Wednesday, March 31, 2010

An inclusive message from the church...

The Telegraph reports today that the Roman Catholic church is urging its five million members in this country to ask election candidates how they would support marriage, in a new pre-election guide. So, that'll be five million votes for the Tories then...

The guide states that:
“Religious belief is not just something private: it helps create a society that wants to see everyone flourish."
What, like cohabitees, single parents, gays, women who want an abortion, HIV sufferers and small boys in the 'care' of Catholic priests?

Tuesday, March 30, 2010

Sir Mark and the terms of the FJR

I have just read the speech given by outgoing President of the Family Division Sir Mark Potter at the Annual Seminar of District Judges (PDF). I found most interesting his comments regarding the terms of the proposed Family Justice Review ('FJR').

Sir Mark explained that the Review "was launched with the twin principal aims of reviewing the Family Justice System’s approach to resolving private law disputes between separated parents and cases relating to the public law protection of children", and stated that he strongly supports the process of reviewing these two important areas. However, he went on to express his concern "that certain areas have been put to the panel by the Civil Service team in support which seem to me to widen that scope to an extent which could derail the review process, at least if it is to be completed to an acceptable timescale".

Sir Mark said that three of the proposed topics are:

(a) Review of the divorce/civil partnership dissolution process, which he said "is highly likely to excite the interest of groups (religious and otherwise) and politicians who have strongly held views about the ease, or otherwise, by which a divorce may be obtained". He therefore felt that this was "more suitable for examination by the Family Procedure Rules Committee in consultation with the Family Justice Council and other interested parties".

(b) Review of the basis upon which financial matters are resolved on divorce/civil partnership dissolution (“ancillary relief”), which he said "is a controversial and wide-ranging subject which, in my view, is well outside the scope of the current review and the [review] panel members’ experience". In his view, a fundamental review of this topic was "more appropriate for the Law Commission or a free-standing review body which has this very substantial task as its sole activity".

(c) Lastly, review of the ‘framework for managing the process of resolving family disputes, whereby there is effective leadership and accountability’. It is not entirely clear what is being referred to here but, he said, if it "relates to structures within HMCS then that is a matter for the HMCS, in partnership with the judiciary, but if the “leadership” and “accountability”, relate to or affect questions of judicial leadership and the accountability of judges then plainly these are matters which, under the Concordat, are for the Lord Chief Justice and/or the President as his delegate and I would strongly resist the suggestion that the FJR should have any role in reviewing the manner in which the family judiciary is organised and ‘accountable’".

For what it's worth, I agree with Sir Mark entirely. Don't get me wrong: I welcome review and reform of family justice, as I've stated here many times previously. However, including a review of divorce within its terms would certainly 'derail' the FJR, if the experience of the ill-fated Family Law Act 1996 is anything to go by. A review of ancillary relief would be huge, would delay the FJR inordinately and, in any event, is surely more suited to the Law Commission. As to point (c), I'm sure many groups seek greater judicial accountability, but this is clearly not the place to discuss that, or any reorganisation of the judiciary.

Bad Idea

An article in The Times today describes India’s first web-based “premarital detective” service.

Many marriages in India are arranged via the web, but this has not surprisingly given rise to "misrepresentation on a massive scale", particularly worrying if you are the parents of a bride paying a large dowry. "Now one of India’s largest security companies believes that it has the solution", says The Times: "an online portal where parents can arrange to have their offspring’s betrothed covertly tailed and vetted".

Sounds like a good idea to me. Apparently, a typical investigation arranged through the portal will involve "character verification, verification of social reputation, employment/business status, vices, addictions, violence, medical, education history, past broken/unbroken marriages, social and financial status and reputation of the family".


On second thoughts, this seems like a terrible idea that could put divorce lawyers out of business.

Monday, March 29, 2010

Says it all

I received this today from my good friend John Hirst of Jailhouselawyer's Blog:

Says it all, I think.

Saturday, March 27, 2010

Who Needs Fathers?

Entitled "Who Needs Fathers?", a new 3-part TV series begins this Wednesday on BBC2, looking at children issues following their parents' separation. Described by the BBC as: "A major series to mark 20 years since the passing of the Children Act", the programme will investigate whether the 'key principle' of the Act is being adhered to - that in family breakdown and divorce, the welfare of the child is paramount.

Should be worth a watch.

An article in The Telegraph today discusses the issues raised by the series.

Friday, March 26, 2010

Family Law (Divorce) - Pension Offsetting Research

I have received the following press release from Bradshaw Dixon & Moore:

"Actuarial firm Bradshaw Dixon & Moore has launched a research project to study attitudes to offsetting pension values in divorce. In the first phase, practitioners are invited to participate in an anonymous five-minute on-line survey.

The survey consists of four different case studies and participants are asked to say what values they would consider appropriate for offsetting, depending on whether they are advising the husband or the wife. As there is some anecdotal evidence to suggest that the approach to offsetting values differs across the UK, the survey is designed to identify any regional trends.

BDM plan to publish the survey results and analysis to encourage informed debate on the subject. All practitioners with an interest in this area are invited to participate in the survey, which can be accessed from BDM’s blog site at"

Thursday, March 25, 2010

Family LoreCast #8

In a shorter than usual LoreCast this week, Natasha and I discuss two topics: firstly pre-nuptial agreements and the Radmacher v Granatino case, which was heard by the Supreme Court this week, and secondly the interesting case of Hewett v First Plus Financial Group Plc, in which the Court of Appeal gave its judgment this week. At the end Natasha relates a story which demonstrates the ends that men will go to to find embarrassing ways to propose marriage...

You can listen to the LoreCast here.

What's in a logo?

My thanks to Boing Boing for drawing to my attention the not-so-subtle logo of the London Sperm Bank. Well, I suppose a logo should be memorable...

Things that litigants in person shouldn't do #3: Throw eggs at the judge

I should probably make this a new subject category. Following on from this post, here is my latest advice for litigants in person: don't throw raw eggs at the judge. Judges don't like this sort of thing, and it is therefore unlikely to advance your case.

Unfortunately, Agim Demiri does not appear to have received any such advice, for in the course of a child support hearing at the DuPage County Courthouse, DuPage County, Illinois, he allegedly threw a raw egg at the judge. It seems that the judge took a dim view of this and Demiri was charged with criminal contempt and remanded immediately to the DuPage County Jail, where he is no doubt now contemplating where his advocacy skills might be improved.

Wednesday, March 24, 2010

Hewett v First Plus: Common sense

Hewett v First Plus Financial Group Plc [2010] EWCA Civ 312.

Well, this is an interesting one. The facts: husband arranges a joint re-mortgage of the matrimonial home, so that he can pay his debts. Husband persuades wife to join with him in the execution of the mortgage, but fails to tell her that he is having an affair, which subsequently leads to the breakdown of the marriage and divorce. Wife then falls into arrears with the mortgage and the mortgagee seeks possession. Court grants possession order and wife appeals, claiming undue influence or misrepresentation.

The Court of Appeal found that the husband's concealment of his affair from his wife did amount to the exercise of undue influence against her, sufficient to vitiate the re-mortgage transaction, as between them. Mr Justice Briggs:
"It is evident that Mrs Hewett's decision to accede to her husband's request was based upon an assumption on her part that he was as committed as she was to the marriage, to the family and to the preservation of their home life in the future. The truth was that he had already embarked upon an affair which, although by no means a certainty, carried with it the serious risk that it would lead in due course to Mr Hewett's departure from the family and withdrawal of both emotional and financial support, as eventually occurred. On that analysis of the decision facing Mrs Hewett, I consider that Mr Hewett's affair cried out for disclosure."
He went on to say that it did not matter whether the wife's decision would have been different if disclosure had been made:
"In my judgment the question whether Mr Hewett's affair was a material fact calling for disclosure is to be decided by an objective test, rather than by asking the hypothetical question whether disclosure would have made all the difference to his wife's process of decision making. The issue may be best addressed by asking whether a solicitor, consulted by Mrs Hewett for advice about the wisdom of the transaction, would have thought it relevant to know that her husband was, while asking for her unqualified trust, at the same time conducting a clandestine affair. There can in my view only be an affirmative answer to that question."
Accordingly, the appeal was allowed and the mortgage was set aside. The mortgagee can, of course, still proceed against the husband's interest in the property, which the wife purchased from his trustee in bankruptcy for £1.

If you find the decision somewhat unfair so far as the mortgagee is concerned, I should explain that during the original trial they acknowledged that, having been aware that the re-mortgage was designed to secure payment of debts owed by Mr Hewett, rather than the Hewetts jointly, they were on notice of the risk of the exercise of undue influence by Mr Hewett against his wife.

All in all a common sense decision, although one that is obviously dependent upon its fairly unusual facts.

Domestic abuse screening toolkit

Resolution has launched a 'Domestic abuse screening toolkit' to its members. Comprising four pages, the kit is aimed at helping members spot cases where domestic abuse is an issue. The kit sets out 'screening questions', such as: "What happens when your partner loses their temper and/or you lose your temper?", and the rather more direct: "Has your partner ever threatened you with a weapon and have you ever threatened them with a weapon?". The kit then goes on to set out some characteristics of domestic abuse, how it might be manifested and useful contact details. The kit is available free to members, as a PDF on Resolution's website.

To be honest, the kit probably doesn't really add to the knowledge that any reasonably experienced family lawyer should already possess, but nevertheless it could be useful for the newly qualified, and for newcomers to family law.

Alienation of affection

I'm sure there will be some who think that this is a good idea, but thankfully "alienation of affection" is not a tort available to litigants in this country. It is, however, still allowed in North Carolina as this story in The Times today confirms, reporting the case of Cynthia Shackelford who successfully sued her husband's mistress Anne Lundquist for $9 million damages. Mrs Shackelford claimed that Ms Lundquist seduced her husband, and therefore caused the breakdown of her marriage, for which she received the damages. Mr Shackelford, on the other hand, claims that the marriage had already broken down before his relationship with Ms Lundquist.

I'm sorry, but how can you possibly compensate someone for a broken marriage? All that has happened here is that a jilted spouse has legally taken vengeance against the person she sees as responsible for the breakdown of her marriage. If the purpose of this law is to protect marriage by deterring spouses from forming relationships with others, then quite obviously it will not achieve that.

Surely, like criminal conversation, alienation of affection should be consigned to the dustbin of legal history?

Another reason not to become a social worker

As if we needed another reason. I've blogged often enough about the many problems faced by social workers (most recently only a couple of days ago), but today The Guardian describes one more reason not to become a social worker: being named and vilified on blogs and social networking sites. This can range from "vitriolic criticism" to personal abuse and threats, and is often done in flagrant breach of orders or rules banning the identification of the children and the parties concerned.

As The Guardian points out, it is extremely difficult to exercise any control over what goes on online, but if this sort of behaviour goes unchecked then inevitably even fewer good people will choose to join the profession. As usual, the losers then will be the most vulnerable children in our society.

Tuesday, March 23, 2010

The big news...

And now for the big news of the day:

I can hardly bring myself to comment upon this but it seems that, as part of the upcoming divorce of the year, we may be treated to the spectacle of Cashly and the nation's sweetheart fighting over their diminutive pooches, who apparently go by the names of Buster and Coco. I can't wait...

Not the best plan...

As I've pointed out before, litigants in person do not always take the best course of action to promote their cause. Such was the case with Alfred Marsh of Petah Tikva, Israel, whose wife had applied to the Kfar Sava Family Court for a maintenance order. Alfred told his wife's lawyer that he would shoot a judge if he was ordered to pay NIS 4,000 a month and, for good measure, he would burn the courthouse down.

Needless to say, this was not the best plan. To add to his troubles, Alfred received a 38 day jail sentence, a six-month suspended sentence and three months community service. Pretty lenient, but the judge took into account Alfred's remorse, the fact that he didn't have a lawyer, his clean record and her belief that the penalty would have the desired deterrent effect.

[My thanks to Florida Divorce for bringing this story to my attention.]

Pre-nup Poll

To coincide with the Radmacher v Granatino circus, The Guardian is running a poll with the simple (?simplistic) question: Would you sign a prenup? At the time of writing this post the results are as above, i.e. about two-thirds saying 'yes' (there is no 'don't know' option). How many of those two-thirds would really go through with a pre-nup if it actually came to it may be another matter, but nevertheless it is interesting that there appears to be public support for pre-nups, at least amongst Guardian readers. Perhaps that just says something about Guardian readers...

Monday, March 22, 2010

An unedifying story

There is an excellent article by columnist Madeleine Bunting in today's Comment is free column in The Guardian, in which she critically examines the Government's record in relation to child protection. Here are some examples of what she has to say:

"It is an unedifying story of idealistic ambition's unintended consequences, an obsession with accountability, a deluded faith in technology, alternate penny-pinching and enormous flamboyant unfunded commitments, and always a preoccupation with playing to the Murdoch media."

"No one has been brave enough to manage public expectations of child protection as difficult, expensive, and something that will periodically fall short. Instead, beleaguered social workers are set up to fail."


"Every child only matters if you put in the money and the people who can make that meaningful, otherwise it's the equivalent of putting an "I care for the planet" sticker on your 4x4. Social workers have been given an impossible job; you have to be mad, desperate or heroic to want to be one. But it is abused children who will end up paying the steepest price."

Recommended reading, particularly for whoever finds themselves in power after the forthcoming election.

Something's happening

Undergarments are dampening in anticipation in family law circles across the length and breath of the country. Rarely before have so many expectant family law hacks put fingers to keyboards to remind us of a such a major event, including: The Observer, The Times, The Independent, The Guardian and Family Law Week, to name but a few. So, I thought I would join the cacophany:

The Supreme Court is hearing the appeal in Radmacher v Granatino this week.

There, I've said it.

[P.S. Lest we get too excited, the last judgment in a Supreme Court family case was given more than four months after the hearing.]

Sunday, March 21, 2010

Are spammers stupid, or what?

Exasperated by the number of spam comments I had been getting, I recently turned on comment moderation. Naively, I expected this to stop the spam comments. After all, what kind of idiot will waste their time trying to get a spam comment on a blog when they know that all comments are moderated by the blog author, and spam comments will obviously be rejected? Well, it seems that there is no shortage of such idiots, as the spam comments keep coming. Are these people desperate, or just plain stupid? So, here's a tip: YOU'RE WASTING YOUR TIME.

[Scott Greenfield of the Simple Justice blog has recently written an excellent post on the subject of spam comments - recommended reading for all bloggers.]

Friends like these

The Young divorce continues to provide plenty of material for headline-makers. The latest, in The Sunday Times today, is that Michelle Young has allegedly received payments totalling more than £1 million from some of Britain's biggest business tycoons, to help keep her "in the luxury lifestyle to which she has become accustomed".

Now, why don't I have friends like those?

Most Wanted

I've commented previously about the way the authorities in at least some parts of America name parents who fail to pay child support. In Texas, the Attorney General is actually obliged by law to release an annual Top Ten List of Texas’ Most Wanted Child Support Evaders. This year's named and shamed owe a staggering combined $1.1 million in overdue child support, ranging from number ten who owes a mere $18,351 to number one, who owes an eye-watering $404,827.

Attorney General Greg Abbott is quoted as saying: “Parents have a moral and legal obligation to support their children. Those who ignore their court-ordered child support obligations must be held accountable for violating the law. We urge Texans to help us locate parents who are wanted by authorities for failing to pay their child support.”

The Top Ten list is just the tip of the iceberg. The Office of the Attorney General is required to publicly identify all child support evaders who owe more than $5,000, provided certain condtions are met, such as that an arrest warrant must have been issued, no payments made in the previous 6 months, and the custodial parent must sign a confidentiality waiver allowing certain case information to be made public. The Attorney General's website tells us that the 'Evader program' is "very successful" and, as proof, points us to a page listing evaders who have been arrested or located.

Should we have such a system over here?

Saturday, March 20, 2010

The Thunderer in overdrive

The Times goes into family topics overdrive today, fanning the flames of the family-as-an-election-issue fire, which is rapidly becoming a conflagration. I found no fewer than six articles, covering various matters, from marriage to children to separation and divorce.

We begin with who else but Ruth Deech - after all, she has been out of the headlines for at least two days - and are told that in her (mercifully) last family law lecture at Gresham college next week (I thought the lectures were monthly?) she will discuss the tricky question of prohibited degrees of relationship. She will apparently argue that the rise in marriages between cousins is putting children's health at risk, citing in particular the high numbers of such marriages in immigrant communities, which also have high numbers of children with recessive disorders. She does not seek a ban on cousin marriage, but rather a public campaign warning of the dangers, together with other measures, such as testing for mutant genes where marriages are arranged. Controversially, she suggests in-vitro embryo testing, brushing aside ethical objections about this being a slippery slope to eugenics, by saying that such objections are met by current guidelines under the Human Fertilisation and Embryology Act.

Apparently 'supporting' this article, we then have two further articles on the subject of cousin marriages, one telling us about some famous examples of such marriages (Darwin marrying his first cousin Emma Wedgewood is given particular prominence), and the other describing a first-cousin marriage, with the husband joking that marrying his cousin means that he doesn't have to deal with a mother-in-law. I shall resist the temptation for a Les Dawson joke...

Moving on, columnist and former Tory MP Matthew Parris unsurprisingly supports the 'obviously good idea' that a tax bribe will encourage more people to get and/or stay married. What is more, for best results he wants the bribe to be generous. To deal with the small problem of how the country might afford this, he comes up with the remarkable idea that it should only apply to those who marry after it comes into effect. Somehow, I don't think that would be much of a vote-winner...

Elsewhere, under Home > Life & Style > Women > Relationships we find an article by writer Justine Picardie in which she describes the breakdown of her marriage and its effect upon her. Her feelings are instructive:
"We live in an age in which people use tidy phrases such as “no-blame divorce” or “by mutual agreement”. But despite the level language of legal mediators and family law specialists, the feelings that arise are primal, savage, and — especially if infidelity has been involved (which it usually is) — clouded by rage, shame, humiliation and jealousy."
She tells us that: "there’s nothing easy about it, whatever Baroness Deech suggests", although she does end on a high note, assuring us that there is life after divorce.

Finally, also under Home > Life & Style > Women > Relationships we have an article by marital therapist Andrew Marshall, confusingly entitled 'Jerry Hall on how to survive after a separation', in which he gives us 'five scenarios when you should put down the phone to the solicitor and think again'. I confess that by the time I got to this article my concentration was fading, so I will leave it to you to reach your own conclusions...

Friday, March 19, 2010

Down in the Family Division...

Image: David Hawgood

In The Times' Law Central column yesterday Frances Gibb points out that "things are looking worrying down in the Family Division", with just two weeks to go before current President Sir Mark Potter leaves, and still no successor announced. Not only will this mean that the new man or woman will not be able to learn the job by shadowing him, she says, but also that either we will have a man who was rejected initially or a second-choice appointment. All quite embarrassing indeed...

Thursday, March 18, 2010

Family LoreCast #7

This week Natasha and I discuss the case of the boy who has threatened to go on hunger strike if he is made to live with his father, Baroness Deech's latest lecture, the survey commissioned by Resolution into attitudes towards divorce and relationship breakdown, and Mr Justice Moylan's speech at the Resolution annual conference, in which he reviewed ten years of the Human Rights Act. We end with a light-hearted look at relationships.

You can listen to the LoreCast here.

Tuesday, March 16, 2010

Baroness Deech speaks... again

Baroness Deech continues her monthly onslaught against the family justice system today with the latest of her public lectures as professor of law at Gresham College, London. According to the Telegraph, the theme of today's lecture will be that English law no longer has a clear concept of marriage.

Lady Deech will apparently quote the legal definition of marriage as the “voluntary union for life of one man and one woman, to the exclusion of all others”, and will go on to say that: “Such is the transformation of family law and family life that not one word of this remains true.” In support of her argument she will give the reasons why she thinks the number of marriages has fallen to its lowest level since 1895. I shall deal with each of these in turn, with my own comments:
  • Religion is a waning force: Excellent news - perhaps reason may take over from superstition.
  • Women have financial independence: This is a bad thing??
  • There is state support for lone parents: I would like to think that there would be in any civilised society.
  • Children are no longer classified as illegitimate: Thank goodness, too, that children are no longer saddled with this archaic stigma, through no fault of their own
  • Divorce is easy: I'm sure that many divorcees would disagree. In any event, a survey released only last week indicated that most people do not believe that making it harder would preserve many marriages (and may only prolong the agony of unhappy marriages).
  • There is no recrimination over sex and birth out of wedlock: 'Recrimination'? Does she want a return to the bad old days when young women and girls were ostracised by their families for falling pregnant?
OK, enough of the ranting. Baroness Deech will then go on to make a rather more sensible point, when she disagrees with provisions of the Human Fertilisation and Embryology Act 2008, which allow same-sex couples to be named as parents on birth certificates with no reference to a father. It almost pains me to say it, but I think I am with her on this one: isn't the situation akin to adoption, where the original birth certificate remains after the adoption, and the adopted child can obtain a copy after they reach 18, thereby obtaining details of their natural parents? Surely, the right of the child to know their natural father must trump the rights of the couple? Or am I missing something?

Monday, March 15, 2010

Has the nation's sweetheart instructed the Steel Magnolia?

I asked the question recently: Who cares about Cheryl Cole? Well, Fiona Shackleton LVO* does, if this report in the Daily Mail today is to be believed. According to them, the nation's sweetheart kicked hubby Cashley out of their home last Friday and shortly afterwards consulted the Steel Magnolia, lawyer to ageing heirs to the throne and even more ageing pop stars.

It is not clear whether Mrs Shackleton has been formally instructed yet, but if she is then hopefully for her Cashley will give her an easier ride than the feisty Heather Mills, who may not have presented much of a legal challenge, but was allegedly pretty handy with a jug of water. Mrs S is, of course, no stranger to dealing with prima donna ball-kickers, having already represented the wife of Cashley's old team-mate Terry Henry.

Whatever happens, it should be another great British media extravaganza.

*LVO = Lieutenant of the Royal Victorian Order, a particularly absurd title from our ludicrous and archaic honours system.

Saturday, March 13, 2010

CMEC v Beesley: CMEC not bound by IVA

Can entering into an Individual Voluntary Arrangement ('IVA') reduce the liability of the non-resident parent ('NRP') for child maintenance? That was essentially the question in Child Maintenance and Enforcement Commission v Beesley & Anor [2010] EWHC 485 (Ch), decided this week.

The facts were that the NRP owed some £25,000 in arrears of child maintenance. On the 11th March 2009 an IVA was approved by his creditors, under which they would receive a total of £0.27p in the pound over a period of 5 years, in full and final settlement of his liabilities. At that date, the arrears of child maintenance represented 94% of his debts. The Child Maintenance and Enforcement Commission ('CMEC') were aware of the proposed arrangement, but did not attend the meeting at which it was approved because it contended that child maintenance is not a debt which can be included within an IVA. Had CMEC attended and voted, it would have been able to defeat the approval of the IVA, assuming that it was entitled to vote.

The NRP contended that CMEC was bound by the terms of the IVA. Obviously, CMEC were concerned by this, as if they were bound then it would provide a relatively easy means by which an NRP in arrears could evade his or her liability to pay all the arrears that had accrued. CMEC therefore claimed that it is not a creditor for the purposes of an IVA or, if it was, it sought an order pursuant to s.262 Insolvency Act 1986 revoking the approval given to the NRP's proposal, on the ground that the terms of this particular IVA were unfairly prejudicial to CMEC.

His Honour Judge Pelling QC found that CMEC was to be regarded as a creditor for the purposes of the IVA. However, he went on to find that CMEC had been unfairly prejudiced by the approval of the IVA because it had been deprived of its right to collect or enforce the arrears in full, irrespective of whether the NRP was made bankrupt. Accordingly, the s.262 application succeeded, and an order was made revoking of the approval of the proposal given at the creditors meeting held on 11th March 2009.

And what of the parent with care ('PWC') and the child or children? Well, they do get a mention in relation to any shortfall between the amount owed and the amount that is actually recovered: "To the extent that the sum outstanding exceeds the amount of relevant benefits received by the PWC in this case that is a prejudice in respect of which the real loser is the PWC and the child or children for whose ultimate benefit the child maintenance calculation had been made." Quite.

Friday, March 12, 2010

Resolution survey shows political parties are missing the point

This is likely to cause a bit of debate. Resolution has today released a survey by YouGov into attitudes towards divorce and relationship breakdown. The results are enlightening. Key findings include:
  • 75% of people believe that marriages end irrespective of how hard or easy it is to get a divorce
  • 68 percent were in favour of no-fault divorce
  • 60 percent did not agree that making the divorce process harder would mean more people would stay married
  • 59 percent agreed that strengthening legal rights for cohabiting couples would encourage people to take financial responsibility for each other.
The results for no-fault divorce and rights for cohabiting couples will, of course, be music to the ears of Resolution, which has been campaigning for both. The figures seem about right to me - it comes as no surprise that a large majority are in favour of no-fault divorce, or that there is likely to be greater opposition to rights for cohabiting couples.

Resolution Chair David Allison points out that political parties have seized upon the family as an election issue, but that many of their policies miss the point. He says: "Politicians need to stop using family life as a political football and engage instead with real solutions which support rather than judge families." Alas, I fear that his words are likely to fall on deaf ears, as sensible family policies are not seen by our politicians as vote winners.

Thursday, March 11, 2010

Family LoreCast #6

This week Natasha and I discuss three topics: the Supreme Court decision in Agbaje v Akinnoye-Agbaje, the LGA warnings regarding the effects of implementing the recommendations of the Laming Report and Jack Straw's challenge to the recommendation that Sir Nicholas Wall be the next President of the Family Division. At the end, we each tell a 'relationship joke', with Natasha's being somewhat naughty...

You can listen to the LoreCast here.

Wednesday, March 10, 2010

Agbaje: Supreme Court overturns Court of Appeal decision

In a ruling that has been described as confirming London as the divorce capital of the world, the Supreme Court has today overturned the decision of the Court of Appeal in Agbaje v Akinnoye-Agbaje.

For those who have not been following this case, the parties were born in Nigeria, but both have British and Nigerian citizenship. They were married for 38 years. All five children of the family were born in England. The wife has been living in England continuously since 1999, when the marriage broke down.

The husband issued divorce proceedings in Nigeria. The assets are about £700,000, of which £530,000 represents two houses in London in the husband's name, and the balance represents properties in Nigeria. The Nigerian court awarded the wife a life interest in a property in Lagos (which, as found by the Nigerian court, had a capital value of about £86,000) and a lump sum which was the equivalent of about £21,000.

The wife made an application to the English court for financial provision after a marriage had been dissolved in a foreign country, under Part III of the Matrimonial and Family Proceedings Act 1984. The application was granted, and Coleridge J made an order which was intended to enable her to house and maintain herself in London by providing her with 65% of the proceeds of sale (expected to be about £275,000) of the house in which she has been living, the equivalent of a 39% award to the wife.

The husband successfully appealed against this order, principally on the ground that the judge had given insufficient weight to the connections of the case with Nigeria. The Court of Appeal therefore dismissed Coleridge J's order, whilst recognising that this was harsh on the wife. The wife appealed to the Supreme Court.

The Supreme Court has disagreed with the Court of Appeal, finding that "the English connections were substantial, if not overwhelming", and that there was "a very large disparity between what the husband received and what the wife received such as to create real hardship and a serious injustice". Accordingly, the wife's appeal was allowed, and the order of Coleridge J restored.

The Industry of Divorce

"This commercialisation of divorce is unedifying in the extreme." So said Liz Jones, in an article in The Mail yesterday, after visiting the Starting Over Show.

In the four years that I've been writing this blog, I've regularly pointed fun at the industry that has recently been growing up around divorce: divorce cakes, divorce parties, even coffins in which to place your wedding ring, to name but a few ideas that enterprising entrepreneurs have come up with to ease the pain of marital breakdown. Jones, however, found much more at the Show, including a hypnotherapist, spiritual healers, a stand offering teeth-whitening, Botox and wrinkle filling, 'flirting workshops' and even the 'Ball of Hopes and Dreams', where punters are invited to write down their 'positive vision for the future' on a piece of paper, stick it to a helium-filled balloon, then make a wish and let go. Jones describes the Show as "a curious mixture of the hard sell and the nauseatingly touchy-feely". "Make us feel loved, and special, and cared-for in a cocoon of squashy bean bags", she says, "and we will be less likely to be wary of being ripped off. I find the whole approach cynical".

But is any of this any less cynical than divorce lawyers trying to make a profit from people in a vulnerable situation? It seems from the increasing numbers of people going in for the sort of things that Jones describes that they do get something from it. Sure, spiritual healing may not be for all (it would certainly not be for me), but if it makes people feel better, where's the harm?

I suppose it depends upon just what advice is being given, and just what product is being sold. Unpalatable though it is to some, a bit of good legal advice is, I would suggest, a necessary evil when one is faced with the legal consequences of separation or divorce. A bit of emotional counselling would also not go amiss for anyone in need of it. However, is the line of exploitation crossed with some of the other items on offer? For example, Jones make the point that expensive beauty makeovers could actually just be sending out the message that women are responsible for the failure of their relationships because they were not beautiful enough to hold onto their man. On the other hand, if they make women feel better about themselves, then surely that is a good thing?

Before any clever commenter makes the point, as someone who has made a career from the industry of divorce and has even written a book on the subject, I am not perhaps the best person to comment upon all of this. I shall therefore leave it to the reader to make up their own mind.

Tuesday, March 09, 2010

"As humans, we need to evolve more"

A very light news morning this morning was made more entertaining by a piece in The Independent about "America's divorce king" Gerald Nissenbaum, coinciding with the publication of his book, Divorce Confidential. Nissenbaum has been practising divorce in Boston for some 40 years and his client list is described as "almost exclusively rich beyond reason". That may be pretty much the opposite of the way I would describe my old client list (although many of them were still beyond reason), but nevertheless much of what he has to say echoes my own experiences of practising family law.

Nissenbaum explains how relationship breakdown brings out the worst in many people, especially where children are involved. "Every parent who has ever pushed for custody insists he or she is doing it out of love," he says in his book. "Hate is more like it.... Parents throw everything they have at the other side, the more disgusting, horrendous and despicable, the better." Yep: been there, done that.

He also explains how he has had to retain a sense of humour, despite the nature of the work. He says: "if I didn't laugh at some of the silliness these people do to one another, or the outrage, I'd have ridden my high horse straight into an institution by now". Yep, I can relate to that. He then gives a hilarious example, involving a client who had married a man in the process of transgendering.

But the best part of the article comes at the end, when Nissenbaum is asked whether, after four decades doing this work, he has learned a lot about the human condition. "I have, yes," he replies, "I have learned that we have a way to go yet. As humans, we need to evolve more, I think." Oh yes, I certainly concur with that one.

Monday, March 08, 2010

International Women's Day

Nick Langford has reminded me that today is International Women's Day 2010.

There is no world-wide theme this year, but the theme of the United Nations is 'Women and men united to end violence against women and girls', something that every family lawyer deals with all-too-frequently throughout their careers.

Family lawyers receive little thanks for the work that they do (and are often criticised), but I'm sure that there are many women out there who are grateful for the help that they have received from their lawyers in protecting them from violent partners. Perhaps today we should celebrate this work, whilst of course acknowledging that much remains to be done to deal with the scourge of domestic violence.

Sunday, March 07, 2010

Please, grind your axes elsewhere

I try to keep this blog a reasonably open place, where people can state their opinions freely, whether or not they coincide with mine (a quick read through the blog will confirm this to any neutral reader). Unfortunately, the privilege to comment freely is all too often abused by those with an axe to grind, and too much time on their hands (alas, it seems that this is probably the lot of family law bloggers). Too often, posts are hijacked by such people, whose comments often have little or no relevance to the point of the original post. I'm sorry, but if you want to grind your axe about lawyers biased against fathers/secret family courts/whatever went wrong when you experienced the family justice system, then please do so elsewhere, and let's keep comments here relevant and civil.

So, if your comment is not approved, or is deleted, now you know why. Of course, defamatory or spam comments will also be rejected.

Thank you.

Three Headlines

Three newspaper headlines today:

The Times, wearing its Sunday best, continues its campaign of hatred against the 'secretive' family justice system today, by putting the boot in to the Birmingham social services department, ably supported by who else but John Hemming MP, who has been known to put the boot in himself on the odd occasion. The story today does not concern expectant mothers fleeing the country in the futile hope of saving their babies from the evil clutches of the state, but rather an innocent mother persecuted by wicked social services for the heinous crime of cuddling her five-year-old daughter. Thank goodness for The Times and John Hemming for regularly bringing such appalling stories to our attention.

Elsewhere in The Sunday Times we are given a striking example of how broken Britain really is with the story of Keith Macdonald who, at the tender age of 24 and no doubt much to the envy of his male contemporaries, has managed the remarkable feat of fathering no less than eight different children by eight different women. We are told that: "Whatever charm Macdonald might have held for the women he has made pregnant, most seem to regret having met him", which for some reason doesn't come as a surprise...

Lastly, and most seriously, the News of the World tells us (so it must be true) that Jordan and Alex (whoever he is) are not really married. Now, this is a particular tragedy for all of those who, like myself, placed good money on them being the first 'celeb' couple to divorce - if the marriage was void, then they will not need to divorce, a scenario which will bring shudders to proprietors of serious newspapers everywhere.

Thursday, March 04, 2010

Family LoreCast #5

This week Natasha and I discuss various topics, including the possibility of an inquisitorial family justice system, the Centre for Social Justice Green Paper on the Family, the case of Re W and the case of Vaughan v Vaughan. Oh, and at the end we have what may possibly be a first for a divorce lawyer...

You can listen to the LoreCast here.

Has Jack straw knobbled Sir Nicholas Wall?

I was going to comment upon this story in The Times today when I had a little more information but, prompted by Charon QC, I ask the question: Has Lord Chancellor and Justice Secretary Jack Straw knobbled Sir Nicholas Wall's appointment as next President of the Family Division, and if so, why?

The Times
speculates that Lord Justice Wall's criticism of Government policy may have caused Jack Straw to challenge the appointment. I sincerely hope that Jack Straw has not 'politicised' the appointment, particularly as Lord Justice Wall made it quite clear that he had no wish to engage in politics.

We shall have to see how this plays out, but I would have thought that Lord Justice Wall was eminently suited for the position, certainly more so than the present incumbent Sir Mark Potter, who did not even come from a family law background (but nevertheless seems to have done an excellent job).

* * * * *

Update: The Times expands on the story, here.

Re W: New rule, similar result?

The Supreme Court decision in Re W (Children) [2010] UKSC 12 is one of those cases that is likely to get family lawyers jumping up and down with excitement, but is it likely to have much practical effect?

The Facts: Re W was an appeal from the Court of Appeal's decision to dismiss the father's appeal against the decision of the lower court to refuse the father's application for the eldest child to be called as a witness. The eldest child, the father's step-child, had made allegations of sexual abuse against him. That child, and four younger children of whom he is the natural father, were taken into foster care and the father has since been charged with thirteen criminal offences, and is currently on bail awaiting trial.

The Law: The current approach to deciding whether a child should give evidence was stated by Smith LJ in LM v Medway Council, RM and YM [2007] EWCA Civ 9 at paragraph 44:
“The correct starting point . . . is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken. There will be some cases in which it will be right to make an order. In my view they will be rare.”
The Court of Appeal had expressed some concern at this approach, and suggested that the matter might be considered by the Family Justice Council. However, the Supreme Court did not consider that the matter could be left. Lady Hale (at para 22):
"The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point."
Accordingly, the initial starting-point or presumption has been done away with, and now the essential test is simply whether justice can be done to all the parties without further questioning of the child, with Lady Hale predicting that "the consequence of the balancing exercise will usually be that the additional benefits to the court’s task in calling the child do not outweigh the additional harm that it will do to the child" (para 30). Thus, it is envisaged that calling a child as a witness is still likely to be the exception, rather than the norm.

In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors, including the issues it has to decide, the quality of evidence it has, the age and maturity of the child and the length of time since the events in question (paras 25 and 26).

Note that Lady Hale specifically stated that, in principle, the same approach should be used in private family proceedings, although she recognised that here, rather than the 'neutral and expert' evidence of a local authority, the allegations of abuse could come from "a parent who is seeking to gain an advantage in the battle against the other parent", and the court would therefore have "to take very careful precautions to ensure that the child is not harmed by this" (para 29).

The Decision: The appeal was allowed and the question of whether the child should give evidence was remitted to the judge for her to determine in the light of this judgment, at a fact finding hearing scheduled for next Monday, the 8th March. It will be interesting to find out if her decision will be any different.

Wednesday, March 03, 2010

Interviewed by Divorce Saloon!

This week I had the very great pleasure and privilege of being invited to an interview by renown US blog Divorce Saloon. We talked about the differences between our legal systems, tax breaks for married couples and London as the divorce capital of the world, amongst other matters. My thanks to Divorce Saloon for the invite. The interview can be read here.

Tuesday, March 02, 2010

Karzi karma

If only we could get rid of all the bad things in life by simply flushing them down the toilet. Imagine what you might put down there: Simon Cowell, estate agents, and all those irritating government information adverts telling you how to live your life. Well, those inscrutable Japanese have come up with just such a device, with particular reference to divorce. At the Mantokuji Temple unhappy wives write down their aspirations of divorce on a piece of paper which is then flushed down the lavatory. The god of the bog then grants their wish... allegedly. Beats those expensive lawyers...

Monday, March 01, 2010

Just make it end...

Like most people in this country, I don't give a damn who wins the election, I just want it to be over. Unfortunately, however, there are a few who still think our votes can be bought, so it is my duty to inform you that The Times reports today that the Tories will be attempting to woo voters by including tax breaks for married couples in their manifesto. No details are given (including how a bankrupt country is to pay for such tax breaks), but no doubt I will have to return to this yet again, once the manifesto is published. I can't wait...

February Post of the Month

Sometimes a post just hits a chord. With everything that has been going on in my life recently, BabyBarista's post Year 4, week 22: regrets did exactly that.

In a somewhat more reflective mood than normal, BabyB has lunch with OldRuin, who asks him what are his regrets. BabyB explains, and OldRuin tells him: "Cherish those regrets, BabyB. They’re who you are and who you want to be." A wonderfully positive thought to hold on to in negative times, and perhaps one that divorce lawyers should impart to some of their clients?

Incidentally, if you've not done so already I thoroughly recommend that you invest in a copy of BabyBarista and the Art of War, available on Amazon for only £8.39.