Tuesday, February 28, 2006

Shared Parenting

I wait with interest for the result of a hearing today in which a father who has negotiated a shared parenting plan is seeking to be allowed to publicise the plan, with the stated aim of assisting other couples to achieve a similar result. The plan was agreed after a long and acrimonious contact dispute and apparently involves the parents having their seven year old daughter on alternate weeks.

Obviously the point for the court to decide is to do with court secrecy in cases involving children. However, perhaps of more practical interest is the fact that the courts are moving away from the assumption that shared parenting can only work where the parents remain on good terms and are now prepared to consider such arrangements even where the parents are hardly speaking to one another.

Further details relating to this case can be found in a report in the Guardian yesterday.

Monday, February 27, 2006

New Costs Rules

So, the new ancillary relief (to non-lawyers: applications for a financial/property settlement on divorce) costs rules come into force on the 3rd April. For details, see The Family Proceedings (Amendment) Rules 2006. The general rule in ancillary relief proceedings will now be that the court will not make an order requiring one party to pay the costs of another party. Whilst I agree with this concept (although like most family lawyers I may take a while to get used to it), I fear that it may be difficult to 'sell' to some clients, who will still demand that the other party be made to pay their costs. There is an exception to the rule whereby the court can make an order where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings, for example where that party has failed to comply with the rules, but this is clearly not intended to result in as many costs orders being made as at present.

It remains to be seen how the new rules will work in practice, and how they will influence the conduct of negotiations.

The Great Legal Aid Scandal

When it comes to legislating, politicians may not be the cleverest of people (witness The Family Law Act 1996, mentioned previously), but when it comes to covering their own backs, well, that's another matter.

For the last twenty years successive governments have effectively been forcing solicitors out of legal aid work, by a combination of refusing to increase pay rates and increasing the bureaucratic burden on those firms remaining in the system. As a result we have a growing number of legal aid 'deserts', where there are no firms offering a legal aid service in a particular area. Even where a legal aid firm can be found, the client often has to wait weeks to be seen.

So, who does the public blame for this state of affairs? Why those greedy fat cat lawyers, of course. They've bled the system dry with their huge bills, leaving less money to go around, so the Government has had to step in to cap pay rates and ensure the taxpayer is getting value for money. Wrong. The vast majority of legal aid lawyers barely earn enough to keep going, unless they can use their privately-paying clients to 'subsidise' the legal aid work. As for value for money, legal aid solicitors are now required to run their businesses and conduct their work in accordance with a huge and onerous list of requirements, yet most solicitors continue to do the same good job they have always done, irrespective of those requirements.

Of course, the Government could simply have solved the 'problem' by abolishing the legal aid system and replacing it with state-employed lawyers and/or the voluntary sector, but that would have risked a public backlash. Instead, they set out with the clear but never stated aim of forcing solicitors out of the system so that lawyers rather than the government could be blamed for what was left.

As a profession, we have a lot to learn about spin and PR.

Friday, February 24, 2006

Bedtime Reading

With this week's issue of the Law Society's Gazette I have received a shiny new copy of the second edition of the Family Law Protocol. The Protocol is produced by the Law Society, in consultation with Resolution, the Legal Services Commission and the Department for Constitutional Affairs. It provides a set of best practice guidelines for all family law practitioners. The emphasis of the Protocol is a conciliatory approach to family cases, to reduce conflict and encourage settlement without contested court proceedings, wherever possible. Adherence to the Protocol is not compulsory, but the reasons for any departure from the Protocol should be recorded on the client's file.

I recommend that all family lawyers read the Protocol, especially the less experienced or newly qualified, although not necessarily at bedtime!

Thursday, February 23, 2006

Drastic Action

I have just come across a report in last Sunday's Observer about a man who is seeking to force the sale of his ex-wife's house in order to recover some £52,000 child support arrears. If he succeeds, it is believed that this will be the first time a defaulting parent has been required to sell their property to pay child support arrears. I wish him luck. Quite how the Child Support Agency allowed the arrears to reach such a figure is another matter...

Wednesday, February 22, 2006

The diary of a divorce

Each day this week the Telegraph is publishing "The diary of a divorce", a five-part account of the breakdown of Penny Brookes' twenty-five year marriage. Whilst it sometimes makes me feel a little like a voyeur, it has been interesting to read, particularly the thought processes that she went through before eventually coming to the conclusion that her marriage was over. However, in today's installment she finally consulted not one but two solicitors, with hugely different experiences, not just in terms of advice given but also in terms of cost, with one charging £230 per hour and the other a mere £75. I will leave it to you to decide which solicitor's advice you prefer.

Part three of the diary can be found here, with links to the two earlier parts.

A good idea?

As reported in the Guardian today, Councils all over the country are setting up "panic rooms" in private homes to help protect women from violent partners. The idea is that rather than move victims of domestic violence to temporary accommodation the Council will 'secure' a bedroom in their home by installing a solid door with mortice locks, steel hinges, bolts, a spyglass and, if necessary, barred windows and an intercom. The women can then seek sanctuary in this room when threatened with domestic violence.

I'm sure that some women may find this a good idea, particularly as it enables them to remain in their own home. However, I have reservations about it myself. As the Guardian points out, the scheme could be driven by a desire to reduce Council expenditure. They state that it costs £16,000 per annum to provide temporary accommodation, whereas it only costs £1000 to secure a room. This could obviously result in women being 'encouraged' to accept a "panic room", when temporary accommodation would be a far safer option. Further, I am not convinced that a "panic room" will be much help to many women, who will not have time to get there and secure the door, when their violent partner is already in the house.

Tuesday, February 21, 2006

Lies, Damn Lies and...

Yesterday the Office for National Statistics published it's annual
Social Trends report. As has been widely mentioned in the press, one of the key statistics in the report is that there has been a substantial rise in the proportion of births occurring outside marriage, up from 12 per cent in 1980 to 42 per cent in 2004. Picking up on a theme I have mentioned before, The Daily Telegraph today has an editorial entitled "Marriage works, despite politicians' best efforts". In it reference is made to this statistic as evidence of the decline in marriage caused, so the argument goes, by "the state's fiscal and legal arrangements" which "effectively discourage family stability", because marriage "holds couples together and helps children grow up healthy and happy".

Whilst this makes interesting reading, and whilst I agree that government policies may be part of the reason for the decline in marriage, I wonder whether it may be an over simplification. Surely, there are many reasons why couples choose not to marry, other than purely 'fiscal and legal' reasons, and I'm certain that many cohabiting couples will dispute the assumption that marriage is automatically better for children.

Monday, February 20, 2006

Legal Aid Lawyer of the Year

The Legal Aid Practitioners Group are calling for nominations for the annual Legal Aid Lawyer of the Year Awards. As they state on their website legal aid lawyers are "unsung heroes who have foregone the opportunity to earn large salaries in order to help the least well off and most marginalised people". I would like to nominate all lawyers who still undertake legal aid work. In my book, anyone who is prepared to put up with the endless bureaucracy and form-filling for such meagre reward deserves an award.

The Landlord Law Blog

Today Family Lore welcomes another new English law blog, The Landlord Law Blog. Written by Tessa Shepperson, a solicitor and editor of the Landlord-Law website, this new blog "ponders on life, the universe, and residential landlord and tenant law". Plenty to talk about there then!

I wish Tessa every success with the blog and am pleased to see the number of English law blogs continuing to increase.

Friday, February 17, 2006

Only in America...I hope

I'm not normally interested in gossip and scandal, but a report in The Independent today caught my eye. Apparently Hollywood has been hit by a wiretapping scandal in which numerous entertainment personalities have allegedly had their telephones tapped by a disgraced former private investigator. What relevance does this have to family law? You may ask. Well, it seems that a high-flying Beverly Hills lawyer has now been caught up in the scandal. He is accused of paying the investigator $100,000 to listen in to telephone conversations between his client's wife and her divorce attorney.

It could only happen in America...or could it?

Thursday, February 16, 2006

Does not compute...

Giving evidence to the Commons work and pensions committee yesterday Work and Pensions Secretary John Hutton admitted that replacing the Child Support Agency's troubled computer system was beyond the remit of Sir David Henshaw's review of the Agency announced last week. The system, which has cost £456 million, was due to be fully operational in 2003, but will not now be working to the agreed delivery specifications until the end of 2007.

The computer system is a crucial part of the workings of the Agency. What if (as many have already suggested) Sir David concludes that the system will never work properly? Apparently, Mr Hutton's response to this possibility was "I don't think that is what I expect him to recommend". Perhaps the review of the Agency is not to be as comprehensive as we were given to believe.

Wednesday, February 15, 2006

Women's Aid campaign

Women's Aid poster Yesterday Women's Aid, the national charity working to end domestic violence against women and children, launched a public awareness campaign "to highlight the fact that for over half a million women, Valentine's Day is a day where they will live in fear of a violent partner". The campaign includes a series of adverts depicting romantic images, but with a shocking twist. For example, on the poster shown here the message attached to the rose states "Suzy I told you to shut up you stupid cow. It's your fault I hurt you. Pete". Women's Aid state that they have chosen to use Valentine's Day "because one of the features of abusive relationships is that they often begin with what may at first be seen by a woman as a flattering display of romantic love, but along with the chocolates and flowers can come the first danger signs of unreasonable jealousy and possessiveness", which can become violent and controlling. I wish the campaign every success. For further information regarding Women's Aid, see their website, in the links to the right.

Tuesday, February 14, 2006

An empty promise?

Following the announcement last week, the Child Support Agency has published it's Operational Improvement Plan "to improve our service to clients, increase the amount of money we collect, achieve greater compliance from non-resident parents and provide a better platform from which to implement evolving policy in the future". A copy of the plan can be found here. I note with interest that of it's twenty pages, no fewer than five are empty. Rather like the bank accounts of so many parents waiting for their child support to arrive.

Monday, February 13, 2006

Crisis? What crisis?

In an editorial today in the Times Online, William Rees-Mogg maintains that "there is a crisis in English divorce law" which, he claims, fails "to engage with many, if not most, of the realities of modern life". "As a result", he says, marriage breakdown "has become a lottery that pays out injustice, suffering and personal damage to parents, children and in-laws alike". Strong stuff. He then goes on to set out thirty-two 'issues' that he considers "are not adequately addressed in our present doctrine of divorce". He accepts that this list is not exhaustive and that "an experienced divorce lawyer would find many significant items to add to it" (I would probably also take some items away). He offers no solutions, other than that there should be a Royal Commission on Divorce, followed by a Reform Bill.

Whilst I certainly think that there are many problems with the current system, I'm not sure that I would go so far as to describe the system as 'in crisis'. In any event, no system can alter the fact that divorce itself is often a disaster - all we can do is ensure that the system doesn't make that disaster even worse. As for reform, I'm all for it, so long as there is no repeat of the debacle that was The Family Law Act 1996, when Parliament made such a hash of reforming the law on divorce that the whole thing was shelved indefinitely.

Friday, February 10, 2006

The debate begins...

In a leader today The Guardian proposes three objectives for the review of the Child Support Agency. Firstly, and perhaps most controversially, it proposes that the state should pay where the absent parent does not, thereby guaranteeing maintenance for all children. The basis for this is obviously that children should not suffer hardship because one of their parents does not support them. I can't disagree with that, but I also can't see the state coughing up, say, £300 per week for the child of a high earning absent parent. The second objective is that the new agency should not be compulsory for anyone. This must be right - we have to encourage parents to agree matters between themselves. The third objective is that the new form of assessment should be even simpler than it is now. Not sure about this one. A simple formula is helpful, but make it too simple and you may end up with a formula that creates further injustices by not taking the particular circumstances of the case into account.

This is just the start of a long debate - it has been suggested that it will be two or even three years before any new system of child support is in place. Meanwhile, it is hoped that the new measures announced yesterday will at least give some relief to some parents.

Thursday, February 09, 2006

More waste paper?

So it's true. The Government has just confirmed that another review of the Child Support Agency is to be undertaken, although I noticed (correct me if I'm wrong) that Work and Pensions Secretary John Hutton did not actually use the term 'review'. An internal review of the Agency has been binned because it's recommendations were too expensive to implement, so now we are back at 'square one'. The new review will apparently start with a "blank sheet of paper", leaving open all possible solutions. The task of carrying out the review is to be given to Sir David Henshaw, who is expected to come up with all the answers by this summer. I wish him luck, but have to ask: why wasn't such a fundamental review carried out years ago?

We all now wait with baited breath for Sir David's recommendations, and hope that they will not also end up in Mr Hutton's bin.

Wednesday, February 08, 2006

Love conquers all

Yesterday the Office for National Statistics published the latest figures for the number of marriages in the UK. They make interesting reading. For the third year running the number of marriages increased, reversing a thirty-year trend. In 2004 there were 311,180 marriages, compared to a peak of 480,285 in 1972. Meanwhile, the number of marriages that were the first for both parties has reduced from a peak of almost 340,000 in 1970 to just 161,300 in 2004. Over the same period the number of remarriages (for one or both parties) has remained virtually static. Also interesting is the trend to marry later in life, reflecting the increased incidence of cohabitation prior to marriage, amongst other factors.

One can only speculate why marriage has become more popular. Certainly, this does not seem to be the result of Government policies which, if anything, have made marriage less attractive. Perhaps love really does conquer all...

Tuesday, February 07, 2006

Playing with fire

Despite the efforts of Resolution (formerly the Solicitors Family Law Association) and The Law Society's Family Law Protocol to promote a conciliatory approach towards family disputes, there are still dinosaur lawyers out there who are quite prepared to fan the flames of conflict between the parties. Such an approach not only makes it more difficult to resolve matters by agreement but can also risk pushing angry people towards more desperate measures. After all, we have little knowledge of our own client's character and what they're capable of, and virtually no knowledge of the character of the other party. Yesterday the sad case of Alison Lumsden was widely reported. She was going to leave her husband and apparently thought that the separation would proceed without too much upset. Her husband stabbed her to death with a knife. I'm not saying that family lawyers were in any way involved, but this case illustrates what can happen when you play with the fire of another person's emotions.

Monday, February 06, 2006

Papering over the cracks

On Thursday Work and Pensions Secretary John Hutton is due to announce the Government's plans to give more powers to the Child Support Agency to chase non-paying absent parents. It seems that these will include allowing the CSA access to records held by credit rating agencies, to enable the CSA to assess absent parents' ability to pay. In addition, electronic tagging and curfews will be available to use against persistent defaulters and, as already reported, the CSA will be able to instruct private debt collectors.

These plans may be a step in the right direction, but do they go far enough? Surely, the time has come to scrap the Agency and give HM Revenue and Customs the power to deduct maintenance from income, as has been argued by many since the idea of child support was first mooted. The Agency has failed to collect an incredible £3 billion from absent parents - any private business with such a failure rate would have gone under years ago.

Friday, February 03, 2006

Breaking up is expensive to do

Under the headline "Breaking up is hard to do: Divorce - the harsh truth" The Independent Online today reviews recent high-profile divorce cases and concludes that divorce is a costly business that will set a couple back more than they spent to get married. The article summarises the history of divorce law in this country and states that now not only do more people get divorced here than anywhere else in Europe but it could soon be the case that wives receive more generous settlements here than anywhere else. Of course, this once again only applies to the 'fabulously wealthy' - for those of lower means divorce is far less lucrative.

Importantly, the article speculates upon the effect of the cost of divorce upon the institution of marriage and suggests that more husbands may try to protect their assets by entering into pre-nuptial contracts, or even by deciding not to get married at all. I agree - after all, there is no longer any tax incentive to marry. Of course, if you are already married then you may have to resort to Neil Sedaka's words again: "I beg of you, don't say goodbye - can't we give our love another try?"

Thursday, February 02, 2006

Monty settles

As has been widely reported in the media today, golfer Colin Montgomerie has agreed a £15 million divorce settlement with his former wife. The interesting thing from a family lawyer's perspective is that it is reported that the lump sum is 'up to half' of Montgomerie's personal wealth and that Mrs Montgomerie accepted it in return for waiving a claim against his future earnings. No doubt Monty is now even more eager to win that first Major tournament!

The Daily Express also reports that Mrs Montgomerie divorced her ex-husband on the basis of his unreasonable behaviour, citing his "obsession" with golf. One wonders just how many professional golfers are not obsessed with their sport...

Fame at last!

Yesterday the Family Lore blog had the honour of a post on the Human Law blog. Human Law has been running since October 2005 and is authored by Justin Patten, a solicitor and principal of Human Law, a UK law firm specialising in Intellectual Property and Employment Law.

There are also now links to Family Lore on Delia Venables' excellent Legal Resources website.

Many thanks to Justin and Delia. I have now reciprocated not just by this post but also by a link to Delia's site under my 'Links' section and by a link to Justin's blog under my new 'Other Legal Blogs' section.

Wednesday, February 01, 2006

The Trophy Wife

On a lighter note The Daily Telegraph reported yesterday on the
Miller v Miller appeal, including reference to a wonderful exchange between Mr Miller's QC James Turner and Lady Hale, one of the law lords. Mr Turner submitted that there was a world of difference between the type of wife who stays at home (perhaps working part-time), cooks, cleans and looks after the children and the wife who spends her time in Harvey Nichols. Lady Hale then referred to the latter as the 'trophy wife', and suggested that most husbands would value such a wife more highly than a 'workaday wife'... an interesting view on the shallowness of men from her Ladyship!

The Blame Game

As anyone who reads the papers will know, the appeal in the case of Miller v Miller is being heard by the House of Lords this week. This case hit the headlines because Mrs Miller received a £5 million divorce settlement after only three years of marriage. The case has caused great debate amongst family lawyers, and we all wait with baited breath for their Lordships' decision. However, the particular point that bothers me most about this case is the account taken by the original court of the fact that Mr Miller broke up the marriage by his adultery. This seems to me to be dangerously close to the 'bad old days' of fifty and more years ago when the party to 'blame' for the breakdown of the marriage could expect to be 'punished' by the court by receiving a smaller settlement. Throughout my twenty-odd year career I have always advised clients that on financial matters the court is not interested in who was to blame for the breakdown of the marriage. Is this no longer correct? Hopefully, this is an issue that will be clarified.