Wednesday, July 29, 2009

Freedom!


Today I left practice, never to return (see below). Amongst the things I shall not miss (and in no particular order) are the following:
  • Difficult clients
  • Doing the same things I've done a thousand times before
  • Working 9 to 5
  • Waiting around at court
  • Completing Form Es
  • CPD
  • Having to follow crass rules
  • Preparing court bundles
  • Wearing a suit!
I am now embarking upon a new venture, working freelance. I do not know whether it will provide me with a living, but even if it does not, I do not intend to return to practice - and if anyone finds me even contemplating such a thing, they have my full authority to call the men in white coats.

Tuesday, July 28, 2009

Re N: How parents should NOT conduct themselves

I've come across some acrimonious children disputes in my time, but few can compare with N (A Child), Re [2009] EWHC 1807 (Fam). The case is an object lesson in how parents should not conduct themselves.

The child was born in 2001. The parents were not married and separated in late 2002. The proceedings began in October 2003 (when the mother made a Schedule 1 Children Act application and the father applied for residence and interim contact) "and have continued ever since with unabated vigour". Along the way there have been innumerable hearings, including one in July 2008 before the President of the Family Division, who described the attitude of the parents as "acrimonious, confrontational and emotionally fraught in relation to N's residence and parental contact". At that time the guardian stated:
"Examination of the papers reveals a wholly deplorable situation. N is a young boy who has two parents who love him but who have demonstrated an unwillingness or inability to put his needs first and who as a result of their relentless pursuit of their own agendas have caused him emotional harm and arguably that emotional harm is significant. This situation cannot be permitted to continue. The parents need to stop trying to score points against each other and examine instead their own actions to ensure that N and his needs are put first."
But continue it has, most recently before Mr Justice Munby. I won't go into the details, but essentially the father was attempting to re-open the matter of arrangements for N after a consent order had been made. The father's actions received short shrift from Mr Justice Munby: "in his more sweeping ambitions – and this in reality is what he is determined to engineer, whatever and however – he seeks completely to subvert and destroy the consent order. For what he seeks is nothing less than to re-open the whole matter, in the hope that he will obtain the sole residence order which in over five years of litigation has thus far eluded him".

And what of the child? He has pleaded with his school, the social worker and the guardian for the fighting (he calls it "the trouble") to stop, but thus far to no avail. Pointing out the responsibility that the parents have to their son, Mr Justice Munby warned: "They merely abdicate that responsibility if they come to court ... and what do they imagine their son thinks of them, what do they imagine their son will think of them in future, as a teenager and later as an adult?" He went on: "unless the parents do now buckle down, unless the court declines – resolutely and with immediate effect – to arbitrate where the parents refuse to agree, even though they can and should be able to agree, the process will continue until N simply 'votes with his feet', perhaps, and worst of all, until he abandons them both, pronouncing a 'plague on both your houses.'".

Will the parents now listen? I will not hold my breath.

In the course of the proceedings the father had raised issues regarding Mr Justice Munby's case management. Mr Justice Munby's response is noteworthy: "the antics of litigants who, like the father here, seek to defy, without appealing, the orders which the judge to whom a case is reserved has thought appropriate to make as part of his responsibilities to ensure the proper management of the case, merely redound to the disadvantage of other litigants – and other children – who, patiently awaiting their turn in an already over-long queue, comply with the court's directions."

Sunday, July 26, 2009

I am honoured!


My great thanks to Law Minx, who has honoured me with one of her First Annual Minx Blawggies, the Family Lawyer of the Year Award. I don't know what to say...

Friday, July 24, 2009

Law of Unintended Consequences


My thanks (once more) to John Hirst of Jailhouselawyer's Blog for pointing out this story, that appeared on BBC Newsnight last night. Nineteen-year-old Canadian Rochelle Wallis married her Welsh husband Adam in November 2008, but is about to be deported from the UK and has been told that she will not be able to return until she is 21. "She has become the first unintended victim of changes to UK immigration laws which were designed to protect young British Asian women from being subjected to forced marriages" says the BBC. Brilliant, and it is not as if the Home Office were not aware of the problem. As the report points out, they commissioned research into the effects of raising the minimum age to marry foreigners to 21, and chose to ignore the finding that only one in six victims of forced marriage thought it was a good idea. Now a genuine couple are forced to live apart. Surely, it is not beyond the wit of government to come up with rules that distinguish between forced and genuine marriages?

Large update on Family Lore Focus

A large update today on Family Lore Focus, including news, cases, statutory instruments and blogs. Read it here.

Wednesday, July 22, 2009

Something new...

Just as my inglorious career as a practising family lawyer is drawing to a close, I receive a court order that the publication in a national newspaper of an advertisement as to the presentation of a divorce petition be deemed good service. I'm not saying that such an order is unique, but I don't recall ever receiving one previously, in over 25 years of doing this work. You think you've seen everything...

Mine's bigger than yours...


How better to celebrate a divorce than to splash out a little money on yourself? That's just what the vertically-challenging Slavica Ecclestone, ex-wife of the vertically-challenged Bernie, has done. Of course, 'a little money' has a slightly different meaning to her than to us mere mortals. It meant £36.5 million, to be precise. You see, she splashed out on a Gulfstream G550 private jet, complete with two bathrooms and two bedrooms. Most importantly, perhaps, like almost everything about the couple, hers is bigger than his...

Tuesday, July 21, 2009

Deluded


I see Sharia law raises its ugly head again in The Times today, with a Muslim 'scholar' denying that 'Islamic divorce' is biased against women. Even if this were so (and it patently is not), the point is that we cannot have two separate systems in one country. If one group of society wants to base its morals on a book of fantasy, whether it be the Koran, the Bible or Alice in Wonderland then that is their right, but they must still submit to the laws of the land. This is, of course, self-evident and I shall not therefore be wasting my time arguing it, any more than I would waste my time arguing with those other deluded souls who refuse to believe that men walked on the moon forty years ago today.

Monday, July 20, 2009

DNA Paternity Test Kit


The other day The Telegraph carried a story about over-the-counter DNA paternity testing kits that will shortly be available in chemists. The kits will cost £30 and will contain swabs to take samples, which are then posted to the testing company, International Biosciences, who will carry out DNA tests on them for an additional fee of £119. Even without any maternal involvement the test: "Establishes the paternal link between an alleged father and a child" and is "100% conclusive for exclusion and greater than 99% for inclusion."

Obviously, the tests raise a number of moral issues, not least for children who might be rejected as a result of a negative result. As to legal issues, the tests will not be admissible in court proceedings, although in view of their claimed accuracy this may be an academic point, so long as the samples were taken correctly. Clearly, family lawyers are likely to come across these kits (and their results) in their future work. Further, I'm not sure that it would be unethical for a lawyer with a client who doubts whether he is the father of a child to suggest that the client use one of the kits, in an effort to determine the issue without the expense of court proceedings.

Sunday, July 19, 2009

Book Review: BabyBarista and The Art of War, by Tim Kevan


As someone who has always prided themselves in having a healthy irreverence for the legal profession, and being a regular reader of the BabyBarista blog in The Times, I anticipated that I would enjoy reading BabyBarista and The Art of War...

BabyBarista ('BabyB') is a pupil barrister, vying with three other pupils in his chambers for the lucrative prize of a tenancy. His pupilmaster tells him that "litigation is like war", and hands him a copy of The Art of War, the famous manual on warfare written in the 6th century BC by Chinese military strategist Sun Tzu. The advice is not lost upon BabyB, who proceeds to utilise Sun Tzu's wisdom in his own war against his fellow pupils.

What follows is a non-stop romp through BabyB's year of pupillage, in which he (almost) shamelessly uses every underhand tactic available to him to ensure that it is he rather than his rivals who is awarded the coveted tenancy. Along the way we witness blackmail, deception and all manner of dirty tricks being employed by BabyB, yet we never lose affection for his character. Perhaps that is in part because some of the other characters are equally venal, or just plain unpleasant. And this does not just apply to the other pupils. Kevan paints a wonderful picture of not just the modern Bar but the legal profession generally as we meet greedy, vain and self-serving barristers, corrupt solicitors and even a shoplifting judge.

What of justice? Well, it hardly gets a look-in throughout, with the interests of the lawyers (including the judges) taking precedence, and cases being settled for their benefit (pecuniary or otherwise), rather than the benefit of the parties involved. "Like a croupier in a big casino, all they were doing was administering other people's bets" comments BabyB of claims lawyers. When we do get into a courtroom, we find that "for all its airs and graces" it "is just as much of a low-down, dirty free-for-all as pupillage", with decisions hinging upon the skills of the barristers, rather than on the merits of their cases. BabyB himself soon comes to this realisation: "you get the result you pay for”, he says, "as for justice, I think it's time we're honest and simply stick it on eBay and see what it fetches."

But the book is not just a one-dimensional tirade about the excesses of the legal profession. There are characters who really do care about what they are doing, and we are regularly treated to brief interludes that have little or nothing to do with the main story, but are amongst the most amusing parts of the book. I hesitate to use the cliché, but some of these are genuinely laugh-out-loud.

So, what is one to make of BabyBarista and The Art of War? It is obviously well thought-out and cleverly written, but was it Kevan's intention to 'blow the lid' on the profession? I think not. True, many of the plot lines and anecdotes contain a grain of truth, but this is not serious stuff, much as those with an axe to grind against the profession may wish it to be. The aim is unabashed amusement, the main players are intentionally caricatures and the plot lines are unashamedly exaggerated. The result is pure comedy: no more, no less.

Did I enjoy reading the book? You bet I did, and any lawyer who doesn’t is taking themselves too seriously. But this book is not just for lawyers – I would recommend it to anyone seeking an entertaining read this summer.

* * *

Other blawger reviews of the book have been written by Charon QC and Geeklawyer.

Friday, July 17, 2009

Ringtone, anyone?

Don't you just love the internet? The ultimate free society. What's mine is yours, and what's yours is mine. I've had spam bloggers take my posts without my permission, but now I've found that beeMP3 is using my podcasts, although I can't see them making any money from them somehow (even if a beeMP3 visitor wanted one, why would they pay to download something that they can get for free?). They're not making out that the podcasts are theirs, but a request to use them would have been nice. Oh, and if you're really sad, you can always use one of the podcasts as a ringtone for your mobile...

Wednesday, July 15, 2009

Expensive


I thought it was time for a little light relief around here, so here's something that appeared on Take my wife, please a while back. The sign says it all...

Tuesday, July 14, 2009

Barely Functioning

Following Sir Mark Potter's recent comments regarding the crisis in the family courts, I requested an interview with His Honour Judge Polden, the designated Family Law Judge for Kent, on the subject. I chose him because I have always practised in Kent and therefore know something about the courts in this county. He declined the interview. Perhaps this is not entirely surprising, given the state of some of the courts over which he presides.

As I will shortly be no longer using the courts for my work, I feel I can now say something about their state. Take my local court, Medway County Court, for instance. I would not say that it was any exaggeration to state that it is barely functioning at all, with even the most straightforward matters taking months to deal with. For example, a simple application for directions in an uncontested divorce used to be dealt with within about a month. My recent experience is that it is now taking several, and I am forever having to fend off clients who are anxious for an update - I explain to them that there is little that can be done, but inevitably they seem to think it is somehow my fault. The situation seems to be getting worse: how long will such an application have to take before it can be said that the court has ceased to properly carry out its function? Six months? A year? As for more complex applications like consent orders, you may as well forget it (it takes so long, you probably will).

Like other local solicitors, I have been issuing in other courts, just to avoid the delays at Medway. Perhaps that is the plan: reduce the service to such a level that everyone goes elsewhere - problem solved!

I would be interested to hear the experiences of others up and down the country.

Radmacher: Commenters frenzy

Well, the Radmacher v Granatino case has certainly got family lawyers writing. No fewer than three articles about it appeared in Family Law Week this week (by David Hodson, Timothy Scott QC and David Burrows), and I received another one by email from Stour Chambers. It seems that there is nothing more likely than the subject of pre-nuptial agreements to provoke discussion amongst family lawyers.

For those of you who have been out of the country since the 2nd July, the Court of Appeal in Radmacher decided that the court below had been wrong not to give 'decisive weight' to the pre-nuptial agreement that the parties had signed, when dealing with the husband's application for ancillary relief.

So, what are the commentators saying? Simon Johnson at Stour Chambers points out Lord Justice Thorpe's comment that pre-nuptials are not just for the 'super-rich':
"I would not accept that the genesis for the call for legislative provision for ante-nuptial contracts was the decision of the House in White v White. Nor would I accept that the seekers are the predominantly male super-rich, anxious to ensure that the contemplated marriage will not prove too expensive on its future dissolution. There are many instances in which mature couples, perhaps each contemplating a second marriage, wish to regulate the future enjoyment of their assets and perhaps to protect the interests of the children of the earlier marriages upon dissolution of a second marriage. They may not unreasonably seek that clarity before making the commitment to a second marriage. Due respect for adult autonomy suggests that, subject of course to proper safeguards, a carefully fashioned contract should be available as an alternative to the stress, anxieties and expense of a submission to the width of the judicial discretion."
Clearly, the Court of Appeal envisages much wider use of pre-nuptial agreements in future.

In a long article David Hodson analyses the judgment in detail and assesses its impact. He concludes:
"England does now have a much greater likelihood that agreements freely and voluntarily entered into, perhaps even with one party choosing not to take legal advice, will be given some, probably considerable and even perhaps very substantial weight in the section 25 fairness criteria. The safety net [that the court will intervene if there was injustice] still exists but it is now narrower and certainly cannot be relied on in advance. The skills and care of the English family law practitioner in the context of marital and other domestic relationship agreements must now be greatly intensified and improved."
A good point, I think: as the provision contained in a pre-nuptial agreement may well be all that the client will get on divorce, then surely the same level of care must be given to dealing with a pre-nuptial agreement as to dealing with a settlement on divorce. Inevitably, this will include full disclosure, a process that will involve a considerable amount of work and therefore mean that the costs will not be trivial: will people of modest means be prepared to pay those costs? Having said that, Timothy Scott QC points out (inter alia) that: "Neither lack of independent legal advice nor absence of full disclosure will necessarily deprive an agreement of value".

Finally, David Burrows takes a different tack (and not for the first time!), asking: "should the Court of Appeal challenged the judge's discretion?" He says:
"the decision of the Court only adds to the uncertainty that infinite discretion presents. The less the practitioner can guess which way a judge will jump, the more the case will cost because it is more difficult to settle. If the appeal could go a variety of ways as well, then why not keep the litigation going to see if a better answer emerges, a client may say?"
Quite.

Sunday, July 12, 2009

Sunday Round-up

I suppose the biggest family law news story this week was the announcement by Jack Straw of 'the next stage of reforms aimed at increasing transparency and confidence in our family justice system'. The plan is to 'enable reporting of the substance of family proceedings, while protecting the identities of families and children' with the aim of 'increasing public understanding of and improving confidence in the family justice system', building on 'the successful reforms in April'. Lucy Reed over at Pink Tape has already expressed her views upon this albeit, as she admits, in a somewhat sarcastic fashion. For my part, I am always a little concerned when, as so often these days, reforms are a knee-jerk government reaction to media pressure. Having their work subjected to trial by media is hardly going to improve morale amongst over-worked family law professionals, particularly social workers, who are already feeling besieged by constant media criticism. Unsurprisingly, there is a shortfall of people wanting to become social workers, which Ed Balls want to fill with two hundred 'lawyers, teachers and other professionals'. Err... no thanks.

Today I read that Conservative think tank the Centre for Social Justice will recommend that there be a compulsory three-month "cooling off" period before divorce proceedings can be commenced, one of a number of proposals contained in a report Every Family Matters, to be published tomorrow. The idea is that this period "would be used to encourage both parties to reflect on their marriage and to gather information about the scope for reconciliation and key issues such as the financial impact of a split". I'm not sure how well this will go down - for many couples it will just add another three months to the misery before they can get on with rebuilding their lives. The report will also call for the retention of a fault provision in divorce proceedings, something which I think the vast majority of those working in the family justice system disagree (indeed, the last Conservative Government attempted to bring in no-fault divorce). Fault is pointless: very rarely can a marriage breakdown be said to be entirely the fault of one party, it involves the court in the issue of 'revenge' and, above all, it reduces the chance of matters being resolved amicably between the parties.

Lastly, spare a thought for Hisako Yukawa (left). The first female lawyer in Kyushu, Japan, she has handled as many as 8,800 divorce cases in the last 52 years and, at 81, is still going strong. "As long as there are clients, I will continue my job" she has said. Now, I call that dedication beyond the call...

Friday, July 10, 2009

Brisset v Brisset: Instructive

I've often bemoaned the fact that most Court of Appeal ancillary relief reports concern high-net worth cases that are of little relevance to the more mundane fare that most practitioners deal with most of the time. The reason for this is, of course, that only the wealthy can afford to go to the Court of Appeal. Well, last night I read the report of Brisset v Brisset [2009] EWCA Civ 679, which involved parties of more modest means. How were they able to afford to go to the Court of Appeal? The answer is that they weren't. They did not represent themselves (although they had done in the courts below) but were both represented by counsel who acted pro bono, including Miss Maria Scotland (hopefully her new chambers will soon put a picture of her on her CV page on their website), who I have instructed many times myself. Miss Scotland was instructed by the Bar Pro Bono Unit - something that occurred in one of my own cases, when my client was no longer able to afford to instruct my firm and was not eligible for legal aid.

Lest anyone should think that pro bono representation is somehow a second rate service, let me quote from the judgment of Lord Justice Wilson in Brisset: "Short though the hearing before us was, the performance of both counsel was outstanding. Indeed the hearing was short because counsel's submissions, written and oral, were so clear, so succinct and so realistic." Lord Justice Sedley was of the same opinion: "I agree with the judgment of Lord Justice Wilson, not least in relation to the high standard of representation and advocacy before this court."

So, what of the case itself? It concerned a husband's appeal against an ancillary relief order. However, before I deal with this, a little about the route to appeal. The original appeal from the district judge had gone before the circuit judge, who promptly sent the file back to the district judge for his comments. The district judge replied with an eleven paragraph letter explaining his reasons for his decision, and the circuit judge then used the district judge's comments as reasons for the dismissing the appeal. Needless to say, all of this came in for criticism by the Court of Appeal. Lord Justice Jacob perhaps putting it the clearest: "once she or he has given judgment (subject to being asked for clarification or to deal with a point which ought to have been dealt with) a judge who has given judgment has finished with the case. She or he may take the private view, if reversed, "Lord forgive them for they know not what they do". But what a judge cannot do is get involved in the appeal process itself. That is what happened here, albeit with the best of intentions. It was a mistake which vitiated the appeal process itself."

OK, so to the case itself. The parties had been able to agree equal division of assets, and had agreed how this would be achieved in every respect save for the amount of a balancing lump sum to be paid by the husband to the wife. The wife had had a lower income during the four-year period since the separation, which she had made up from her capital. The husband claimed that the district judge had been guilty of double-counting, in that he had shared the currently held assets but also awarded the wife an additional lump sum in respect the capital that she had used since the separation. The husband was, of course, correct and the Court of Appeal therefore reduced the amount of the lump sum. Lord Justice Wilson: "the result of the wife's greater expenditure of capital during the period was to reduce the amount of her capital in comparison with that of the husband at the time of the hearing and thus to enlarge the size of the balancing payment to be made by him to her." I do not, however, criticise the district judge. Double-counting is an easy mistake to make - I can recall many occasions over the years when I have struggled with the logic of such a situation, having to resort to a bit of mathematics to resolve the issue.

All in all, an instructive case.

Wednesday, July 08, 2009

Whatever happened to... Family Law News?

I came across this whilst clearing out some old papers...

... the first issue of the Law Society's Family Law News. Intended "to provide up-to-date information on proposed Government reforms but also discussion of and advice on current practice issues", the newsletter subsequently disappeared in the mists of time. I do recall it being quite useful while it was going, but I don't recall its passing.

Incidentally, the cartoon bottom left brought back some horrific legal aid memories. It reads: "Yes, all our solicitors are highly specialised. We have one on the Children Panel, another is a trained mediator... ... but the one we are most proud of is David... ... he's one of the few people in the country who can understand the new legal aid forms."

Monday, July 06, 2009

The Life of a Family Lawyer

For reasons that will soon become apparent on this blog, I've been spending much of my time at work recently closing old files. The process is at once satisfying and depressing. Satisfying because it's always cathartic to clear the filing cabinet (although family law matters have an irritating habit of cropping up again months or even years later). Depressing because I think of all the time I spent on that pile of files, and how I could have done something constructive with that time, like help invent a cure for cancer, or build something that I could point to and say proudly: "I did that".

Instead, I spent my time creating paperwork that will go into dusty storage for the next six years and will then be destroyed. Such is the life of a family lawyer.

Friday, July 03, 2009

Podcast Interview #8: Marilyn Stowe, Stowe Family Law

After a series of excuses good reasons for not doing them, I have at last started recording podcasts again.

Today I am speaking to Marilyn Stowe, senior partner in Stowe Family Law and one of Britain’s best known divorce lawyers. Apart from being one of the most sought after divorce lawyers in the country, Marilyn has written two books, regularly writes articles for national newspapers and magazines, appears frequently on television and radio, and is the author of the Marilyn Stowe Blog. Topics covered include reforms to the family justice system, the recent cases of McFarlane and Radmacher and Mr Justice Coleridge's views on family breakdown. The podcast can be found here.

A platonic relationship... and a hero

I hate being tagged. Call me a spoilsport, but tagging annoys me. It is done by bloggers with too much time on their hands. Unfortunately, my erstwhile friend Carl Gardner of Head of Legal has tagged me. Perhaps it was a quiet news day for him. I shall play the game to the extent of replying, but I shall not burden others with a tag. Did I hear a sigh of relief from my contacts?

I am tasked with the assignment of writing exactly 139 words about my phone, explaining why it is my phone, and naming a hero. What is not explained is: why?

Anyway, here goes:

My mobile phone is a Samsung G600. It is my phone because I bought it (well, got it on a contract, actually). It is black. It has a slide-out keypad. It is not the latest and greatest mobile phone out there (I can't afford one of those) but, as Charon QC says, 'it does the business'.

Damn, that's only 56 words.

OK: My phone can do text messages, take photos, surf the net, play music and videos. It even plays chess. Occasionally I also use it to call people.

Bugger, still only 89 words.

One last effort: Whilst I like my phone, our relationship is purely platonic. It seems to be happy with this, and I have never found it attractive in that way. Of course, when I find a more attractive model, I shall give it the elbow...

Done!

As to heroes, I have never really had any. However, if pressed to be serious I shall choose Carl Sagan, for his work in popularising science in general and cosmology in particular. All these years later, his great book Cosmos still occupies a cherished position on my bookshelf. Amongst many other things, Carl also reminded us of our place in the universe in the most dramatic way with his wonderful Pale Blue Dot:

Wednesday, July 01, 2009

June Post of the Month

Sometimes being a family lawyer involves giving non-legal advice to our clients. So it was recently for Marilyn Stowe, although she gave her client some advice that I have certainly never given to one of my clients: "I told her to go home and fight for her man in the best way she can to keep him. I diagnosed a ‘man-o-pause’ and, like female menopause, it takes time to diminish its effects.". You see, the client didn't seem to want a divorce but her balding 55-year-old husband was besotted with a 23-year-old woman, a clear symptom of what Marilyn calls the 'man-o-pause', the male version of the menopause. Marilyn also has some pretty sobering advice for the husband if he doesn't see the error of his ways...

So, my Post of the Month trophy for June goes to Marilyn Stowe for Is there such a thing as a Man-o-pause? The prize of a virtual pair of walking boots (for virtual walks, of course) is at this very moment on its way to beautiful Yorkshire.

[I am, of course, myself fast approaching man-o-pause age, although unfortunately I can't see any 23-year-old women being interested...]

Back to the future

I received a letter this morning from the Solicitors Regulation Authority. No, I'm not in trouble with them. The letter was to tell me that with effect from today all voluntary accreditation schemes are to be run by the Law Society. Hold on, weren't they run by the Law Society originally? I'm sure there is some very good reason for the change, but how much will it cost? Further, yet again firms are going to be put to the trouble and expense of changing the logo on their stationery, promotional materials and websites. It's bad enough when things keep changing, but particularly absurd when they change back to what they were in the first place.