Tuesday, November 25, 2008

I Do (for now at least)


I did a post back in April about wedding rings inscribed with the bride and groom's initials in binary. Well, if that wasn't different enough for you, how about this, found via Boing Boing: wedding rings carved with the soundwave of the bride and groom saying "I do". The rings are the work of the Japanese designer Sakurako Shimizu. Perhaps she could do a divorce ring with the soundwave of "I don't"?

Domestic Violence News

Today is International Day to Eliminate Violence Against Women/White Ribbon Day, marking the start of 16 days of worldwide campaigning against 'gender based violence'. The White Ribbon Campaign is a global campaign to ensure men take more responsibility for reducing the level of violence against women.

Meanwhile, the Guardian today reports a speech given by Attorney General Baroness Scotland in Paris yesterday, ahead of International End Violence Against Women Day. In it, she stated that domestic violence costs the British economy £5.8bn a year, and significantly depresses women's ability to contribute to economic growth.

As the Guardian report mentions, the main provisions of the Forced Marriage (Civil Protection) Act 2007 came into force today. Forced marriage is a significant cause of violence against women. As a reminder, the Act enables a victim, friend or the police to apply for a 'Forced Marriage Protection Order', which can forbid families from actions such as taking people abroad for marriage, seizing passports or intimidating victims.

The only thing that I would add to the above is that men are, of course, victims of domestic violence as well as women.

Monday, November 24, 2008

Leave Your Emotions at the Courtroom Door

Like, I suspect, many solicitors I have been watching the strange goings-on on the other side of the profession in the BBC Series The Barristers. The latest episode included a section following family barrister Louise McCabe, as she represented a husband in an ancillary relief case. First we see them in a four-hour conference, during which McCabe is clearly doing her best to persuade her client to settle, rather than go through the expense of a 'day (or three) in court'. "I'm talking myself out of a three-day job... so there's no benefit to me in you settling this", she tells her client. But the words fall on deaf ears, the husband unable to see the logic of her advice through the emotion of his situation, and the matter proceeds to a contested hearing (which ends up costing the husband over £50,000).

We next see McCabe at court, where she is involved in a lengthy cross-examination of the wife. After twenty-five minutes of this there is an adjournment, as the wife needs a break - as does everyone else, acknowledges McCabe, the stress of the situation clearly reaching her as well as the parties. Perhaps the most poignant moment comes when, during cross-examination, the wife acknowledges that McCabe's client was a good husband. The hearing continues and, surprise surprise, the judge orders an equal division of assets.

Finally, we see McCabe at home that evening, when she acknowledges that it had been a hard day. Her job, she reflects, makes her very sure that she never wants to get divorced, or that if she does divorce then she does not want to go through 'this process'.

All in all, I think an excellent, albeit fairly brief, insight into 'the process', and into the workings of a lawyer's mind - perhaps enough to remind clients that lawyers are human too, even if they have to leave their emotions at the courtroom door.

Sunday, November 23, 2008

Sorry, but I can't sign this...

A couple of days ago I received an email requesting me to sign an e-petition "to Prosecute women who use false accusations to restrict fathers access to children". The details state:
"It is well know that many women lie to the police to prevent or restrict fathers access to their children. The Police and family courts not only turn a blind eye but their acceptance of this practice only encourages women to keep doing it.

Fathers are not guilty by default! They are usually the more level headed parent, willing to put the childs interests first and yet they are criminalised by the false accusations of their ex partners.

It is often the mothers who are breaking the law and putting their childs interests second to their own selfish and vindictive tendancies."
The email came from someone calling themself 'Justice in-the-family-court', although the petition was proposed by a David Reabow, who has previously proposed a petition "to Give children truly equal parents and bring back common sense to parenting."

Like all family lawyers, I have come across mothers who make false accusations against fathers in an attempt to stop them having contact with their children, but I can't sign this petition. In my experience completely untrue allegations are rare, and where they are made the courts certainly do not 'turn a blind eye'. I also do not think it is true that fathers 'are usually the more level headed parent' - I make no distinction between mothers and fathers, and nor should the law. However, my main reason for not signing is that I do not think it would be at all helpful if more mothers were 'criminalised' in this way. It is already, of course, an offence to commit perjury (perhaps parties should be reminded of this), and involving the criminal law any further in what is a civil matter cannot be to the benefit of anyone, especially the children.

Friday, November 21, 2008

Mr Justice Ryder's Vision

Mr Justice Ryder's Conkerton Memorial Lecture 'The Autonomy of the Citizen in the Context of Family Law Disputes' has been published (in PDF form) on the Judiciary website. In it, and not for the first time, Mr Justice Ryder gives his forthright views on the family justice system. He argues "for a family justice model which recognises that there are a myriad of ways of living one’s life in company with others which do not need prescription or validation from the state including the courts". "I suggest", he says, "that the time is ripe for an increasing emphasis on autonomy, social responsibility and flexibility of service delivery including in the legal domain to achieve a real benefit for individuals." In practice, he suggests, this could mean such things as greater legal weight for pre-nuptial and pre- or post-cohabitation agreements, and separate representation of (older) children becoming the norm.

He concludes by putting forward a number of options, including:
  • That, subject to the protection of the vulnerable, "the process and the judgment of the court should be subject to public scrutiny";
  • That there "be a presumption that the child who is Gillick competent in relation to a key issue should be provided with representation or an effective means of exercising their autonomy, for example by making representations to the judge";
  • That there should be "greater emphasis on alternative and more proportionate dispute resolution mechanisms" with "strong ground rules which can best be provided ... by codes of practice or guidance"; and
  • That "where the ground rules have been complied with the court should make available its enforcement powers to give effect to the agreements reached."
[Thanks to Current Awareness for the link to the lecture.]

Madonna/Ecclestone: Good News and Bad

I suspect that the media disappointment that we will apparently not be treated to another Macca/Mucca circus in the Madonna/Ritchie divorce (thanks to Jailhouselawyer for the original heads-up) may have been alleviated somewhat by the news that Formula 1 boss Bernie Ecclestone is to divorce, in what could be the biggest settlement in legal history.

If it is true that Madonna and Ritchie have agreed arrangements for their children and a financial/property settlement then I am genuinely pleased - this is obviously good news for them and for their children, even if not quite such good news for their lawyers. If Ritchie has agreed to make no claim against Madonna's estimated £300 million fortune, then this would appear to be generous on his part, although it is, of course, easier to be generous when you have a £30 million fortune of your own. Their decree nisi is being pronounced in London as I write this.

Turning to the diminutive Ecclestone and his rather less diminutive wife Slavica, they are estimated to be worth some £2.4 billion, making Madonna's fortune seem like small potatoes. What is it though with this incessant slavering over whose will be the biggest divorce settlement? This isn't some hideous competition, with a prize for the winner - this involves real people with real lives. Of course, as a lawyer I am interested in whether some new point of law emerges from the case, but the size of the settlement per se is of no interest to me whatsoever.

Thursday, November 20, 2008

White v Withers LLP: No cause of action

The case of White v Withers LLP & Anor [2008] EWHC 2821 (QB) deals with that all too common scenario where one spouse takes documents belonging to the other spouse, for possible use in ancillary relief proceedings. The new wrinkle here is that it was alleged by the husband that the wife took his documents "on the instructions or at the encouragement of [her] solicitors", Withers LLP. Unfortunately for him, the husband had no evidence to support this allegation, which was denied both by the wife and Withers, and his claim was struck out by Mr Justice Eady.

Points to note:
  • Obviously, it would be quite wrong to advise or encourage a client to take documents belonging to their spouse, and "where one spouse takes documents belonging to the other, intending to use them in matrimonial proceedings or to seek advice on them in that connection, and that involves intercepting post or breaking into (say) a desk, study or vehicle, the impermissible act cannot be excused merely because of the motive."
  • However, "a document "left lying around" can be copied and used in the proceedings, but it would not seem to be right to take and keep an original, especially perhaps when that involves concealing the document's existence altogether from the intended recipient."
  • Accordingly, a demand for the return of any such document should be complied with, but there is nothing to prevent the solicitors retaining a copy (the only criticism of Withers was that they had kept some original documents, rather than copies).
  • Withers contended that the husband's claim constituted an abuse of process, an attempt "to cause hassle for Mrs White and her solicitors – and perhaps to give rise to a conflict of interest such that they would have to withdraw" (the husband had previously failed in an attempt to have Withers taken off the record). However, Mr Justice Eady came to no conclusion on that, having already decided that the husband's claim disclosed no cause of action.

Wednesday, November 19, 2008

3 Day Week

It's nice to hear that partners at Britain’s ten biggest law firms took home an average of £1.1 million in profits last year (thanks, Current Awareness). Unfortunately, things aren't quite so rosy at the other end of the profession. In fact, it often feels like I'm not in the same profession at all. You see, since August I've been on a three-day week. I don't expect any sympathy - lawyers these days are held in such low regard, and others have lost their jobs entirely - but it does grate when I'm tarred with the same brush as the 'fat-cats', when I can now barely pay my rent.

Of course, if there is any employer out there who has some part-time work available for a hack family lawyer, then I could just be your man...

Tuesday, November 18, 2008

Hard Times

The arguments continue as to whether the economic downturn will lead to more or fewer divorces. In a survey of the American Academy of Matrimonial Lawyers, 37% of members responded that they typically see a decrease in the number of divorce cases during downturns, while only 19% said they saw an increase. I tend to agree that, if anything, there will be fewer divorces. What will further hit the profession, of course, is that fewer people going through a divorce will be prepared (or able) to pay large solicitors bills. There will therefore be a proportionate increase in litigants in person, and a greater willingness to compromise (the latter, of course, not necessarily a bad thing). My advice to budding family lawyers: do insolvency work instead!

Monday, November 17, 2008

Tory Reform Plans

As has been widely reported (see, for example, here), the Conservative party is likely to adopt a set of proposals to reform family law in this country, with the aim of 'strengthening families'. The proposals include the following:
  • Making it more difficult to divorce - I've not seen any detail of how they propose to do this, but it seems to fly in the face of recent trends towards no-fault divorce.
  • Making pre-nuptial agreements binding - something that is likely to happen anyway in the not-too-distant future, although I'm not sure that this will in fact encourage more people to get married save, perhaps, amongst the super-rich.
  • Preventing children losing contact with their fathers and grandparents - a laudable aim, but how?
  • Making divorce settlements 'more consistent' - does this entail doing away with our discretionary system?
  • Setting up a network of 'family relationship centres', which can help separating or divorcing couples. A nice idea (although I'm not sure how it will differ from Relate), but where is the funding going to come from?
  • Scrapping plans to give property rights to cohabitees, which are seen to undermine marriage - going against Labour policy that families of all kinds are equally viable, and that marriage is merely a 'lifestyle choice'.

Sunday, November 16, 2008

Potter under investigation again

I've asked the question before: should Sir Mark Potter, President of the Family Division, have given a character reference for Bruce Hyman, the barrister who was found guilty of perverting the course of justice in connection with a case involving family proceedings? As we all know, the Office for Judicial Complaints dismissed the complaint against him by Simon Eades, Hyman's 'victim', finding that the reference had been given by Potter "in his personal, not judicial, capacity, without any reference to his judicial position". What the OCJ did not know, however, was that the reference was originally made by Potter on his official headed stationery (see above). As The Observer reports today, the OCJ has now reopened the investigation.

Friday, November 14, 2008

Barmy

Let me tell you the tale of Dave Barmy. Dave was an old romantic at heart, albeit not one who liked to stray far from his PC to find love. And that's just what he did, meeting his first love in an internet chat room, going on to marry her, both in reality and in 'virtuality'. But Dave was not satisfied with this, so he returned to his Second Life (looking just slightly different from how he looked in reality), where he found his second love. Unfortunately for him, his attempts to conceal this from his wife failed, and now poor Dave finds himself divorced.

Thursday, November 13, 2008

An Unrealistic Goal

I'm only going to make one comment about the 'Baby P' tragedy. The Government has quite rightly announced a review, and hopefully that will lead to improvements in procedures in the future. What annoys me, however, is politicians and the media making fatuous statements along the lines that "we must ensure that this never happens again", or similar. I'm sorry, but this is simply not possible. Our system may not be perfect (and I'm saying nothing about the facts in this particular case), but thankfully it tries to keep children with their families wherever possible, and so long as that is the case then mistakes will occur and children will suffer (remember, the real culprits are the perpetrators of the abuse, not the local agencies involved). Of course, we should do everything we can to keep mistakes to a minimum, but to suggest that the system can 'guarantee' the safety of all children is a nonsense.

Tuesday, November 11, 2008

No Satisfaction

Back in July I mentioned the worrying case of Carol Williams, who was suing her lawyers for negligence for failing to advise her about the impending case of White v White, the decision in which could have led to her receiving a larger settlement. She claimed that in the light of this, her lawyers should have advised her not to settle, just three months before White was decided. It gives me little satisfaction to find that she has lost her case, as reported by the Telegraph yesterday. Mr Justice Field found her to be "a profoundly unreliable witness," whose "evidence was self-serving, evasive and, on occasion, knowingly untruthful". It seems that, far from being led by her lawyers, she was anxious to settle so that she could start a new life with her new partner. Sadly, and perhaps significantly, she has lost most of her £1.4 million settlement, due to ill-advised investments and legal costs.

The Telegraph report concludes with a quote from Carol Hill, a legal executive at Matthew Arnold & Baldwin, who said: "This is a cautionary tale for would-be dissatisfied parties. Don't necessarily assume that even if your solicitor hasn't told you everything that you are automatically going to be dashing back to court to get more money because it isn't going to be the case." How very true. I suspect that most family lawyers have come across this situation - there are so many things that could be relevant to our clients' cases that it would be unreasonable to expect us to advise of every possibility. Yes, sometimes we make mistakes and miss things that definitely were relevant, but that does not necessarily mean that that client has suffered loss for which we should be liable.

* * * * *

UPDATE: When I posted this this morning, I checked to see whether it had been reported on Bailli, but couldn't find it. Well, now it has been reported, as Williams v Thompson Leatherdale (a firm) & Anor [2008] EWHC 2574 (QB) (thanks, Current Awareness). I've not yet had a chance to read the judgment in full, but I note that Mr Justice Field concludes with the following: "As against Mr Francis [Nicholas Francis QC, her counsel], Mrs Williams has failed to prove that if she had been advised as she says she ought to have been by Mr Francis, she would have postponed any settlement negotiations until after the White decision. As against TL [Thompson Leatherdale, her solicitors], Mrs Williams has failed to show that the firm was negligent, and also failed to show that she would have repudiated the settlement agreement if TL had acted as she alleges they should have acted."

Monday, November 10, 2008

A Warning to Warring Parents

The Telegraph has reported what could be the first case in Europe of parents being prosecuted for psychologically damaging their child during their divorce. Prosecutors in Milan have asked a judge to charge the couple with ill-treatment of a minor after a health visitor reported that the child was "disturbed". Apparently, the couple regularly argued in front of the 12-year-old boy, despite him telling them that it was making him feel ill. They persistently tried to "discredit, devalue and undermine" the other in front of him, and manipulated him in an attempt to make him decide between them. As a result, it is alleged, the boy suffered anxiety and depression, and fell behind with his school work.

If this goes ahead, then it could open the floodgates of similar prosecutions. Even if it doesn't, it stands as a warning to warring parents of the effects of their actions upon their children - a topical point, coming just after the case of KSJ v WRW.

Sunday, November 09, 2008

Lest We Forget

Meet my great grandfather. I never had the chance to meet him myself. His name was Samuel Walter Bolch, and he was killed on the Somme on the 15th September 1916. He has no known grave. If only it had really been the war to end all wars.

* * *

What passing-bells for these who die as cattle?
-Only the monstrous anger of the guns.
Only the stuttering rifles' rapid rattle
Can patter out their hasty orisons.
No mockeries now for them; no prayers nor bells;
Nor any voice of mourning save the choirs,-
The shrill, demented choirs of wailing shells;
And bugles calling for them from sad shires.

What candles may be held to speed them all?
Not in the hands of boys but in their eyes
Shall shine the holy glimmers of good-byes.
The pallor of girls' brows shall be their pall;
Their flowers the tenderness of patient minds,
And each slow dusk a drawing-down of blinds.

- Anthem for Doomed Youth, Wilfred Owen.

Thursday, November 06, 2008

KSJ v WRW: Give the child a break

The case of KSJ v WRW [2008] EWCA Civ 1207 was reported yesterday on Bailli. It is an extremely sad tale of two warring parents who are completely unable to resolve matters between themselves, due to 'their mutual distrust and dislike of each other' - the words of Macur J at an earlier hearing. Apparently, the case has dragged on since April 2000, during which time almost 100 orders have been made, occupying the time of 11 judges. At a hearing as long ago as August 2004 Bennett J, clearly exasperated, concluded his judgment with these words: "Finally, I hope that this hearing really will represent the final round of hostilities. The mother and the father have a lovely daughter who brings them much happiness and to whom they are both devoted. If I may put it colloquially and bluntly: for her sake, give her a break." Unfortunately, his words fell on deaf ears, and the litigation has continued unabated.

This particular hearing took place in the Court of Appeal, where Lord Justice Wall considered no less than four different applications for leave to appeal, against four different orders, by the mother. I do not propose to go through the details of the applications and the decision (I'm not sure that there is any new law in there), save to say that it involved a Schedule 1 Children Act matter and that all four applications were dismissed. The lesson that is to be learnt from this case, however, is surely that we as lawyers must do everything in our power to bring parents together, and avoid this kind of intractable litigation.

That is not to say that I am criticising the mother's legal team (who acted pro bono). They clearly put every effort into the case, including preparing a skeleton argument that ran to 134 paragraphs over 48 pages. However, it does concern me that sometimes the lawyers can be complicit in perpetuating disputes. We may act for one of the parents, but we all also owe a duty to any children involved. For their sake, we must constantly remind our clients of the damage that their actions are doing to their children, and must not miss any opportunity to compromise.

I'm afraid that in this case, the mother continues to refuse to listen to reason. According to this BBC report (thanks, Current Awareness), she now intends to take the case to the European Court.

Crippling Ignorance

Following my last post, I'm disappointed to see that California has voted for Proposition 8, banning same-sex marriage within the state. Quite how the same people can also vote for Barack Obama who opposed the proposition and specifically mentioned including gays in his acceptance speech I don't know, but I'm sure that the San Francisco Chronicle is correct that religious prejudices had something to do with it.

How much longer will we be held back by such crippling ignorance? When will people simply learn to live and let live? If consenting adults choose to live their lives in a particular way without adversely affecting anyone else, then where is the problem? This week has seen a great victory against racism, but there is clearly still a long way to go.

Wednesday, November 05, 2008

The Audacity of Hope

It wasn't our election, but it will surely affect us all. I'm so pleased that America has made the choice it has, for surely now at last the words of Thomas Jefferson will ring true: "We hold these truths to be self-evident, that all men are created equal". Let that message spread across the world.

Monday, November 03, 2008

Contact provisions implemented at last

At last we know when the new powers to resolve contact disputes under the Children and Adoption Act 2006 will be implemented. The provisions will come into force on the 8th December (not the 25th November, as I was originally informed). Just as a reminder, they include:
  • giving the court power to direct a party to undertake a 'contact activity';
  • providing the court with the power to attach a contact activity condition to contact orders;
  • enabling the court to award financial compensation from one person to another for losses arising from failure to comply with the order; and
  • enabling the court, upon application, to impose an unpaid work requirement on the person who breaches the contact order (an 'enforcement order' - see this post).
The draft rules (including forms) can be found, in PDF format, here.

Saturday, November 01, 2008

The Week in View 1st November 2008



Jack Straw and Sharia (Divorce Survivor)

The Unverifiable Truth (Pink Tape)

Muttley Dastardly LLP: Credit-crunch is for wimps…. (Charon QC)

Mr Justice X….the beginning (Charon QC)

In the Matter of: Criminals on probation committed 120 murders in two years (Charon QC)

Hope

I just thought I would share this picture I took this morning of an adolescent swan. A little blurry, I'm afraid (it wouldn't stay still for me!), but still captures its beauty. A reminder, perhaps, that our children are our hope for the future? If so, I can extend the metaphor - the little blighter nearly took my fingers off when I fed it some bread!

October Post of the Month

Before setting out on my monthly quest around the blawgosphere this morning for the best post in October (in my, completely subjective, opinion) I checked my blog feed reader, and quickly realised that I need look no further. I have mentioned here before The Times Family Justice Campaign for greater openness (see, for example, here), led by campaigning journalist Camilla Cavendish. Well, yesterday she was at it again, in an article entitled 'First battered at home and then by the State'. Lucy Reed at Pink Tape has picked up on the article in an excellent post entitled The Unverifiable Truth, pointing out that Cavendish relies for her campaign on completely unverifiable accounts of injustice, usually coming from the, hardly unbiased, mouths of parents who have had their children removed from their care. For providing this much-needed balance to the argument of opening up family justice (with which Lucy agrees, incidentally), this wins my prize for the October Post of the Month.

And so what should be the prize? Well, Lucy became a mother a few months back, so I thought I would send her a virtual year's supply of sleeping tablets - I'm sure she could use them.