Friday, November 27, 2015
My posts on Marilyn Stowe’s Family Law & Divorce Blog this week were mostly about conflict and children, but I also took time out to mention those who devote themselves to caring for others:
Intractable contact case hampered by lack of legal representation - The case in question being Re D (Children), another demonstration of how lawyers help courts make the right decisions.
Conflict is what damages children - Considering the recent poll commissioned by Resolution regarding the experience of parental separation or divorce upon children and young people, and the reactions to it.
Providing an incredible service - A tribute to carers doing a wonderful job, as in Re HNL.
Urgency and delay in child abduction cases - With particular reference to the Supreme Court decision in J (A Child).
Have a good weekend.
Wednesday, November 25, 2015
Lady Hale gives the judgment of the Supreme Court
This appeal concerns the application of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (‘the 1996 Convention’); in particular the scope of the jurisdiction conferred by article 11 in ‘all cases of urgency’ on a contracting state where a child is present but not habitually resident. The 1996 Convention came into force in the United Kingdom on 1 November 2012 and has not previously been considered by the Supreme Court.
The subject of the proceedings is a child, called Saleem in the judgment, who was born in January 2007. His parents are both from Morocco and hold Moroccan and British citizenship. The parents lived in England when Saleem was born but moved first to Saudi Arabia in 2009 and then to Morocco in 2011. The marriage broke down in December 2011. Saleem lived with his mother, who was granted residential custody by the local Family Court in 2012. His father was granted and exercised visiting rights. Saleem’s mother moved to England in January 2013 but Saleem remained in the care of his maternal grandparents until 14 September 2013, when the mother brought Saleem to England. Since then he has lived here with her and her new husband, whom she married in January 2013 and with whom she now has another child. Saleem’s father has had no face to face contact with him since.
Saleem’s father applied on 23 September 2013 to the Moroccan Family Court for an order granting him residential custody of Saleem but this was refused on 16 January 2014. On 14 March 2014 the father brought proceedings in the High Court seeking an order that Saleem be made a ward of court and directions for his summary return to Morocco. The judge found that the father had not consented to the removal of Saleem from Morocco, which was wrongful, and that Saleem had been habitually resident in Morocco before his removal. He ordered the mother to return Saleem to Morocco. It was not argued before him that the effect of the 1996 Convention was that he had no jurisdiction to make the order he did.
The mother appealed to the Court of Appeal, which held that the English courts did not have jurisdiction under the 1996 Convention, or on any other basis, on the facts of this case. In cases where a child was habitually resident in another state, as in Saleem’s case, jurisdiction only arose in cases of urgency under article 11. This was not such a case because the father could have made an immediate application to the Moroccan court for a return order.
The Supreme Court unanimously allows the appeal, holding that it is open to the English courts to exercise the article 11 jurisdiction in cases of wrongful removal under the 1996 Convention, and it orders that the case be returned to the High Court for a decision as to whether it is appropriate to do so in the circumstances of this case. Lady Hale, with whom the other justices all agree, gives the only substantive judgment.
REASONS FOR THE JUDGMENT
The focus of the 1996 Convention is on the care and upbringing of the child and an order for the return of a child to the country of his or her habitual residence is a ‘measure of protection’ falling within its scope . Jurisdiction in wrongful removal cases remains with the authorities of the contracting state in which the child was habitually resident immediately before the removal (article 7) and article 11 supplies an additional jurisdiction to the courts of the territory where the child is present in the limited circumstances of ‘cases of urgency’ . An order made under article 11 can have extraterritorial effect and can thus be contrasted with the purely ancillary power in article 20 of the Brussels II Revised Regulation [26-29]. It is not limited to cases of wrongful removal but extends to safeguarding children who are lawfully present in another country . It can secure a valuable ‘soft landing’ for children whose return to their home country is ordered under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the 1980 Convention’) . It would place these objectives in jeopardy if the courts could not invoke the article 11 jurisdiction without first assuring themselves that it was impossible for the courts of the home jurisdiction to take action .
In the absence of this pre-condition, the interpretation of article 11 demands a holistic approach. It is consistent with the overall purpose of the 1996 Convention that measures of protection which the child needs now should not be delayed, provided they are in support of rather than in opposition to the jurisdiction of the home country. It is a secondary, not the primary jurisdiction [33-34]. Although this approach does not emerge from either the Explanatory Report of Paul Lagarde in 1996 or from the Practical Handbook on the operation of the 1996 Convention, they should not be treated as if they were words in the Convention, and the focus of both is orders in the context of proceedings for abduction governed by the 1980 Convention, rather than cases to which the 1980 Convention does not apply .
An abduction case governed solely by the 1996 Convention is not invariably one of ‘urgency’ but it is difficult to envisage a case in which the court should not consider it to be so and go on to consider whether it is appropriate to exercise the article 11 jurisdiction. The courts of the country where the child is present are often better placed to make orders about the child’s return, as they can take steps to locate the child and exert any necessary coercive powers. The machinery of obtaining and then enforcing orders made by the home country may be cumbersome and slow. The child’s interests may be compromised if the country where he or she is present is not able to take effective action in support of their return .
Accordingly the appeal is allowed. It is not right, however, simply to restore the judge’s order for return. The case should be returned to him for a new decision approached on the proper footing, namely whether the English court should exercise the jurisdiction conferred by article 11 of the 1996 Convention and, if so, in what way. The question will be answered on the basis of up to date information about Saleem and, if necessary, about Moroccan law, and attention can also be given to the important question of whether an order for interim contact between Saleem and his father should be made [41-44].
References in square brackets are to paragraphs in the judgment, which can be found here.
Tuesday, November 24, 2015
On White Ribbon Day, 25 November, family law organisation Resolution releases its new guide for divorcing and separating parents in relationships where domestic abuse is, or has been, a feature.
The new guide, which can be found at www.resolution.org.uk/difficultdivorce, advises parents on dealing with difficult divorce situations, including those characterised by abuse, addiction and parental alienation. It includes information on how parents can protect themselves from abuse, and how to help children through emotionally difficult situations.
Jane Wilson, a leading domestic abuse specialist at Hall Smith Whittingham in Crewe and chair of Resolution’s Domestic Abuse Committee, comments:
“Divorce and separation are difficult at the best of times, and are made a thousand times more traumatic where there is abuse, addiction or extreme hostility involved. For parents trying to support and shelter their children through this sort of situation, it can be hard to know how to talk to the children about the divorce, and how to balance any arrangements for the child to see their other parent with the risk of the child coming to physical or emotional harm.”
“Often the perpetrator will use the children to maintain control over the domestic abuse sufferer. This can include making demands for time with the children and threatening or taking court proceedings. The perpetrator is not actually interested in more time with the children but just wants to continue controlling interaction with their former partner. Coercive control is usually perpetrated by men.”
“Thousands of families face this situation every day. That’s why we have developed this advice guide, to provide parents dealing with difficult divorce situations with sensible, clear advice.”
Jane’s advice for parents who are concerned about parenting arrangements during abusive divorce situations:
Arrange child handovers in public, or with a degree of separation
“It is emotionally harmful for children to hear or see one parent abusing the other whether that is physically or verbally. The risk of this can be removed by a third party being involved in the handover of the child from one parent to the other so the parents do not have to meet.”
"If the child is old enough to go in or out of the house on his or her own, the risk can be reduced by the parent collecting the child parking outside, remaining in the car and tooting the horn when they arrive or returns. Alternatively, the handover could take place somewhere public such as a car park with the child going from one car to the other or a restaurant or supermarket entrance or somewhere with CCTV cameras.”
Use shuttle mediation to set up parenting arrangements
“It can help to set up a pattern of set dates and times for the children to be with the other parent, to avoid the need for parents to speak to each other.”
“Arrangements can be made either by negotiations between the parties’ solicitors or at mediation. Legal Aid is available for mediation and you may still be able to access legal aid for legal advice if there has been domestic abuse. Mediation can take place on a shuttled basis, with each of the parents in a separate room and the mediator going like a shuttle between the two. There will be separate times for the parties to arrive and leave. Practical arrangements can be made to ensure safety.”
Use a third party as a go-between
“An arrangement for the children can include, say a third party to contact in case of emergency about the children or arrangements, so the parties do not have each other’s phone numbers. This removes the opportunity for harassment by repeated calls and texts.”
For more information, including advice on talking to children about domestic abuse and divorce, visit www.resolution.org.uk/difficultdivorce, part of Resolution’s new online advice centre for parents that was launched at a special event in Parliament on Tuesday 24 November.
Resolution will also be running a Twitter Q&A session between 1-2pm on the 25th November as part of White Ribbon Day. Questions can be tweeted to a panel of family law and domestic violence specialist lawyers – visit @ResFamilyLaw and use the hashtag #AskResolution to ask a question.
CASE STUDY: FIONA’S STORY
As part of Family Dispute Resolution Week Resolution commissioned ComRes to interview children and young people about their experience of parental divorce. ComRes conducted 5 qualitative interviews lasting 45 minutes with young people in London with experience of parental divorce (whose parents had separated more than a year ago), aged between 16 and 22 face-to-face on the 8th and 20th October 2015.
Fiona’s story (name changed) illustrates some of the difficulties children face with parenting arrangements where domestic abuse has been one of the factors in the parental relationship. Please note that this is part of a larger case study, and all names have been changed and personal details removed for anonymity.
“I think because my mum’s quite protective of us, she thought that the way he disciplined us was a bit too violent and she was abused by him as well. So, she was very scared that he could do anything […] She was quite protective [over my brother] and at the point where I mentioned when my brother saw him and started crying, I think he was scared that something was going to happen, she just like, ‘Okay, I don’t think you should see them. I don’t think you should come and see them ever.’
[…] So, yes, that’s probably what made the relationship a bit harder. So, that’s why we didn’t really see him, because he thought, ‘Okay, fine. If you don’t want to, then I’m not going to see you,’ and she said to us, ‘If you want to see him, I don’t want to know anything about that.’ He didn’t see why he had to ask for permission to see us or whatever, so I think that made it difficult to see him, and even now, if my brother sees my dad, he runs away […] So, I think that’s probably why we don’t see him. There wasn’t any, ‘This is what’s going on,’ with my mum. Not in the form of sitting us down and saying, ‘You’re not going to see your dad any more,’ but it was clear that she didn’t feel safe with him around us by himself.
Up to […] this year, I was happy not seeing him. I think when I did see him, I was scared as well. I’m fine not having a relationship with him […] As far as I was concerned he wasn’t worth my time and that, but I think as I’m getting older, I call him my dad - but I wouldn’t really say he was dad, because for the majority of the years he wasn’t acting as one. Just to know that I tried in the relationship, or even just now we have got into contact […] I have his number now. So, we do talk but it’s not a strong relationship [...]I think for my brother it’s going to be a lot harder, because my brother still resents him and the divorce and everything that’s happened has affected him.”
“[I think it would good if schools] had a buddy system, if [someone whose parents were getting divorced] knew someone who was older who had parents who were divorced, they could speak to that buddy. I think for [my brother], just having someone he could speak to [would help…] it’s still got him to that point where it will take a long time for him to trust someone, to go back to those issues and speak about what’s going on.”
Monday, November 23, 2015
ONS dip in divorces may relate to rise in cohabitation separations – that's why it's more important to put children first than ever, says Resolution
The Office of National Statistics latest set of Divorce in England and Wales 2013 statistics . In 2013 there were 114,720 divorces in England and Wales in 2013, a decrease of 2.9% since 2012, when there were 118,140 divorces.
Jo Edwards, chair of leading family law organisation Resolution, comments:
"The latest data from the Office of National Statistics shows that the divorce rate has dropped. There are many possible reasons for this - the lack of availability of family legal aid may mean that people simply aren't getting the support they need to bring their relationship to a formal conclusion. The rise in cohabiting couples, the fastest growing type of household in Britain, may also play a role - cohabitation separation is not included in these statistics."
"Whatever the reason, there are still many thousands of British families who are experiencing family breakdown every year, whether that's divorce or separation. The Resolution Parenting Charter, which asks parents to put their children's needs first during divorce, is more crucial than ever. We know from our own research released today that children are more concerned about the conflict and acrimony that accompanies divorce than the divorce itself. That's why it's vital that divorcing and separating parents agree to put their differences aside and work together in the ongoing interests of their family."
The statistics come as Resolution releases new research showing that around eight out of ten children and young people with experience of parental separation or divorce would prefer their parents to split up if they are unhappy, rather than stay together.
The poll of young people aged 14-22 with experience of parental separation, which was carried out by ComRes on behalf of family law organisation Resolution, has revealed fresh insights from children about the levels of involvement and amount of information they would like during their parents’ divorce. The findings are released ahead of a Parliamentary launch of new advice for divorcing parents.
An overwhelming majority (82%) of the young people surveyed said that, despite their feelings at the time, they felt it was ultimately better that their parents divorced rather than stay together unhappily. Asked what advice they would give divorcing parents, one young person said, “Don’t stay together for a child’s sake, better to divorce than stay together for another few years and divorce on bad terms”; while another suggests children “will certainly be very upset at the time but will often realise, later on, that it was for the best.”
Key findings from the research shows that children and young people want greater involvement in decision-making during the divorce process:
- 62% of children and young people polled disagreed with the statement that their parents made sure they were part of the decision-making process about their separation or divorce.
- Half of young people (50%) indicate that they did not have any say as to which parent they would live with or where they would live (49%) following their parents’ separation or divorce. Importantly, 88% say it is important to make sure children do not feel like they have to choose between their parents
- Around half (47%) say that they didn’t understand what was happening during their parents’ separation or divorce
- Two in ten (19%) agree that they sometimes felt like the separation or divorce was their fault.
- When asked what they’d most like to have changed about their parents’ divorce, 31% of young people said they would have liked their parents not to be horrible about each other to them, and 30% said they would have liked their parents to understand what it felt like to be in the middle of the process.
- Positively, Resolution’s research also showed that many parents are handling their separation admirably. 50% of young people agreed that their parents put their needs first during their separation or divorce.
Speaking about the new findings, Jo Edwards, chair of Resolution, said:
“This new information shows that, despite the common myth that it’s better to stay together “for the sake of the kids”, most children would sooner have their parents divorce rather than remain in an unhappy relationship.
“Being exposed to conflict and uncertainty about the future are what’s most damaging for children, not the fact of divorce itself. This means it is essential that parents act responsibly, to shelter their children from adult disagreements and take appropriate action to communicate with their children throughout this process,and make them feel involved in key decisions, such as where they will live after the divorce.
“We should be supporting parents to choose an out of court divorce method, such as mediation or collaborative practice. This will help parents to maintain control over the divorce and ensure their children’s needs are, and remain, the central focus.”
Relate counsellor, Denise Knowles said:
“Evidence suggests that it’s parental conflict which has the most damaging effect on children and we see this played out in the counselling room every day.
“Of course, children usually find their parents’ separation extremely upsetting but as this research demonstrates, eventually many come to terms with the situation and adjust to changes in family life. There are plenty of steps that separating parents can take to ensure they reduce the negative impact on their children such as working to avoid constant arguing or speaking badly of the other parent in front of the kids.
“Parents can also involve their children by providing age appropriate and relevant information about the divorce or separation and what it means for them. Trying to understand children’s needs will make them feel secure and loved during this difficult time. Separating parents could also consider accessing support such as individual counselling, couples counselling, family counselling and mediation. ”
Parenting expert and author Sue Atkins said:
“Children want to feel involved and empowered with relevant information about their parents’ divorce and what it means for them. They also want to see their parents behaving responsibly, such as to not argue in front of them.
“That so many children report their relationships with family members remain unchanged after a divorce shows the value in parents seeking advice to support them to find positive solutions to their disputes”.
“As the long distance parent, Dads must work hard to maintain their relationship with their child. They may feel angry that this task falls on their shoulders since they may not have initiated the divorce in the first place and it's easy to feel like a victim and spend their time and energy blaming their ex. But I don't advise that as it's far better to focus on what you can do to stay involved and active in your child's life. Being a long distance parent doesn't mean that a dad has to automatically disappear from their child's life. It just requires some creativity and cooperation to pull it off successfully.”
The survey results support the main advice Resolution shares in its Parenting Charter, which sets out what children should be able to expect from their parents during a divorce.
These include children’s rights to:
- be at the centre of any decisions made about their lives
- feel and be loved and cared for by both parents
- know and have contact with both sides of their families, including any siblings who may not live with them, as long as they are safe
- a childhood, including freedom from the pressures of adult concerns such as financial worries
At a special event with MPs and Peers in Parliament later this week, Resolution will be calling for the Government to share the Charter with all divorcing parents. The event will also see the launch of an online advice guide at www.resolution.org.uk/divorceandparenting developed by Resolution to help divorcing parents manage their relationship with their children and with each other during separation.
A brief summary of the essential family law news and cases from the last week:
Court of Protection to test increased access for public and media
Public and media will gain greater access to Court of Protection hearings after a pilot scheme starting next year. Full story: Courts and Tribunals Judiciary.
Appeal decision protects solicitor offering ‘unbundled’ advice
Solicitors instructed on a limited retainer do not have a broader duty of care to their clients, the Court of Appeal has ruled, asserting the importance of ensuring that lawyers can offer unbundled services. Full story: Law Society Gazette. See Minkin v Lesley Landsberg, below.
Children of divorce: 82% rather parents separate than 'stay for the kids'
Poll by Resolution also finds nearly a third would have liked if divorcing parents did not criticise each other in front of them. Full story: The Guardian.
Landmark report shines light on the practice of surrogacy in the UK and calls for legal reform
The first ever report of its kind gives unprecedented insight into how surrogacy is practised in the UK and busts a number of pervasive myths that have informed debate in recent years. Full story: Family Law.
Allow 'minimally conscious' MS sufferer to die, says judge
A 68-year-old woman "locked into the end stage" of multiple sclerosis should be allowed to die, a judge has ruled. Full story: BBC News. See Re N, below.
Minkin v Lesley Landsberg (Practising As Barnet Family Law)  EWCA Civ 1152 (17 November 2015)
Appeal by the claimant in a solicitor's negligence action against the dismissal of her claim on liability relating to advice given in connection with a consent order. Appeal dismissed on basis that retainer did not extend to giving such advice. Full report: Bailii.
N, Re  EWCOP 76 (19 November 2015)
Application for a declaration determining whether it is in the best interests of patient lacking capacity to receive life sustaining treatment. Full report: Bailii.
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For more news, see here.
For more cases, see here.
To subscribe to the Family Lore Focus free weekly Newsletter, go here.
Friday, November 20, 2015
My posts this week on Marilyn Stowe’s Family Law & Divorce Blog told of the good (news) and the bad (and, come to that, the entirely predictable):
Will we ever have a child support system that works? - Probably not, is my guess (not that it's difficult to come to that conclusion).
Taking advantage of deputyship - The Court of Protection case Re AFR.
Telling one side of the story - Another demonstration of the delusion that transparency will improve public understanding of the family justice system.
No, you can’t have a full service without paying for it - As demonstrated in Minkin v Lesley Landsberg.
Have a good weekend.
Thursday, November 19, 2015
Family Law Protocol, 4th Edition
£39.95 – Published by Law Society Publishing: 30 October 2015
If the job of a book reviewer is to indicate to the reader of the review whether they should acquire the book, then this must surely be the easiest reviewing job I have ever done. The current (now 4th) edition of the Family Law Protocol is, quite simply, an essential occupant of the bookshelf of every family law practitioner. If you have not done so already, acquire a copy now!
I could end this review there, but I suppose I should say a little more, primarily for the benefit of those (surely few) who are not aware of the Protocol.
First published in 2002, the Family Law Protocol provides a set of best practice guidelines for all family law practitioners. Developed by the Law Society in association with Resolution and other leading organisations, interest groups and figures in the field, the Protocol provides guidance on everything from taking instructions, to dealing with specific areas of family law (public law is included, but practitioners in that field should also refer to the separate volume, Good Practice in Child Care Cases), with an emphasis on attempting to achieve resolution of family disputes by means of ADR, and an insistence that court proceedings should be a last resort. The Protocol is endorsed by the President of the Family Division, Cafcass and the Family Law Bar Association, amongst others.
For those who possess a copy of the 3rd edition (which is now five years old), this edition has been amended in a number of ways, including:
- Updating of the main Protocol which, for the benefit of those who have not seen a previous edition, "details those overarching matters family lawyers must consider in order to promote their clients' best interests".
- Taking account of significant developments including the creation of the Family Court, new legislation and changes to public funding in family law proceedings.
- Adding new chapters on domestic abuse and honour based violence, forced marriages and FGM and alternative pathways to parenthood.
In short, whether you have an earlier edition or not, you have a reason to acquire this volume.
Before I end this review I should mention one of those involved in the drafting of the Protocol, Robin ap Cynan. Sadly, Robin passed away suddenly last month. For a little information about his contribution to the profession in general and family law in particular, and for tributes to him, see this article in The Law Society Gazette.
The Family Law Protocol is available from the Law Society bookshop, in either hardcopy (paperback) or (from the 20th of December) EPUB form.
Monday, November 16, 2015
A brief summary of the essential family law news and cases from the last week:
Court of Appeal rules on liability of councils for foster care abuse
The Court of Appeal has handed down a key ruling on the liability of councils for foster care abuse, concluding that local authorities do not owe a child in such care a non-delegable duty. Full story: Local Government Lawyer. See NA v Nottinghamshire County Council, below.
Domestic violence victims 'put at risk' by erratic handling of cases
HMIC says dangers to vulnerable witnesses not properly dealt with in a third of cases, including instances of racial abuse. Full story: The Guardian.
Care applications in October 2015
In October 2015, Cafcass received a total of 1,079 care applications. This figure represents a 7% increase compared to those received in October 2014. Full story: Cafcass.
Cafcass private law demand
In October 2015, Cafcass received a total of 3,311 new private law cases. This is a 2% decrease on October 2014 levels. Full story: Cafcass.
The Family Procedure (Amendment No. 3) Rules 2015
These Rules amend the Family Procedure Rules 2010. Statutory Instrument. For details, see here.
Ramadani v Ramadani  EWCA Civ 1138 (12 November 2015)
Appeal considering the jurisdiction of a court in England and Wales to entertain an application for spousal maintenance in the context of the Maintenance Regulation following previous proceedings in another EU member state. Full report: Bailii.
NA v Nottingham County Council  EWCA Civ 1139 (12 November 2015)
Appeal concerning liability of local authority for abuse suffered by child whilst in foster care. Full report: Bailii.
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For more news, see here.
For more cases, see here.
To subscribe to the Family Lore Focus free weekly Newsletter, go here.
Friday, November 13, 2015
The latest issue of the Internet Newsletter for Lawyers is now published.
In this issue
- Open access – Scott Vine of Clifford Chance explains what open access means and the different approaches
- Data protection – Eduardo Ustaran of Hogan Lovells sets out an action plan for life after Safe Harbor
- Social media – Barristers Chris Bryden and Michael Salter on reputational risks of commenting on social media
- Digital marketing – Mindy Gofton of I-COM on how the nature of SEO has changed as search engines have developed
- Barristers' practice – Stephen Crowne CEO of the Bar Council introduces the Direct Access Portal for barristers
- Recruitment – Christian Browne of Summerfield Browne describes how he uses LinkedIn to recruit staff
- Advertising – Alex Heshmaty explains the rise of ad blocking and the surrounding debate
- Book reviews – Nick Holmes reviews Typography for Lawyers and The Future of the Professions
Access the Newsletter online
Just like the visitors to Nell's grandfather's shop, I hope you will find things of interest amongst my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which included:
Calderbank isn’t dead - As demonstrated by WD v HD.
Are family litigants bad people? - As suggested by Charles Dickens.
Lawyers are not just for clients - As Mr Justice Moylan pointed out in PS v RS.
A good judge will recognise your true intentions - Mrs Justice Parker makes a finding regarding the husband's intentions in Baldwin v Baldwin.
Have a good weekend.