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.