Shared residence is an issue that is becoming more and more important, and which can cause considerable confusion. I have therefore been waiting for a report of Re K (Shared Residence Order), the judgment of which was given on the 4th April. I have now seen a short report (citation: [2008] All ER (D) 55 (Apr)), and I think it is of interest, particularly regarding the relationship between shared residence and contact.

Briefly, the facts were that the child spent approximately 60% of his time with the mother and 40% with the father. The father applied for this to be increased to 50%, and sought a shared residence order. The district judge found that the slight benefit to the child of the increase in contact with his father was outweighed by the disruption to a regime that seemed to be working well, and therefore refused to increase the contact. He then went on to separately consider the issue of shared residence, and refused to make the order, after referring to the additional contact being 'required' to lead to a shared residence order. The father appealed unsuccessfully to a circuit judge, and then appealed to the Court of Appeal.

The Court of Appeal found that the district judge should have heard both issues together, ruling first on the appropriate division of time, and then whether that division should be expressed in terms of a shared residence order or a contact order. The district judge's decision not to increase the contact was within his discretion, and therefore the contact would not be increased. However, he had erred in treating that issue and the question of a shared residence order as standing or falling together. A shared residence order was appropriate, and would therefore be made. The mother had argued that the father would use a shared residence order to interfere with her role in relation to the child, but no such 'malign intent' on the part of the father had been established.

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Here's an interesting local service that I've just become aware of: Medway Positive Parenting Network is a 'local service directory for children and families' that 'enables parents, carers and professionals to access a wide range of support services and information for parents and families in the Medway area, 24 hours a day'. The site includes information on divorce and separation and details of many local agencies including CAB, Family Mediation Service, N.S.P.C.C. and Relate. An extremely valuable resource, although I'm not sure whether a similar service is available elsewhere.

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I came across a story from America yesterday that suggests that the divorce rate could be dropping because of the slowdown (halting?) of the property market. I've not yet seen any direct evidence of this over here, but it is of course the case that in many divorces the matrimonial home has to be sold, and in a lot of those cases, the parties have no real option but to remain in the property until the sale takes place. This could be causing enormous hardship, especially where one of the parties is suffering physical or emotional abuse.

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[rant mode on] I had intended not to mention the McCartney/Mills divorce again here, but I feel I have to post once more to correct numerous misleading reports that have been published regarding the pronouncement of the decree nisi today. Contrary to what they state (or indicate), the decree nisi does not finalise the divorce. The divorce will not be finalised until the court makes the decree absolute. [/rant mode off]

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It was a divorce lawyer's nightmare: 650 couples with 43,000 years' experience of marriage between them. They attended mass at the Roman Catholic Westminster Cathedral yesterday to celebrate the institution of marriage, but also to 'warn of the dangers of letting it go'. The event was organised by Cardinal Cormac Murphy-O'Connor, the leader of the Roman Catholic Church in England and Wales, a man whose personal experience of marriage is, of course, nil.

The Cardinal spoke of the effects of marriage breakdown on society and the importance therefore of couples staying together. Surely, however, the simple fact is that marriage is no longer viewed by many as 'for ever', so there is no point in exhorting couples to 'work at it'. I'm also not persuaded that changes in legislation are to blame for 'undermining family life', as the Church is suggesting - laws generally only react to what has already happened. Society itself has changed, and we need to learn to live with it, rather than try to turn back the clock.

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Last week's diary:

Tuesday: Back to work, grateful that the bank holiday weekend is over. A quiet day, although a secretary who works in our basement did think she heard an animal moving inside the blocked chimney in her room.

Wednesday: Appeared in the Magistrates' Court - a rare occurrence for me since I stopped doing legal aid work. Likely to occur more frequently though, with the County Court easing its list by transferring matters to the Magistrates' Court, as happened in this case. Got back from court and the secretary reported that she could still hear something moving in the chimney, so I helped to open it up. No sign of life inside.

Thursday: Had a presentation from a company that produces videos for clients to watch while waiting in reception - you know, like you get at post offices and banks. Will do wonders for business, apparently. We shall see whether the firm is convinced. Still no sign of life inside the chimney, although the secretary swears she can hear a bird in there.

Friday: Another quiet day. The secretary still hears sounds from the chimney, and a colleague opens it up. Nip outside for a fag at lunchtime. Hear someone trying to open a window. Look round to see who it is - a pigeon! A bit sooty, but none the worse for falling down a 50-foot chimney, and even for spending three days in a solicitors' office. Thankfully, now flown away, and hopefully won't be back to sue the firm for false imprisonment, or in this case, 'doing bird'.

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The inquest into the death of Mark Saunders was told this morning that he was shot at least five times, with more than one type of bullet.

Comparisons will inevitably be made with the killing of Jean Charles de Menezes in 2005, but there is of course one essential difference: de Menezes was unarmed. That said, let's hope the full facts surrounding the shooting come out this time.

The inquest was adjourned for four months.

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As a tribute to the late Miles Kington, The Independent has been reproducing some of his writing. With its relevance to the subject of this blog, this column, republished today, amused me.

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I've just heard that the man shot dead in the Chelsea siege last night was family law barrister Mark Saunders of Queen Elizabeth Building chambers (their website is currently unavailable). I'm not going to discuss the circumstances surrounding the incident here (see this story in The Telegraph), and I'm certainly not going to suggest that it was any more awful because the deceased was a barrister, but it is a tragedy not just for the family but also for the profession that such a promising career has been brought to an end in such an appalling way.

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The Judiciary website has published a speech (PDF format) given by Sir Mark Potter in Israel on the rights of children to be heard. I wonder if this means that male children in that country will have a say on whether or not they are circumcised? After all, unnecessary circumcision would surely be classed as abuse if it were not shrouded by the 'legitimation' of religious delusion.

[Thanks again to Current Awareness for the link.]

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H v H [2008] EWHC 935 (Fam), reported today on Family Law Week, involved a family business, in which both parties had an interest, but which was run by the husband. Both parties sought a clean break, but Mr Justice Moylan, not willing to require the husband to sell the business, found that the non-business assets were insufficient to achieve a fair clean break. He therefore awarded the wife 67% of those assets, and ordered the husband to pay £60,000 per annum spousal maintenance.

This was a relatively 'big money' case, but I think it has application to many cases involving parties of more modest means. It is a common scenario that the family business, being the only or main source of the family's income, cannot be sold and must therefore remain the property of one of the parties. This can then leave insufficient other assets for there to be a clean break, desirable though this may be, and the other party may therefore have to rely upon periodical payments to 'make up the difference'. The amount of the capital and maintenance elements of the settlement will usually be based upon needs and sharing, as in H v H.

Of course, the maintenance may later be capitalised, upon a subsequent application by either party for a clean break, if circumstances then make a clean break possible.

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Each year when I receive my copy of The Family Court Practice I read the Introduction, primarily to see what is new in this years' edition. The Introduction is written by the General Editor, His Honour Judge Anthony Cleary, and is notable this year for his comments on the need to reform s.25 of the Matrimonial Causes Act, following "broad hints" from the courts "that reform is long overdue, particularly since the overwhelming majority of ancillary relief disputes are commercially in a very different league to the "big money cases" and are still driven more by need than principles of equality". As a practitioner who does not deal with "big money cases" I could not agree more. As I have indicated here on a number of occasions, if the statutory guidance were clearer, then I'm sure that a far higher proportion of cases could be settled, thus saving precious resources.

I've also complained about the clear reluctance of Parliament to address this important issue, and His Honour goes one further by questioning whether Parliament is "currently the most suitable vehicle to investigate and reform" this or any other area of family law, in the light of the effects of the criminalisation of breach of non-molestation injunctions, where he says that "there remains a suspicion that this reform paid too much attention to newspaper headlines" and that "family practitioners and judges were ignored". "It is crucial", he says, "that law makers show a greater ability to listen and comprehend." Quite.

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This religious madness doesn't need any further comment:

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Many thanks to Nick Holmes of Binary Law for his kind and flattering mention of Family Lore in the article he wrote for the April issue of the Legal Executive Journal.

The article included a couple of sample posts by myself and Nearly Legal. The Editor chose this post from Family Lore (and an extract from this excellent post by Nearly Legal), but amusingly he changed 'Muhammed' to 'M'. Chicken.

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"More reminiscences?" Giggled Muhammad, looking over my shoulder.

"As a matter of fact, yes." I replied, indignantly. " I thought I'd do a post about life before the word processor, when I first worked in a solicitors' office."

Muhammad laughed. "Do you think readers will be interested in the use of the quill pen?"

I ignored him. "The first office I worked in," I said, "had manual typewriters."

Muhammad yawned, wide pink. "Oh really?" He said, clearly bored with the subject.

I pressed on. "Yes," I said, "but they were getting electronic ones."

"With screens?"

"No, they came later. The first ones with screens could only display one line of text - so that the typist could check what they had typed, before printing it."

"Wow, high tech." Said Muhammad, sarcastically.

"Actually," I said, "that was the beginning of a revolution. Until then, all errors could only be seen when they were on the paper - correcting them meant either rubbing out the error, or covering it with correction fluid. Some documents, like wills, could not be corrected - they had to be completely re-typed."

"You mean, like when I'm having a wash, you handle me and I have to start all over again?"

"Exactly." I said, trying to mask my amusement at the comparison.

"That must have been bloody annoying." Said Muhammad with feeling, absently licking a paw.

"It was. Thankfully, those days are long gone."

Muhammad got up, stretched, and made his way towards the cat flap. "Yes, it was a long time ago." He said. "What's it like being old?"

My slipper hit the flap as it bounced shut.

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I've just received an email from Kent Family Mediation, detailing a new service that they are launching for parents who live apart. From June they will be offering parenting workshops to 'inform and support' all such parents:

"The 3 hour workshops will provide an opportunity to discuss, amongst other things, what children are feeling and saying about separation and divorce in their lives; current research on the impact of separation and divorce on children; how to communicate effectively. The workshops will be a safe place to share and learn, focusing on ‘children first’."

Parents will be able to attend the workshops either jointly or separately. The first two workshops will take place in Sittingbourne, but others are planned for venues across Kent later in the year.

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Jacqui Gilliatt has already posted about Lord Justice Ward's comments the other day about the impotence of the courts to help fathers to see their children if 'vengeful mothers' stood in the way, both on her own blog and on the Family Law Week blog, but I can't let it be.

Lord Justice Ward called the situation a 'public scandal', and Jacqui Gilliatt indicates another: the Children & Adoption Act 2006 was passed nearly two years ago and would provide the courts with significant new powers in relation to contact orders, but there appears to have been no word from the Government for the last year as to when the relevant provisions will be implemented.

Would the Act have made any difference to the outcome of the case in which Lord Justice Ward was sitting? This seems unlikely to me. The Act includes various provisions, including enforcement orders (essentially requiring the parent in breach of the contact order to do community service), the power to order one parent to pay the other compensation for any financial loss caused by the breach, and the ability of the court to request a CAFCASS officer to monitor compliance with contact orders without the parents' consent, but would such powers have helped the court here? The problem, of course, as pointed out by Lord Justice Ward, is that in the end the welfare of the child is always paramount, and it would often be too distressing for a child to force them to have contact with a parent against whom their mind has been completely poisoned.

So, do I think that the Act is a waste of time? Certainly not. I'm sure that the additional tools that it will provide will assist the courts in many cases, and help to ensure that a considerably higher proportion of its orders are complied with. All of which, of course, is subject to the caveat that the Government actually implements it.

* * *

Update: The Ministry of Justice has now published a consultation paper seeking views on draft court rules and forms to support the implementation of the remaining provisions of the Act. Thanks, as so often, to Current Awareness for this.

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I thought I'd begin the new month with a celebration of the best of the old. My (entirely personal) award for the best blawgpost of April 2008 goes to Charon QC for "A trip to The Heron".

Please, don't ask me to explain exactly what the post is about - when one reads Finnigans Wake, one doesn't have a clue what it's about, but one knows that one is reading a work of genius.

As we speak, the prize of a virtual case of Barón de Barbón Oak-Aged Rioja 2004 is winging it's way across the internet to Charon QC.

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