Thursday, August 30, 2007

Not all good news...

The Office for National Statistics has today published its latest data on divorces taking place in England and Wales. The headline is: "Divorce rate lowest for 22 years", and the figures show a substantial drop in the number of Decrees Absolute granted, for the second successive year. Assuming that you take the view that 'marriage is a good thing', this appears to be good news, save perhaps for us divorce lawyers...

Wednesday, August 29, 2007

Pretty in Pink

Thanks once again to Jacqui Gilliatt of bloody relations for unearthing yet another family law blog (where does she find them?). Pink Tape is written by a "barrister practising mainly in family law". She says: "I’d love to think that this blog will persuade at least one person we aren’t all the money hungry sharks you think we are." Well, you can only hope.

Incidentally, for non-lawyers 'pink tape' is a reference to the pink ribbon that we solicitors use to tie up the instructions we send to barristers.

Monday, August 27, 2007

Shared Residence Orders Revisited

I've had a lot of reaction to this post, in which I said:
parents, particularly fathers, are prepared to go to great lengths to obtain such orders, including fully contested applications, when the practical effect of the order will not necessarily make an awful lot of difference to the children concerned. Are such parents more concerned at achieving equality with the other parent than achieving the best for their children?

I think I should clarify what I meant. Here's what I wrote today to a father who was unhappy with the above:
What I am really concerned about is not a 'battle' over the status of each parent (why should they not both have the same status?), but a 'battle' over achieving exact parity in terms of the time the children spend with each parent. I've seen cases (both reported and in my own experience) that have revolved around the odd half day here and there, which really is more to do with principle than what is best for the children.

This is not to say that there should not be exact parity, merely that consideration should be given as to whether it is worth putting the parties and children through the trauma (not to mention expense) of contested court proceedings, merely to achieve exact parity. After all, it is perfectly possible to have an 'unequal' arrangement (say, four days a week with one parent and three with the other), and still call it 'shared residence'.

Sunday, August 26, 2007

A bad penny turns up

Thanks to Charon QC for pointing out a story that appeared in The Observer today: "Bruce Hyman was a barrister and an admired TV and radio producer. Then, inexplicably, he perverted the course of justice and now faces jail". Hyman admitted emailing a judgment he had forged to his client's former husband, who was seeking more contact with the couple's daughter. "Within minutes of doing so," says The Observer, "Hyman pounced, suggesting not only that the judgment was a forgery but that the father, who was representing himself, might have been responsible for faking it. The father suddenly found himself facing a charge of perverting the course of justice".

As Charon says, this is bizarre. What I wanted to comment upon though was the 'footnote' to the story. Apparently, the father was only able to get the police to take the case seriously after fathers' rights group Families Need Fathers put him in touch with 'a helpful police officer'. The Observer says that the father is now disillusioned with the courts system, and quotes him as saying: "Anyone who contemplates going through the family courts system should consider pulling their own fingernails out instead; it's less painful. Appearing at these private hearings, where parties and their lawyers too often seem to have the smearing of their opponents at the top of their agendas, robs you of your dignity and your belief in the system." Jim Parton of Families Need Fathers puts it more colourfully: "There's a lot of what I call "micro-shittiness" in the family courts," he says, "there are low-level acts of bullying by the lawyers in the corridors that go on all the time, but none of it gets reported." I'm sure some of this goes on, but my overwhelming experience of family lawyers has been quite the opposite. In almost all children cases that reach the courts there is a lot of mud-slinging between the parties, most of it exaggerated or irrelevant to the issues, and the lawyers work hard to cut through this to reach agreed arrangements, or at least to reduce the animosity, for the sake of the children.

Of course, there are exceptions, as Mr Hyman demonstrates, who do great damage to the good reputation that most family lawyers are striving so hard to build.

Friday, August 24, 2007

A reasonable outcome

As a footnote to my previous post, the "modest award" granted to Mrs North by the Court of Appeal was periodical payments of £3000 per annum.

The first question that may be asked is: why should she get anything? Well, the Court of Appeal took the view that her circumstances were not entirely of her own making - she sustained substantial losses to her investments which Lord Justice Thorpe "characterised as misfortune rather than mismanagement" - and the nominal maintenance order made previously was clearly intended as a 'safety net'. As her need was "self evident", there should be an upward variation in the nominal order. As Mr North was a "rich man", "modest further financial support for his former wife would have minimal impact on his economy".

Why then only £3000 per annum, far less than her needs, as determined by the Principal Registry? Well, this is where Mrs North's extravagant lifestyle counted against her. As the Court stated: "She has largely made her own bed and must expect to lie in it", or to put it another way, why should Mr North be entirely responsible?

The Court anticipated that the parties would agree a capitalisation of the maintenance, so that Mrs North's outstanding claims could be dismissed.

It seems to me that this was an entirely reasonable and logical outcome, despite the media outcry. The full report can be found here.

Thursday, August 23, 2007

Exclusive Justice

Getting back to things legal, a woman telephoned my firm's office this morning saying that she needed to instruct a solicitor urgently, but that she required legal aid. My firm does not offer a legal aid service anymore, but she had rung several firms that do, only to be offered an appointment in two months' time. This is a scenario that must be re-enacted regularly across the country, and will only become more frequent as more firms decide it is uneconomic to work for legal aid rates of pay. I'm sure the media will blame 'fat-cat' lawyers for refusing to do legal aid work, but the reality of course for many legal aid firms is a stark choice between giving up or going under.

What price justice? A price that the government clearly doesn't feel it is worth paying.

Accident prevention

On my way in to work today I came across a road sign saying simply: "Slow Down". It was not one of those signs that senses your speed and advises accordingly, so clearly applied to all drivers, irrespective of their speed. It seems to me that the only way to comply with such a sign is to stop.

Wednesday, August 22, 2007

The World Turned Upside Down

On a cold, windy and grey afternoon more like Autumn than August it seemed appropriate to mention two stories that make you wonder whether the whole world has gone mad.

In a worrying development for bloggers everywhere, Boing Boing reports that American biology professor and writer P Z Myers is being sued for "Assault, Libel, and Slander" by Stuart Pivar, the author of a book about which Myers gave a negative review in his blog, Pharyngula. I'm no defamation lawyer, but whilst the review is rightly scathing, I couldn't see anything libellous in it. Let's hope the court throws out the claim for showing no cause of action.

Meanwhile, on this side of the pond the Daily Mail reports that the O2 Arena is to be fined because, horror of horrors, Keith Richards and Ronnie Wood of the Rolling Stones smoked cigarettes on stage. Perhaps the audience will sue the band when they all get lung cancer...

[I've since seen that the O2 Arena will not be fined, according to the BBC. Could this be the application of common sense by one of the authorities in this country? If it is, then the world really has turned upside down...]

Tuesday, August 21, 2007

Two systems at odds

As we all know, the child support system is rife with unfairness. Yesterday I received an email from a father aggrieved that "even if the courts have decided the parents have equal responsibilities, the CSA still define one parent as the 'parent with care' and take money from the other as a consequence". He concludes:

I presume that the 'parent with care' has responsibilities over and above those of the other parent, and is required to pay more towards the care of the child as a consequence. Can you tell me where I can find information about what the requirements are of a 'parent with care' and what action is taken if they fail to fulfil those responsibilities?

The answer is that the term 'parent with care' is simply one used by the child support system to define the 'payee', and has no bearing upon the responsibilities of that parent. Anyone with parental responsibility has a duty to maintain the child, but subject to this once child support is paid to them they are free to use that money as they see fit. The 'parent with care' is the parent with whom the child spends most nights, or if this is equal, the parent in receipt of Child Benefit (which is more likely to be the mother).

It has, of course, long been complained that the child support system actually works against the principles of child law, for example in the way it encourages the parent with care to restrict the number of nights per week that the child spends with the other parent, irrespective of what is best for the child, in order to maximise the child support that the absent parent should pay. In this instance, the system is discouraging shared residence arrangements (despite the courts nowadays being far more likely to consider that such arrangements are in the child's best interests), by financially penalising one of the parents, even though he/she is sharing all expenses for the child equally with the other parent.

Monday, August 20, 2007

Scary stuff

Just watched the second part of Enemies of Reason. This week the target was 'alternative' medicine, such as homeopathy, acupuncture etc. Dawkins pointed out that 80% of these have never been subjected to properly conducted trials and quite rightly (and obviously) concluded that if any of them benefit their patients, it is almost certainly due to the placebo effect - i.e. the users want the 'remedies' to work.

That wouldn't be a problem, but it is the complete disregard (and disrespect) for scientific principles that is worrying, fuelled by unfounded media attacks on science, such as the hysteria over the alleged dangers of the MMR vaccine (which has since caused considerable suffering, including measles outbreaks and one death). Of particular concern to me was the doctor who claimed that we all have black holes inside of us that affect our health, despite having no evidence for this theory - you might as well theorise that sleeping with a teapot cures the common cold. As for ancient remedies, Dawkins reminded us that just because they are long-standing, that does not make them right, as with all beliefs.

Most scary, though, was Deepak Chopra, who openly disputed science and the scientific method, and apparently counts among his followers Hillary Clinton, who could be the next President of the United States.

Sunday, August 19, 2007

Internet Abuse

Just a quick post to apologise to commenters for now requiring them to go through word verification before their comment is published. Unfortunately Family Lore was yesterday the victim of 'comment spam', so I have had to turn word verification on to prevent spam comments, or at least make it more difficult to publish them. These days I like to make it as easy as possible for readers to leave comments, but once again the dead-head abusers of the internet make life harder for the rest of us.

Thursday, August 16, 2007

A Very Public Divorce

I'm not sure I quite understand why, but performance artist Cathy Gordon chose to mark her divorce by a 'Public Divorce Ceremony', celebrating her eight year marriage. The 'ceremony', which took place in Toronto on the 13th August, involved her dressing up in her old wedding dress and crawling to eight 'stations' around the city, one for each year of the marriage.

Cathy says that she "got way more than [she] ever expected" from the experience, but I don't think I'll be recommending it to my clients.

Clarity or flexibility?

The Times yesterday reported that Euromillions lottery winner Angela Kelly has promised to share her £35 million winnings with her estranged husband, even though under Scottish law she has no obligation to do so. The report highlights the difference between Scottish and English law - under the Scottish system assets acquired after the parties separate are apparently "largely irrelevant" to the divorce settlement, whereas under the English system the starting point is equal division of all assets, and it is purely at the discretion of the judge whether assets acquired after separation should be excluded.

Which system is best? Clarity/certainty or flexibility/uncertainty? I know where my vote goes.

Tuesday, August 14, 2007

Enemies of Reason

Last night on Channel 4 Richard Dawkins treated us to another oasis of reason in the desert of modern superstition and delusion. This time his target was not organised religion, but irrational belief systems such as astrology, New Age mysticism, clairvoyance, tarot, alternative health remedies and dowsing. Many non-believers will consider these things to be harmless nonsense, but Dawkins points out that some have considerable following (a quarter of the British population claim to believe in astrology), and argues that not only do they impoverish the mind but that their lack of respect for reason and evidence actually restricts human progress and allows extremist theories to go unchallenged.

The programme had some priceless moments, such as when a clairvoyant claimed that Dawkins's grandmother had many cats, only to be told that she hated cats, and the sight of dowsers (in a controlled experiment) making excuses for their failure to find water any more often than pure chance would dictate. You would have thought that, presented with such evidence, the dowsers would have realised that dowsing was nonsense, but I suppose that is the point - they steadfastly refuse to accept reason and evidence.

Interestingly, Dawkins also argues that prejudice against science is evident in schools, blaming 'relativist' thinkers who have "made it fashionable in education to teach students to value private feeling more highly than evidence-based reason". I couldn't agree more. Science has given us terrific advances in our knowledge which have led to us leading longer, healthier and more fulfilled lives, yet we seem to treat it with the sort of take-it-for-granted contempt that a teenager may have for his or her elders.

I have myself come across the argument "there must be something else", from people rational enough to disregard religion, but not able to completely throw away the 'comforter' of superstition. My answer comprises two questions:
  • Why must there be something else? I'm not saying there isn't, but I require some evidence before I'll accept that there is; and
  • What more do you want? In last night's programme Dawkins exhorted viewers to do something I think too few people do: look up into a clear night sky and glimpse a tiny fraction of what is out there - how can anyone seeing that say they want more?

Monday, August 13, 2007

Despair and Hope

The HideoutFunny where a trail on the internet can lead. Here's a short one I followed this morning. First, I received the excellent weekly family law update from Family Law Week. This mentioned a rather worrying survey of the attitudes of young people towards domestic violence, carried out by The Body Shop as part of their Stop Violence in the Home Campaign. Funds from the campaign go to Women's Aid to help them develop The Hideout, a website which aims to support and inform children and young people about domestic violence.

The trail started with a note of despair and ended with a message of hope. The results of the survey depressingly suggest that many young people have a somewhat blasé attitude towards domestic violence which, without education, is likely to perpetuate this awful scourge. On the other hand, The Hideout provides a place where children and young people affected by it will find that domestic violence is not 'O.K.', and that they do not have to suffer it alone. It seems like an excellent resource to recommend to children, who can be as much victims of domestic violence as their parents.

The Hideout has a marketing poster available here, from which the above picture was taken.

Saturday, August 11, 2007

Advice for adulterers

If you're considering being unfaithful, just make sure your car isn't equipped with an electronic toll collection system. In the northeastern United States, the lies of adulterers as to their whereabouts have been exposed by the records of one such system, E-ZPass, as reported in the Guardian: "Lynne Gold-Bikin, a Pennsylvania divorce lawyer, said E-ZPass helped prove a client's husband was being unfaithful: "He claimed he was in a business meeting in Pennsylvania. And I had records to show he went to New Jersey that night.''"

I can't help thinking that American divorce lawyers have a far more interesting job than their English counterparts.

Wednesday, August 08, 2007

Child Support: an experiment that failed?

Following my last post, I received an email from a mother in Australia complaining that the child support system there isn't any better than here. She says her children's father died owing some seven thousand dollars to the Child Support Agency.

This set me wondering - if the system is also not working elsewhere, is the whole concept of non-court child support simply an experiment that failed? If it is, then it has had devastating consequences for many of the guinea pigs involved.

Monday, August 06, 2007

Debbi's Story

The other day I received the following comment on this post:

I have an ex self employed partner who in 2000 decided being a father wasn't his cup of tea, and disappeared, called in the CSA from 2000- 2004 not a word or penny from the ex, then he sold his house and we got some off the arrears through a charging order, then suddenly he contacts them, I'm no longer working as a builder and Im not claiming any benefits so could you kindly reasses me , certaintly the CSA said, here have a nil assessment, (note the sarcasm) hold says I , this is a self employed builder who for 15 years fiddled his tax returns and is known for working cash in hand, sorry says the csa, nil assessment stands , enter tribunal, no response for information from NRP and i win, NRP asks for it to be set aside and it is, 1 yr later tribunal heard how he bought a £340,000.00 house for he and his partner and how he gave up work to work for himself on his "6 bedroom dream house" for 2 people why ? "because I can" ! he wins second appeal because on grounds of deprivation of income a self employed NRP cannot deprived themselves of an income, so he lives in a 6 bedroom house, claims not to have done any cash jobs in 4 years,even though tribunal agreed his tax returns were false and he had worked cash in hand, has a mercedes van, an alfa romeo car, and a boat in the drive.. and a nil assessment !!... yep I hold the CSA and the tribunal service in high regard !!

I haven't verified the facts, but if we have a system that can allow an able father who lives in a £340,000 house to pay nothing for his children, then we have a system that is broken. What's more, I can't see that the proposed reforms to the system (C-MEC), will help people like Debbi. The only chance that she would have for justice is a return to the old court-based system, perhaps only for those cases considered inappropriate for the child support system, or its successor. Only a court can properly examine the facts and, where it is clear that the absent parent has the means to pay, even if he/she claims to have no income, the court can infer that he/she has an income, put a figure to that income, and make a maintenance order. For example, the court can look at any income figure given in a mortgage application, or look at lifestyle compared to disclosed income, such as in a tax return - if it is clear that that lifestyle is of a far higher standard than the disclosed income would allow, then the court can adjudge that the true income is higher.

Friday, August 03, 2007

Silly Season

Some people never know when they're beaten. Like a boxer who's been knocked down twice, John Charman, refused leave to appeal to the House of Lords, is apparently considering getting up again and continuing his quest for a court that will find in his favour. This time he may apply to the court in Bermuda, where he now lives. If he does, I hope the Bermudan court refuses to deal with the matter on the basis that he has already exhausted his remedies in another jurisdiction, so that Mrs Charman can be allowed to get on with her life.

Meanwhile, in America a husband in a divorce case is claiming that he can fire his wife’s lawyer and sign his wife’s name on a contract to sell the couple’s house, because a little-known section of state law says a husband may act as his wife’s attorney or agent. Could lead to some interesting situations!

It's always nice when couples can remain on good terms after divorce, especially where children are involved, but Britney Spears may be taking things a little too far. She is reported to be planning to take her now ex-husband Kevin Federline to Disney World to celebrate their divorce. Perhaps she's just taking the Mickey...

Lastly, Stagecoach bus driver Alan Curran has been threatened with divorce if he drives buses branded "Champions of Champions Liverpool FC". His wife, an avid Evertonian, has told him to refuse or face divorce, but he says if he refuses he could face the sack. Clearly, Mrs Curran is a woman who has her priorities right...

Thursday, August 02, 2007

Big Brother Britain

"Police want DNA from speeding drivers and litterbugs on database", The Times, today, 2007, not 1984.

Wednesday, August 01, 2007

Fools don't rush in

ResolutionTo coincide with the publication of the Law Commission Report, Resolution yesterday issued a press release giving details of the results of a survey which indicated that more than 70% of family lawyers surveyed stated that, in their experience, the law badly fails to protect the interests of cohabiting couples when they separate. The primary reasons for this failure were cited as the lack of any legal remedy, costs and uncertainty of outcome. Resolution states that this clearly shows the need for reform, and that accordingly it fully supports the Law Commission’s proposals, and "will be pressing the government to move forward and introduce new legislation without delay".

Whilst I certainly agree with the need for reform (I took part in the survey), I'm not entirely convinced by the Law Commission’s proposals, and I certainly don't want any change to be 'railroaded through' without due consideration.

Take for example the 'opt-out' agreement. Lynne Bastow at DivorceSolicitor has already pointed out her concern: "No doubt it will become standard practice for the cohabitee with financial clout to insist that the cohabitee with financial disadvantage signs the opt-out before they move in". Opt-out agreements can be set aside, but only if their enforcement would give rise to "manifest unfairness", which is clearly intended to be a high hurdle to jump. Note also that the presence of children will not be a bar to entering into an agreement.

As to the grounds for financial relief, these introduce three concepts: "qualifying contributions" the applicant has made (including future contributions, for example to the care of the children after separation), the respondent having a "retained benefit" and the applicant having an "economic disadvantage". The "economic disadvantage" and the idea of non-financial contributions are new, and are to be applauded - they will provide financial relief, for example, to parties that give up work to look after the children. As for "retained benefit" however, I can see this giving rise to similar disputes to those we have at present whereby one party claims an interest in the property belonging to the other, as a result of financial contributions. The proposals do give the court some discretion (see paragraph 4.38), but if you're going to go down the discretionary route, why not go the whole hog and simply say that the court can make whatever order it deems fit, having regard to all of the circumstances? It seems sometimes that the Law Commission is struggling to ensure that it doesn't give cohabitants the same rights as married couples.

As indicated by Resolution's survey, most of us are agreed upon the need for reform, and would like this to happen quickly, but surely we want the best new system, rather than rushing ahead with any old system? I'm not saying the Law Commission's proposals are bad, but I'm not yet convinced that they are the best we can come up with.