Sunday, December 31, 2006

Old John's Almanac

Old Father JohnIn time-honoured tradition here are my predictions for the family law news stories of 2007:

January - The Courts Service announces a 1000% rise in court fees. The cost to issue a divorce petition will now be £3000. The Lord Chancellor's Department denies that the rise is motivated by the desire to reduce court waiting times.

February - The Lord Chancellor gives himself a 1000% pay rise, but denies that this has anything to do with January's announcement.

March - The Child Support Agency announces that uncollected child support payments now total more than £4 billion. The Agency responds by cutting staff.

April - Breakaway fathers' rights group The Real Families Need Fathers 4 Justice carries out it's most audacious stunt to date when group Chairperson Ollie Nosworthy dresses up as Tony Blair and announces that this year he will be paying for his own holiday.

May - Sir Paul McCartney and Heather Mills decide to settle out of court. Their lawyers are spotted in a bar near the Law Courts crying into their dazzle cocktails.

June - The Child Support Agency announces that uncollected child support payments now exceed £5 billion. Work and Pensions Secretary John Hutton responds by granting himself a pay rise.

July - Lord Carter is mugged by a group of tramps in Chancery Lane. Reports that the muggers were all out of work legal aid solicitors are denied by the Legal Services Commission.

August - Ollie Nosworthy is seen holidaying at Tony Blair's new villa in Tuscany.

September - The Child Support Agency announces that uncollected child support payments are now more than £6 billion. The average time between a parent claiming child support and receiving any payment is now 17 years and 11 months.

October - The House of Lords gives its judgment in the landmark case of Black v Black. On divorce, wives will now receive all of their husband's assets, save where the husband can show a 'galactic contribution', in which case he gets to keep the family pet.

November - The Child Support Agency announces that uncollected child support payments now total more than £7 billion. The agency's replacement, C-MEC, denies that recovering the arrears will prevent it from doing its job.

December - The last firm to offer a legal aid service, Messrs. Brow, Beaten & Bankrupt of Little Sodbury finally closes it's doors. The three-mile long queue of new clients reluctantly makes its way to the nearest C.A.B..

Happy New Year!

Thursday, December 21, 2006

Season's Greetings

Merry Xmas!Just a quick post to say thank you to all who have taken the time to come to Family Lore, and to wish all readers a Merry Christmas and a prosperous New Year.

[Animated gif courtesy "Free Gifs & Animations".]

Tuesday, December 19, 2006

One For All

Do law and religion mix?Last week's Law Gazette contained an interesting article highlighting "the difficulty of squaring English and Muslim family law". The article makes some good points, such as that solicitors will be better able to help their clients if they understand the client's religion and culture (although as an atheist I don't think I'll ever understand why intelligent people spend their lives believing in some imaginary sky-god). However, what bothers me here is the increasing recognition of religious systems of law, driven by the ever-increasing pressure to be politically correct. Obviously, there can only be one system of law, and it should be a secular system, especially in a multicultural society such as ours.

Government funds 'safe rooms'

In a widening of the 'safe rooms' scheme that I mentioned in a previous post, the government has announced a £74 million fund to provide victims of domestic violence with a secure room within their homes, equipped with alarms and CCTV. As I said before, while this may be useful in some cases, it will be of little help to victims who will not have time to get to the room, and it could even encourage some to stay put in their homes when they would be better off moving to an address that their attacker does not know.

Friday, December 15, 2006

C-MEC: Substance or Spin?

Spin Doctor?Further to my last post, the White Paper "A new system of child maintenance" can now be found here. I notice that the acronym for the Child Maintenance and Enforcement Commission is given as "C-MEC", although I don't know where the hyphen comes from.

The White Paper emphasises the "new focus" of encouraging parents to make their own arrangements - see chapter 2 - but parents who agree support/maintenance for their children were never the problem. The primary problem is those parents who refuse to pay.

As I mentioned previously the arrears of the CSA are not to be written off, but I wasn't sure who would have the job of seeking to recover those arrears. Paragraph 19 of the 'Executive Summary' makes it clear that this is to be the responsibility of C-MEC. Won't this enormous burden drag it down and tar it with the same brush as the CSA? Paragraph 44 states that: "Following legislation in 2007–08, the Government will move quickly to establish C-MEC" - this does not leave the CSA much time to make much of a dent in it's £3.5 billion arrears. If C-MEC is to be a smaller body than the CSA, how will it have the resources to recover what the CSA cannot? Much is made of the new enforcement provisions, but I hardly think that they are going to be a panacea. If the arrears don't decrease (or worse, increase), then C-MEC will soon be regarded as much as a failure as the CSA.

I hope my pessimism turns out to be misplaced, but the more I look at the proposals the more I think "government spin".

Wednesday, December 13, 2006

New name, same problems?

Definitely NOT the Child Support AgencySo the body that will replace the Child Support Agency is to be called the "Child Maintenance and Enforcement Commission". I wonder whether in a few years time that will be a name that is held in any higher esteem than "Child Support Agency". Gone is the term 'child support', and we return to the old term (still used by the courts): 'child maintenance'. I also note the emphasis on 'enforcement', more of which in a moment.

Much of the rest of today's announcement by Work and Pensions Secretary John Hutton is not news, having been mentioned/hinted at/leaked already. However, there are some interesting points:

  • Importantly, the CSA's 3.5 billion pounds of debt will not be written off - good news for those thousands of parents waiting for payment, although how much of this will ever be seen is another matter.
  • The proposals include a plan to make it compulsory to have the father's name recorded on the birth certificate 'to help future enforcement', although I'm not sure exactly how this is going to work.
  • Extra enforcement powers "will include the imposition of new curfews and the surrendering of passports, piloting mandatory withholding of wages as the first means of collecting maintenance and exploring [with?] the financial services sector new powers to collect maintenance from accounts held by financial institutions". So, we may have attachment of earnings without any failure to pay, and garnishee "orders".
  • Removal of the requirement to apply to the courts for a liability order before taking enforcement action. It makes me nervous that the Commission will be free to take enforcement action without the independent 'check' of the court.
  • Powers to recover debt from estates of the deceased. I was going to make a joke about not being able to rest in peace, but then I remembered that some parents have been driven to suicide by how much they have been required to pay.

  • Lastly, the CMEC will charge the non resident parent for it's services. I'm sure this will go down well with NRPs.
Hands up if any of you are confident that these proposals will dramatically improve the assessment and collection of child maintenance. No, I thought not. Still, I suppose the CMEC can't do any worse than the CSA, or at least I hope it can't.

Monday, December 11, 2006

The perfect Xmas gift

God DetectorI've found the perfect Xmas gift. The Yo-God God Detector. As it says on the site: "We all want to know if God exists; maybe He just needs a reliable method to let us know He's here. The Yo-God God Detector gives God a way to send a simple, unambiguous message of His presence". Ingenious in it's simplicity, the detector comprises a dial that God can move from 'No' to 'Yes' to indicate that He is there. Movement of your God Detector's indicator dial can be reported on the site.

What better gift to give on the anniversary of His son's birthday?

[Edit: I suppose to be PC, I should mention other religions, especially in these sensitive times. Unfortunately, however, I can't vouch for whether the God Detector will work for Allah, Zeus, Wotan or whichever other god you are waiting to hear from.]

Sunday, December 10, 2006

More futile gloss?

BBC NewsFollowing on from yesterday's post, the BBC reports today that one of the new child support measures to be announced by the government this week is the 'naming and shaming' of absent parents who refuse to pay, by putting their details on a website. This is, of course, an idea that has been used before, particularly with convicted paedophiles. However, whilst I can imagine worried parents looking at the paedophiles website, I can't imagine many people going to the non-payers site, especially as it is likely to contain thousands of names. Is this really going to encourage determined non-payers to cough up?

It seems to me that this is yet another example of government 'gloss' - showing that they are doing something, when it will probably make little, if any, difference. As usual, all of the measures are driven by cost, rather than by how effective they will be.

Saturday, December 09, 2006

A litany of failures

BBC NewsAhead of next week's government announcement about the 'improvements' to the child support system, the BBC has a report today entitled 'CSA steps up enforcement action', but if you are a parent waiting for payment, don't get your hopes up.

The report tells us that the number of parents going to prison for non-payment of child support rose to 22, from six in 2005. A hard-liner would be disgusted that only 22 out of thousands of parents who wilfully refuse to support their children are sent to prison. On the other hand, those who are more liberally-minded would be appalled that anyone has been sent to prison - after all, it is over 130 years since imprisonment for debt was abolished. Who benefits from imprisonment? Certainly not the children, who are denied contact with one of their parents.

The report also confirms that the Child Support agency has been making greater use of debt collectors to collect unpaid money, as they are apparently far better at doing this than the Agency itself. This makes me nervous. I am sure there are many reputable debt collection agencies, but there are also many unscrupulous ones that use intimidatory methods that are of dubious legality.

Lastly, the report mentions the "fear that more than £1bn owed to parents will be written off when the agency is replaced", and gives the example of one parent to whom some £10,000 is owed. This may not be much if you are a premiership footballer, but to most ordinary people (and, more importantly, their children) such a sum can make all the difference.

Thursday, December 07, 2006

Hear No Evil

GazetteStill on the subject of legal aid, I read today in the Law Society's Gazette that, according to Lord Justice Wall, there "is unanimity among the judiciary 'from the President of the Family Division downwards' that the implementation of the Carter review would have a devastating effect on the practice of family law". Apparently, he "feared the disappearance of many valuable firms and competent family practitioners, who would be priced out of the market and forced to abandon the work", which "would lead to an increase in the already large number of litigants in person, with a consequent increase in the time spent by the court on each case, and decrease in the number of settlements".

How much more clearly does the government want it spelt out? The article also quotes a Department for Constitutional Affairs spokesman admitting, with typical government complacency and under statement: "we recognise that the details of the proposed family schemes were not quite right". Nothing gets past them, does it? He says they will be consulting on revised proposals in the new year, but I can't see the government listening to anyone, no matter how distinguished, although I hope I am wrong.

Tuesday, December 05, 2006

Not enough to pay the bills

The road to ruinIf there's one thing more depressing than watching the cricket, it must be costing legal aid work. Like many of my brethren, I gave up doing legal aid work a few years ago, but I do still do the odd agency legal aid work for firms that have not yet 'seen the light'. This morning I received a letter from one such firm, costing the work that I had done for them, at legal aid rates. For nearly three hours worth of work I will receive the princely sum of £114.10, an average hourly rate of about £38, or about a quarter of the average hourly rate in this area for privately funded work. Unfortunately for me, the job involved an hour waiting at court at £27.50 an hour, which brought the average down, although I have never understood the rationale for charging substantially less for travelling and waiting, when a solicitor's hourly overheads are the same no matter what he/she is doing.

Of course, many non-lawyers reading this might think that £38 per hour isn't a bad rate of remuneration, but that is because they have little inkling of just how much solicitors' overheads (premises, staff, equipment, insurance etc.) are, or the fact that a large proportion of a solicitor's average working day simply isn't chargeable.

It doesn't take a genius to work out why firms are giving up legal aid work in their droves - the only surprise to me is that so many are still prepared to do it. Obviously, they must be driven by a sense of public duty rather than the profit motive, but in the end a sense of public duty won't pay the bills.

Monday, December 04, 2006

Promoting the Ethos

ResolutionBack to the serious stuff. Resolution, the association of family lawyers, has announced a proposal that will, if implemented, substantially change the process of applying for membership, and is also tackling the issue of "adherence to the ethos and aims of the organisation".

Up until now prospective members of Resolution have had to be nominated by two existing members and recommended by the relevant regional committee. However, there have been concerns that some potential members have difficulty securing two nominations, for example those from minority groups and young solicitors. The regional committee review has also been challenged as "a closed shop which is capable of serving the business interests of those sitting on the committee". Accordingly, it is proposed that both requirements will be dispensed with, and replaced by a new requirement that applicants display a greater knowledge of Resolution's Code of Practice, by having to attend a course on the Code during their first year of membership.

Adherence to the Code by Resolution members has always been a thorny issue. What do you do if you feel that a fellow member is not adhering to the Code? The Code itself is being revised to make it shorter and to emphasise the approach to be taken by members to their work, thereby making it easier for members to identify what is required of themselves and their colleagues. In addition, members are being encouraged to discuss with other members why a particular communication from them could be construed as offending a particular paragraph of the Code, with the aim of resolving the issue by discussion. In this way, it is hoped that the complaints and disciplinary process will only be used as a remedy of last resort.

Personally, I'm in favour of anything that increases membership and promotes the constructive, non-confrontational ethos of the association. Unfortunately, much work remains to be done to dispel the public's perception of family lawyers as self-serving people who only make matters worse.

Online amusement

Line RiderHere's an amusing distraction, mentioned to me by my son. Line Rider is a simple but (I think) very clever Flash program written by someone who calls himself *fsk. As he says, it is not a game but a 'toy', as "there are no goals to [achieve] and there is no score". The idea is ingenious in it's simplicity - you just have to draw a line or lines on the screen for your tobogganist to slide down, but it's not as easy as it looks to keep him going.

Perfect for those times when you're waiting for your next appointment to show up!

Friday, December 01, 2006

New blawg sets sail

No sooner do I remove a legal blog from my blogroll, than I find another one to replace it. Head of Legal is a new blog by an anonymous 'barrister, specialising in European, human rights and public law'. What is more, he has kindly mentioned my post a couple of days ago about the Molly Campbell/Misbah Rana case (in which, incidentally, I learn today on the BBC that Molly/Misbah is refusing to return to Scotland), and lists Family Lore on his blogroll. I wish Head of Legal bon voyage in it's journey around the blawgosphere.

As rare as NHS dentists

ResolutionIn a press release issued a couple of days ago, Resolution legal aid spokesman David Emmerson warns that if the proposed legal aid reforms go through then legal aid lawyers will become as rare as NHS dentists. He says: "It is no exaggeration to say that if these reforms go through, it will result in the total collapse of the system with devastating effects on those vulnerable members of the public it was designed to protect".

Are you listening, Lord Falconer?

Times Passed

Times OnlineAs reported recently by Nick Holmes of Binary Law, the Times Online Law Weblog has, for unexplained reasons, ceased to exist, and has therefore been removed from my 'blogroll'. A pity - I, too, would like to know why it was stopped.

In another post Nick Holmes berates the use of Google ads on (most) blogs. As anyone who has been here before may know, I did run Google ads for a while, but I stopped a few months ago - why get paid peanuts for the privilege of having other people's adverts plastered all over your blog?

Bad news for The Bollo?

The Bollo, ChiswickNow for the big news story. Will this mean that Charon won't be visiting The Bollo after 30th June next year? Or perhaps passers-by will be seeing a distinguished-looking figure nipping outside for a 'quick one'? Of course, it could just be that their Rioja sales will increase as a certain patron drowns his sorrows...

Wednesday, November 29, 2006

Flawed Protocol?

BBC NewsAs reported on BBC News today, a Pakistani court has ordered that Molly Campbell (also known as Misbah Rana), the child at the centre of the much-publicised abduction/custody dispute, be returned to Scotland.

It is a basic principle of international child law that the proper forum for the resolution of disputes relating to children is the court of the country where the child habitually resides. Whilst it is regrettable that the matter could not be resolved by agreement, it is pleasing that this principle has been upheld. The case was decided by reference to the Protocol signed in January 2003 by Dame Elizabeth Butler-Sloss, the then President of the Family Division and The Hon Mr Justice Sh Riaz Ahmad, Chief Justice of the Supreme Court of Pakistan. The first paragraph of the Protocol sets out the principle. However, the relevant paragraph reads:

If a child is removed from the UK to Pakistan, or from Pakistan to the UK, without the consent of the parent with a custody/residence order or a restraint/interdict order from the court of the child’s habitual/ordinary residence, the judge of the court of the country to which the child has been removed shall not ordinarily exercise jurisdiction over the child, save in so far as it is necessary for the court to order the return of the child to the country of the child’s habitual/ordinary residence.

In this case the child's mother, Louise Campbell, had been granted interim custody by the Court of Session in Edinburgh last June and therefore the Pakistan court has ordered the return of the child to Scotland, the country of her habitual residence. The problem with the Protocol, of course, is that it would not have required the child's return if her mother had not already
obtained the interim custody order, despite the fact that Scotland is clearly the country of the child's habitual residence. This problem is likely to be particularly common in England and Wales, where the 'no order principle' means that in most cases there will not be a residence order in favour of the parent with whom the child usually resides - unless that parent has had the foresight to apply for an order in case the other parent should remove the child to Pakistan without his/her consent.

Thursday, November 23, 2006

End Violence Against Women

End Violence Against WomenAccording to the BBC today, a report by the End Violence Against Women Campaign warns that the government is not doing enough to tackle the problems of violence against women in the UK. The report blames "a lack of strategy and co-operation across departments", "a failure to develop policies and provide resources for forms of violence beyond domestic violence, such as rape and forced marriage" and "funding and a lack of services".

I'm not sure that I'm very well placed to comment on the report. As I may have mentioned before, I have not had a lot of domestic violence work since I gave up legal aid - I'm not sure whether this is because domestic violence is more prevalent amongst the under privileged (although it is certainly not unique to them), or whether it is simply because few victims can afford to pay for private legal help. I would say, however, that it is interesting that the campaign, which is a coalition of charities, includes in it's definition of 'violence' not only domestic violence but also such obscenities as forced marriage, Female Genital Mutilation and "so-called ‘honour’ crimes and killings". These are targets that are ingrained in ethnic and religious ideologies, and will take a sustained international effort to eradicate. I wish the campaign every success.

Tuesday, November 21, 2006

Waiting with baited breath

What will it be called next?The government having confirmed in last week's Queen's Speech that "a bill will be introduced to improve the system of child support", I await with baited breath the Department for Work and Pensions' White Paper setting out detailed proposals, due "in the autumn", which gives them just over a month, by my reckoning. Regrettably, I hold out very little hope or expectation that the reform will make any substantial improvement to the system, as the indications are that it will not go nearly far enough. Talk of encouraging parents to agree child support does nothing for parents where the other party refuses to cooperate, and adding a few more enforcement powers is unlikely to make much difference, especially as it seems that the new agency is likely to be smaller, and therefore have even fewer resources to chase recalcitrant payers.

Personally, my preference would be for some reintroduction of the court-based system (say, for cases where there had been no payment within a certain period of time), thereby giving control back to the parties. The court-based system is still in existence (although whether the courts have capacity to deal with the extra workload is another matter), and I have been doing this work long enough to remember using it regularly - it was not perfect, but a damn sight better than the Child Support Agency that replaced it. Unfortunately, the government is only concerned with cost, and therefore it is extremely unlikely that there will be any new money for legal aid to enable low-income parties to use the courts.

Monday, November 20, 2006

Totally Off Topic

Desktop EarthI have added a new category to my subjects, Totally Off Topic. As the name implies, this will contain posts that are nothing whatsoever to do with family law, but (hopefully) interesting none the less (this assumes that family law is always interesting, which unfortunately it is not!). I anticipate that most of the posts will be about things I have found on my travels around the weird and wonderful world of the web.

To kick things off, here is one for those of you who (like me) are always looking for something different for your desktop wallpaper. Desktop Earth "runs whenever you're logged on and updates your wallpaper with an accurate representation of the Earth as it would be seen from space at that precise moment". Should stay on my desktop for a while.

Friday, November 17, 2006

Money for nothing

Not always the big storiesWhen 67 year-old Alfred McGuire's girlfriend ended their three year relationship, he took her to court for £1000 that he had spent on meals, weekend breaks and trips to the cinema during the 'romance'. Not surprisingly, his claim failed. I'm not sure why this story was deemed to be of sufficient importance to merit space on the BBC News website. Nevertheless, I suppose it serves as a useful warning to anyone else who may be aggrieved by such matters.

The story does not state whether Mr McGuire took legal advice before issuing his claim - if he did, I hope he was advised in the strongest terms not to pursue the matter.

Thursday, November 16, 2006

Abolish faith schools petition

10 Downing StreetI read only yesterday on the BBC News website that number 10 Downing Street has launched a scheme to petition the prime minister online. I didn't think I would be using it so soon.

I've commented here more than once about faith schools. If you, like me, would like them abolished then now you can do something about it by signing up to this petition, which reads: "We the undersigned petition the Prime Minister to Abolish all faith schools and prohibit the teaching of creationism and other religious mythology in all UK schools".

Tuesday, November 14, 2006

Raising mediation awareness

In the Comment section of this month's Family Law Linda Glees of the Family Mediators' Association proposes that awareness of family mediation be advanced by, inter alia, amending the certificate with regard to reconciliation that solicitors have to file with the court when issuing divorce proceedings, so that it should not only state whether the solicitor had discussed the possibility of a reconciliation with their client, but also whether they had discussed mediation with them. She suggests that District Judges could then spot check on a random basis as to what steps the solicitor had actually taken. This seems to be a reasonable proposal - at least it gives some purpose to what up to now has been a pretty pointless document.

When two tribes go to court

I posted last week about religion forcing people to divorce. In a similar and equally depressing vein I came across this story today of a Saudi woman whose brothers had successfully applied to a court for her marriage to be annulled "on the grounds that (the married couple) were tribally incompatible". The term 'human rights' springs to mind...

Expressions Black List

NOT a policemanFor yet another amusing example of political correctness gone mad, see this post on the Magistrate's Blog. Somehow, 'Fireperson Sam' doesn't have the same ring about it.

Monday, November 13, 2006

Transparency and Bias

Two common complaints of fathers and fathers' groups are that the family courts operate a system of 'secret justice' and that they are biased towards mothers. These arguments have been raised on this blog and I have always tried to defend the system. Now I have come across a recent case that 'slipped under the radar', in which one of the country's most senior family judges took the opportunity to defend the system himself. In B (a child) O (children), Re [2006] EWCA Civ 1199 (25 August 2006), Lord Justice Wall refused permission for two fathers to appeal against the refusal of their applications for contact (and other orders), but also made some general observations about transparency and bias:
Amongst the advantages of transparency, it seems to me, is the opportunity to dispel the myth that there is a gender bias against fathers within the family justice system, and that the bias operates, in particular, improperly to deny non-residential fathers contact with their children. I do not doubt that there are cases in which contact between non-residential fathers and their children is not ordered when the principal reason for the breakdown of contact is the attitude of the children's mother. But in my experience, it is far more common for contact to break down due to the behaviour of the non-residential father.

And for one of the disappointed fathers: "If, in his eyes, I now join the ranks of the biased and the time-serving, the public will, I hope be in a position to judge the fallacy of that approach from the publication of the judgments of this court in his case."

To anyone aggrieved at the system, I would strongly recommend a thorough reading of this case.

Beware simplistic mantras

Women's Aid and Fathers 4 Justice are two organisations that I have mentioned previously on this blog. In an article in this month's Family Law, Gwynn Davis (previously the author of the apparently now defunct Last Word column in Family Law - see here) discusses the May 2006 session of the House of Commons Select Committee on the topic of 'the family courts', or more specifically the courts' role in private law children disputes. He says that whilst neither Women's Aid nor Fathers 4 Justice were actually represented at the session, "both were present in spirit", with questions put by two MPs reflecting "what have become recurring themes in almost any discussion of private children law cases". He then says:
One might almost be led to the view that, when it comes to post-separation arrangements for children, there are just two clouds on the horizon - either you may have a violent man or an obstructive woman. For the discussion to be framed in these terms, even when the group in question is not represented directly, demonstrates the destructive power of pressure groups and their simplistic mantras.

Strong words. I'm not sure that I am entirely comfortable with lumping these two groups together, but I certainly agree that we must not fall into the trap that so many politicians seem to fall into of making new law on the basis of who shouts loudest, without looking at the whole picture.

Friday, November 10, 2006

New court dress code

The Flying Spaghetti MonsterSo now it has been decided that lawyers can wear the veil in court. Why must we accord respect to what would otherwise be considered an absurd fashion, just because it has religious connotations? Does this mean that I can go into court with a plate of spaghetti on my head because I believe in the Flying Spaghetti Monster, who tells me I must do so?

For an eloquent explanation of why religious commitment is not intrinsically deserving of respect see this excellent article by A C Grayling in the Guardian Unlimited.

Wednesday, November 08, 2006

Divided by faith

Reuters AlertNet I mentioned in a post a couple of weeks ago that I considered it abhorrent that religion should prevent a couple from marrying. I had never come across the phenomenon of religion forcing a couple to divorce. Well, now I'm afraid I have. It seems that in Iraq hundreds of couples of mixed religion are being forced to divorce by pressure from insurgents, militia or even their families. For further details see this story.

Tuesday, November 07, 2006

Restoring confidence in the system

The subject of opening up the family courts to public scrutiny is back in the news with the reporting of the decision in Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam). The case actually did not concern access to the hearing by the general public, but rather access by the media. Nevertheless, it has been described as a 'landmark ruling' in that it is the first time adoption proceedings have been opened up to the media, and the suggestion seems to be that this is another step towards a more transparent family courts system. I'm not too sure about that - this case does seem to be somewhat unusual - only time will tell.

The report of the case is interesting for Mr Justice Munby's exposition of the principle that legal proceedings should be conducted in public and should be fully and freely reported. As he points out, it has long been established (contrary to popular opinion) that this principle applies to family proceedings just as much as to other sorts of proceedings. However, as he also points out, there have also long been exceptions to the principle (including in non-family areas), one of which is proceedings relating to children - he cites Lord Shaw of Dunfermline in the 1913 case of Scott v Scott who gave the reason for this exception as that children should not suffer "the consequence of placing in the light of publicity their truly domestic affairs". He then goes through the modern statutory provisions and deals with the balancing exercise between publicity and privacy, concluding that, in this case, publicity should prevail. Of particular interest is the following passage of his judgment:

The other element of great importance, as it seems to me, in the present case, is what I have referred to as the public interest in maintaining the confidence of the public at large in the courts and, specifically, in the family justice system. This is not merely a point of general application. It has, at it seems to me, a particular resonance in this particular case. Rightly or wrongly, correctly or otherwise - and for present purposes it matters not which - the media have suggested that the parents and their children A, B and C have been, and that the parents and [the other child] are at risk of being, the victims of a miscarriage of justice. In these circumstances there is a pressing need for public confidence to be restored - either by the public and convincing demonstration that there has not been a miscarriage of justice or, as the case may be, by public acknowledgement that there has been. That is not, of course, the purpose of the current proceedings, and it is very possible that the outcome of the judicial process, whatever it may be, will not be a clarity and certainty that all will accept. But as few obstacles as possible should be placed in the way of the media doing their job.

He goes on to state: "there is another important aspect of the problem that has to be taken into account: the unfortunate fact that the rule of confidentiality facilitates the dissemination of false and tendentious accounts of proceedings in family courts, which in turn tends to further undermine public confidence in the system". How very true. Whether this case helps to restore public confidence remains to be seen.

Monday, November 06, 2006

Defending legal aid

Defending legal aidDespite the fact that I (thankfully) don't do legal aid work these days I am, of course, under a duty to advise clients when they may be eligible for legal aid. In such cases I will usually give clients a list of local firms that offer a family legal aid service. The list is getting shorter and hence the time it takes for clients to get an appointment with one of these firms is getting longer. This is particularly a problem when a hearing is imminent - clients are often having to represent themselves at initial hearings, as they can't see a legal aid solicitor beforehand.

This problem is only going to be exacerbated by the Carter legal aid reforms, with estimates that hundreds more firms will be giving up legal aid. It is heartening, therefore, to see The Law Society fighting for changes to the reforms which might encourage at least some of those firms to continue to provide a legal aid service. The Society has written to the Lord Chancellor "setting out a formula that could make the Carter reforms work", including postponing the reforms by at least twelve months "to allow a proper assessment of the impact", an immediate increase in all rates of 5% and an annual increase in line with inflation in each of the years of transition (2007/08, 2008/09 and 2009/10). I can't see it happening but we can only hope...

The full text of the letter can be found here.

Friday, November 03, 2006

A cautionary tale

The Magistrate's BlogI recently recommended The Magistrate's Blog, run by 'Bystander', and added it to my 'blogroll'. The latest post on the blog relates a family law story with a simple moral: if you find yourself at a police station accused of a crime, never refuse legal representation. The subject of the story, Nick, was arrested after his girlfriend alleged that he had been violent towards her, and agreed to accept a caution for Common Assault - the concern now being the effect of the caution upon any future proceedings between Nick and his girlfriend, particularly regarding his contact with the children. Hopefully for all concerned no such proceedings will be necessary, and even if they are, the court will accept that the 'assault' will have no bearing, but it certainly doesn't help matters.

There is one point upon which I do not necessarily agree with Bystander. He/she says that the girlfriend "will of course get the house". If by this it is meant that the house will be transferred to the girlfriend simply because the children will live with her, that is of course not the case - unless she has or can prove an interest in the house, then the fact that the children are living with her will only give her at best the right to reside there with them until they reach 18 or cease full-time education.

Wednesday, November 01, 2006

Superstition school quotas

Sunday HeraldI had been thinking about writing a post about the current debate regarding 'faith school' quotas. However, I have just found this article by Muriel Gray of the Sunday Herald, and she says all that needs to be said much better than I ever could. Recommended reading.

Thursday, October 26, 2006

Materialism, Fear and Loathing

The Money ProgrammeThe BBC's Money Programme tomorrow is entitled "The Real Cost of Divorce". I don't yet know whether I'll be able to watch it, but there is a short preview article here. Two things from the article are striking:

Firstly, celebrity lawyer Raymond Tooth is quoted as saying: "A rich man in my view should not marry a poor woman. If he does, then he must have a pre-nuptial agreement". Fair enough, advise a client to enter into a pre-nuptial, but did he really say a rich man should not marry a poor woman? Is he really so materialistic that he considers that wealth, or lack of it, should determine whether two parties marry? I find such a concept as abhorrent as the nonsense that someone from one religious or ethnic background should not marry anyone from a different background.

The second point is the claim in the article that "the average cost of ending a marriage through the British courts is about £13,000 per divorce". Where did this figure come from? I assume the programme will shed some light on this, but it surely cannot take into account the vast majority of divorces that are undefended and where all ancillary matters are resolved by agreement. For the majority of family lawyers who do not represent the rich and famous costs anywhere near this figure are a comparative rarity. Unfortunately, seeing such a figure quoted by as reputable an organisation as the BBC will strike fear into the hearts of many who are contemplating divorce, and add to the general public's loathing of the profession.

Sunday, October 22, 2006

The Best Advert?

With thanks to Add Letters Newspaper Headline Generator, and Charon QCIf there's one thing that's even more mindless than watching fireworks, it's reading the tabloid newspapers. Following on from my last post, the Mail on Sunday today devotes some four pages to Heather McCartney's claims against her husband, including allegations that he beat up his previous wife, Linda. My best advice is to do as I have, and not read it. Unfortunately, it seems many will not follow this advice - the only thing that is sadder than the fact that these allegations have been published is the fact that they sell newspapers.

If there is one good thing that comes out of all of this I hope it will be that the case is the best advert for the modern, conciliatory, approach to family matters - the approach taken here can surely only be a disaster for all concerned, especially the child.

Wednesday, October 18, 2006

Dirty Linen

Daily MailOh dear. Today the Daily Mail has published what purport to be extended extracts from Heather McCartney's cross petition. I could discuss ad nauseam the merits of defending divorce proceedings and whether it is necessary to go on at such length with your allegations against the other party, but I won't. What bothers me here is that the allegations have been published at all. I don't know who is responsible for passing them to the Daily Mail or their motives for doing so (although I could guess), but I just find it incredibly sad and distasteful that such private matters have found their way into a national newspaper.

Tuesday, October 17, 2006

Exploding the Myth, Part 2

Department for Constitutional AffairsThe law on cohabitation continues to make the news, with the Department for Constitutional Affairs publishing a report presenting "findings from an in-depth study of 29 former cohabitants exploring how couples make arrangements for parenting and financial division following separation from a cohabiting relationship". If you have time to read all 190 pages, the full report can be found here, but there is a more manageable 7 page 'executive summary' here. The conclusion to the summary states that "the fact that wider use of cohabitation law would not have addressed all the instances of disadvantage [in the study] supports the current review of the legal framework" but that "the study does not clearly indicate the superiority of any one option for reform", with the only real recommendation being "educating people about the legal implications of cohabitation and of different arrangements, and encouraging greater use of cohabitation agreements". Quite how we dispel the myth of the 'common law marriage' (see my previous post here), I don't know, but somehow I think it will take more than the suggestions in the report, which included reviewing entitlement to legal aid (unlikely), an information pack, an ‘idiot’s guide’ to cohabitation available via the Internet and a dedicated advice-line for cohabitants and former cohabitants.

Wednesday, October 11, 2006

Carnival of the Lawyers

No, not that sort of carnivalThanks also to Justin Patten for mentioning Family Lore in this week's Blawg Review, the first time the review has been hosted by a British blogger. Blawg Review is a blog that describes itself as "the blog carnival for everyone interested in law". For an explanation of what this means, see this post.

Company in the blawgosphere!

Meaningful posesThanks to Justin Patten of Human Law for pointing out that there is another English family law-related blog out there. It's nice to know I'm not alone! Divorcesolicitor is by Lynne Bastow, a sole practitioner in Southampton. Lynne describes herself as having had "a varied career background, starting off with a degree in Economics and working in accounts and then sales", and that she switched to law as she "preferred reading about people rather than money". The posts on the blog mostly comprise articles on particular areas of family law, which gives the impression of it being an extension of her firm's website. It will be interesting to see how Divorcesolicitor develops.

[Memo to self: must put some pictures of beaches on Family Lore!]

A question of morals

The Church of EnglandThe Church of England has published it's response to the Law Commission's consultation on cohabitation. As one would expect, the Church recommends "that public policy should promote and encourage marriage, as it contributes to the common good" and accordingly it rejects both "the notion of an opt-in to a new legal status for cohabitees on the ground that this runs a serious risk of undermining marriage" and "the proposals for reform based on the length of cohabitation for couples who do not have children on the grounds that this is more likely to give substance to the myth of common-law marriage, rather than dispel it". However, citing "the example and teaching of Jesus, standing alongside those with no voice, especially children", it is "sympathetic to reform that addresses the effect of relationship breakdown on children and those who make sacrifices to care for them".

I'm sure the Law Commission will give considerable weight to the views of the C of E. However, what amuses me about the response is it's reference in paragraph 14 to addressing "situations that fall short of biblical ideals". Exactly what 'biblical ideals' are they referring to? Perhaps the ideal that homosexuality is a sin, or maybe even the ideal that a man should stone his wife to death if he discovers she is not a virgin? Of course, I'm certain that any member of the Church of England will say they do not agree with stoning wives (although no doubt many will still say homosexuality is a sin), but this is because of their own morality, not the teaching of the Bible. Why should the laws of this country be so influenced by the 'moral guidance' of religion?

Tuesday, October 10, 2006

A resource for fathers

Dads UKThe other site that 'Toon' recommended was Dads UK, which describes itself as "a news and information site dedicated to giving a voice and support to all people interested in fathers' rights". There doesn't seem to be an awful lot on the main site, but Toon recommends the forum, which he says "provides support and advice to dads going through Family Law hell". I can't comment myself, as I haven't registered for the forum and it can't be accessed, even for viewing, without registration.

Only one thing I would say about all fathers' rights sites and organisations: what about all those mothers who are denied contact with their children? I know some of these sites/organisations provide help to mothers too, but a lot of mothers will be put off by the word 'dads' or 'fathers' in their names.

Sunday, October 08, 2006

Blaming the system

Equal Parenting AllianceWhen he wrote to me recently requesting that I include a link to Real Fathers for Justice on this blog, 'Toon' (something tells me he's a Newcastle supporter) also mentioned two other websites, one of which was the Equal Parenting Alliance. I've now had a chance to look at this site. The Equal Parenting Alliance is a new UK political party, formed in February 2006, that believes "our shambolic family law system is failing children, failing families, failing parents and putting at overall risk the future of our society it should be helping to secure". The policies of the party include:
  • That there should be a legal presumption of reasonable parenting time for children and both parents, in the event of parental separation;
  • That a shared residence arrangement should be the normal arrangement when there are two fit, capable parents;
  • That there must be a good reason for delaying or preventing contact between a child and parent; and
  • That those making maliciously false allegations in a family court should face the charge of perjury.

I certainly agree that there is rarely a good reason to deny a child contact with one of it's parents and that unfortunately all too often contact is opposed for no good reason (although sometimes the parent with the child genuinely but erroneously believes that there is a good reason to deny contact). However, I think that most of the professionals involved in the family courts system will take exception to the allegations by the party that they are "ignorant" or "lazy". I'm sure that there is scope to improve the system, but I wonder whether groups such as this are expecting too much from any system, when the real problem surely lies with the attitude of parents who are using denial of contact as a weapon against their former partners - an attitude that I doubt will change with the threat of criminal proceedings.

Friday, October 06, 2006

A Law for Mr and Mrs Bloggs

Law GazetteThere's an interesting article about divorce reform in this week's Gazette. It refers to the proposed new Family Procedure Rules, which I mentioned previously in this post, and uses this as a pretext to take the views of various family law luminaries on the subject of reforming the law generally.

So far as divorce itself is concerned, there are the usual calls for the introduction of a no fault system, but what I found most interesting were some of the comments made regarding the recent cases on ancillary relief (to non-lawyers: financial/property cases). In particular, Lord Justice Thorpe expresses his concerns at courts rather than parliament effectively reforming the system:

"I don’t think it is for judges to introduce a virtual equality presumption when dividing assets. You could say that the effect of White (White v White (2001) 1 AC 596), which introduced the “yardstick of equality”, was to introduce a sort of community of property regime. However, my position has always been that it is for Parliament to reform the law of ancillary relief."

Agreed, although whatever parliament says it will, of course, still be up to the courts to interpret the law. On this subject Resolution Chairman Andrew Greensmith complains that the interpretation of the law is being left to the courts to decide in the big money cases: "because it is only people in big-money cases that can afford it, we end up with a distorted picture which we then have to apply to Mr and Mrs Bloggs". Agreed again - I have commented on more than one occasion previously about the relevance of such decisions to parties of more modest means.

Thursday, October 05, 2006

The Magistrate's Blog

Bystander's PhotoI've finally gotten around to adding a link to The Magistrate's Blog in my 'blogroll'. Written anonymously by 'Bystander' and previously known as 'The Law West of Ealing Broadway', the blog contains "Musings and Snippets from an English Magistrate". Usually amusing, but always well worth a read.

Consent Order Conundrum

I've had several cases recently where the court has refused to make a financial consent order because the judge was not satisfied that the order was fair and reasonable, despite the 'disadvantaged party' making it absolutely clear that they were happy for the order to be made. I'm not sure that a system that works in this way is doing the parties any favours, as it seems to be either sparking dispute where there was none, or denying couples 'closure' to their divorce.

For the benefit of non-lawyers, a financial consent order is an order setting out the terms of an agreed financial/property settlement on divorce and, usually, dismissing all other financial/property claims, thereby ensuring that the settlement is final. Before the court makes the order it requires both parties to provide a few brief details of their financial circumstances, so that the court can ensure that the order it is being asked to make is fair and reasonable.

The problem arises when, as happens quite often, one party is perfectly happy to accept less than they might be entitled to. There could be many reasons for this that do not affect the court's decision, such as guilt at being the party responsible for the breakdown of the marriage, genuine belief that an equal division of assets would be unfair, or simply not being interested in material things. Would it not be best if the court granted such people the order they want, provided it is satisfied that they understand what they are doing, and that there has been no duress or undue influence?

Wednesday, October 04, 2006

Mob rule in the blogosphere

One of the foundation stones of blogging is the right to freedom of speech. I may not agree with what another blogger says in their blog, but I'll defend their right to say it. It was therefore with some concern that I (along with other users of Blogger) recently received the following email:

"Hello there,

It's been brought to my attention that Blogspot has become some what of a haven for what can only be described as "Pro-Paedophile Activists."

So far I've uncovered roughly 30 pro-paedophile blogs and have been urging others to flag them (I'll send ya a copy if you want) as Blogspot has asked me to do.

What I would like your help with, is to use your position as a member of Blogspot and put pressure on Blogspot to take action.

With great concern,

Jacey"

What is it about paedophilia that causes such mass hysteria these days? It's not as if it is a new phenomenon. I've not seen any of the alleged 'pro-paedophile blogs', and nor do I know their addresses, so I don't know what they contain, but if they have been brought to the attention of Blogger then it seems that the Blogger Terms of Service ('BTS') contain everything that is required to deal with the situation, in paragraph 12:

"Member agrees: ... not to use the Service for illegal purposes ... Member agrees not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, or harmful material of any kind or nature. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation."

and:

"Pyra [the company that owns and operates Blogger] may, at its sole discretion, immediately terminate Service should Member's conduct fail to conform with these terms and conditions of the BTS."

Surely, we must let Blogger deal with the matter in accordance with their Terms of Service, rather than resort to 'mob rule'? If these blogs contain criminal material and Pyra fails to act then it could itself be liable to criminal sanctions. If, on the other hand, the blogs contain nothing that contravenes the BTS, then we must allow them to continue, even if we don't like what they say.

Tuesday, October 03, 2006

An educational scandal

The God DelusionHaving now completed my first reading of The God Delusion, I would like to say a few more words about it. I have said previously that I may write a complete review, but for the moment I will limit myself to the theme in the book that I have mentioned here before and that has a direct relevance to the subject of this blog: religion and children.

Professor Dawkins devotes a whole chapter to the subject, entitled "Childhood, abuse and the escape from religion". In it he deals with a number of issues, but one of the most disturbing is the rise of faith schools in this country. He gives the example of the Emmanuel College in Gateshead, set up under the present government's policy to encourage rich benefactors to put up a relatively small sum of money to found a school, with the government paying the rest, plus all running costs thereafter. As stated on the front page of it's website the college "proudly bases its ethos upon the Christian Faith and Biblical Principles". What is not included on the website is the text of a lecture that the college's head of science gave at the college on 21 September 2001, on 'The Teaching of Science: A Biblical Perspective'. I'll repeat a couple of the quotes from the lecture that Dawkins gives:
  • "...we stand firm upon the bare proposition that God has spoken authoritatively and inerrantly in the pages of holy Scripture. However fragile, old-fashioned or naive this assertion may ostensibly appear, especially to an unbelieving, TV-drunk modern culture, we can be sure that it is as robust a foundation as it is possible to lay down and build upon"; and:
  • "...Christians, with very good reason, reckon the Scriptures of the Old & New Testaments a reliable guide concerning just what we are to believe. They are not merely religious documents. They provide us with a true account of Earth history which we ignore at our peril".

As Dawkins says, you have to pinch yourself to make sure you're not dreaming. These are the words of the head of science at a school in 21st century England! Interestingly, the text of the lecture appeared on a christian website, but was quickly removed after Dawkins publicised it in The Daily Telegraph. Unfortunately for the school, it can still be found here.

Worried about the implication that the scriptures provide a literal account of geological history, Dawkins, together with eight other senior scientists, including Sir David Attenborough, and eight bishops wrote to Tony Blair, only to receive a 'perfunctory and inadequate' reply referring to the school's good examination results and OFSTED report. As Dawkins says: "if the OFSTED inspectors gave a rave report to a school whose head of science teaches that the entire universe began after the domestication of the dog, there might just be something a teeny weeny bit wrong with the standards of the inspectorate".

Monday, October 02, 2006

Name that Toon

The Real Fathers for JusticeI have been asked by 'Toon' of the Real Fathers for Justice Admin Team to include a link to their site on this blog, and in the interests of even-handedness, I have done so. Toon says of his organisation: "We broke away from the old F4J in June '05 and have continued with the direct action campaign. We have also continued to hold regular monthly campaign meetings around the UK where parents with contact and residency issues can seek help and hope from others in a similar situation".

Please note (and this is not meant as any comment upon RFFJ), that a link on this blog is not meant as an endorsement of any particular organisation, or that a mentioned organisation is recommended over one that is not.

New NACCC website

National Association of Child Contact CentresKnowing that it was being updated, I've been going back to the NACCC website from time to time, to check on progress. The update has now been completed, and I recommend the site for anyone who is considering making a referral to a child contact centre - the FAQ page especially contains some very helpful information.

I had hoped that the site would include the NACCC's Directory of Child Contact Centres, which can be particularly useful if you are looking for a centre outside of your area, but it does not. It does, however, have a 'Centre Enquiry Form' (on the 'Referring' page), where you can request the NACCC to send you details of the centre or centres local to the town where you would like the contact to take place.

Thursday, September 28, 2006

Land of the Free(?) and Gullible

Oral Roberts - is he sticking two fingers up at his gullible audience, or perhaps the IRS?As anticipated, I've been enjoying reading The God Delusion, especially some of the remarkable stories Dawkins mentions in the text. For example, one about American TV evangelist Oral Roberts who received (more than) $8 million (tax-free) from his audience after he told them that God would kill him if they didn't pay him that sum. More worryingly, I didn't know that former president George Bush senior when asked whether he recognised the equal citizenship and patriotism of American atheists apparently replied: "No, I don't know that atheists should be considered as citizens, nor should they be considered patriots. This is one nation under God." As Dawkins says, try replacing 'atheists' with 'Jews' or 'Muslims' or 'Blacks'.

Exploding the Myth

ResolutionIn what appears to be a press release, Chairman and Press Officer of the Coventry and Warwickshire group of Resolution Alan Markham says it’s vital that the law is changed and clearly communicated to clear up the public misconception that cohabiting couples have protection as “common law man and wife”. Resolution is not recommending that cohabiting couples should have the same rights as married couples but that they should take some responsibility for each other’s welfare when their relationship ends. As Markham says: “Heterosexual couples are free to marry and same sex couples can enter a civil partnership. If they choose not to, that’s fine, but the law must protect the vulnerable – especially where one person may have given up their earning capacity to look after the couple’s children".

In it's response to the Law Commission's consultation on cohabitation, Resolution suggests that if a couple have been together for two years or more, the protection should be automatic, unless they choose to opt-out of the system, but financial support should last for only three years at most, other than in exceptional circumstances. The consultation period is about to end, on the 30th September, so we must now await the Commission's Final Report, due in August 2007.

Wednesday, September 27, 2006

Hobson's Choice

H.M. Courts ServiceA client of mine recently issued an application for a contact order in the local County Court, only to have that court transfer the matter to the Family Proceedings Court. The transfer was made "upon it appearing in the Court's view that this application may be appropriately transferred to a Family Proceedings Court". This doesn't explain why the transfer was made, but I suspect that the reason was to reduce the County Court list, on the basis that the matter would be dealt with more quickly by the Family Proceedings Court. The only problem with that is that the County Court took nearly two weeks to order the transfer, then gave the parties a further 7 days to object, then my client will have to wait for the transfer to take place, and for the Family Proceedings Court to fix an initial hearing date. The Family Proceedings Court will have to deal with the matter extremely quickly if these delays are to be made up.

So it seems that choice of forum between County Court and Family Proceedings Court may in many cases be academic. Of course, why we have a choice at all is another point - if we ever get a single unified Family Court then there will be no choice.

Monday, September 25, 2006

The God Delusion

The God DelusionI have mentioned Professor Richard Dawkins previously in a post that followed my viewing of his Channel 4 documentary series about religion, The Root of All Evil?. In that series Professor Dawkins challenged what he described as 'a process of non-thinking called faith', including the indoctrination of our children with religious superstitions, and their categorisation according to their parents' religious beliefs.

Dawkins has today published his first book exclusively on the subject of religion, The God Delusion. To quote from the blurb, Dawkins "eviscerates the major arguments for religion and demonstrates the supreme improbability of a supreme being. He shows how religion fuels war, foments bigotry, and abuses children".

Further details of the book can be found on The Richard Dawkins Foundation for Reason and Science website, including a review by Joan Bakewell, here. The book can be purchased via Amazon, here.

I have just purchased the book and am very much looking forward to reading it. I may even do my own review at a later date.

Friday, September 22, 2006

Condemned to be free

"Existential philosophy evolved from the work of Kierkegaard, Nietzsche, Heidegger and Sartre, whose common concern was to explore existence and what it means to live well." Not the sort of sentence you expect to read in a legal journal. In an article in the September edition of The review, the magazine of Resolution, existential psychotherapist Diana Pringle explains her approach to counselling clients suffering from the effects of divorce.

The existential approach to counselling involves helping clients to realise that they are responsible for their lives, both in terms of what has happened to them and in terms of building a new life for themselves. Inevitably the realisation that we are all free to make life-changing decisions can provoke feelings of anxiety and uncertainty, and the counsellor helps the client to deal with this in a positive way.

Further information on this subject can be found on Diana Pringle's website, here.

Thursday, September 21, 2006

Web Tools for Lawyers

infolawMoving on from canine-themed posts, I'd like to recommend a new e-book, to which I made a (very) small contribution. Web Tools for Lawyers is written by Nick Holmes and Delia Venables and "gives guidance on several web tools developed over recent years that will help you promote your practice and get the most from the web". The tools discussed are blogs, website syndication, search engine optimisation and search engine advertising. Further details can be found at infolaw here and on Nick's blog here.

Give a dog a bone

Divorce lawyer?A common complaint about divorce lawyers is that they make matters more complicated than they need be. I would like to be able to defend the profession against such slurs but unfortunately, like many such things, there is some truth in the complaint. I often find that my opposite number on a case is more concerned with raising unnecessary or even irrelevant matters, rather than concentrating upon trying to resolve the main issue.

A typical case in point is when trying to negotiate a financial/property settlement. Instead of getting on with the negotiations, the other solicitor will embark upon a lengthy and expensive fishing expedition through my client's means, in the apparent hope that they will turn up some previously undisclosed offshore bank account. Of course, we are all under a duty to ensure we have a full picture of the other party's means before advising our client upon a settlement, but the reality is that most people have a pretty good idea of their spouse's means. Requests for information from the other side can easily be limited to those matters not within our client's knowledge, such as pension valuations. Instead, the other solicitor will demand full disclosure by way of exchange of Form E financial statements. For the uninitiated, a Form E is a 27-odd page document which goes into great detail about all aspects of that person's financial circumstances, and which requires considerable time, effort and expense to complete. It is true that before applying to the court for a financial/property settlement we are all supposed to follow a 'Pre Application Protocol', the aim of which is to ensure that "disclosure and negotiation take place in appropriate cases", and that the Protocol recommends the Form E as a guide to the format of disclosure. However, nowhere in the Protocol does it require one party to disclose matters that the other party is already fully aware of, and the Protocol does specifically state that disclosure and negotiation should be dealt with cost effectively. Don't get me wrong, I do suggest voluntary exchange of financial statements in appropriate cases; all I wish is that other divorce lawyers would stop and consider what is actually required before firing-off their demand for them, and not automatically assume my client has something to hide if I dare to suggest that they are not necessary.

Monday, September 18, 2006

Gentlemen (and women) prefer rottweilers

ASB LawMentioned in this month's Family Law, local (to me) firm ASB Law have carried out a nationwide internet survey asking the public what it thinks of divorce. The survey had some 2,466 respondents split evenly between the sexes, drawn from all age groups and asset categories, and representing all domestic circumstances (married, single, divorced, separated, living/not living with partner).

The findings of the survey are interesting. Some 80% of all respondents thought that assets should be split 50-50 or that settlements should recognise the contribution of a stay-at-home parent, although 33% also thought that short marriages should result in small payouts. A huge 90% thought that poor conduct should either definitely be taken into consideration or possibly, depending on the circumstances (suggesting that current law is out of touch with most people's views) and 25% considered pre-nuptial agreements to be a waste of time because they are currently not enforceable in UK divorce proceedings. On the value of marriage 67% of all respondents agreed with the statement that ‘marriage reinforces your commitment’, although only 30% of those aged between 16-24 said they believed in the value of marriage. More worryingly, when asked which of 10 well-known figures would they want to be their divorce lawyer, the clear winner, with more than a quarter of the vote, was Sir Alan Sugar! As ASB say, when it comes to choosing a divorce lawyer "it appears that the UK public (both sexes and all ages) favours overwhelmingly the rottweiler/Grand Inquisitor approach". So much for the principles of Resolution and the Family Law Protocol...

Full results of the survey can be found on the ASB Law website, here.

Wednesday, September 13, 2006

A bundle of fun

Delivering the bundleNearly Legal recently posted about the joys of preparing trial bundles, a joy that I have also been experiencing this week. In my case the bundle is required for a one-hour Financial Dispute Resolution appointment. I don't recall ever having to prepare a bundle for an FDR before, but it seems that courts are making directions for bundles to be prepared more and more frequently. As anyone who has done it will know, preparing a bundle involves a lot of time for the fee earner and support staff and an enormous amount of photocopying, hence substantial expense for the client. Is it really necessary for bundles to be prepared so often? After all, most of the bundle comprises the court pleadings, which are in everyone's possession anyway.

I note that the new Practice Direction on court bundles in family proceedings will not apply to County Court cases listed for one hour or less. Hopefully, District Judges will follow this, and only order bundles for longer hearings.

Sunday, September 10, 2006

Don't name and shame

Guardian UnlimitedBack to the serious stuff. The Guardian included a story yesterday about one of the proposed changes to the new Family Procedure Rules. This proposal would discourage or even ban the naming of co-respondents in adultery divorce petitions. I did not mention this in my previous post about the Rules because my experience is that co-respondents are very rarely named anyway (since petitioners have no longer been obliged to name them, where their identity was known) - I certainly usually try to dissuade my clients from naming them (as recommended by the Protocol), even where the client is eager to do so. However, I note with interest (and some alarm) the quote in the Guardian article from Andrew Greensmith, chairman of Resolution, that "there are some courts where judges are reluctant to accept evidence of adultery without a third party being named". This has immediately changed my view on the proposal from indifference to full support. Naming co-respondents almost always makes the divorce more complicated and increases animosity. If some courts insist upon it, then the Rules need to be changed to stop this, although I'm not sure whether there should be a complete ban, as some commentators have apparently suggested.