Ellie Butler: child welfare v parents’ rights

By Prof Judith Masson, Professor of Socio-Legal Studies (University of Bristol Law School).

© PA
© PA

In all the commentary on the tragic death of Ellie Butler, there has been very little discussion of the decision made to return Ellie to her parents. This was a truly exceptional decision. Ellie had been living with her grand-parents, her special guardians, for 5 years. She had not lived with her mother since she was admitted to hospital at the age of 6 weeks and never lived with her parents together. Indeed her parents only started living together shortly before she was returned to them. Ellie had had very little contact with her parents; contact had been limited by the court and the mother and father did not attend many of their contact sessions. The people who parented Ellie were her grand-parents; she and her parents hardly knew each other.

Special guardianship orders (SGOs) were introduced in 2002 to provide a framework for permanent care where adoption was not appropriate where children were being cared for within their wider family, as Ellie was, also for older children who have enduring relationships with parents who cannot care for them. Approximately 7,000 SGOs are made each year, around 5,000 in child protection proceedings and 2,000 for children who are not in state care. (more…)

Interpreting freedom from religion: A step too far?

By Caroline K Roberts, PhD Candidate (University of Bristol Law School).

crucifix_classroomIf conference themes are any indication of ‘hot topics’ then ‘freedom from’ religion is certainly one. The past year has seen the ‘Freedom of (and from) Religion’ conference at the University of California and the Ecclesiastical Law Society’s ‘Freedom of/from Religion’ conference in London, at which Baroness Hale of Richmond presented the keynote address.  And, in September 2016, the International Consortium for Law and Religion Studies (ICLARS) will be holding the ‘Freedom of/for/from/in Religion’ conference at the University of Oxford.

The language of ‘freedom from’ religion is not, however, just growing in academia. It is increasingly being used by practitioners, organisations and activists in discussions of the right to freedom of thought, conscience and religion. It is often claimed that if there is a right to freedom of religion, there must be an equal right to freedom from religion.

But what does ‘freedom from’ religion actually mean? And does it mean the same to everyone using the phrase? At the Law and Religion Scholars Network (LARSN) Conference, I took the opportunity to address these questions in my paper, entitled ‘Is there a right to be ‘free from’ religion under Article 9 of the European Convention on Human Rights (ECHR)?’. The following is a summary of that paper. (more…)

Testing the boundaries of fraud by abuse of position

By Dr Jennifer Collins, Lecturer in Law (University of Bristol Law School).

7306229-seasonal-workersThe Court of Appeal has delivered an important judgment in R v Valujevs [2015] 3 WLR 109, on the scope of fraud by abuse of position under section 4 of the Fraud Act 2006 (on which see J. Collins, ‘Fraud by Abuse of Position and Unlicensed Gangmasters’ (2016) 79 Modern Law Review 354).  The importance of ensuring legal certainty in drafting a general fraud offence was emphasized when the Fraud Bill was debated in the House of Commons a decade ago (Hansard, HC 12 June 2006, col 549).  Dominic Grieve MP’s concerns that fraud by abuse of position was ‘too widely drafted’, and would lead to ‘a catch-all provision that will be a nightmare of judicial interpretation’ (Standing Committee B, 20 June 2006, col 25) remain relevant to what has resulted in sections 1 and 4 of the Fraud Act 2006.  Does R v Valujevs shed new light on the principled operation of the offence?  And is the Court of Appeal’s interpretation in line with concerns at the Committee stage to safeguard vulnerable categories of persons (Standing Committee B, 20 June 2006, col 26)? (more…)

Conflicting jurisdiction and arbitration agreements: Exmek Pharmaceuticals SAC v Alkem Laboratories Ltd

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

© Investment News, 2013.
© Investment News, 2013.

A previous blog addressed certain problems surrounding the interpretation of arbitration clauses, particularly in relation to a lack of transparency concerning the parties’ choice of the seat of arbitration. This blog continues the same theme – albeit in the context of different interpretative questions.

Although the notion of the ‘pathological’ arbitration clause has been part of the international arbitration literature for nearly half a century, difficulties generated by poor drafting continue to bedevil both arbitral tribunals and the courts. Notwithstanding the availability of a wealth of clear and helpful advice (see, for example, Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th edn, 2014), a surprising number of those who draft commercial contracts seem to be either unaware of the available advice or incapable of heeding it. (more…)

The interpretation of arbitration clauses: where is the seat of arbitration?

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

© http://wordstodeeds.com/
© http://wordstodeeds.com/

It is a truism that arbitration clauses are often poorly drafted, not infrequently agreed at the 11th hour or lifted (inappropriately) from unrelated contracts. As a consequence, courts often have to try to make sense of clauses which are unclear or potentially inconsistent. In Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics [2015] EWHC 194 (Comm), [2015] 1 All ER (Comm) 245 the parties had agreed that arbitration was to be ‘held in Hong Kong’, but that ‘English law [was] to be applied’. After the tribunal had rendered its award, the claimant applied to the English court for setting aside of the award under section 67 of the Arbitration Act 1996. As in Dubai Islamic Bank v Paymentech [2001] 1 Lloyd’s Rep 65, the English court’s setting aside jurisdiction depended on England being the seat of arbitration (see Arbitration Act 1996, s 2(1)). (more…)

Supreme Court rulings on vicarious liability: Cox and Mohamud

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

© The Local Data Company
© The Local Data Company

“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”: Lord Dyson (Mohamud)

On 2 March 2016, the Supreme Court delivered two judgments which it described as “complementary to each other” on the controversial topic of vicarious liability in tort.  Vicarious liability imposes strict liability on an employer for the wrongful actions of (usually) its employees which are committed in the course of his or her employment.  Recently, however, as Lord Phillips (former President of the Supreme Court) stated in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (“the Christian Brothers case”), “the law of vicarious liability is on the move.”  Since 2001, it has been an area of law subject to expansion.  The question on appeal to the Supreme Court was essentially how far this expansion would go, examining, in particular:

  • The relationship needed to give rise to vicarious liability. This was examined in Cox v Ministry of Justice [2016] UKSC 10.
  • The manner in which the wrongful acts of the employee have to be related to the relationship giving rise to vicarious liability – in other words, were the employee’s torts so closely connected with his employment that it would be just to hold the employers liable? This was examined in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.

Both judgments are short and unanimous.  Neither claim, however, to provide absolute tests, taking the view that a lack of precision is inevitable, given the infinite range of circumstances where the issues arise. (more…)