Thursday, July 27, 2006

Holiday Hiatus

Just a quick post to say that I'm off on my summer holiday, so there won't be any new posts here for a short time.

Meanwhile, a reminder that you can use the search facility at the top of the page to find posts on a particular subject.

Tuesday, July 25, 2006

A fresh start?

The Government also published it's response to Sir David Henshaw's report yesterday. Entitled "A fresh start - child support redesign", it can be found on the DWP website here.

A couple of points that will affect family lawyers in other areas:

  • Including the father on the birth register, although the Government has not yet decided whether this should simply be encouraged, or made compulsory - see paragraphs 38 to 41 of the response. Obviously, this could have significant implications for the acquisition of parental responsibility (see my recent post here), although I'm not sure how this would work if the mother was forced to give the father's details, and the 'father' then denied paternity.
  • Abolishing the rule whereby the Child Support Agency can overturn an agreed child maintenance order of more than 12 months' duration, i.e. a return to the pre-2003 position, although the Government only says that it will give "particular thought to this proposal" - see paragraphs 42 to 44 of the response.

Monday, July 24, 2006

Henshaw recommends...

As widely expected, the Henshaw review of child support has recommended today that the Child Support Agency be scrapped, and replaced by a smaller agency, that will have greater enforcement powers and will not deal with cases where the parents agree the amount of child support. The huge backlog of existing cases will not be dealt with by the new agency, but by staff from the old CSA.

I'm afraid I can't help feeling unconvinced by the proposals. The emphasis on agreeing child support is nothing new, and may even encourage parents with care to accept less than they should, rather than go through the new agency. As for the new enforcement powers, are they just window dressing, designed to grab the headlines (as they have already done)? The government still shies away from using the Inland Revenue as has been recommended in certain quarters, or returning to a court-based system, which puts the recipient in charge of getting and enforcing child maintenance orders.

The full text of Sir David Henshaw's report can be found on the DWP's website here.

A very altruistic little site

OK, so I lied in my last post about it being a quiet period for family law news. I'd forgotten that the findings of the Henshaw review of child support are to be published today. More on that later. Meanwhile, here's a little mystery (with thanks to Charon QC) - a web site that loves to be talked about: Linkie Winkie.

Sunday, July 23, 2006

Personally, I prefer Marlboro

Charon QCDuring a mercifully quiet period for family law news, I thought I would take the opportunity to recommend a law blog that I recently added to my blogroll (don't you love blog terminology?). The blog is Charon QC, who describes himself as "a lawyer, after a fashion", although he does not practise. As for the title QC, he says he awarded it to himself "when the Lord Chancellor suspended the award for real lawyers". I like him already. I hope he doesn't mind me using his picture here. Not all of the posts on Charon QC are law-related, but who cares? For example, he has a category devoted to 'George Dubya Bush', always a source of amusement, provided you're not on the receiving end of one of his military 'adventures'.

Just one thing Mr Charon: my blog is called 'Family Lore', not 'Family Law Solicitor', as in my URL! (I originally called this blog 'Family Law', but the URL familylaw had already been taken, so I chose familylawsolicitor, although I soon changed the blog name to 'Family Lore' in any event.)

Friday, July 21, 2006

Mutually Assured Destruction

As I believe I've said before, I'm not normally interested in celebrity divorces but a case that has been big news in the American media is a lesson to us all. It concerns US football star Michael Strahan and his (now ex-) wife Jean. For the last six weeks they have been slugging out one of the most vitriolic divorces imaginable, despite the fact that New Jersey, where the case is being heard, is a no-fault divorce state.

Allegations by Mrs Strahan included that her husband beat her, that he secretly videotaped her sister undressing and that he had had affairs with three different women. He responded by alleging that she was a spendaholic, including spending $22,500 last year on photographs and $27,000 on clothes for their 20-month-old twin daughters.

Even local divorce lawyers have been shocked by the couple's tactics, one describing them as "mutually assured destruction".

Wednesday, July 19, 2006

Imagine there's no church schools

One of my earliest posts on this blog dealt with the issue of children and religion, and mentioned John Lennon's Imagine. Today I read on BBC News that a church school in Devon has stopped it's children from singing Imagine, because it considers the song to be anti-religion.

The song, as I'm sure everyone knows, is about the human race living together in peace. What could possibly be a better message to give to our children? This school has chosen to deny their children this message. It is true that in the song Lennon picked out religion (amongst other things) as one of the factors that divides people. However, this is undeniable, as a look at the news on virtually any day will confirm - just look at what is happening now in the middle east.

As I have made clear previously, I would prefer it if religion were not taught in our schools at all. However, if it is taught, then we should surely be teaching tolerance for other religions and also for the view that there is no religion.

EU proposes halt to 'divorce shopping'

'Shopping' around Europe for the most favourable divorce jurisdiction could become a thing of the past, under proposals outlined this week by the European Commission. If the parties cannot agree upon jurisdiction then the matter would be determined by a scale of "connecting factors", which would decide to which state the couple had the strongest ties.

It seems that one of the main concerns behind the proposals is that parties often rush off to court so that they can get the jurisdiction they want, without fully considering the possibility of reconciliation.

For further details, see this Commission press release.

Monday, July 17, 2006

Parental Responsibility

When replying to a comment earlier, I used the word 'responsibility', as in 'parental responsibility'. This is a term that seems to be misunderstood by many, and yet it is so important that I thought I would set out a brief summary, for the benefit of non-lawyers.

First, what exactly is 'parental responsibility'? The Children Act defines it as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and it's property". However, this definition is of little use to lay people, who want to know what it actually means in practice. There is no 'official' or comprehensive list of 'parental responsibilities', but the following are generally accepted as being included:

  • Duty to maintain - a duty that carries on, of course, even when the child no longer resides with that parent, irrespective of the other parent's circumstances.
  • Education - including choice of schools, although in the state system many parents find that there is no such thing as 'parental choice', as the child will usually go to the nearest appropriate school.
  • Religious upbringing - obviously, only usually an issue when the parents do not share the same religious faith.
  • Medical treatment - although where emergency treatment is required, I do not believe that most parents would expect this to be withheld until the other parent is consulted.
  • Choice of surname - can only be changed with the agreement of the other parent or by a court order, where the other parent has parental responsibility.
  • Removal from the jurisdiction - again, agreement of other parent with parental responsibility required, or court order.
  • Consent to adoption - a child can only be adopted with the consent of any parent having parental responsibility, or if the court dispenses with that consent.
The next question is: how is parental responsibility acquired? Where the parents are married, both automatically acquire it. Where they are not married, only the mother automatically acquires it. The father can acquire it by being registered as the father on the child's birth certificate (since 1st December 2003 - in reality, this will require the consent of the mother), with the mother's agreement, or by getting a court order. A court order will be made in most cases.

When two parents both having parental responsibility cannot agree upon a particular issue relating to their child, either may make an application to a court, for the court to decide the issue.

As usual, the above is for information only and the law is stated as at the date of this post. For advice specific to any particular matter, consult a solicitor.

Dr Bartha Dies

Well, it seems that Dr Bartha may have got his wish after all. I mentioned him in my previous post. Today BBC News reports that he has died from his injuries.

Thursday, July 13, 2006

Carter Review Published

The long-awaited Carter review of legal aid procurement has been published today. If you wanted another reason to stop doing legal aid work, here it is. Even Lord Carter himself has admitted that it would lead to fewer law firms taking on legal aid work.

No further comment required, save that I don't envy all those people struggling even harder to find a legal aid solicitor to act for them.

Family Justice Council Report

Family Justice Council This morning I received a questionnaire from the Children in Families Sub-Committee of the Family Justice Council requesting information regarding consent orders in private law children cases, where domestic violence has been an issue in the case. The Family Justice Council has been asked to prepare a report for the President of the Family Division to consider, and make recommendations about, what approach should be adopted by the Court in such cases. This follows a report in February this year by Lord Justice Wall upon a document published by the Women's Aid Federation in 2004 entitled "Twenty-nine child homicides: Lessons still to be learnt on domestic violence and child protection", which identified thirteen cases over the previous ten years in which twenty-nine children were murdered by their fathers during contact. In five of those cases contact was ordered by the Court, and in three of those the order had been made by consent.

The questionnaire deals with such issues as identifying cases where there has been domestic violence (although I must, of course, have regard to my client's instructions) and whether too much pressure is put on parents to agree contact arrangements. As to the latter, I do not wish to sound complacent, but my experience is that courts and lawyers usually get it about right - the main source of pressure usually comes from the dominant nature/bullying of the other party.

Obviously, these are extremely important issues, but as a lawyer who acts for both sides in these matters I hope that any recommendations will not encourage the all too common false allegations of domestic violence, which can be so destructive to the children involved.

Wednesday, July 12, 2006

A threat fulfilled?

All divorce lawyers have cases where one party makes it quite clear that the other party will get nothing, or that they will never get a particular asset, usually the house. Fortunately, such threats rarely come to fruition, as most people will (eventually) comply with orders of the court. However, once in a while the threat is carried out. It seems that the case of the exploding four-storey house in New York on Monday may be one such example. The house was occupied by Dr Nicholas Bartha, who had been involved in extremely bitter divorce proceedings, as a result of which the house, said to be worth five and a half million pounds, was going to be sold. However, shortly before the explosion destroyed the property Dr Bartha is alleged to have sent an email to his ex-wife (and others, including the Governor of New York) stating that she "will be transformed from gold-digger to ash and rubbish digger" and that he had always told her that he would only leave the property if he was dead.

If all of the above is true, then Dr Bartha may have been only partially successful in carrying out his threat, as he survived the explosion and is currently in a critical condition in hospital. Sadly, a number of others were injured in the explosion, including one passer-by, who suffered severe injuries.

Unfortunately, it is usually impossible for lawyers to distinguish those few cases where threats such as this will actually be carried out. All we can do is ensure that we conduct cases in such a way that we do not fan the flames of conflict between the parties, as I have commented before.

Tuesday, July 11, 2006

Opening the Courts

Following a press briefing by Constitutional Affairs minister Harriet Harman and an earlier interview with her on Radio 4's Today programme, BBC News includes a report today upon the government's expected proposals to make family courts more open and accountable. These will include admitting individuals to the court at the discretion of the judge and, new to me, allowing MPs, local councillors and court inspectors to attend hearings "to see the system was working". Hmm, not sure about that - family court proceedings are distressful enough for most clients without the added trauma of having such people listen to their every word.

Monday, July 10, 2006

A Better Way?

I have just read in Family Law Week that in each of the last 4 years over 500 people have been remanded in custody as a result of obstructing contact with the children of a non-resident parent. The figures were given by Harriet Harman MP, on behalf of the Department for Constitutional Affairs, in a written reply to a question posed by Andrew Lansley, Conservative MP for South Cambridgeshire.

Whilst they might give support to the argument that the law is not soft on parents who do not comply with contact orders, the figures are quite appalling. Why are so many people prepared to go to prison rather than allow the other parent to have contact with their child? There are, of course, some situations where contact is not appropriate but the court will not make a contact order in those cases. Why does one parent think she/he knows better than the court? Is it because they can't bear the thought of their hated ex-partner spending time with their child, or do they genuinely believe that the child will come to harm? If it is the former then they must be educated into putting the welfare of the child first; if it is the latter then they must be reassured that the court will not knowingly place a child in harm's way.

Whatever the answer, there must be a better way than putting over a thousand children a year through the trauma of having the parent with whom they reside put into custody. I know there must be a 'last resort' for the courts, but even the non-resident parents, when they stop and reflect, will hopefully realise that this was not the best way to promote their child's welfare.

Scottish Divorce Boycott

It seems that dealing with complaints against the profession is as much an issue north of the border as it is in England and Wales. The Sunday Times reported yesterday that Scottish solicitors may boycott divorce cases if new legislation is introduced forcing them to meet the costs of unsuccessful complaints made against them. Quite why the solicitors should pay if they have done nothing wrong, I don't know - why shouldn't the complainant pay?

As a result of this nonsense, it seems that some firms in Scotland are already screening new matters, in an effort to avoid acting for clients that are more likely to complain. As a spokesman for the Law Society of Scotland said: "The proposals suggest that even if a complaint is not upheld the solicitor will pay for the administration. A figure of £300 has been mentioned. Solicitors are making business choices every time a client walks through their door and will have to factor in the risk of a £300 complaints levy even if a complaint is not upheld".

I wish our Scottish colleagues success in this battle - if they fail, then some bright spark at Westminster may have the same idea.

Friday, July 07, 2006

Fine words

The Law SocietyA fellow solicitor recently asked me whether I did legal aid work. When I replied in the negative, her response was "oh, lucky you". I suspect most legal aid solicitors have the same feelings. Quite why any solicitors are still prepared to do what is often very difficult work for so little reward and with such aggravation from the onerous requirements placed upon them by the Legal Services Commission, I don't know. At least now they have received some recognition from the Law Society. In a press release issued on the 22nd June the Law Society president Kevin Martin said: "legal aid solicitors do so much good work, very often without sufficient reward or recognition" and that "many legal aid solicitors have turned their backs on the potential to earn much greater sums of money in order to provide advice which helps prevent so many people from drifting into social exclusion". Fine words, but is the Society doing enough to improve the lot of legal aid solicitors?

Incidentally, I did legal aid work myself for the best part of twenty years, so I would submit that I have 'done my bit'.

Monday, July 03, 2006

Rebutting the Slur

In an interesting and topical judgment the Court of Appeal held on the 27th June that a father would be allowed to identify his seven year old daughter, the proceedings relating to her having been concluded. The father had been appealing against an injunction preventing him identifying her, as he wished to be able to debate issues about the family justice system in public by reference to his own case, including the fact that he and his former wife had reached an agreement for sharing the child’s care - see my previous post here. He was not, however, permitted to use the child in a film he proposed to make to justify his abduction of the child to Portugal in 2003.

A news release relating to this case, Clayton v Clayton [2006] EWCA Civ 878, can be found here on the Judiciary of England and Wales website, which includes the interesting statement that the Court of Appeal "regards its decision as a small step towards greater transparency and rebutting the slur inherent in the charge that the family courts administer “secret” justice".