Something for the Weekend: The Smiths - The Queen Is Dead

This seemed most apt this weekend:

BLEAK SPOUSE: Chapter 14 – An Unappealing Case

BELLEND HOUSE. Matt O'Gridley is sitting alone in his shabby room, perusing for the four-hundredth time the papers relating to his divorce and subsequent ill-fated application for contact with his children. Deep-down he doesn't know why he does this, as it only makes him angry again.

He is contemplating taking a walk down to the local internet café, where he can vent some of his anger by having another rant on the forums of fathers' rights group The Real Families Need Fathers 4 Justice, when there is a loud knock on his room door.

He looks up with a start. He is sure it's not going to be good news, and contemplates for a moment pretending to be out. He quickly realises that the shelter manager will know that's not true.

There is another, louder, knock. Matt starts to panic. He thinks about climbing out of the window, but he is three floors up and he doubts that the rusting drainpipe outside will hold his weight (he has previous experience of climbing buildings).

A deep voice outside calls: "Open the door, Mr O'Gridley, we know you're in there!"

Matt resigns himself to the inevitable. "Who is it?" He asks feebly.

"Inspector Gormless." Says the voice. "I've got some papers for you."

"Papers, what papers?" Asks Matt.

"Just open the door, there's a good sir." Says the voice.

Matt realises from past experience that he is about to be served with some court papers. He racks his brain to think what they might be - after all, it is some time since he last breached the injunction requiring him to stay away from his ex-wife. What could she be up to now? Whatever it was, it was bound to be bad for him.

He thinks of all the advice that other members of the forums have given for ways to avoid being served with papers, and comes up with a couple of ideas.

He opens the door, and is greeted by Inspector Gormless, flanked by two burly police constables. The presence of the latter convinces Matt that running away isn't an option, so he decides upon drastic action.

As Inspector Gormless goes to tap him on the shoulder with the papers, Matt theatrically grabs his chest, lets out a scream of pain and collapses to the floor, shouting: "My heart, my heart!"

Unfortunately, the performance is of insufficient quality even to fool Inspector Gormless, who quickly surmises that Matt has not, in fact, suffered a heart attack. He therefore completes service, and leaves Matt squirming on the floor.

Aspden v Elvy: Ascertaining the common intention

Leeds Combined Court Centre

The recent case of Aspden v Elvy [2012] EWHC 1387 (Ch) is an example of the application of the principles in Jones v Kernott.

The Facts: The parties met in 1985. In 1986 Mr Aspden purchased Outlaithe Farm, which comprised a farmhouse, a number of outbuildings, a derelict barn with planning permission for conversion to a dwelling and about 6 acres of land. The parties began cohabiting shortly after this, and there were two children of the relationship, both of whom are now grown up.

The parties separated in late 1995 or early 1996. Ms Elvy left Outlaithe Farm with the two children and went to live nearby. By a Transfer dated 21 January 2006 Mr Aspden transferred Outlaithe Barn (which included almost the whole of the land which had been comprised in Outlaithe Farm save for the farmhouse itself) to Ms Elvy. There was considerable dispute as to the circumstances of the transfer and the parties' intentions at that time (set out in detail at paragraphs 58 to 64), but essentially Mr Aspden maintained that there was a common intention that he should retain an interest in the barn. Ms Elvy denied that there was any such intention.

Following the transfer Mr Aspden remained living at the farmhouse until it was sold in January 2008. Mr Aspden received about £188,000 from the sale, after discharging creditors. Thereafter he lived in a static caravan situated (with Ms Elvy's consent) on part of the land within the curtilege of Outlaithe Barn.

Steps were taken to convert Outlaithe Barn into a dwelling-house. Mr Aspden made a substantial financial contribution to the cost of the conversion works but the extent of the contribution was disputed. Mr Aspden contended that the payments he made were pursuant to a common intention that the parties would marry and cohabit as a family, or a belief on his part that that was the position. Ms Elvy contended that there was never any common intention that they would marry or cohabit, and that the payments were gifts to her in recognition of her contributions to the family, and in respect of her interest in Outlaithe Farm.

Mr Aspden put his case on the basis of a constructive trust and/or proprietary estoppel. Ms Elvy contended that she was the absolute owner of Outlaithe Barn and denied that any proprietary estoppel arose.

The Decision: The case was heard by His Honour Judge Behrens, sitting as a Judge of the High Court in Leeds. After going through the facts in detail, he set out the relevant law at paragraphs 92 to 101 of his judgment. In particular, he referred to Stack v Dowden and Jones v Kernott, the recent authorities on the beneficial entitlement to a shared home. As he pointed out, both of these were joint names cases, but there are passages in the speeches which refer specifically to the situation where the legal title is vested in one person. In particular, in paragraphs 16 and 17 of the judgments of Lord Walker and Baroness Hale in Jones v Kernott they said:

16. …To the extent that we recognise that a "common intention" trust is of central importance to "joint names" as well as "single names" cases, we are going some way to meet that hope. Nevertheless it is important to point out that the starting point for analysis is different in the two situations. That is so even though it may be necessary to enquire into the varied circumstances and reasons why a house or flat has been acquired in a single name or in joint names…

17. The starting point is different because the claimant whose name is not on the proprietorship register has the burden of establishing some sort of implied trust, normally what is now termed a "common intention" constructive trust. The claimant whose name is on the register starts (in the absence of an express declaration of trust in different terms, and subject to what is said below about resulting trusts) with the presumption (or assumption) of a beneficial joint tenancy.

As to proprietary estoppel, Judge Behrens referred to the three elements identified by Lord Walker in Thorner v Major: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance.

Judge Behrens then set out his findings, including the following:

1. That on the crucial issue of the parties' intentions at the time of the transfer, he preferred the evidence of Ms Elvy, and that therefore the transfer by Mr Aspden was and was intended to be an outright transfer of his legal and beneficial interest in the barn (paragraph 118).

2. That on the issue of the financial contribution to the cost of the conversion works, he preferred Mr Aspden's evidence, and found that his contribution was between £65,000 and £70,000 (paragraph 122).

3. That he could not accept that the proper inference was that the contributions were intended to be gifts (paragraph 124) - if that was the intention Mr Aspden would have left himself nowhere to live except the caravan.

4. The proper inference from the whole course of dealing was that there was a common intention that Mr Aspden should have some interest in the barn (paragraph 125).

5. That he valued Mr Aspden's interest at 25%, which he felt represented a fair return (paragraph 128).

6. That it was not necessary to consider in detail the claim based on proprietary estoppel, as in his view the result would be the same (paragraph 129).

7. That accordingly, the barn was held by Ms Elvy as to 75% for herself and 25% for Mr Aspden (paragraph 130).

Sad.

Venal & Grabbit deny billing client £300-an-hour to play golf

I have received the following short press release from Messrs. Venal & Grabbit, Solicitors:

===PRESS RELEASE===

London, 29th May 2012: Leading law firm Venal & Grabbit today denied an allegation that their Senior Partner Edgar Venal had charged a client £300 an hour whilst he was on the golf course.

Litigation Partner Ebenezer Grabbit said: "This vicious allegation is completely without foundation, and libel proceedings will be commenced forthwith. Edgar Venal would never charge any client as little as £300 an hour."

===ENDS===

Solicitor denies billing client £300-an-hour to play golf - The Telegraph, 29th May 2012

LoreCast for the week to the 28th May 2012

Natasha and I bring you the top family law news stories and cases from the last week, in a short, easy-to-listen podcast:



(Those without Flash can listen here.)

This post has nothing to do with family law

A kind of madness is gripping the nation...

I certainly didn't watch it, but last night millions across the country joined in the annual celebration of musical mediocrity that is the Eurovision Song Contest. I read this morning that Sweden won - well, at least they are actually in Europe, I suppose. As for our sad entry, surely the way it fared is a hint that perhaps it is time we took a stand for good music and boycotted the competition.

Next weekend we will all witness the nauseating spectacle of her subjects fawning over one of the wealthiest and certainly most privileged women in the World. That this country still has hereditary monarchy in the twenty-first century is surely a mark of how backward we really are, but it is particularly poignant that in such difficult economic times such a lot is to be spent on celebrating an institution that already costs the taxpayer so much. Perhaps people just want a party to help take their minds off things, but I certainly won't be joining in.

Meanwhile, the Olympic torch carrying circus continues to wend its merry way around the country, stopping people from carrying on their normal lives wherever it goes. I thought that the idea was that ordinary people would get a chance to carry it, but I see that celebrities who have no connection either with the Olympics or even with this country are not missing the opportunity for some cheap publicity. Still, it was good to see that some of the carriers are entering into the true Olympic commercial spirit by selling their torches on eBay...

Something for the Weekend: Silly Olympics

The best Olympics you'll see this (or any other) year:

Diamond Weeding

BLEAK SPOUSE: Chapter 13 – Mr Smallmind

IN A RATHER ill-favoured and ill-savoured neighbourhood, Reg Smallmind runs his business from his office above the betting-shop. The sign on his door informs his customers that he offers payday loans of up to £1000 at "competitive rates" and points those unlucky enough to visit whilst he is out to his website, www.spondulicks4u.co.uk, where a few clicks will secure them the cash they need to achieve lasting happiness.

Of course, for some unfortunates lasting happiness will cost rather more than £1000. Reg, however, will cater for them too, although he is less eager to publicise this side of his business. It would be somewhat of an exaggeration to describe as "competitive" the interest rates that these unfortunates must pay, and somewhat of an unpleasantness to describe what Reg or his underlings might do to them if they don't.

Reg is, however, a reasonable man. Before he takes enforcement measures against those foolish enough not to keep up with their repayments, he will always pay them a visit, to see if a little mild persuasion might make them see the error of their ways.

Today he is making such a visit; the debtor in question being one Matt O'Gridley.

*            *            *

Reg does not like to be called a 'loan shark', but that is one of the descriptions of him used by Inspector Gormless, others including 'extortionist', 'blackmailer' and 'thief'.

Inspector Gormless and Reg Smallmind have crossed paths on many occasions, usually in the custody suite or at the entrance to the local magistrates' court. These days, the Inspector has his men follow Reg and his underlings as a matter of routine.

So it is that today DCs Razor and Sharp have followed Reg to Bellend House. Having previously seen Reg's underlings snooping around the same location, quick as a flash they come to the conclusion that 'something must be going on' there.

Accordingly, they report back to Inspector Gormless, who responds like any good police officer by having a surveillance camera set up outside Bellend House.

*            *            *

Three days later Inspector Gormless is viewing the first surveillance tape from the camera.

"Hello, hello." He says, resisting the temptation to repeat the word a third time. "Who have we got here?"

Who we have got is Matt O'Gridley, caught on the camera leaving Bellend House. He is clutching a plastic bag full of papers, and appears to have a recently-acquired black eye.

Theresa May comes Out4Marriage

The best thing she's done yet (the only good thing she's done?):

Culture change in child protection system

Further to my post on Tuesday, here is a DfE video in which Professor Munro discusses the changes in the child protection system:

Statistics of separation and divorce

"Separation", Edvard Munch

An interesting little article on the statistics of separation and divorce, found in USA Today, via the Family Law Prof Blog. The statistics come from research done at Ohio State University and obviously therefore refer to couples in America, but they seem to tally with my own experience over here. Points of note include:

• About 79% of married couples who separate end up getting divorced;
 
• Separation is very common and is more common than immediate divorce;
 
• Most separations last one year or less, but a few drag on a decade or more before ending in divorce;
 
• The decision to separate is driven by time spent in the first marriage, and for women, by the presence of young children;
 
• The average length of a first separation is about four years, and for respondents who divorce after separating, it's three years; and
 
• After three years, the only outcomes observed are ongoing separation or divorce, i.e. no reconciliations.

Update on the implementation of the Munro review

As anticipated, the Department for Education has today published an update on the implementation of the Munro review of the child protection system. The full press release reads as follows:

Munro: Child protection reforms welcomed but pace needs to be accelerated

Professor Eileen Munro, author of the Government’s review of the child protection system, today said a “culture change” was underway in the child protection system but outlined an urgent need to now accelerate reforms to create a more child-centred system.

She said reforms had reached a “watershed moment” but, while progress is moving in the right direction, it now needs to move faster with more prescription and bureaucracy stripped away so social workers are able to focus on giving children and young people the help they need.

Professor Munro said social workers must be confident to use their judgment instead of applying rules that do not match a specific child’s needs.

Professor Munro said:

This report shows an urgent culture change in our child protection system is now underway. We are finally moving away from the defensive rule-bound culture that has been so problematic.

Reforms are rightly moving the focus of help and protection firmly onto children and young people and away from excessive bureaucratic demands.

What is particularly encouraging is that some local authorities are already developing innovative ways of working that are enhancing the quality of help received by families.

I believe there are many front line managers and social workers who now have the confidence to exercise their judgment and provide effective help, based on the individual needs of a child. However, I am concerned there are also some who are uncertain how to do this and I hope the examples of good practice that I have included in this report will lead further change.

Professor Munro highlights the following progress in her report:

• The removal of fixed assessment timescales. The experience of the trial authorities who were granted exemptions from these statutory timescales has been positive. They report that the additional flexibility has encouraged better, more thoughtful working practices, and better and clearer consideration of priorities.
• Ofsted’s revised child protection inspection framework. This rightly focuses on the impact and effectiveness of help and protection for children, young people and their families.
• The report has found many encouraging examples of services working together and with social services to provide better understanding of children’s needs.
• Important improvements are already being made to initial education, in selecting the right people and training the next generation of social workers.
• The Government has taken steps to appoint a Chief Social Worker and local authorities are now starting to recruit Principal Social Workers to their teams.

The report calls for faster progress in the following areas:

• A reduction in statutory guidance so that there is more scope for professional and local autonomy. There has been a delay in implementing these changes, due to the need for proper public consultation. Once this has been removed services should be better placed to work together to offer improved early help.
• The Government needs to encourage better understanding between services as reforms take place in health and policing.
• The importance of implementing all the proposed reforms together in full. Implementing these reforms as a whole will give professionals the scope and skills they require to better protect children.

Welcoming the report Children’s Minister Tim Loughton said:

I am pleased to hear that our reforms are beginning to fundamentally change the child protection system and we now need to make sure they are implemented as quickly as possible. We agree the pace of reform now needs to be accelerated and are committed to creating a system that is sustainable in the long term.

This report shows progress is being made towards freeing hardworking social workers and other professionals from excessively restrictive structures, procedures and rulebooks so they can do their best for vulnerable children and their families. It is encouraging to see evidence in Professor Munro’s report that services are increasingly stepping in early, rather than waiting for problems to escalate.

These reforms go to the heart of our child protection system and require a new mindset and a new relationship between central Government and local services. We are committed to keeping up momentum and doing everything we can to get the right mechanisms in place and to strengthen public confidence. But this is about putting the power of decision making back into the hands of local authorities and they all need to step up to the challenge and be strong and confident leaders who are ready to innovate.

*            *            *            *            *

The report itself can be found here.

A response by Barnardo's can be found in this press release.

Professor Munro also gives an insight into the reforms to date on Children & Young People Now.

LoreCast for the week to the 21st March 2012

Once again Natasha and I bring you the top family law news stories from the last week in a short, easy-to-listen podcast.



(Those without Flash can listen here.)