Thursday, September 18, 2014

Bar Council report claims LASPO 2012 damages access to justice

Bar Council report claims LASPO 2012 damages access to justice - The Bar Council, 18th September 2014

(This is actually serious stuff, but I couldn't resist the Fawlty Towers reference, sorry.)

Monday, September 15, 2014

Book Review: Children and Families Act 2014


Children and Families Act 2014

Family Justice Under the New Law


£49.95 - Law Society Publishing: September 2014

I should begin this review with a confession. I have never particularly been a fan of books written about new statutes. They often seem to be hastily-written (for obvious reasons) and do little more than paraphrase the statute concerned. Accordingly, it was with a little trepidation that I went to open the cover of Children and Families Act 2014. Should I have been worried? Read on...

Before opening that cover, I checked the blurb on the back. This informed me that the book "offers you the full text of the parts of the Act dealing with family justice matters, including commentary on each of those parts. It also outlines the major changes, and offers insight into how these may impact the day-to-day practice of the busy family lawyer." All fairly standard stuff for these type of books (even down to the hackneyed reference to "busy" lawyers). My trepidation was not assuaged...

Opening the cover, the contents page tells us that the book includes chapters covering the changes in the areas of public family law, adoption law, children in care, private family law, the Family Court and the Children's Commissioner. There are also seven appendices, more of which in a moment. Each chapter in the book has sections devoted to the changes brought in by the Act under that chapter heading. Most of the sections are sub-divided in to three parts: explaining why the change was suggested, what has changed and how the change will work in practice.

Now, as someone who runs a family law news site, I like to think that I keep up to date with changes being introduced. However, until I read this book I didn't appreciate just how much change the Act has brought with it. I suspect that the same may apply to many practitioners, especially when it comes to areas that they only deal with infrequently, or that are peripheral to their practice. This is where the format of the book comes into its own. Setting out not just each change but also its context and how it will operate in practice, all in an extremely readable style, makes it very easy for that busy family lawyer to come up to speed.

I also agree with much of the practical advice given by the author. For example, when discussing the presumption of parental involvement to be brought in by section 11 this autumn (according to the MoJ/DfE) he says:
"The way in which solicitors advise their clients should not, in the author's view change as a result of the introduction of the presumption. Most family lawyers will be used to explaining to clients that the current child development thinking/discourse promotes the idea of it being best for children if they can enjoy a relationship with both parents (whatever form that relationship may take) and that this has been Government policy for several years."
Nice to see some common sense on that one.

As mentioned above, the book has seven appendices. They are as follows:

1 - Relevant extracts from the Act.
2 - The PLO.
3 - The CAP.
4 - The PLO flowchart and the CAP flowchart.
5 - A table setting out the stages of a public law application, as per the CAP.
6 - A template proposal for permission to instruct an expert, in accordance with FPR 2010, Part 25.
7 - Further reading, which does not just list items, but also gives the web address where they may be found - extremely useful.

There is not a lot that is new in the appendices, but it is useful to have all of the sources in one place, particularly as one is often checking them as one reads through the main text.

I am pleased to say that my original trepidation regarding this book was entirely misplaced. Yes, the book does everything that books of this type set out to do, as mentioned in the cover blurb, but the author goes further, producing something that really is genuinely helpful to practitioners. Children and Families Act 2014 is both a book to read from cover to cover (or at least the main text) to get an overview of the Act's family justice provisions, and a textbook to consult when necessary. I highly recommend it.

Children and Families Act 2014 can be purchased from the Law Society Bookshop, here.

Friday, September 12, 2014

Why do enduring marriages often fail in middle age?

According to a comprehensive recent study carried out into divorce in middle age, researchers noticed that their results not only backed up their initial expectations, but proved that the growing trend they anticipated had quickly become a torrent.

To quantify this torrent, the researchers found that middle aged divorce rates had doubled between 1990 and 2010, and now account for more than a quarter of all the divorces filed in the UK each year. Interestingly, remarriages are 2.5 times more likely to end in divorce than first marriages.

But what exactly can account for this dramatic rise in middle aged divorce? In this article we will discuss the primary reasons for this increase as well as identifying a few high profile cases which have fallen by the wayside.

A change in circumstances

It is often the case that despite misgivings earlier in the marriage, both partners decide to work at the relationship for the sake of their children and in the hope that their situation will improve. If there is still no improvement by the time the children leave home, the reality of it being just the two of them can be too much to bear. The change in circumstances often brings with it a burgeoning sense of freedom and a feeling that life is too short. The result can be either partner turning their back on their long-standing marriage. Recent examples include the tumultuous Nigella Lawson and Charles Saatchi split and the end of the enduring romance between Bill Nighy and actress Diana Quick.

Reduced stigma

Research into changing attitudes in the UK towards divorce has shown that much of the stigma attached to divorce has dwindled. This social acceptance is the result of the increasing familiarity of divorce, as many of us, if not affected by divorce directly, have parents, family members or friends who have been.

Although there is no such thing as a painless divorce, the increasing instances of separation, particularly among the middle-aged, have removed much of the taboo that once existed. Divorce was once something that was kept behind closed doors, whereas now it can be discussed openly. However, this is not to say that divorce is now being taken lightly.

Increased financial independence

Of the two sexes, women are more likely to file for divorce in their middle age than men. This trend shows an about-turn which is largely down to the increase in equality and the increasing financial independence of women. In days gone, a women’s earning potential was considerably less than a man’s. In many cases middle aged women could not afford to divorce their husbands, no matter how emotionally bereft their marriage.

Pensions were another concern for women who would otherwise choose to divorce. With men the primary breadwinners in days of yore, many women would be unable to support themselves financially in old age. Now they have the financial fortitude and freedom to make their decisions based on factors other than the finances.

The rise of the middle aged dating scene

It may be a relatively modern phenomenon, but the inexorable rise of social media and dating websites has had a dramatic effect on the ability of middle aged men and women to find new relationships. Over 30 per cent of those aged between 40 and 69 found their current partners online. This gives those considering a divorce in middle age the reassurance that they will not live out the rest of their years alone.

__________

Author: Howells Solicitors has a specialist and expert team of middle aged divorce solutions including DIY divorce packages and divorce financial settlements. For expert assistance from a dedicated team, contact Howells Solicitors today.

A tale of four cases...


Not exactly Dickens, but my posts this week on Marilyn Stowe’s Family Law & Divorce Blog include:

K (Children): Judges have to give themselves time to make decisions - A look at the recent case K (Children) (notwithstanding that I said here previously that I wasn't going to do a full summary of this case!).

Sharland appeal going to Supreme Court - Something upon which Marilyn and I disagree.

A different type of family breakdown - Looking at the Court of Protection case DG & Others v Peter.

Important cases: Radmacher v Granatino - A look back at the Supreme Court's decision in Radmacher v Granatino.

Have a good weekend.

Thursday, September 11, 2014

Internet Newsletter for Lawyers September/October 2014


The latest issue of the Internet Newsletter for Lawyers is now published. 

In this issue
  • Legal practice – Tessa Shepperson shares her experience of working on the web since 2001
  • SEO – Michael Scutt of Crane & Staples considers the remedies for SEO bad practice
  • SEO – Abra Millar of Hallam Internet describes how you can find out and analyse links to your site
  • Legal practice – Brian Inkster of Inksters Solicitors on the many steps you can take to improve and reinvent your firm
  • ODR – Christina Blacklaws of Cripps suggests that ODR technology should now be introduced for family law
  • Justice – As the old justice websites move to GOV.UK Nick Holmes looks at the features of Justice online
Online extras
  • Probate – Celia Fraser describes the benefits of Probate Plus probate administration software from Law Systems Ltd
  • Social networking – Joe Reevy of LegalRSS tells us not to let the pursuit of data get in the way of networking

Access the Newsletter online at http://www.infolaw.co.uk/newsletter/.

The RSS feed of latest articles is at http://www.infolaw.co.uk/newsletter/feed/.

Monday, September 08, 2014

Family Lore Clinic: When can an uncontested divorce be launched in the UK?


The first thing to say here is that the law is not the same in all parts of the UK. In particular, Scotland has its own divorce laws. I can only speak for the law in England and Wales.

The second thing to say is that no divorce proceedings may be issued before the expiration of the period of one year from the date of the marriage. This is so whether or not the divorce is contested.

Which brings me on to my third point. Whether or not a divorce is contested does not, strictly speaking, affect when it can be issued. I suspect, however, that the asker of the question may have been referring to a divorce by consent, after two years' separation. In that case, of course, the divorce petition cannot be issued until the two year period has expired (the two year period can begin during the initial year of the marriage).

Similarly, if the divorce is to be on the basis that the parties have been separated for at least five years, then the divorce cannot be issued until the expiration of the five year period, and when (very unusually) the divorce is to be on the basis of two years' desertion then it cannot be issued until the expiration of the two year period.

Otherwise, if the divorce is to be on the basis of the other party's adultery or unreasonable behaviour, then it can simply be issued at any time after the expiration of the period of one year from the date of the marriage.

If you would like an further advice about when to issue divorce proceedings, you should consult an expert family lawyer.

Friday, September 05, 2014

Forget transparency and bring back legal aid: My week on the Marilyn Stowe Blog


My scribblings this week on Marilyn Stowe’s Family Law & Divorce Blog include:

What exactly is ‘transparency’, and do we need it anyway? - In which I suggest that transparency is a beauty pageant that the family justice system shouldn't be in, and can't win anyway.

Important cases: Charman v Charman - A quick look at the case that involved the largest ever award in a contested application for financial remedies following divorce in this country.

Use a professional – so long as you don’t need legal aid - Commenting on the Law Society's latest ad campaign.

The continuing effect of the legal aid cuts - I unapologetically continue to bang on about the cuts that created an underclass of people who do not have proper access to justice.

Have a good weekend.

Tuesday, September 02, 2014

K (Children): "Suffused with anger and arrogant position taking"

Lord Justice Ryder
I'm not going to do a full summary of this one - I'm sure others more exalted than me are already sharpening their keyboards with a view to writing something far more learned than I could achieve. Instead, I just wanted to highlight some of what Lord Justice Ryder had to say about the difficulties involved in dealing with private law children disputes where the parents are more concerned with fighting each other than with the welfare of their children. I would like to think that those who are quick to criticise the family justice system would read Mr Justice Ryder's words before launching another attack on the system, but I hold out little hope of that.

The case concerned two boys, now aged 14 and 12. Their parents separated in 2004 and the boys remained with their mother. Their parents have been litigating over them ever since, predominantly regarding the father's contact with them. On the 3rd of June last the Family Court ordered that they be removed from their mother's care, with the older boy placed with foster carers and the younger boy placed with his father. The mother appealed, and the Court of Appeal allowed the appeal in part and set aside the Family Court's orders, Lord Justice Ryder giving the leading judgment.

In the course of that judgment Lord Justice Ryder had a number of things to say about the parents and the problems faced by the court. Firstly about the decision made on the 3rd of June:
"The decision taken by the judge was an exercise by her of the ultimate protective functions that are available to the family court when it is exercising its private law children jurisdiction. Those functions have rightly been the subject of anxious and rigorous scrutiny in this court but it should not be forgotten that this decision, like others that have to be taken every day in the family court, was made in the context of asserted urgency of the most immediate nature relating to the safety of the boys concerned, poor quality evidence and little or no time to reflect upon the judgment that was to be made. Although, as I shall describe, this court allowed the appeal in part and set aside the orders made, we did so without criticism of anyone."
The judge's difficulties were exacerbated by the father not having legal aid:
"The judge in this case was not well served by the evidence or the problems created in part by the history of the case and the supposed urgency of the situation. The circumstances that dominated the hearing were not those which were the most important in the case and she was left to make a decision with poor quality material. Although articulate and intelligent, the father was a litigant in person who would have been simply unable without legal assistance to pursue the legal issues that have been pursued before this court. I question whether in the absence of legal representation he is able properly to put forward a sustainable position to the court."
As to the conduct of the parents:
"Mother should not and must not continue to believe that she can override the repeated conclusions of the court. It is, as the court has repeatedly said, desirable that the boys should have a close parental relationship with their father. The mother's approach has contributed to the damage that has been caused to the boys' emotional welfare. This cannot continue. The father must understand that the court cannot achieve the impossible. He has been responsible for at least some of the conflict that exists and the boys have suffered because of that."
He continued:
"The problem in this case is the maintenance of a meaningful relationship between the boys and their father. As is too frequently the case, the problem was caused by the parents of the children who are locked into a damaging, deteriorating spiral of conflict which desperately needs to be resolved. Without that resolution, whatever the court orders and no matter what steps are taken to enforce the court's orders, harm will continue to be caused to the children. Cases of this kind are unhelpfully and generically referred to as 'implacable hostility' cases because of the parental conflict that exists. The label provides no insight into or assistance with the myriad of circumstances and features that such cases present."
He concluded powerfully:
"In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot - its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be 'allocated' to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court's decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies."

Just so long as you don't need legal aid...


Law Society advertising campaign highlights “regulated and insured” professionals - Legal Futures, 1st September 2014

Friday, August 29, 2014

The show must go on...


Well, it's been a strange day. At about 6pm last night we had a complete web outage which, it seems, will not be fixed until Monday, at the earliest. At first, of course, I fell into a panic, wondering how on Earth I would manage. Gradually, though, I began to appreciate the freedom of not being tied to my internet master. A return to a simpler way of life. However, this afternoon I realised that I had a duty to keep you good people informed of my efforts this week over on Marilyn Stowe's Family Law & Divorce Blog. I therefore succumbed to the purchase of a mobile Wi-Fi, which I am using to post this.

It has, of course, been a short week with the Bank Holiday, and I am therefore just listing three of my posts on Marilyn's blog:

Everything's going to be much better - It must be - Simon Hughes and Edward Timpson said so.

SK v TK: The sharing principle in action - The White v White sharing principle, as demonstrated by Mr Justice Moor in SK v TK.

Important cases: Miller and McFarlane - You guessed it, a look at Miller and McFarlane.

Right, I'm off for a weekend surfing on the mobile Wi-Fi enjoying the simple pleasures of an internet-free life. Have a good one.