arrangements Order saying the child lives with you, the child can travel without consent of the other parent for up to 28 days.

Your starting point therefore is who has legal Parental Responsibility? Whose permission is required?

Many parents are shocked to discover that they need the permission of their co-parent.  If a child travels without the required permission, it is considered child abduction which is a criminal offence.

Forward planning and clear communication is key. If you are unable to obtain the appropriate permission, as a last resort, you may need to ask the Court to make a Specific Issue Order to allow your child to lawfully travel.

Should I give permission for my child to travel?

Travel abroad can be an exciting and enriching experience for a child. Even in the most acrimonious relationships, many parents will not stand in the way of their child having a nice holiday.

You should balance the risks and benefits in your particular circumstances.  It is wise to seek as much information as possible to best inform your decision: dates and times of travel, contact details, addresses, proof of travel tickets and where appropriate, the opportunity to speak to your child whilst they are away.

What legal and practical steps can be taken to mitigate the risks of your child not being returned?

If your decision is that you do not want your child to travel, you may need to apply to Court for a Prohibited Steps Order or Orders using the High Court’s Inherent Jurisdiction to stop travel. For example, asking the Court to exercise its powers to seize passports and implement a port alert.

What about child abduction?  

The risks of parental child abduction are particularly high for international families with connections abroad and those in high conflict disputes. The consequences of child abduction can be devastating with the ‘left behind’ parent not knowing where in the world their child is and when they will see them again.

If you have any concerns about your child being taken abroad without your permission, you should act upon those concerns by seeking legal advice.  

If your child has already been taken abroad, you need to act fast. Many countries, including the UK are signatories of the Hague Convention 1980. This is an international treaty which provides a legal mechanism for the prompt return of the child who has been wrongfully removed or retained. This can however still mean a court case over international waters which is never easy. For non Hague Convention countries, a child’s return can be much more difficult.

Longing for ‘home’

A holiday to your native homeland can trigger a decision that you wish to relocate permanently with your child. If you cannot negotiate or mediate an agreement with your ex, you may have to ask the Court for leave to remove your child.

Whether you are the parent seeking to relocate or a parent seeking to keep your child in the UK, to maximize your chances of success, you should set out as much information as possible to the Court: what are the implications to the child’s welfare of the proposed move? What is the impact on the  child’s relationship with the ‘left behind’ parent and how can this be maintained?

Holiday ‘drift…’

It is also the season of ‘wrongful retention’ of a child abroad. A parent may have given permission for their child to travel abroad. Their return date can however be delayed by the other parent – whilst the initial travel was lawful, the failure to return the child as agreed is unlawful and is a ‘wrongful retention’.

If you are the ‘left behind’ parent, key advice is to act without delay to take urgent legal action to have your child returned. The sooner a parent takes legal action, the more likely the child will be returned. In any event, a Hague Convention application has to be made within 1 year of the date of wrongful removal or retention. Do not fall into the trap of agreeing an extended stay which can drift from weeks to months to years and can ultimately mean a parent is out of time to make certain applications. Whatever your particular circumstances and travel plans for your child, we can help you with specialist legal advice to navigate the legal considerations and risks associated with a child’s international travel.

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What is a litigation friend in civil court cases?

The role of the litigation friend is to make decisions in the court case on behalf of that party.

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19 June 2023
Jenny Mansell
Partner
Blog Community Care Housing

What is a litigation friend?

In civil proceedings, it is sometimes necessary for a party in a case to have a litigation friend appointed for them. The role of the litigation friend is to make decisions in the court case on behalf of that party. These decisions will be about the steps that have to be taken in the legal case. They can vary from, for example, decisions such as choosing which solicitor and barrister should represent the protected party to deciding what evidence (such as witness evidence or expert evidence) needs to be obtained in the case to making a decision to accept an offer of settlement from the opponent.

A litigation friend is required where the party lacks the mental capacity to conduct the court proceedings themselves (Rule 21.2(1) of the Civil Procedure Rules). They are then known as a ‘protected party’. Children may also require a litigation friend but the circumstances where this is required are not dealt with in this article.

You might be asked to act as a litigation friend for a friend or family member in a court case or the Court might determine that you need a litigation friend yourself and appoint one for you.

What does it mean to lack capacity to conduct court proceedings?

“Capacity” means whether someone is able to make their own decision about something.  The law says that someone will lack capacity if they are unable to make a decision for themselves in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.

When considering if someone is unable to make a decision for themselves, you have to consider whether the person is unable:

 (a)      to understand the information relevant to the decision,

(b)      to retain that information, (so whether someone can remember it)

(c)       to use or weigh that information as part of the process of making the decision

(d)       to communicate his decision (whether by talking, using sign language or any other means).

Their inability to do one of these four things has to be because of a condition that affects their mind or brain for example, dementia or a learning disability. It is of course not the case that everyone with a condition that affects their mind or brain will lack capacity.

In respect of making decisions in court proceedings, case law sets out that you should look at whether, once they have received advice and support from a legal advisor and any other relevant expert in the case, the person in question is capable of understanding the issues in the case so that they can make the necessary decisions about what should happen.

Who decides whether someone lacks capacity to conduct court proceedings?

It is the Court who makes the decision about whether someone lacks capacity to conduct the court proceedings. Usually a medical professional such as a GP or a psychiatrist will provide evidence to the Court about whether the person is able to make decisions in the court case themselves and the Court will make the decision based on that evidence. However, it is also possible for the Court to reach this view on the basis of the evidence before it which may be, for example, the evidence given directly by the person themselves at a hearing.

Once the Court has determined that a person lacks capacity to conduct the proceedings and requires a litigation friend, the court proceedings cannot move forward until a litigation friend is appointed (unless the Court grants specific permission).

What does a litigation friend do?

A litigation friend has to act fairly and competently and have no adverse interests to the protected party. They have to act in the protected party’s best interests throughout their case and where possible, take into account their wishes and feelings about how the case should progress. Ultimately though, the litigation friend makes the decisions about what steps should be taken in the court case on behalf of the protected party. It is a big responsibility and should not be undertaken lightly.

Anyone can be a litigation friend – they do not have to be a lawyer. In fact most of the time, they won’t be – they will usually be a friend or a family member. The Office of the Official Solicitor is a government body that acts as litigation friend where certain criteria are met, including where there is no one else available to act as litigation friend.

If I want to act as someone’s litigation friend, what should I be thinking about?

If you want to or have been asked to act as someone’s litigation friend, you need to consider whether you are able to make decisions in the case fairly and competently on behalf of the protected party and whether you have any adverse interests to the protected party.

When thinking about whether you can make decisions fairly and competently, you should bear in mind that being involved in a court case involves a high level of responsibility, and requires a considerable amount of time and effort. You need to be sure that you are able to undertake what is involved on behalf of the protected party. An example of a situation in which it might not be appropriate for you to act as someone’s litigation friend is if you know that you are going to have an operation and your recovery time will take six weeks during which the trial for the case is listed. You should consider whether you would be suitable to act as someone’s litigation friend during that period as you may not be well enough yourself to focus on the court proceedings.

An adverse interest to the protected party is any situation where there might be a conflict between something you want for yourself and something that the protected party wants or needs. So for example, in a dispute about a protected party’s house, if you live with them and want to remain living there but the advice from professionals is that the protected party might need a different type of accommodation, then you would have an adverse interest to the protected party and should not act as their litigation friend.

You cannot be appointed as someone’s litigation friend unless you consent to act for them.

How can I be appointed as someone’s litigation friend?

There are two ways you can be appointed as someone’s litigation friend. Firstly, you can complete a Certificate of Suitability of Litigation Friend. You should send it to the other parties in the case and then send it to the Court with a certificate of service which shows that you have sent it to the other parties. If you are a deputy for the protected party appointed by the Court of Protection and you have the specific power to conduct legal proceedings on their behalf, you can send the official copy of the Court of Protection order to the Court and the other parties. Alternatively, the Court can appoint you by making an order to that effect.

How can I be removed as someone’s litigation friend?

If the protected party regains capacity to make decisions about the court proceedings, your role as litigation friend comes to an end. Normally in practice, this would happen by you or them making an application to the Court and providing the Court with medical evidence that they have regained capacity.

The Court can also make an order removing someone as litigation friend. This might happen if for example, the court believes there is a conflict of interest between them and the protected party or they are not able to act fairly or competently. It also might happen for example if you no longer want to be the protected party’s litigation friend.

What about costs?

You may have a potential costs liability if you agree to act as someone’s litigation friend and so it is important to be aware of this and seek legal advice if you are thinking of acting as someone’s litigation friend.

If the protected party is bringing the case against their opponent i.e. they are the Claimant, then when agreeing to act as litigation friend you have to give an undertaking that you will pay any costs that the protected party is ordered to pay in relation to proceedings. This is subject to your right to be repaid from the protected party’s own assets. The general rule is that an unsuccessful party will be ordered to pay the costs of the successful party and so where a protected party loses their case, they will be ordered to pay their opponent’s costs.  If the protected party has a legal aid certificate in place, then even if a costs order is made against them, the costs order may not be enforced against them without leave of the court and where they have no means to pay the costs, the court would not make such an order. Therefore, generally there would be a low risk in you having to pay anything towards the costs of the case in those circumstances.

If the protected party is defending the case against their opponent i.e. they are the Defendant, then you do not have to give an undertaking to pay any costs that the protected party is ordered to pay in relation to proceedings. It is however still possible for the Court to make an order that you have to pay costs of the proceedings depending on the specific facts of the case, but relevant factors might include bad faith, improper or reasonable behaviour, or the prospect of personal benefit. Again, if the protected party has a legal aid certificate in place, then this is unlikely. If you have an enquiry about being or requiring a litigation friend in a civil court case (such as housing, community care or dispute resolution) please contact us on 020 3440 8000 or enquiries@tvedwards.com.

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Closed hearings in Court of Protection cases

The issues that are addressed in cases in the Court of Protection can be sometimes very sensitive and emotive ones.

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9 June 2023
TV Edwards Blog
Blog Community Care Court of Protection

The role of the Court of Protection

The Court of Protection is a specialist court that deals with cases concerning the welfare and healthcare or property and financial affairs of people who do or may lack the mental capacity to make decisions about those issues for themselves.

The person at the centre of a Court of Protection case, known as “P”, will very likely be a vulnerable individual by virtue of a condition or disability – such as mental health problems, learning difficulties, brain injury or dementia – that gives rise to their lack or potential lack of mental capacity. The parties in a Court of Protection case will typically be P themselves (normally participating via a litigation friend – who will often be the Official Solicitor – or via an accredited legal representative), the relevant public body (usually P’s local authority or local NHS body) and, in many cases, one or more family members of P.

What is a closed hearing?

The issues that are addressed in cases in the Court of Protection can be sometimes very sensitive and emotive ones, such as whether or not P should be given a particular medical treatment or questions concerning P’s relationships. In some rare cases, the Court of Protection can decide that particularly sensitive information (known as “closed material”) should not be seen by one or more parties and/or their legal representatives, and/or that one or more parties and their legal representatives should be excluded from a hearing (known as a “closed hearing”).

The need for a clear procedure to deal with closed hearings and closed material had been highlighted by the recent case of Re A (Covert Medication, Closed Proceedings) [2022] EWCOP 44. This case concerned A, who is a young woman in her early 20s with a mild learning disability and Asperger’s syndrome. A also had primary ovarian failure, meaning that she had not undergone puberty, and it was reported that A’s mother, B, was failing to support and encourage A to engage with hormone replacement therapy so that A could undergo puberty.

In September 2020, the local NHS Trust had asked the Court of Protection to authorise hormone treatment for A that would be given without A’s knowledge or consent (known as “covert” treatment). B was not made a party to the application and so was not present at the hearing at which the Court of Protection considered this application and was not aware that a covert medication plan had been approved as being in A’s best interests. Covert hormone treatment was then started but without the knowledge of A, B or members of A’s family – B did not find out that A was going through puberty, because contact between them was only over the phone and so B did not see A. A number of closed hearings were held in the Court of Protection to review the issue, which B was excluded from and did not know about. When the case came before the Court of Protection again in September 2022, it was then decided that B should be told about the covert treatment and that it had been authorised at closed hearings from which she had been excluded.

Guidance on closed hearings

Following A’s case, the former Vice President of the Court of Protection, Mr Justice Hayden, published guidance on closed hearings and closed material – available here.

The guidance makes clear that the starting point in all cases is that all parties in a case should be able to participate in all hearings and be able to see all materials before the court.

If a closed hearing is being considered, then it must be a last resort and other, less drastic options for conducting the hearing must be explored first. There would need to be a complex and difficult balancing act for the Court of Protection weighing up the rights of all the parties versus the need to protect and promote the best interests of P and prevent harm to P. The guidance also makes clear that any exclusion from a hearing should be as limited as possible and kept under review to ensure that it is only maintained for as long as strictly necessary.

In terms of closed material, similar considerations apply. The Court of Protection will need to consider if disclosure of the material would involve a real possibility of significant harm to P and then, if it would, “whether the overall interests of P would benefit from non-disclosure, weighing on the one hand the interest of P in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur”.

Commentary

The guidance is complicated and contains various other provisions that would be relevant to cases where a closed hearing or closed material is being considered, but it is clear that the key consideration is what extent keeping hearings and material open to all parties would cause a risk of harm to P. The issue will need to be decided on a case-by-case basis, as what form the potential harm to P takes and the nature of the risk from open hearings or open material will differ according to P’s precise circumstances. The document also makes clear that it is guidance only and so is not necessarily to be followed rigidly to the letter in every situation, although there would likely need to be very good reason to depart from the guidance.

How our Court of Protection solicitors can help

Whether or not this guidance is of relevance to your case, if you are involved in a Court of Protection case then you should seek specialist advice as soon as possible. TV Edwards has a team of solicitors with expertise in mental capacity, deprivation of liberty and Court of Protection cases. If you are seeking legal advice relating to mental capacity, deprivation of liberty or Court of Protection issues, then please contact us on 0203 440 8000 or by email to enquiries@tvedwards.com to see if we can assist.

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Ferrets, Bloodhounds and the D81

A divorce itself does not end the financial obligations on couples.

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26 May 2023
Paul Read
Partner - Head of Family Law
Blog Divorce and Family Finance Family

What to consider before deciding to divorce

Relationships can be wonderful: buying or renting a home together, getting engaged to marry in the future, being recently married, or bringing two families together and for many, seeing a lawyer may not be high up on a ‘to do’ list!

Nevertheless, it is important to understand your legal rights when getting together and protect your position and particularly the position of any dependent children if things don’t work.

In particular, I find that it is not always understood that a divorce itself does not end the financial obligations on couples and unless a consent order is obtained to finalise the finances the other party can bring a financial claim at any point in the future.

Without a pre-nuptial agreement, you may become exposed to financial obligations

When people get married (without a pre-nuptial agreement), they become exposed to a variety of possible financial obligations. Those obligations take effect if the parties divorce. On divorce, one spouse may be legally required to pay maintenance to, share their pension with, and contribute towards the housing costs of the other spouse. The same is true for civil partners. This can give rise to arguments about how much maintenance should be paid, how much of the pension should be shared and how much (if anything) one spouse should contribute to the other spouse’s housing costs.

Start with informed negotiations

The best way to address these questions is through informed negotiations. If that doesn’t work, there is a court process which allows a judge to decide the outcome. The court process should be a last resort. Good matrimonial lawyers are skilled in conducting these negotiations, which are often underpinned by financial disclosure.

If the question of who gets what is not resolved and finalised around the time of divorce, each spouse’s claims against the other will remain open indefinitely. That is not satisfactory and should be avoided. No one wants to face a matrimonial claim 15 years after divorcing. Finality means the court’s approval.

In every case, the outcome must be fair

This means that people very often reach an agreement after informed negotiations. But how does the court satisfy itself that an agreement is fair?

The agreement reached is written up in a consent order, which is sent to a judge along with a basic summary of the parties’ assets and income. That summary is called a D81. The judge can either approve the agreement, ask questions about the agreement or outright reject the agreement. The role of that particular judge is very important because they have the power to reject an agreement which has been quite literally agreed and put forward by both spouses. If they can reject an agreement, on what basis?

The guidance comes from a former President of the Family Division of the High Court when he said:

“The judge is not a rubber stamp. He is entitled but not obliged to play the detective. He is a watchdog, but he is not a bloodhound or a ferret.”

L v L [2008] 1 FLR 26.

Family law is discretionary. Was there ever a more epigrammatic example?

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A brief overview of the Renters (Reform) Bill

The Bill aims to improve the private rented housing sector.

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24 May 2023
Emily Black
Associate Solicitor
Blog Housing

The Renters (Reform) Bill was introduced in Parliament on Wednesday, 17 May 2023 and aims to improve the private rented housing sector, specifically to deliver on the Government’s commitment to “bring in a better deal for renters”.

The headline news proposed by the Bill is the abolition of “section 21” notices of seeking possession under the Housing Act 1988. Currently landlords can rely on this type of notice to evict a tenant for no reason – this is why they are also known as “no fault evictions”. If these notices are abolished as the Bill proposes, landlords will have to use a different type of notice (under section 8 of the Housing Act 1988) and provide a valid reason to evict their tenants.

The Bill contains lots of other proposals that both tenants and landlords need to be aware of such as:

  • Ground 8, one of the mandatory grounds for possession under section 8, has been amended so that a landlord cannot rely on it if the tenant’s rent arrears have accrued because of a delay to a payment of their Universal Credit. (There is no mention of delays in Housing Benefit payments which are also paid in arrears, though this may change as the Bill passes through Parliament.)
  • Local authorities will be able to penalise landlords for unlawful eviction, with a maximum fine of £30,000.
  • The introduction of a Private Rented Sector Ombudsman which will provide a route for tenants to make complaints about their landlords to an independent body.
  • New grounds for possession under section 8, which mean although landlords will need a valid reason to evict their tenants, the potential reasons they have available to them will be wider.
    • There is a new mandatory ground that landlords can rely on where the tenant has been in at least two months’ (or eight weeks’) worth of arrears on at least three separate occasions within the past three years. A landlord would not have to show that the tenant was in arrears at the date of the notice or the date of the hearing.
    • It will also be quicker for landlords to evict tenants who are accused of anti-social behaviour – the notice periods for grounds 7A and 14 are to be reduced to only 14 days.
    • There is also a new discretionary ground for landlords who want to sell their property or move into the property.

There are other changes noted in the discussion of the Bill that are not yet included in the text of it, as follows:

  • To make it illegal for landlords to have blanket bans refusing to rent their properties to tenants who are in receipt of benefits or with children.
  • The Decent Homes Standard, which has applied to social housing for many years, is to be applied to the private rented sector too.

The Bill does not propose a change to the position that there is no cap on the amount that landlords are able to increase rents to, as long as they are in line with market rent in the area.

Lawyers will be carefully scrutinising the details of the Bill as it makes its way through Parliament, so keep an eye out for further articles or updates from us on the subject. In the meantime, if you are a landlord or tenant and require advice on housing matters, please contact us on 020 3440 8000 or enquires@tvedwards.com.

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The right to protest and the Public Order Act 2023

The Public Order Act 2023 came into in force on the 3rd May 2023.

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19 May 2023
Julian Overton
Managing Partner
Blog Criminal Defence

The Act explained.

The Public Order Act 2023 came into in force on the 3rd May 2023, updating the 1986 Public Order Act as amended by the Police, Crime, Sentencing and Courts Act 2022. 

The Act introduces new criminal offences and extends the powers available to the police and the secretary of state to control and prohibit demonstrations that cause or might cause disruption.

The legislation is a direct response to the increase in disruptive protests from groups such as Just Stop Oil, Insulate Britain, Extinction Rebellion, Animal Rebellion and those opposing HS2.  The government says the act provides:

‘sensible and proportionate measures designed to allow the police to better balance the rights of protesters and the public’.  

The government claims overwhelming public support for the provisions of the act.  It also claims the act is compatible with rights to freedom of expression, assembly and association enshrined in the European Convention on Human Rights.

Others have expressed concern that the new act effectively criminalises legitimate protest or redefines the right to protest with one commentator stating that the right to protest is now nothing more than ‘a privilege that exists at the discretion of the police’.

With the act on the statute book for only a matter of days, sections of it were seen in action at the King’s Coronation on the 6th May resulting in some well publicised and controversial arrests taking place and Scotland Yard later expressing ‘regret’ at some of the actions of their officers.

The act explained:

New Criminal Offences

Sections 1 and 2 of the act introduce new offences of ‘locking on’ and going equipped to ‘lock on’ and is designed to criminalise the practice of protesters attaching themselves to each other, buildings or objects in order to cause disruption.

The ‘locking on’ offence carries a maximum penalty of 6 months imprisonment, an unlimited fine or both.  The maximum penalty for going equipped to lock on is an unlimited fine.

Sections 3, 4 and 5 create new offences related to tunnelling and are targeted directly at HS2 protesters. New offences of causing serious disruption by tunnelling and causing serious disruption by being present in a tunnel are punishable by a maximum penalty of 3 years imprisonment an unlimited fine or both. It is a defence to establish that one had a reasonable excuse for creating or participating in the creation of a tunnel.

An offence of being equipped for tunnelling is punishable by a maximum of 6 months imprisonment an unlimited fine or both.

Section 6 introduces a new offence of obstructing major transport works.  The maximum penalty is 6 months imprisonment an unlimited fine or both.

Section 7 creates a new offence of interference with key national infrastructure and covers behaviour which prevents or significantly delays the operation of infrastructure such as airports, railways, printing presses and oil and gas works.

The maximum penalty is 12 months imprisonment, an unlimited fine or both.

Extending the police powers to stop and search

Sections 10 and 11 extend the powers of the police to stop and search individuals and seize objects that may be used in the commission of a protest-related offence. It permits a police officer of or above the rank of inspector to authorise stop and search without the need for suspicion, amending Section 1 of the Police and Criminal Evidence Act 1984.  A stop and search can now be authorised whether or not the constable has any grounds for suspecting that the person is carrying a prohibited object. This power is exercisable anywhere within a specific locality within the officer’s police area, and for no longer than 24 hours.

Introducing Serious Disruption Prevention Orders

Sections 20 – 29 in part 2 of the act introduce serious disruption prevention orders (SDPOs) a preventative court order designed to place prohibitions on, or requirements of, a person to prevent them from causing serious disruption.

Examples of orders might be to prohibit a person from being in a particular place, being with particular people, having articles in their possession or using the internet to facilitate or encourage a person to commit a protest related offence.

Orders can be applied to people over 18 convicted of a protest related offence if on a previous occasion within the relevant time period:

  1. They were convicted of another protest related offence
    or
  2. They committed a protest related breach of an injunction for which the person was found in contempt of court.

The protest related offence for which the individual was convicted, and the previous offence or breach must relate to different protests or have taken place on different days.

In other circumstances, the police can apply for an SDPO when on at least 2 occasions in the relevant period, the person has:

  1. Been convicted of another protest related offence
    or
  2. Been committed of a protest related breach of an injunction for which the person was found in contempt of court.

The relevant period in both circumstances will be 5 years prior to the day an SDPO is imposed, and the court will be able to look as far back as a person’s 16th birthday.

Breach of an SDPO without a reasonable excuse carries a maximum penalty of 6 months, an unlimited fine or both.

Other provisions:

The act also reduces the seniority of police officers in London able to attach conditions to an upcoming protest or prohibit certain types of assembly and further powers are extended to British Transport and Ministry of Defence police.

The Secretary of State can now apply to the court for an injunction with an attached power of arrest in circumstances where protest action is causing or likely to cause serious disruption to key national infrastructure or access to essential goods or services or where protest activities have or are likely to have a serious adverse effect on public safety.

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What to Consider Before Deciding Divorce

This article is intended to help people who may be wondering whether to proceed with a divorce or separation.

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19 May 2023
Paul Read
Partner - Head of Family Law
Blog Divorce and Family Finance Family

No relationship is perfect and most have their ‘tough times’ as well as ‘happy times’. Unfortunately, in some relationships, the “tough times” get tougher and the “happy times” become less frequent. The question may arise – is this relationship working or has it broken down? This realisation can happen suddenly or gradually over time, it can be difficult to know when the time has come to make changes, these changes of course may include what you had previously thought of as ‘the unthinkable’ to start divorce proceedings.

Deciding to divorce is a significant and life-changing decision. It is essential to carefully consider the emotional, financial and legal implications before proceeding. This guide outlines key factors to help you make an informed choice. 

If you want advice on your situation, contact us today and see how our specialists can help you.

Emotional Considerations

Divorce is not just a legal process, it’s an emotional and personal journey. Before taking any steps, it’s important to assess your feelings and understand whether divorce is the right solution for your circumstance. 

 Assessing Your Feelings

Take time to reflect on why you are considering divorce. Are you feeling temporarily overwhelmed due to stress or a difficult period in your relationship? Or has the marriage been deteriorating for a long time with no sign of improvement? Speaking to a trusted friend, therapist or counsellor may help clarify your emotions, which is an essential aspect of what to consider before divorce.

Seeking Professional Help

If you are unsure whether divorce is the right decision, consider seeking professional support such as relationship counselling. Organisations like Relate offer counselling services that may help you and your spouse work through difficulties before making any final decisions.

Informal or Formal Separation

You may wish to trial an informal separation, you and your spouse can agree the arrangements between yourselves. However, an informal separation is not appropriate if you wish to formalise any financial arrangements on separation.

If you wish to formalise your separation and agree financial arrangements on separation without involving the court, you can enter into a separation agreement. The separation agreement would confirm that you and your spouse will live apart and would set out the financial arrangements agreed between you and your spouse for the duration of your separation. A court order could be made in the agreed terms in any later divorce proceedings.

A separation agreement does not have the same finality as a court order made on divorce and either you or your spouse could make a subsequent application for financial orders to the court. However, if both you and your spouse receive independent legal advice about the terms of the separation agreement and make financial disclosure of your financial resources and any other relevant circumstances to one another, although the court is not bound by the financial arrangements in the separation agreement, the court is likely to uphold the terms of the agreement provided they are fair. The test for determining fairness was set down in a Supreme Court case called Radmacher v Granatino [2010].

Financial Considerations

Divorce can have a significant impact on your financial situation. It’s essential to prepare for the financial changes that may arise. 

Understanding Your Finances

Before initiating divorce proceedings, gather information about your financial situation, including:

  • Income 
  • Expenses
  • Savings
  • Debts 
  • Assets

Understanding your financial standing will help you make informed decisions during the process.

Division of Assets

In the UK, marital assets are typically divided fairly, but this does not always mean equally. The court considers factors such as the length of the marriage, contributions of each spouse and future financial needs. Seeking legal advice early on can help you understand how assets may be divided.

Financial Support

You may need to consider spousal maintenance or child support arrangements. If children are involved, their financial needs will be prioritised. Ensuring financial stability post-divorce is crucial, so consulting a solicitor can help you understand your rights and obligations.

Legal Considerations

Understanding the legal aspects of divorce will help you navigate the process smoothly.

Grounds for Divorce

Under UK law, the only ground for divorce is that the marriage has irretrievably broken down. Since the introduction of the no-fault divorce, couples no longer need to cite blame-based reasons such as adultery or unreasonable behaviour.

Divorce Process

The divorce process typically involves:

  • Filing an application
  • A mandatory waiting period 
  • Finalising financial and child arrangements 

It is advisable to seek legal guidance to ensure the process is handled efficiently and fairly. 

Alternative Options

Divorce is not the only option, some couples opt for legal separation, which allows them to live apart while remaining married. Others may enter into post-nuptial agreements to address financial concerns without ending the marriage. Understanding all available options is crucial when evaluating what to consider before divorce. 

Impact on Children

If you have children, their wellbeing should be the top priority during this time.

Co-Parenting Arrangements

Consider how you and your spouse will co-parent after divorce. Creating a parenting plan can help establish clear expectations regarding custody, visitation and decision-making responsibilities.

Emotional Support for Children

Divorce can be challenging for children. Providing reassurance, maintaining open communication and seeking professional support if needed can help them cope with the changes.

Alternative Options

While divorce may seem like the only option, there are alternatives that might be more suitable depending on your circumstances.

Judicial Separation

Judicial separation allows couples to live apart and obtain court orders regarding finances and children without formally dissolving their marriage. This option may be preferable for those with religious or personal reasons for avoiding divorce while still needing legal clarity on financial matters.

Post-Nuptial Agreements

A post-nuptial agreement is a legal document that outlines how assets and finances will be managed during the marriage and in the event of separation. This may be a suitable option for couples who are unsure about divorce but want financial security and clear agreements in place.

Next Steps

Before making a final decision, take the time to assess your emotions, finances and legal options. Consulting with a family solicitor can provide clarity and ensure you are fully informed about your rights and responsibilities. If you need guidance, our experienced family law team at TV Edwards is here to help.

For expert legal advice on divorce and separation, contact us today to speak with one of your specialists.

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