Monday, November 30, 2009

Re N: How not to write a skeleton

I have just read the report of Re N (A Child) [2009] EWHC 3055 (Fam) (25 November 2009), which has just appeared on Bailii. It is the latest chapter in a sorry story of litigation concerning the parties' son, that I have commented upon previously. What I want to comment upon now is the father's remarkable skeleton argument.

The hearing concerned the applications by the mother and the guardian for an order – against both parents – under section 91(14) of the Children Act 1989. (A s.91(14) order provides that no application for an order under the Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.) The father's skeleton argument is set out in full at paragraph 11 of the judgment, and I will limit myself to quoting paragraph 2 of it:
"The Applicant considers that both Mr Justice Munby and Lord Justice Wilson have abused their positions of power and authority as judges, have violated their judicial oaths, and have acted in gross dereliction of their duties towards the child the subject of these proceedings. They have diminished the rule of law, have acted with partiality in pretence of the child's interests, and have substituted other principles for the paramount consideration of the child's welfare. In the Court of Appeal, Lord Justice Wilson gave a Judgment almost totally devoid of merit which failed to grapple with nearly all of the Applicant's Grounds of Appeal, though it did include a fair amount of vilification of the Father. It was however an excellent example of the current modus operandi of that Court."
I would respectfully suggest that this just possibly may not stand as a good model precedent for anyone involved in such proceedings in the future.

DIVORCE: HOW TO KEEP YOUR LEGAL FEES TO A MINIMUM


1. Don't instruct a lawyer!

Straightforward divorce work is hardly rocket science - in many firms much of it is either automated or dealt with by unqualified staff, so any non-lawyer with a modicum of intelligence should be more than capable of doing it themselves. The key here is the word 'straightforward': things may not always be straightforward - if they are not, then just instruct a solicitor to deal with the difficult bits. Even if you have to go to court you can represent yourself (although obviously I wouldn't recommend this in complex matters) - contrary to popular belief, there is no rule that anyone must be represented by a lawyer in court.

Of course, things are more likely to be straightforward if they can be sorted out amicably, which brings me on to my second point:

2. Agree everything!

The following matters will need your attention:
  • Who will divorce who, and on what basis - it is amazing how many couples waste their money arguing over this, but it really should not occupy much time. In the vast majority of cases it makes no difference (save to the issue of who pays the costs - but if no solicitors are involved, you'll only be paying the court fees anyway).
  • Arrangements for any children - who they will reside with and, if residence is not shared, what contact they will have with the other parent. If you really think about what is best for the children, it should usually be possible to agree these things.
  • Sorting out finances - if both parties understand the basic principles (they may need some advice for this - see point 3 below) then it really ought to be possible to reach agreement in most cases. Note that if an agreement is reached, then it will need to be put into a court order, and you will need a solicitor to draw up the order.
There are essentially three ways to agree matters with your spouse:
  • By talking to them directly, if you are able to do so. As indicated above, I would suggest that both parties take at least some basic legal advice before doing this.
  • By going through mediation (if your spouse agrees) - this is not for everyone, but can be very effective. Note that any agreement reached in mediation is subject to each party taking advice upon the terms of the agreement.
  • Through solicitors, including 'collaborative divorce', if it is available. OK, you will be incurring legal fees, but this is usually still far cheaper than going to court.
3. Get free or cheap advice

Most solicitors offer cheap or even free initial interviews. Take advantage of this! There is no obligation for you to instruct them to deal with your matter, and you can always seek a 'second opinion' from another firm Note, however, that such interviews are usually limited in duration, and the advice is inevitably pretty general.

There are plenty of other sources of advice (see my advice page), many of which are free. Just one word of warning: make sure that the source is reliable - there are plenty of people out there who consider themselves to be legal experts just because they have been through a divorce themselves, but you wouldn't take medical advice from someone just because they had had an operation, would you?

BLATANT PLUG WARNING: Of course, you could always invest in my book, Do Your Own Divorce, which will tell you everything you need to know for most divorces.

4. Limit your solicitor's costs

OK, I realise that you may not be able to agree everything with your spouse, and that you may need to instruct a solicitor. I also realise that the fact that (in most cases) the solicitor's costs will not be fixed is pretty scary, but that does not mean that you have no control.

The solicitor should give you an estimate of their total costs at the outset of the matter, and keep you regularly informed of any change in that estimate. The problem with such estimates is that they can be horribly vague (I have come across such things as "between £500 and £10,000" - quite useless), but there is an answer. Put a (written) limit on your solicitor's costs. That way, they will not be able to charge you more than that limit without your agreement. Once they are nearing the limit they should let you know, and you can decide whether or not they should continue to act for you and, if so, whether you should set another costs limit.

A risky strategy

I see that Michelle Young has told her story to the media. In an article appearing in the Daily Mail today, she reveals how she believed her husband had affairs with other women, how his character changed as his wealth increased and how she suspects he made their assets "somehow disappear".

Now, we all like to see the rich and powerful being cut down to size, and I'm sure that there are many out there who would like to see Scott Young get his 'comeuppance' by being found to have hidden his assets from the court, but going to the media like this is, I think, a risky strategy. I am reminded of how, in an admittedly rather less dignified way, YouTube divorcée Tricia Walsh-Smith publicised her 'plight', and it certainly didn't seem to help her cause in court. I presume that Michelle Young has discussed this course of action with her legal advisers, but she is going to struggle to gain much sympathy with ordinary people when they see that she is still living extremely comfortably and hear that living in a council house is her greatest fear.

Of course, it doesn't matter what 'ordinary people ' think - the only thing that matters is what the judge thinks. Has she said or revealed anything that the judge will consider she should not? Even if she hasn't, the judge may, consciously or not, take a dim view of a party going to the media in this way.

Thursday, November 26, 2009

Putting children first

The Law Society Gazette reports today that Somerset solicitor Martin Davis is to launch a judicial review action against Cafcass because of its ‘unacceptable delays’ in appointing children’s guardians and family court advisers. He is at pains to point out that any judicial review is not aimed at Cafcass staff (who he describes as "extraordinarily committed and hard-working"), but rather at the service itself and its funder, the Department for Children, Schools and Families. I wish him well.

One thing that struck me as odd about the report was the last paragraph, which states that: "Cafcass chief executive Anthony Douglas said he had requested full details of the proposed judicial review, and wanted to hear about any problems with children’s cases so they could be put right." Does he really not know of the problems already? From my own experience I can say that there have been unacceptable delays (in some areas at least) for at least the last couple of years. Surely the chief executive knows about this? Or is it just that he has not been given the resources to put it right?

Wednesday, November 25, 2009

Too much of a good thing...


On a somewhat lighter note, here's a story that's been around for a while but that I thought I should now report, in the interests of serious, comprehensive, journalism.

Apparently, a Taiwanese woman asked for a divorce from her husband because his penis was too long. She requested that the offending organ be measured, but her request was denied by the judge, who ordered her to return to her husband. This was the second time the woman had had an application for divorce refused, although strangely she had been married for ten years before her first application.

I guess it just goes to show: you can have too much of a good thing...

[My thanks to Warren Shiell of Los Angeles Divorce and Family Law for reminding me of this story.]

Give with one hand...

Two stories in the news that demonstrate a classic lack of common purpose by the government:

On the one hand, as the BBC reports: "More than £13m of funding is being provided to help support victims of sexual and domestic violence".

On the other hand, as The Times reports: "Dozens of law firms are having to turn away vulnerable clients, including victims of domestic violence, because they have exhausted this year's legal aid budgets."

Make sense of that.

Armed Forces Pensions: A negligence claim waiting to happen


I received their Pension relief brief from Bradshaw Dixon Moore ('BDM') the other day. The subject was armed forces pensions.

Now, most divorce lawyers in this country know (or should know) that armed forces pensions require special consideration. In particular, you cannot safely rely upon the cash equivalent transfer value ('CETV'), which may seriously undervalue the pension. BDM give an extreme example of this from a recent case in which they valued a soldier's pension benefits at £1.3 million, whereas the CETV figure was only £600,000. The result of this, of course, is that if the CETV is used when implementing a pension share then the spouse of the scheme member is likely to receive substantially less than their entitlement. Clearly, relying on the CETV alone is a negligence claim waiting to happen.

Similar considerations apply to police and fire brigade pensions.

The moral then is simple: if you want to keep your indemnity premiums down, get your own valuation. See, for example, these services that BDM themselves offer.

Incidentally, if you haven't done so already I recommend signing up to Pension relief brief, which you can do here.

Tuesday, November 24, 2009

Adoption reality show

They say that ideas that start in America end up over here. Well, I'm not sure that we're ready for this particular idea. ABC channel in America is launching a new reality TV show called "Find My Family", which will apparently seek to reunite families separated by adoption. I've only seen a trailer (I'm not sure I could stomach a whole show), so I can't comment on how they deal with it, but obviously such an issue has to be handled extremely carefully and sensitively.

Happy birthday Origin of Species!


Today marks the 150th anniversary of the publication of one of the most important books in the history of mankind. On the Origin of Species set out Darwin's incredibly simple idea that explained so much about life on Earth, and that forced humanity to see itself for what it is: just one small branch in the great tree of life. Happy birthday Origin of Species!

[And for any pedants out there, I know that the above image does not come from Origin.]

Monday, November 23, 2009

Atheist Billboard Campaign


I've spoken many times previously about the child abuse that is indoctrinating children with religious beliefs, and the absurd labelling of them with terms such as 'Catholic', 'Protestant' or 'Muslim'. Now the British Humanist Association is running a Billboard Campaign on the subject. For further details, see here.

Wrong

On a slightly more serious note than the last two posts, I came across this news story in the Telegraph this morning. I'm not going to comment upon the story itself, but rather upon the sub-heading: "The Conservatives are backing plans to give cohabiting couples the same rights as those who are married" (my emphasis). Now, I don't know if this was written on purpose (if not, the Political Editor of the Telegraph should know better), but it is PLAIN WRONG. No one is proposing that cohabitants should have the same rights as married couples, and to suggest that they are is firing up all those small-minded middle Englanders who oppose anything that might upset their cosy but illusory world-order.

For an excellent exposition of what changes in the law are being sought and why, see this recent post by Marilyn Stowe.

* * * * *

UPDATE: Just to prove my point, both this article in the Daily Mail and this post on the CentreRight blog suggest that the intention of these awful reformers is to give cohabitants similar rights to married couples. Do these people say this on purpose to stir up their narrow-minded supporters, or are they just ignorant? (Amusingly, and unsurprisingly, the Tories are rushing to distance themselves from the appalling suggestion that they might cause the breakdown of society as we know it by actually helping people who choose not to marry.)

My thanks to John Hirst of Jailhouselawyer's Blog for bringing these stories to my attention.

The divorce lift

Thanks to Lee Rosen of Divorce Discourse for pointing out this great way for a divorce lawyer to advertise (assuming their offices occupy one upper floor in a building):


[For a larger picture, click here.]

Do not read this rubbish

I remember watching Top Gear back in the days when it used to tell you useful things about cars you could actually afford. Interesting things, like the capacity of the boot and how many miles per gallon you could get if you drove at a constant 37.5 miles per hour. Now, alas, the three overgrown schoolboys that present the programme spend their time driving cars that I can't even afford to look at around roads that I'll never visit, or in juvenile escapades with only passing relevance to cars and driving. Take last night's programme for instance, half of which comprised the puerile presenters pretending to build an electric car and drawing willies on their faces.

What has all of this got to do with family law? Well, in his Sunday Times column yesterday the great Jeremy Clarkson gave us the benefit of his wisdom on raising children. The pretext for the article was the announcement last week by a government parenting adviser that lesbian women make better parents than heterosexual couples. Clearly unafraid of the political correctness police, Clarkson pronounces himself glad that his father wasn't a lesbian, and on the way gives us the benefit of his wisdom on the National Academy for Parenting Practitioners, artificial insemination, the British Association for Adoption & Fostering, Italians and global warming. How a once-great newspaper like The Thunderer can print this rubbish, I don't know.

Come back Chris Goffey and Quentin Wilson, all is forgiven.

Friday, November 20, 2009

Re B: Why a grandmother was preferred to a father


Why would a court prefer a child to be brought up by a grandparent rather than a parent? That was the decision in the first reported family law case of the new Supreme Court, overruling the decision of the Court of Appeal.

Re B (A Child) [2009] UKSC 5 concerned a three year-old boy who had been cared for since birth by his maternal grandmother, who was granted a residence order by consent in November 2006. In 2008, his father applied to the Family Proceedings Court for a residence order, but was refused. He appealed, and the High court overturned the decision, transferring residence to the father. The grandmother appealed to the Court of Appeal, but the Court of Appeal upheld the decision of the High Court. The grandmother then appealed to the Supreme Court.

The Family Proceedings Court had refused the father's application as it had not found any compelling reasons to disrupt the child's continuity of care. In the High Court Judge Richards interpreted the leading case of Re G as indicating that it was preferable for children to be raised by their biological parent or parents. Indeed, he felt that a child had a right to be brought up by his or her natural parent. This was given short shrift by Lord Kerr in the Supreme Court:
"We consider that this statement betrays a failure on the part of the judge to concentrate on the factor of overwhelming – indeed, paramount – importance which is, of course, the welfare of the child. To talk in terms of a child's rights – as opposed to his or her best interests – diverts from the focus that the child's welfare should occupy in the minds of those called on to make decisions as to their residence."
Judge Richards had gone on to suggest that, provided the parenting that the father could provide was "good enough", it was of no consequence that that which the grandmother could provide would be better. Again, Lord Kerr gave this short shrift:
"We consider that in decisions about residence such as are involved in this case; there is no place for the question whether the proposed placement would be "good enough". The court's quest is to determine what is in the best interests of the child, not what might constitute a second best but supposedly adequate alternative."
The "principal message" in Re G had been to do away with the idea that parental rights have any part to play in the assessment of where the best interests of a child lay, said Lord Kerr. The confusion over that case, it seems, came from the two-paragraph speech of Lord Nicholls, which had been given first in the judgment. He said:
"In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason."
It is easy to see from this why Judge Richards interpreted Re G the way that he did. I'm sure I would have interpreted these words in the same way myself. However, Lord Kerr pointed out that a careful reading of Lord Nicholls' speech reveals that he did not propound any rule to the effect that a child should not be removed from the primary care of biological parents. All he was doing was "reflecting common experience that, in general, children tend to thrive when brought up by parents to whom they have been born":
"He was careful to qualify his statement, however, by the words "in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests" (emphasis added). In the ordinary way one can expect that children will do best with their biological parents. But many disputes about residence and contact do not follow the ordinary way. Therefore, although one should keep in mind the common experience to which Lord Nicholls was referring, one must not be slow to recognise those cases where that common experience does not provide a reliable guide."
The central point, said Lord Kerr, was that:
"All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration. It is only as a contributor to the child's welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim."
Accordingly, the Supreme Court found that the justices' decision could not be said to be "plainly wrong" and should not therefore have been reversed by the High Court. The grandmother's appeal was therefore allowed.

In short: there is no presumption in favour of a biological parent - the paramount consideration is: what is best for the welfare of the child? This must, of course, be right, although it is easy to see why Re G was misinterpreted.

Updating Family Lore Focus


I am in the process of updating Family Lore's companion site, Family Lore Focus. I've just uploaded the new front page, which I will be testing for the next few days, before I start to roll out the rest of the new site. I hope that readers find the new site to be an improvement, although if you find any problems with it, please let me know by email, at john[@]familylore.co.uk.

Legal Aid: Worse than shovelling sh*t


The headline on Family Law Newswatch says it all: Legal aid lawyers paid less than sewage workers.

Thursday, November 19, 2009

Mediation is unattractive

I take exception to the suggestion in this article by Jane Robey (left), chief executive of National Family Mediation, in the Guardian's Comment is free column today, that solicitors discourage mediation in order to boost their fees. I cannot speak for the entire profession, and I'm sure there are some solicitors who do this, but I most certainly did not, and nor did most of the other solicitors with whom I had dealings. I always encouraged clients to go to mediation (although I had reservations - I had often found that the results of mediation were less than satisfactory) and, after advising them about how mediation worked, left the decision to them. My experience was that the majority of clients decided not to go to mediation, but that was entirely through their own choosing.

Despite my reservations, I agree that mediation can be very helpful in resolving family breakdown issues, but it is not a panacea - it is an additional tool, useful in appropriate cases, i.e. where the parties are willing to utilise it. In other words, my experience suggested that its lack of take-up is due to the unwillingness of parties to go to mediation, rather than the greed of their solicitors. Robey should consider why so many people find mediation unattractive, instead of speculating upon what solicitors may have told their clients.

Perfectly reasonable...


I remember years ago when I was an articled clerk finishing my first file and taking it to my principal to ask how much I should charge the client. He weighed the file in one hand, grinned, and said "about £800". He was joking. Solicitor Trevor Hobden, however, was not joking when he told investigators that he calculated fees in precisely this way.

It's not often that proceedings in the Solicitors' Disciplinary Tribunal make the national papers, but this case did. Apart from his novel way of calculating costs, Hobden took money from clients for his costs without billing them and billed for doing no work. He was struck off after being found guilty of taking money from a client account in respect of costs without delivering a bill, taking money which was not properly due to him, overcharging a client and failing to give clients proper information.

Interestingly, and amusingly, he was cleared of having compromised or impaired his integrity.

Monday, November 16, 2009

Recommended listening

In a podcast for the Law Society Gazette, Charon QC has been speaking to Law Society Council member Christina Blacklaws (left) about the state of the family justice system. As Charon states, a pretty grim picture she paints too. If you have an interest in family justice then you should head over to Charon QC and listen to this.

GOVERNMENT URGED TO ACT ON FAILINGS OF CHILDREN ACT

I have received the following press release:

GOVERNMENT URGED TO ACT ON FAILINGS OF CHILDREN ACT

Twenty years on and one in three children are losing touch with their fathers when parents’ split, new research shows

Parents’ failure to separate amicably is leading to an increasing number of children losing permanent contact with their father according to a landmark study into the effects of family breakdown in the UK.

The study of over 4000 parents and children was commissioned by family lawyers at Mishcon de Reya to mark the 20th anniversary of the Children Act which was implemented in November 1989 to improve the welfare of youngsters caught in the middle of parental separation.

The report highlights the negative effects of separation on children and shows, despite the Act’s good intentions, in practice the law is not working – leaving the UK counting the financial costs of litigation, court resources and increasing numbers of socially excluded children.

Seventy per cent of parents quizzed by the law firm cited their child’s welfare as the main priority during separation. However, children said they felt used (19 per cent), isolated (38 per cent) and alone (37 per cent). Many admitted they turned to drink and drugs, played truant from school or self harmed. For 38 per cent of children the separation meant they never saw their father again.

What parents say
A quarter of parents surveyed believe that their child was so traumatised by their separation that they self harmed or contemplated suicide. Despite this, 50 per cent admitted putting their children through an intrusive court process over access issues and living arrangements. Nearly half (49 per cent) admitted to deliberately protracting the legal process in order to secure their desired outcome and two thirds (68 per cent) confessed to indiscriminately using their children as ‘bargaining tools’ when they separated.

A staggering 20 per cent of separated parents admitted that they actively set out to make their partners experience ‘as unpleasant as possible’ regardless of the effect this had on their children’s feelings.

What children say
Half of the children surveyed said that their views were disregarded by both of their parents during the separation.

Almost half of children polled (42 percent) witnessed aggressive rows between their parents, while a further 17 percent were caught in the middle of violent fights. A quarter (24 per cent) admitted they were forced by one parent to lie to the other and 15 per cent were asked to spy on their mother or father.

As a result, almost one in ten children (8%) considered suicide as an escape and a third sought solace in drug or alcohol abuse. The resulting effect to society is captured in the fact that 10% felt so angry and alone because of their parents’ behaviour that they turned to crime.

The financial cost
As well as the emotional effect on children, statistics from the Legal Services Commission reveal that Legal Aid funding for separating parents to go to court to resolve child care arrangements is costing £151million annually – enough to employ more than 5000 extra social workers. The figure is also 56 times the amount by which the Children and Family Court Advisory Support Service (CAFCASS) is having to reduce its budget by in the next two years (£2.7million). CAFCASS was established in 2001 to safeguard and promote the welfare of children facing separating parents.

Mishcon de Reya’s Head of Family Law Sandra Davis said: “This research highlights shows that despite their best intentions, parents are often using their children as emotional footballs. They don’t have the tools to co-parent effectively following separation and their only solution is to turn to the courts. Children – alongside the economy - are suffering because of this.

“The millions of pounds spent each year on Legal Aid, running the courts and CAFCASS could be better spent educating parents about their children’s needs and gaining an understanding of how to resolve and avoid long term disputes and reduce hostility.”

The solution
Davis is now calling on the Government to set up National Family Therapy centres. These would be funded by diverting public expenditure on Legal Aid and savings on the running costs the courts and CAFCASS. Couples who would otherwise pay privately to go to court would be charged on a sliding scale, similar to counseling schemes run by charities such as Relate.

She said: “Litigation should be the last, not the first, resort for the resolution of parental disagreements. Despite the best intentions of the judiciary, CAFCASS, specialist family law practitioners and experts the process remains fundamentally adversarial and blame focused. Whilst the courts are able to impose solutions on parents, they can’t resolve the root cause of disputes which is necessary before parents are able to co-parent effectively after they separate.”

Two thirds (64 per cent) of separated parents quizzed as part of the study said that if counselling was available they would consider attending.

Last week Mishcon de Reya invited key opinion formers to a debate that took place at Westminster to discuss how best to improve the legal process and minimize the impact of parental separation on children. Panel members included MPs from both major parties.

Said Davis: “Action is needed to protect childen from the worst excesses of parental conflict. Therapeutic input, not litigation, is the answer and will reduce the emotional and financial cost of separation.”

Thursday, November 12, 2009

Lawyer of Love?


I see that Chicago divorce lawyer Corri Fetman is back in the news. As long-time readers of Family Lore may recall, Fetman gained fame (?notoriety) for her firm's billboard advert two years ago which read: "Life's short. Get a divorce." She subsequently posed nude for Playboy, and briefly wrote a column for the magazine. That all went sour, however, and now Playboy is suing her over her attempt to trademark the phrase "Lawyer of Love", which was the title of the column, and which Playboy claims to own.

I particularly liked the comment by Mitch Kowalski in the FP Legal Post. He said: "Given that she is a divorce attorney, it seems odd that she would want to seen as the Lawyer of Love. Perhaps "Lawyer of Scorched Earth, Death and Destruction" would be more apt for someone in her line of work." Quite.

Fetman, incidentally, now writes the Love Lawyer blog for Chicago Now, a Web site affiliated with the Chicago Tribune.

Wednesday, November 11, 2009

Disturbing News

Some highly disturbing news from The Wall Street Journal. Apparently, there is this awful new trend called the "Civilized Divorce". Quite made me feel faint when I read about it. People divorcing amicably and remaining good friends? Where's the fees fun in that?

Let us hope that this will be one trend that is short-lived.

[Hat-tip to James Gross of the Maryland Divorce Legal Crier for pointing out this story.]

Papering over the cracks


One year after Baby P the Guardian has an article today in which social workers and others involved with child protection give their views on how much progress has been made in children's services. It makes pretty uniformly depressing reading, with recurring complaints of excessive workloads, excessive bureaucracy, shortages of qualified staff, poor remuneration, constant scrutiny and lack of respect. Here are a couple of typical examples:
"It is obvious to social workers that the orders from above are focused on a social worker's ability to fill in forms, rather than whether we have time to sit down with the family or sit and think about how that family functions for the child. Social workers are then being disciplined for not meeting the deadlines."
and:
"Around the country I am regularly coming into contact with people ... who are burnt out after 18 months in the job. Social workers are literally serving the machine in office hours and then doing their proper field work at evenings and weekends, all the while facing a barrage of negative press"
Is it any wonder that the BBC reports today that a growing number of social workers are leaving the profession? The government points out that there is no shortage of people applying to become social workers, but how many of those will be burnt out 18 months into the job? It seems to me that far more is required than just a flashy recruitment-advertising campaign.

Tuesday, November 10, 2009

Beauty and Substance

A Blawg Review by a UK blogger is a rare and (sometimes) beautiful thing. Certainly, Blawg Review #237 by Christian Metcalfe (left) of The Property Law Blog is a thing of great beauty, not to mention great substance. The theme is the 1647 Putney Debates - takes me back to my A-level history. Well worth a read.

Monday, November 09, 2009

In the papers today...

Three stories that caught my eye this morning:

The Guardian reports that: "The number of divorce and separation cases being fought in the courts that involve children has risen, with £151m of legal aid money being spent on litigation, according to figures released today." They quote research by Mishcon de Reya which "shows that more than half of parents going through divorce and separation went to court to challenge issues relating to their children". The Guardian goes on: "The increase in proceedings is causing delays to private law cases, a panel of experts will hear at a debate in parliament today, with alarming implications for children involved." No doubt we will be hearing more about this as the day progresses...

Meanwhile, one divorce which most definitely did not involve minor children was that of Bertie and Jessie Wood who, at the age of 98, were the oldest couple in the world to get a divorce, according to the Daily Mail. This is, in fact, the case of Baker v Rowe, which I reported in Family Lore Case Digest on Saturday.

Lastly, I have mentioned here before the phenomenon of divorce cakes, which originated in America. I'm not sure if this is exactly news, but the Daily Mail reports today that the trend has reached these shores. Yummy...

Friday, November 06, 2009

Dawkins causes population crisis shock!


Further to my last post I read today that Dawkins is being blamed for falling birth rates across Europe! This would be laughable, but for the fact that our government has recently seen fit to elevate the author of this nonsense, Chief Rabbi Jonathan Sacks, to a position in the upper house of this country's Parliament. His argument appears to be that secularism equals selfishness and immorality. This is an old, tired, and completely wrong proposition that is regularly wheeled out by theists and has long-since been proved utterly fallacious. Dawkins himself dealt with it in The God Delusion, a book that Sacks appears to have either not read, or not understood. It is truly scary that someone who thinks that all morality flows from belief in mystical sky-gods occupies a position in the government of this country. (And I'm not even going to deal with the fact that he thinks a falling birth rate is a bad thing...)

Tuesday, November 03, 2009

No fossil rabbits in the Precambrian


When I am ready to shuffle off this mortal coil I will not be able to console myself with the thought that I did anything useful with my life. I did not make any great scientific discoveries, I did not save lives and I did not teach children the wonders of the world. I was a lawyer. Still, it could have been worse - I could have been a politician.

Why these depressing thoughts? Well, I have just finished reading Richard Dawkins's latest opus, The Greatest Show on Earth: The Evidence for Evolution. It is not that the book is depressing - far from it. It is that whenever I read a science book I realise how little of real value I or any lawyers have achieved by comparison to the great scientists to whom we owe our knowledge of the universe around us. As the title suggests, the book sets out the massive body of evidence that proves beyond any reasonable doubt that evolution is a fact, every bit as much as it is a fact that the Earth is round and that it orbits the Sun. Unfortunately, as Dawkins points out, the book is very necessary, as there are still many who will deny this truth even 150 years after it was discovered. Quite why they deny it is beyond me - perhaps it is ignorance, perhaps it is lack of intellectual capacity, perhaps it is indoctrination, or perhaps they simply deny it for their own ends. Dawkins is not so naive as to expect that many of the deniers will read the book, but hopefully a few will, and any furthering of the truth can only be a good thing.

If you are a denier, then do yourself a favour and buy this book. If you are not, then just get it to wonder at the story of evolution, and of those great people who uncovered it.

Monday, November 02, 2009

Needs Must


Reading the big-money cases reported over the years and dealing (occasionally) with cases involving significant wealth myself, I've often been amused by the amounts that parties claim they need to live on. However, a case hitting the headlines in America takes the amusement to a whole new level.

Jamie McCourt is the wife of Frank McCourt, the owner of the LA Dodgers baseball team (although his sole ownership is disputed by Mrs McCourt). The pair appear to be heading for a highly-public and highly-acrimonious divorce after he dismissed her from her position of chief executive officer of the team, after she allegedly had an affair with her driver (or was it her bodyguard, as some reports suggest?). She responded by filing for divorce and reportedly seeking alimony (that's maintenance to you and me) of an eye-watering $488,000 a month, or about £300,000 a month. She claims that she needs this for such essentials as private jets, five-star hotel accommodation, "personal care" (£7,000 a month) and flowers in her office. Even in the state that is not known for its lack of excess this has raised a few eyebrows, with one local paper remarking that the divorce "seems destined to titillate and disgust the common people in Southern California who wouldn't even know how to spend $500,000 a month". Nope, nor would I, although I wouldn't mind finding out.

Sunday, November 01, 2009

Control, or React?

I posted a few days ago about the Law Commission's proposal that cohabitants should have an entitlement on intestacy. My good friend John Hirst of Jailhouselawyer's Blog has drawn my attention to this article in The Times, in which Ross Clark (left) argues against the proposal, saying that: "For any cohabiting couples who don’t like the inheritance laws there is a simple answer — get married."

The whole issue of cohabitants' rights raises strong feelings, especially amongst those who are against. Most family lawyers are in favour, as they have seen first hand the injustices that the lack of rights can cause. It is all very well saying "if you don't like it, get married", but this raises the fundamental question of whether the law should be used as a tool to control how people conduct their relationships. Personally, I do not think that it should, or even that it could - in a free society, at least. If people want to live their lives in a certain way (and it is not that they can't be bothered to get married, as Clark suggests) then they should be free to do so. The law should react to changes in society (rather than try to control them) and ensure that injustices do not happen as a result of those changes.

October Post of the Month

Non-lawyers often seem to find it difficult to understand that lawyers must maintain a distance from the cases they are dealing with. In the family context, it would be all too easy to get involved in some of the highly-charged and often distressing situations that lawyers deal with, but to do so would be to fail in one's professional duty. The corollary of this is that lawyers are often accused of not caring, as discussed by Lucy Reed of Pink Tape in her post ‘Don’t you lot EVER think about the kids?’, my Post of the Month for October.

The particular source of the criticism that Lucy discusses is a children's guardian, who is quite clear in their view as to how the case should be resolved and becomes frustrated by what they see as lawyers (acting for parents) causing unnecessary delay. However, as Lucy says, parents are entitled to a fair trial too: "For what is fairness if it is not something applicable to all parties?". She concludes: "I think about the kids all the time. How could one not? But then I get on with giving sound advice and acting on my instructions, and put my faith in the court to work out the right solution."

It would be nice if this post were read in certain quarters, before lawyers are insulted in this way.