A Blawg Review by a UK blogger is a rare and (sometimes) beautiful thing. Certainly, Blawg Review #237 by Christian Metcalfe (left) of The Property Law Blog is a thing of great beauty, not to mention great substance. The theme is the 1647 Putney Debates - takes me back to my A-level history. Well worth a read.
Three stories that caught my eye this morning:
The Guardian reports that: "The number of divorce and separation cases being fought in the courts that involve children has risen, with £151m of legal aid money being spent on litigation, according to figures released today." They quote research by Mishcon de Reya which "shows that more than half of parents going through divorce and separation went to court to challenge issues relating to their children". The Guardian goes on: "The increase in proceedings is causing delays to private law cases, a panel of experts will hear at a debate in parliament today, with alarming implications for children involved." No doubt we will be hearing more about this as the day progresses...
Meanwhile, one divorce which most definitely did not involve minor children was that of Bertie and Jessie Wood who, at the age of 98, were the oldest couple in the world to get a divorce, according to the Daily Mail. This is, in fact, the case of Baker v Rowe, which I reported in Family Lore Case Digest on Saturday.
Lastly, I have mentioned here before the phenomenon of divorce cakes, which originated in America. I'm not sure if this is exactly news, but the Daily Mail reports today that the trend has reached these shores. Yummy...
Further to my last post I read today that Dawkins is being blamed for falling birth rates across Europe! This would be laughable, but for the fact that our government has recently seen fit to elevate the author of this nonsense, Chief Rabbi Jonathan Sacks, to a position in the upper house of this country's Parliament. His argument appears to be that secularism equals selfishness and immorality. This is an old, tired, and completely wrong proposition that is regularly wheeled out by theists and has long-since been proved utterly fallacious. Dawkins himself dealt with it in The God Delusion, a book that Sacks appears to have either not read, or not understood. It is truly scary that someone who thinks that all morality flows from belief in mystical sky-gods occupies a position in the government of this country. (And I'm not even going to deal with the fact that he thinks a falling birth rate is a bad thing...)
When I am ready to shuffle off this mortal coil I will not be able to console myself with the thought that I did anything useful with my life. I did not make any great scientific discoveries, I did not save lives and I did not teach children the wonders of the world. I was a lawyer. Still, it could have been worse - I could have been a politician.
Why these depressing thoughts? Well, I have just finished reading Richard Dawkins's latest opus, The Greatest Show on Earth: The Evidence for Evolution. It is not that the book is depressing - far from it. It is that whenever I read a science book I realise how little of real value I or any lawyers have achieved by comparison to the great scientists to whom we owe our knowledge of the universe around us. As the title suggests, the book sets out the massive body of evidence that proves beyond any reasonable doubt that evolution is a fact, every bit as much as it is a fact that the Earth is round and that it orbits the Sun. Unfortunately, as Dawkins points out, the book is very necessary, as there are still many who will deny this truth even 150 years after it was discovered. Quite why they deny it is beyond me - perhaps it is ignorance, perhaps it is lack of intellectual capacity, perhaps it is indoctrination, or perhaps they simply deny it for their own ends. Dawkins is not so naive as to expect that many of the deniers will read the book, but hopefully a few will, and any furthering of the truth can only be a good thing.
If you are a denier, then do yourself a favour and buy this book. If you are not, then just get it to wonder at the story of evolution, and of those great people who uncovered it.
Reading the big-money cases reported over the years and dealing (occasionally) with cases involving significant wealth myself, I've often been amused by the amounts that parties claim they need to live on. However, a case hitting the headlines in America takes the amusement to a whole new level.
Jamie McCourt is the wife of Frank McCourt, the owner of the LA Dodgers baseball team (although his sole ownership is disputed by Mrs McCourt). The pair appear to be heading for a highly-public and highly-acrimonious divorce after he dismissed her from her position of chief executive officer of the team, after she allegedly had an affair with her driver (or was it her bodyguard, as some reports suggest?). She responded by filing for divorce and reportedly seeking alimony (that's maintenance to you and me) of an eye-watering $488,000 a month, or about £300,000 a month. She claims that she needs this for such essentials as private jets, five-star hotel accommodation, "personal care" (£7,000 a month) and flowers in her office. Even in the state that is not known for its lack of excess this has raised a few eyebrows, with one local paper remarking that the divorce "seems destined to titillate and disgust the common people in Southern California who wouldn't even know how to spend $500,000 a month". Nope, nor would I, although I wouldn't mind finding out.
I posted a few days ago about the Law Commission's proposal that cohabitants should have an entitlement on intestacy. My good friend John Hirst of Jailhouselawyer's Blog has drawn my attention to this article in The Times, in which Ross Clark (left) argues against the proposal, saying that: "For any cohabiting couples who don’t like the inheritance laws there is a simple answer — get married."
The whole issue of cohabitants' rights raises strong feelings, especially amongst those who are against. Most family lawyers are in favour, as they have seen first hand the injustices that the lack of rights can cause. It is all very well saying "if you don't like it, get married", but this raises the fundamental question of whether the law should be used as a tool to control how people conduct their relationships. Personally, I do not think that it should, or even that it could - in a free society, at least. If people want to live their lives in a certain way (and it is not that they can't be bothered to get married, as Clark suggests) then they should be free to do so. The law should react to changes in society (rather than try to control them) and ensure that injustices do not happen as a result of those changes.
Non-lawyers often seem to find it difficult to understand that lawyers must maintain a distance from the cases they are dealing with. In the family context, it would be all too easy to get involved in some of the highly-charged and often distressing situations that lawyers deal with, but to do so would be to fail in one's professional duty. The corollary of this is that lawyers are often accused of not caring, as discussed by Lucy Reed of Pink Tape in her post ‘Don’t you lot EVER think about the kids?’, my Post of the Month for October.
The particular source of the criticism that Lucy discusses is a children's guardian, who is quite clear in their view as to how the case should be resolved and becomes frustrated by what they see as lawyers (acting for parents) causing unnecessary delay. However, as Lucy says, parents are entitled to a fair trial too: "For what is fairness if it is not something applicable to all parties?". She concludes: "I think about the kids all the time. How could one not? But then I get on with giving sound advice and acting on my instructions, and put my faith in the court to work out the right solution."
It would be nice if this post were read in certain quarters, before lawyers are insulted in this way.
The point has already been made, but it does seem a little odd that the Law Commission is proposing that cohabitants should have an entitlement on intestacy, while at the same time the Government has shelved plans to give cohabitants property rights upon separation. If the Law Commission's proposals are passed into law, we could have the very strange situation whereby if your partners dies intestate then you will automatically receive part of their estate, whereas if they leave you then you will receive nothing. Of course, we already have the situation whereby a cohabitant can benefit from their deceased partner's estate if they make a successful family provision claim although, as the Law commission points out, such a claim is expensive and stressful, and involves litigation against the deceased’s relatives and even perhaps the cohabitant’s own children.
Time for a bit of joined-up thinking, perhaps?
TV chef Marco Pierre White has succeeded in his appeal against the striking out of his claim against his wife's solicitors, Withers LLP. The full report of the Court of Appeal judgment may be found here, and a summary in The Times, here.
The case may involve a celebrity and a top London law firm, but it clearly has application across the board. It is a very frequent occurrence for a party to an ancillary relief claim to remove or copy documents belonging to the other spouse, often because it is feared that the other spouse may seek to hide assets from the court. Such documents are, of course, known as "Hildebrand documents", so named after the 1992 case Hildebrand v Hildebrand. Lord Justice Ward summarised the Hildebrand rules as follows:
"The Family Courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents nor I would add, though it is not a feature of this case, the removal of any hard disk recording documents electronically. The evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs."White alleges that his wife told him that Withers had told her to take his mail. Withers, following the Hildebrand guidelines, maintain that they advised Mrs White that she was only entitled to take copies of documents that she found in the matrimonial home, provided she did not break into any of Mr White's property to obtain access. They considered that White's claim was an abuse of process, designed to 'hassle' his wife. However, the Court of Appeal was particularly concerned about a letter to White from his daughter Letty, which had been intercepted and which White did not see until it was produced by Withers. Lord Justice Ward:
"solicitors are officers of the court and if they are shown to have done wrong they should face the judgment of the court. It is not conducive to the administration of justice that such claims are simply swept under the carpet. It is in the public interest that the bounds of proper conduct be clarified. The interception and retention of Letty's letter ... leaves me with such an uncomfortable feeling that for my part I would be reluctant to shut out the claimant and deny him his day in court. Thus I am not persuaded that this claim has been shown to be an abuse of the process."Let us hope that, now it is proceeding to trial, the case does, indeed, clarify 'the bounds of proper conduct'. Read More...
I threatened some while back to start making CPD courses. Unfortunately, that project never came to fruition. However, I am pleased to announce that I am now making CPD courses for the CPD Channel. The courses provide one CPD point (or one hour) each, and comprise an audio, a set of notes and five multiple-choice questions, all for £25. My first three courses are now available and are all designed for those new to family law, or those returning to the subject who require a refresher. They are: Essential Divorce, Essential Ancillary Relief Part 1: The Law and Essential Ancillary Relief Part 2: Procedure. Further courses will follow, including more advanced topics and updating courses.
The Times today has a series of three articles describing the dire state of the under-resourced family justice system, and its consequences for 'vulnerable children' (a phrase that appears in the headline of each article). One article is by Christina Blacklaws, who seems to be running a one-woman campaign to highlight the problems, and is essentially a layperson's version of the article that she wrote for the Gazette last month. The other two articles are both by Frances Gibb, one concerning the risks of the proposed cuts in legal aid and the other dealing with the post-Baby P increase in care applications and its consequences for Cafcass.
The Times has, of course, long taken an interest in the family justice system, and has been running a campaign to open up the courts. Whether or not there is any 'agenda' behind the publication of these articles is unclear, but two things are certain if more resources are not pumped in:
1. The unacceptable delays in the system, which must harm the children involved, will only get worse.
2. The quality of service that those children are likely to get from those within the system will deteriorate, simply because there will not be enough experienced professionals (be they social workers, Cafcass officers or family lawyers) to cope with the demand.
What price vulnerable children?
In Maine they are voting upon the possible repeal of the state’s newly approved law allowing same-sex couples to marry. Here, 86 year-old veteran Philip Spooner puts the case in favour of the law with dignity and eloquence:
The newspapers are full of stories about the substantial increase in care applications. See, for example, this report in the Guardian and this one in the Independent, both of which appeared in the last 24 hours. Now, this isn't new news - it has been reported for some time that the numbers are up, but I haven't done any care work for many years, so I have hesitated to comment. However, I think that some comment is required.
The primary reason for the increase is, of course, the Baby P case. Agencies are fearful that they will be vilified for making mistakes by failing to protect children, and are therefore applying for care orders in 'lower level' cases, where they would not have done so previously, effectively passing responsibility to the courts. This, of course, is having the effect of overloading the system, which is struggling to cope. This, in turn, will mean more delay in cases where children are in real danger. It will also almost certainly mean that more children will be removed from their families unnecessarily.
This is not the way the system should work. It is, however, the inevitable result of those working in the child protection system being subjected to hysterical, uninformed media criticism, without proper support from government. As I have said here before: who would be a social worker? It is virtually impossible to do a proper job when you know that your every decision will be publicly scrutinised, and your first mistake will likely be your last. I'm sorry, but no system is perfect. People do make mistakes, and anyone saying that we 'must prevent another Baby P tragedy' is just not living in the real world. We cannot prevent tragedies from ever happening. We can, however, minimise them, but this will only happen if those working within the system are allowed to do so without fear.
I suspect that quite a few hen-pecked husbands around the world may empathise, but for a Saudi man to allow his wife to find out that he has nicknamed her 'Guantanamo' is not very clever. Now she is apparently threatening divorce unless he pays her "substantial" compensation. Either way his wallet is going to get a lot thinner...
Personally, as a divorce lawyer I can't see anything wrong with this, even if the divorces were a sham just to get the pension payouts. Well, it's all good business for us, isn't it?
