Thursday, July 29, 2010

Tchenguiz & Ors v Imerman: Goodbye to the Hildebrand rules

The Court of Appeal today decided in favour of the husband in Tchenguiz & Ors v Imerman [2010] EWCA Civ 908. In so doing, it consigned the 'Hildebrand rules', which until now have been used as a justification for the wrongful taking of documents belonging to the other party, to the dustbin of legal history.

I'm sure many far more illustrious legal scholars will shortly provide detailed analyses of the judgment, so I will just quote two extracts here:
"Hildebrand v Hildebrand, in our judgment, is authority only as to the time when copies obtained unlawfully or clandestinely should be disclosed to a spouse. On that narrow point – what we have referred to as the 'rule in Hildebrand' – it was and remains good law. In other words, and we wish to emphasise this, it is and remains the obligation of a wife who has obtained access to her husband's documents unlawfully or clandestinely to disclose that fact promptly, either if asked by her husband's solicitors or at the latest and in any event when she serves her Questionnaire." (Paragraph 42)
"The rule in Hildebrand as we have stated it in paragraph [42] above was and remains good law. But that is all. The wider Hildebrand rules (which, we repeat, have no basis in anything decided by Waite J in Hildebrand v Hildebrand) are not good law.

It follows that nothing in the so-called Hildebrand rules can be relied upon in justification of, or as providing a defence to, conduct which would otherwise be criminal or actionable (whether as a tort or in equity) nor as providing any reason why the relief (whether at law or in equity) which would otherwise be available should not be granted. More particularly it follows that neither the wives who purloin their husband's confidential documents nor the professional advisers who receive them (or copies of them) can plead the so-called Hildebrand rules in answer to a claim for relief..." (Paragraphs 120-121)
Some are already suggesting that the judgment and the demise of the Hildebrand rules will be a charter for parties to hide assets from the court, although the Court of Appeal seems to think that the parties who are victims of such behaviour already have sufficient remedies available. Only time will tell which argument is correct. Meanwhile, all lawyers involved in ancillary relief work will have to ensure that their advice complies with this important decision.

A 'total bloodbath'

Family law supplier base ‘decimated’ by LSC tender.

Wednesday, July 28, 2010

Note to self: This is what I do

As I approach one year since I gave up practising (more about which later in the week) I thought I would remind myself exactly what it is that I spend my time doing these days, apart from blogging that is.

I also run Family Lore Focus, a site that takes links to family law news stories, cases, legislation, articles, podcasts and blog posts, and puts them all in one (hopefully) handy place. Well, that's not quite true - it actually puts them in five places, although the most recent can be found on the front page of Family Lore Focus.

So, how does it work? Well, every day (or more likely several times each day) I scour the net for:

1. Family law news stories - these may come from numerous sources, including law sites, general news sites, Resolution and government sites (including legislation). Links to the ones that I think may be of interest go onto the Family Lore News blog.

2. Family law cases - from various sources, including Bailii, Family Law Week, Family Law and the Weekly Law Reports. Links to these, together with headnotes (which I write if there is none) go onto the Family Lore Case Digest blog, under appropriate subject headings, which are, of course searchable.

3. Family law articles - again, from various sources, including Family Law, Family Law Week and the Law Society Gazette. Links to articles of interest go on the Family Lore Articles blog, under appropriate subject headings.

4. Lastly, family law related blog posts. Here, I'm a bit more choosy about what I link to. With no disrespect to any bloggers out there, many family law blog posts are little more than thinly veiled advertising for the services offered by the blogger or their firm. Now, that's a perfectly valid use of blogging, but I only include links to posts whose content I think will be useful to anyone with an interest in family law. Those links go on the Family Lore Blogs blog.

OK, I mentioned five places earlier. The fifth is Family Lore Podcasts, which these days comprise the Family LoreCasts that I record with Natasha Phillips of Divorce Manual (we are currently enjoying a summer vacation).

As I indicated above, all five blogs feed onto the front page of Family Lore Focus. In addition, the latest news stories and cases also feed onto Twitter.

Finally, the top news stories, cases, legislation, articles, podcasts and blog posts all go into the Family Lore Focus Newsletter, a free weekly email which anyone can subscribe to here.

* * * * *

I was going to write a song about what I do, but I never finished it:

A Day In My Life

Wake up, fall out of bed
Pull a t-shirt over my head,
Make my way downstairs and boot up my PC,
While I wait I make a cup of tea.
Grab some toast and feed the cat,
Check my emails in seconds flat.

I read the news every day oh, boy
A hundred feeds in my reader
And though the number of relevant stories is rather small
I have to read them all
So now you only need one port of call

...and at that point I lost the will to live.

The wisdom of Katie Price

Katie Price has been reported as telling the This Morning TV show that: "Any child that has parents who are divorced are lucky. They get extra Christmas presents, birthday presents and extra trips."

Probably best if she sticks to modelling...

Tuesday, July 27, 2010

Khyra SCR: Remember who is responsible

The serious case review into the death of Khyra Ishaq has been published today. It found that the death was preventable. No doubt in the coming days there will be much made in some quarters of the failings of the agencies that dealt with the case, and it is of course quite right that lessons should be learned. However, let it not be forgotten who is responsible for the death: Khyra's mother and her partner, not social services or any other agency involved.

Monday, July 26, 2010

Would a shared parenting presumption actually make a difference?

In her column in Family Law last week Sandra Davis took issue with MP Brian Binley over his Shared Parenting Orders Bill:

"Mr Binley's rationale is that "very often Court Orders are made without the knowledge of the importance of a father's involvement and [his] bill will make sure that neither parent is shut out from a child's life when sadly a relationship breaks down."

I'm afraid Mr Binley is wrong on both counts.

On the first count she says: "In over thirty years of practice I cannot recall a single case in which an order was made concerning the upbringing of a child in ignorance of the father's role in that child's life." I agree with her, but in my twenty-five-odd years of practice I also witnessed many cases where at the outset one party - usually the mother - has the children with them and attempts to dictate terms to the other party from what they consider to be a position of strength. From that point on, the other party is fighting an uphill struggle to get what they and, more importantly, the children are entitled to. Many fathers simply give up part way through that struggle. Even the court has its work cut out persuading the mother to give ground, and a 'weak' court may even bow to the wishes of the mother.

On the second count Ms Davis appears to be making the point that I've heard before as an argument against a shared parenting presumption, i.e. that it treats children as if they are their parents' possessions. However, with a shared parenting presumption (and I'm not talking about any new type of shared parenting order here, as seems to be envisaged by the Bill) the end result in a fully contested case, decided as now by the same paramountcy principle and welfare checklist, may not necessarily be very different from the result under the present law. My hope, however, is that far fewer cases would go 'all the way'. If parents understand at the outset that the law will treat them both equally, then surely many more cases will be settled early.

That said, I do also agree with Ms Davis's final paragraph:

"No amount of legislation can enhance the life prospects of the children of parents who can not or will no[t] co-parent effectively. Court orders can do many things, but they can not compel intransigent mothers and fathers to become better parents."

Sunday, July 25, 2010

Lord Justice Pillock

There was a story of respect for the judiciary in The Mail yesterday, involving Earl Spencer and two of the country's top family lawyers Sir Nicholas Mostyn and Lord Justice Munby. Last year Mostyn acted for Spencer in his divorce, which was heard by Mr Justice Munby, as he then was. Now, however, Spencer is suing Mostyn for negligence, and has apparently disclosed an email that Mostyn is alleged to have sent him in which Mostyn says that he will name the seven piglets that his sow had just had: James, Munby, self-regarding, pompous, publicity, seeking and pillock. Excellent stuff.

Thursday, July 22, 2010

Book Review: Domestic Abuse - Practice and Precedents

Domestic Abuse

Practice and Precedents

By Jane Wilson

£49.95 – Published by Law Society Publishing: June 2010

Domestic Abuse - Practice and Precedents sets for itself the considerable task of ‘providing a fully comprehensive guide to all aspects of domestic abuse’, outlining the full range of civil and criminal options, including non-molestation and occupation orders, forced marriage protection orders, protection from harassment and even anti-social behaviour injunctions. How well does it meet these aims?

The book is separated into four parts, dealing with the risk and impact of domestic abuse, injunction proceedings, domestic abuse and children, and criminal proceedings.

The first part, comprising a single chapter, provides a useful background to the subject, including a definition of domestic abuse, statistics (some of which are quite horrendous), issues and causes. The chapter draws from a number of sources, and my only comment would be to do with the format of the footnotes, which are gathered at the end of the chapter (there is a similar format in a later chapter) and thus are called ‘endnotes’, which requires a certain amount of page-swapping to find references whilst reading the text.

The meat of the book is contained in the second part, which covers (to my knowledge) every civil remedy available for domestic abuse in all its forms: non-molestation and occupation orders under the Family Law Act 1996, forced marriage protection orders, the Protection from Harassment Act, the (now rare) injunction to restrain a tort and anti-social behaviour injunctions under the Housing Act 1996. A chapter is given over to each of these, providing guidance on jurisdiction, orders available, procedure and enforcement (the tricky business of civil enforcement also has a more detailed chapter of its own). There is also a handy section in each chapter setting out the advantages and disadvantages of each type of remedy.

In addition to the law and procedure, Part 2 contains advice on the practical aspects of the work: legal aid, taking instructions and evidence. All extremely useful, although if I had to nit-pick it can be a little basic at times (does anyone need to know the form of a jurat?).

The third part of the book deals with the topical interface between domestic abuse and children proceedings. The issue of domestic abuse crops up all too frequently in residence and contact applications, and a detailed knowledge of its treatment and implications is essential to all family law practitioners. This part, together with the accompanying precedents and resources, does an excellent job of supplying that knowledge.

The final part covers criminal proceedings, so much more important to this subject since breach of a non-molestation order became a criminal offence in 2007. Whilst criminal proceedings may not directly concern the family practitioner (unless he/she is also a criminal practitioner), this part will nevertheless be extremely valuable in providing clients with the type of information that they require.

As the sub-title indicates, the book includes numerous precedents, including checklists, forms, letters and draft orders. Many of these are on disk only, which can be a little frustrating but does make them easy to copy and use. The CD-Rom, which is unprotected, consists of Word documents, PDFs and links to resources on the internet.

The only obvious omission from the book that I can think of is that is does not include a list of useful addresses and websites, although as just mentioned, the accompanying disk does include links to some websites.

Save for that small oversight, the book does, I believe, succeed in providing a comprehensive guide to all aspects of domestic abuse. By its nature, domestic abuse work is usually urgent and therefore information will often have to be accessed quickly, and this book provides that information in a convenient single volume. A very helpful, and above all practical, addition to the library of any family practitioner, whether acting for alleged victim or perpetrator.

Legal aid to be removed for ancillary relief?

The Law Society Gazette reports today that, as part of the half a billion pounds cut to the legal aid budget, legal aid is expected to be removed for ancillary relief.

This could have an enormous impact, seriously disadvantaging the financially weaker party to ancillary relief claims.

I suspect that the rationale for targeting ancillary relief is that it deals with the division of family assets, and those assets can therefore be used to pay legal bills. However, it is not always as simple as that. For example, the vast majority of ancillary relief cases involve the former matrimonial home and in a substantial number of them one party, usually with the children, seeks to remain in the property. If, as is often the case, there are no other assets, that party's legal aid charge attaches to the property, to be repaid when the property is sold. How is such a party going to be able to pay their legal charges on a private basis? Solicitors won't be prepared (or able) to wait for payment of their fees. The only obvious solution I can think of is getting a loan, possibly secured against the property, but this is surely going to overstretch an already limited family budget.

I hope the implications of this are given full consideration before any changes are made.

Wednesday, July 21, 2010

Realy gr8 pL8

Perfect for divorced people on the move but not moving on:

[Found on Boing Boing.]

Tuesday, July 20, 2010

Anatomy of a Divorce - Part 14: Injunction

Shirley picked the torn pieces of paper out of the waste bin.

It was only two days after Brian had gone to see Liz at the matrimonial home that he was served with the injunction order. A burly-looking ex-policeman type had called at his office and handed the papers to him personally. If it wasn't for the man's physique, Brian might have thrown them straight back at him. As it was, he had accepted them with a meek "thank you".

Brian had read through the papers with mounting fury. A statement from Liz exaggerating events out of all proportion and the order itself telling him that he couldn't approach within 100 yards of the matrimonial home - his home - were enough for his temper to break. He had ripped the papers to shreds before he had even read the notice telling him that he had to appear in court in seven days' time.

It had seemed like a good idea. He wasn't getting anywhere writing to Liz's solicitor, so he thought he would go and speak to her direct. She would be reasonable - she always used to be.

But she had changed. She refused to talk to him at all, repeating that any communication between them should go through her solicitor, and getting him more and more annoyed.

He had known at the time that he shouldn't do it, but he couldn't help himself. He had forced his way into the house, knocking the front door into Liz's face in the process. As he stormed towards the kitchen he noticed his daughter Sophie crouching on the landing, petrified with fear. He turned back to Liz, who was now kneeling by the front door nursing a bloody nose, and he filled with guilt.

"Oh, you've really done it now." She said.

He knew she was right. "I... I'm sorry. I didn't mean to...", he stammered.

"You'd better leave, before I call the police." Liz warned.

"No... don't do that... there's no need..." His voice trailed off as Liz reached across the hallway for the phone. Suddenly, the anger rose in him again and he snatched the phone from her.

Sophie began to cry. Liz lifted herself to her feet, one hand still covering her nose and blood seeping through her fingers. Brian could see that she was shaking.

"I... really think you should go", she said. It sounded more like a warning than a request.

Brian glanced up the stairs towards Sophie. The sight of his daughter with tears streaming down her face was enough for the rage within him to melt away.

"OK", he said softly. "I'll leave."

Welcome To This World

This should be compulsory viewing for all parents, although how many of them will 'get it' is another matter...

Monday, July 19, 2010

Bad news for Californian divorce lawyers

If the news for Gazan divorce lawyers is bad, spare a thought for Californian divorce lawyers, who could be put out of business entirely if the 2012 California Marriage Protection Act is passed. Drafted by 'firm believer in traditional family values' John Marcotte, the Act aims to ban divorce in the State of California. The Act passed a major legal hurdle last week when the secretary of state's office gave Marcotte permission to start gathering signatures (he will need nearly 700,000 approved signatures by the spring of 2012 in order to make a ballot in June of that year).

Marcotte says: "If you can’t get divorced, you can’t destroy traditional marriage. Previous generations had it right. It’s better to stay together in a soul-sucking sham of a marriage, filled with icy silence punctuated with passive-aggressive hostilities than to admit you might have made a mistake."

Excellent! Where do I sign?

Sunday, July 18, 2010

Bad news for Gazan divorce lawyers

AP reports today that Gaza's Hamas rulers are banning women from smoking water pipes in cafes, claiming that it violates tradition and leads to divorce. Apparently, police spokesman Ayman Batneiji said that husbands often divorce women seen smoking in public, although for some reason he was unable to offer any evidence in support of that claim.

[Image: Detail from Allumeuse de Narghilé, by Jean-Léon Gérôme.]

Friday, July 16, 2010

The truth about child support, and other matters

The two posts on child support that I put up this week produced a lively and amusing entertaining debate. During the course of it we found:

1. That the CSA/CMEC are communists.

2. That child support is actually a tax (and there was I thinking it was to do with maintaining your children).

3. That some parents don't think they should pay any child support (no news there, then).

4. That child support discourages marriage.

5. That whether parents pay child support is nobody's business but theirs.

6. That if a parent pays child support they should have an automatic right to contact with their children, irrespective of any other factors.

7. That if a parent refuses to pay child support we should not compel them to do so.

8. That it would cause less pain to non resident fathers if they were shot rather than be required to support their children.

9. That the welfare of children is none of our business.

10. That Fathers4Justice are not 'quite' nutters.

11. That Judges are sexist.

12. That the CSA is immoral.

13. That child support is about middle class people trying to find someone to look down their noses at.

OK, I admit that some of the debate was quite reasonable and constructive. Nevertheless, for the sake of my sanity I have decided to disable comments for this post.

Thursday, July 15, 2010

Anatomy of a Divorce - Part 13: Sinking feeling

Fiona Smythe's heart sank when she read the letter from David Charles. She had now been acting for Liz Jones for five months. Dealing with Brian Jones through his solicitor had been difficult enough; dealing with him directly would be nigh impossible.

Sure enough, in the same post she had received a six-page missive from Brian Jones, rambling about various irrelevant issues, making allegations against both her and her client and completely ignoring the further disclosure that the court had ordered him to make. She had, of course, received many similar letters from litigants in person, but that didn't make it any less wearisome reading them.

Resisting the temptation to pick up her dictaphone and tell Brian Jones exactly what she thought, Fiona put the letter in the file and put the file to one side until she had calmed down a little.

An hour later she picked up the file again and began dictating a letter to Brian Jones. She would keep it simple: ignore the irrelevances, tell him that she was taking her client's instructions upon the allegations that he had made against Liz and remind him of the disclosure that he was required to make. For what it was worth, she would also recommend that he take legal advice. She knew that he would not be happy to receive such a letter, and that it was likely to elicit an irate response (probably another six pages worth), but what else could she do?

She then dictated another letter to her client requesting instructions and, with a sigh, placed the file in her out-tray, resigning herself to the fact that progress would now grind to a crawl, the costs would be increased substantially and any slim chance of resolving matters by agreement was probably now lost.

Shared Parenting Orders Bill

I was interested to read on Family Law yesterday that a private members bill on shared parenting was tabled on Tuesday in the House of Commons by Brian Binley, Conservative MP for Northampton South. The summary of the Bill is: "A Bill to provide for the making of Shared Parenting Orders and to create a legal presumption that such Orders enhance the welfare of the child unless certain exceptions apply; and for connected purposes". Mr Binley quotes himself on his blog as saying:

"Shared parenting legislation is vitally important for all involved, especially the children.

Very often Court Orders are made without the knowledge of the importance of a father’s involvement and my bill will make sure that neither parent is shut out from a child’s life when sadly a relationship breaks down.

I don’t need to underline the importance of both parents in a child’s life. A significant proportion of the social problems in today’s society are a result of when a child doesn’t have the love and support of both parents.

I hope the Bill will go some way to help this which can only be good for society."

I have, of course, already stated here that I am in favour of a presumption of shared parenting. I don't know what the chances are of the Bill getting passed, but at least the idea is receiving attention.

The Bill, which is supported by ten other MPs, will be debated in the House of Commons next summer.

Wednesday, July 14, 2010

CMEC responds

The CMEC press release that I posted a couple of days ago prompted some comments on the issue of child support that I didn't reply to, as I felt that they were beyond the scope of the post. However, a Commission spokesman has written to me in response to some of the points that were made:
  1. As to the accuracy of CSA assessments he says: "Much has improved since 2006; the Agency's latest published stats show 89.7% accuracy within £1 or 2% of the correct calculation. In any case, as I'm sure you know, all parents have the right to challenge the assessment. But you have to engage with the Agency to do that."

  2. As to how much of the money will benefit children, he says: "In recovering arrears through enforcement, the CSA prioritises money owed to parents with care (as opposed to 'Secretary of State' debt). I'm limited to what I can say about this particular case but it is reasonable to assume that the Agency does not embark on costly litigation that involves High Court applications unless there is a parent with care in urgent need of the money."

  3. "Finally, on the claim that you can be a financially responsible parent while choosing to defy the CSA ('draconian', 'unfair', etc. etc.) we can only point out that since October 2008 all parents have been free to agree to their own private maintenance arrangements if they able to, without involving the CSA - even if the parent with care is receiving income-related benefits."
Over to you commenters...

Legal aid for uncontested divorce: Next for the chop?

Mark Keenan of Divorce-Online has suggested in his blog today that, as part of its inevitable cuts to legal aid, the Government should "look very closely at whether the state should continue to fund uncontested divorce on Legal Help". He suggests that either the Government go to cheaper online suppliers and ask them to tender for the work, or that such funding should simply be stopped, leaving it to the private sector to compete for and provide this service.

Of course, a cynic would say that he would say that, but does he have a point? As he says, at present a solicitor receives a £162.00 fixed fee for dealing with an uncontested divorce, whereas an online service (guess who?) can offer "what is essentially the same form filling exercise for £69.00", "giving the MOJ a significant saving". Even more would be saved by stopping the funding entirely.

On the other hand, a legal aid solicitor (who is hardly making a profit from the work anyway) would doubtless respond that the service they give amounts to considerably more than a 'form filling exercise', that they could not possibly provide this service privately for less, and that therefore any such change would severely limit the level of service available to the poorest in society. Unfortunately for them, however, the winds of change are surely blowing against them and I'm sure that Mark's ideas would meet with a favourable reaction from the cost-cutters at Westminster. The time may be rapidly approaching when legal aid divorce lawyers will have to compete with cut-price suppliers, just as their private counterparts are already having to do.

Of course, I could take a leaf out of Mark's book and suggest that couples should do their own divorce, but I wouldn't do such a thing.

Re S (A child): 'Chillingly callous'

The case of Re S (A Child) [2010] EWHC 1669 (Fam) is, sadly, a familiar story.

The facts: On the 14th February 2008 there was an arranged marriage in Pakistan between the father, a British citizen of Pakistani origin, and the mother, a Pakistani citizen. Soon after the marriage the father returned to this country and applied for a spousal visa for the mother. This was granted and the mother came to this country on 12th October 2008, where she lived with the father at his parents' home. The child was born in January of this year, but the marriage foundered. On 8th March 2010 the father, the mother and the paternal grandparents travelled to Pakistan. The father then left the mother at her family home, took her passport and Pakistani ID card and returned to this country on 10th March. The mother applied ex parte for the child to be made a ward of court, and this order was made on the 31st March.

The mother alleged that she was deliberately abandoned and separated from her child by the father and grandfather, and that this had been planned before she left this country. Both the father and grandfather deny any wrongdoing or any such plan or intention but the father accepted that, when he left the mother at her family home, he had possession of her passport and ID card and did not return them to her.

Held: Mrs Justice Hogg found that there was a deliberate plan by the father and his parents to separate the mother from her child and abandon her in Pakistan. She described this (at paragraph 59) as "a chillingly callous way of behaving towards a young and new mother and towards a very young newborn baby", and went on:

"Sadly, this is not the first case where I have encountered allegations of deliberate separation of child and mother by the paternal family. I know that other judges of this division have encountered similar cases and made similar findings as I have done in this judgment. To separate a mother and child in this way is emotionally harmful to the child and remains so for so long as the child is deprived of the mother. It is something which is abhorrent and unfeeling towards a child and mother. It is selfish and cruel by those who do it."

Mrs Justice Hogg also noted the fact that the mother was unable to return to this country for the hearing and therefore had to give evidence by video link, adding significant additional costs which will be borne by the taxpayer, the mother being in receipt of legal aid. She commented that it would have been cheaper for the Legal Services Commission to have funded her ticket back than to face those additional costs. She went on to indicate that in her view the mother should be allowed to attend any future hearing, when it is decided where and with whom the child should live, and made a "plea to the ministers concerned that there should be some consideration as to what arrangements can be put in place to assist mothers to return to this country where allegations similar to those made in this case and where proceedings are in being and hearings are listed".

Tuesday, July 13, 2010

Monday, July 12, 2010

Father with massive child maintenance debt prevented from selling house to dodge CSA

I have received the following press release from the Child Maintenance and Enforcement Commission:


The Child Maintenance and Enforcement Commission has begun using new powers to halt or reverse the sale and transfer of assets by parents attempting to dodge financial responsibility for their children.

In the first case of its kind, a father in the northwest of England has been prevented from selling a house he was advertising on a popular property website. The man, who cannot be named for legal reasons, owes over £78,000 in unpaid maintenance. He has paid nothing to his former partner for almost twelve years while failing to respond to letters or phone calls from the Child Support Agency- now part of the Commission.

The Commission applied for a 'freezing order' after the man put his house on the market, raising fears he would try to put the proceeds beyond the Agency’s reach. The particulars of sale for the four-bedroom property boasted of numerous costly improvements, including a luxury fitted kitchen and home cinema. It noted there was "no chain" to hold up a quick sale.

In the first case to be brought under powers introduced by the latest child maintenance legislation, the High Court has now imposed an order preventing the sale. The reforms also allow the courts to reverse the sale or transfer of property by parents who have unpaid maintenance arrears. These 'setting aside' orders are designed to stop parents putting valuable assets in the names of new partners and relatives in order to evade both the CSA and their duty to provide for their children.

"This case sends a clear message to all parents who have run up substantial maintenance arrears," said Dame Janet Paraskeva, Chair of the Child Maintenance Commission. "Step-by-step the Commission is closing the escape routes for parents who think they can cheat their children out of money from which they are entitled to benefit. No longer can houses, cars and other valuable assets be sold off quickly to prevent the CSA taking possession of them. Those who cynically transfer the legal ownership of property into the names of their new partners risk having those transactions reversed."

James Pirrie, Chair of the Child Maintenance Committee of Resolution, the family lawyers’ association, welcomed the new measures. Although not involved in this case, Resolution has long campaigned for a more effective child maintenance system.

“Our 5500 members are committed to putting children first in any financial settlement when parents part, so when the Child Maintenance and Other Payments Bill was before parliament we worked hard with MPs to ensure that the Bill had powers to deal effectively with those who sought to evade their financial commitments to their children.

“The sooner people realise that payment of their child maintenance obligations is non-negotiable the better. Everyone can then focus on making sure that the calculation of how much has to be paid is accurate and appropriate,” said James Pirrie.

The arrival of these orders is part of a stepped-up enforcement effort that has seen the Commission commence Order for Sale proceedings against almost 500 properties around Britain. These actions are proving particularly effective at persuading indebted parents to settle their arrears. Well over £2 million in arrears has been recovered so far but fewer than 15 properties have had to be taken into possession and sold off.

Lump Sum Deduction Orders forcing banks to hand over money held in the accounts of indebted parents have also been introduced. More than 400 orders have been imposed with sums of up to £40,000 being deducted in some cases.

Sunday, July 11, 2010

Pre-nups to be enforceable?

According to the Sunday Telegraph today, the Law Commission will recommend that prenuptial agreements be made legally enforceable. A consultation paper will be published within the next two weeks, after the Supreme Court decision in Radmacher v Granatino is pronounced.

Unfortunately, the report is a little confusing. We are told that recognising pre- and post-nups is only one option that will be included in the consultation (which suggests that not recognising them is another option), but later that the "Commission will propose a series of options for legally binding pre- and post-marriage contracts". The report goes on to say that the Commission is also "expected to set out a series of 'best practice' guidelines, designed to prevent spouses being coerced into signing draconian pre-nup contracts", such as (unsurprisingly) requiring them to show that they had each received independent legal advice before signing. Further, we are told that: "pre-nups that left children in penury and the ex-partners of wealthy men or women at the mercy of state handouts would also be unlikely to be legally binding".

Whatever the consultation contains, it seems that pre-nups will shortly be the topic of conversation amongst family lawyers, although as with so many of these things, I am not sure that any changes (whether coming from the Law Commission or the Supreme Court) will have quite the impact that the hype suggests they will. There will no doubt be continued aversion to pre-nups for being 'unromantic', and they are essentially only for those with something to lose. For example, most young couples get married with few or no assets - are they going to bother with pre-nups? I doubt it.

Child abuse, plain and simple

I read with rising anger a report in The Observer today that senior doctors are calling for male circumcision to be offered by the NHS, following an investigation into circumcisions at an Islamic school in Oxford, which found that 13 out of 32 boys who had the procedure ended up with medical problems. The article explains how the procedures were carried out and the nature of the medical problems that ensued, and goes on to say that this is not an isolated incident.

Male circumcision is also of course a Jewish practice, but they get away lightly in the article, which says that the Board of Deputies of British Jews 'reports no problems arising from the operations'. We are, however, told that most Jewish male circumcisions are carried out without anaesthetic by a "mohel", who is "very often" (but clearly not always) a qualified doctor.

It beggars belief that we are even discussing the use of this barbaric practice in a modern society. Strip away the ancient religious mumbo-jumbo nonsense and what you have is child abuse, plain and simple. To have children mutilated without their consent (often by charlatans and without anaesthetic) is so obviously wrong as to be unarguable, and hiding behind religion should make no difference.

Friday, July 09, 2010

Facebook fantasy?

You just can't keep Facebook out of the family law media these days. Following on from my last post, Nancy Van Tine at the Massachusetts Divorce Law Monitor has blogged about an example of Facebook in action in a child support case she witnessed yesterday.

Two litigants in person were arguing over whether the father should continue to pay support for his 18-year-old daughter. The mother claimed that the daughter was living at home and working on her degree. The father, however, had done his internet homework. Checking (presumably) his daughter's Facebook page and elsewhere he had discovered that she was telling the world that she was working as a "model and an exotic dancer", earning $40,000 a year.

Nancy says that she wasn't sure whether the daughter was just fantasising (she wasn't in court), "but the shock-effect of the internet story can not be ignored". Nancy didn't hear the judge's decision, but she is "pretty sure the child support is over".

The moral, as always, is: be careful what you say on the internet.

Thursday, July 08, 2010

Block those smelly feet

Much has been said recently about Facebook being used in divorce proceedings. Well, Simon Owens of the Bloggasm blog has drawn my attention to a possible antidote for those who are fed up reading what their ex is getting up to on Facebook (or anywhere else on the net, come to that), but can't resist looking. 'Ex-Blocker' is a plugin for Firefox and Chrome browsers (not yet available for Internet Explorer, but who uses that nowadays?) that not only removes the user's ability to look at their ex's Facebook profiles and Twitter accounts, but removes their name from the internet entirely, including from Google search results and blogs. You can even add up to five ex-partners, for those unfortunate enough to have that many. To quote the blurb:

"His cute hair and perfect smile, along with his smelly feet, inability to hold down a job, and embarrassing table manners can now not only be barred from your memory but from every aspect of your activity online."

I suspect that the Ex-Blocker may get quite a few downloads...

(Note that I haven't tried Ex-Blocker, so I make no warranties about it - try it at your own risk.)

Family LoreCast #16

This week Natasha and I discuss Lord Justice Munby's Hershman-Levy Memorial Lecture on 'Lost Opportunities: Law and Transparency in the Family Courts', in which he called for further opening up of the family courts. We also discuss the Family Justice Review's 'call for evidence', and we end with a couple of appropriate quotations.

You can listen to the LoreCast here.

Wednesday, July 07, 2010

A turn-up for the books? Not really...

In a press release issued today the Institute of Fiscal Studies has said that marriage does not make relationships between parents more stable, according to new research. Whilst it is true that parents who are cohabiting when their child is born are three times more likely to split up by the time their child is five than married parents, this is almost entirely because they are "typically younger, less well off, less likely to own their own homes, have fewer educational qualifications and are less likely to plan their pregnancies than married people". To put it another way, "while married couples have more stable relationships than couples who cohabit, this is not because they are married, but because of the other characteristics they have that lead to marriage".

This cannot be music to the ears of the government (at least the Conservative part of the government), for whom promoting marriage is a key part of their family policy. Not that I'm sorry - I always preferred the previous government's view that all types of relationship are equally valid. It is also not exactly surprising. The idea that going through a marriage ceremony after being persuaded to do so by the government will somehow glue a relationship together has always struck me as somewhat absurd. It is not for governments to tell us how to live our lives, but rather for them to do everything they can to improve the lives that we choose to live.

And on that subject, perhaps the government could now turn its attention towards granting proper rights for cohabitees...

Tuesday, July 06, 2010

Anatomy of a Divorce - Part 12: All lawyers are fuckwits

"Are you sure you're doing the right thing?" Asked Shirley, her expression suggesting that she did not think he was.

"Damn sure. I've thought about this long and hard. All that idiot Charles is interested in is his fees. He doesn't give a shit about me." Replied Brian.

"But how are you going to get on in court without a lawyer?"

"I'll take my chances. Anyhow, Charles hardly stood up for me in court. Everything Liz asked for, she got. I can't do any worse than that."

Shirley was still dubious. "But how could he argue when you hadn't done what the court wanted you to do?"

Brian was now getting even more annoyed. "Why are you standing up for him? He was bloody useless."

"Then why don't you just instruct someone else?"

"What's the point? They're all the same. Pompous, money-grabbing bastards. Pretend they know it all, but they know nothing. All lawyers are fuckwits."

There was clearly no point in arguing further. Shirley turned to her PC as Brian began dictating a letter to his solicitor.

* * * * *

Brian's mood was not improved when he received this reply from his solicitor a few days later:

Dear Mr Jones,

Re: Divorce

Thank you for your letter of the 29th ultimo. I am sorry to note that you have not been entirely satisfied with the services of my firm, and that you wish to terminate your instructions. I shall be happy to release my file of papers to you, upon payment of the sum of £2,250.11, in settlement of my enclosed final account.

Yours sincerely,

David Charles.

Monday, July 05, 2010

Divide and rule

A New York judge has ordered a divorcing couple to build a wall in their house, dividing it into two separate parts, one for each to live in. I've heard of this being done before (although not in this country), but imagine that it would rarely work in practice. Still, it beats sawing the house in two...

Return to the roll

As any regular reader of this blog will know, I gave up practising last year. I therefore allowed my practising certificate to lapse and subsequently ignored the enquiry from the SRA asking whether I wished to keep my name on the roll of solicitors, blissfully forgetting that not being on the roll meant that I could no longer describe myself as a 'solicitor'. When I was notified of my removal from the roll I woke up to this fact and hastily sent off an application for restoration. Today I have been informed that my name is once again on the roll.

Of course, the more cynical reader may wonder quite why I would want to be known as a solicitor, given the low esteem in which the profession is held (hence the graphic above - I thought I'd make the joke before anyone else did), but I have my reasons. And lest anyone should think I have any intention of practising again, I can assure them that I do not - I may be mad, but not that mad.

Saturday, July 03, 2010

A v East Sussex County Council & Ors: The cost of child protection

The case A v East Sussex County Council & Ors [2010] EWCA Civ 743 caused some headlines yesterday, for example in The Independent, and on the BBC. It concerned a mother whose two-month-old son was removed from her and taken into care because of fears which subsequently proved groundless. She then claimed damages under Section 7 of the Human Rights Act 1998 against both the local authority and the police. Her claim was dismissed and she sought permission to appeal. The Court of Appeal granted permission, but dismissed her appeal.

The circumstances were that on the 22nd December 2008 the mother alerted the emergency services to the fact that the child had stopped breathing, and he was then admitted to Eastbourne General Hospital. The medical staff two days later thought the child was fit for discharge, but there was a concern that the mother had reported two incidents of the child stopping breathing. Not only had no-one else seen any such incident but no explanation for it could be found. The consultant was anxious lest he had encountered an example of factitious illness and, as was his duty, he notified social services; the police were also informed.

The child actually remained in hospital until the 29th December, when he was removed from the hospital and from the mother by the police pursuant to Section 46 of the Children Act 1989, into foster care. At an inter-partes hearing before the Family Proceedings Court on 31st December the mother agreed to go with him into a mother-and-baby unit. The assessment there was positive, the mother and child returned home, and proceedings were discontinued.

The issue for the court was whether the local authority and the police had exercised their powers lawfully and proportionately. It is settled law that that removal of children should usually be effected pursuant to an Emergency Protection Order (EPO), and that section 46 should only be used where it is not practicable to execute an EPO (Langley -v- Liverpool City Council). The judge found that on the 29th December it was impractical to convene a Family Proceedings Court and that thus the Respondents were entitled to seek the exercise of powers under Section 46.

The medical opinion available on the 29th December was that it would not be advisable for the child to go home with his mother with no supervision other than from members of her family. The local authority could have obtained the mother's agreement to accommodate the child under Part III of the Act, but it appears that that agreement was not forthcoming. Had they taken no action, the mother would have been free to take the child from the hospital. The judge considered that they were justified in taking the action that they did, rather than risk leaving the matter until a family proceedings court could be convened. The Court of Appeal found that this was a view entirely open to the judge on the evidence he had before him.

However, whilst he was satisfied that the judge was on the evidence entitled to take the view that what occurred was in the circumstances neither unlawful nor disproportionate, Mr Justice Hedley expressed the view that things could have been handled rather better than they were, for example the police could have prevented the child's removal from hospital for a further two days, until the hearing on the 31st December (paragraph 23).

The concluding paragraph of Mr Justice Hedley's judgment is worth quoting in full:

"Social workers in these situations are in a very difficult place. If they take no action and something goes wrong, inevitable and heavy criticism will follow. If they take action which ultimately turns out to have been unnecessary, they will have caused distress to an already distressed parent. On the other hand they are also invested with or have access to very draconian powers and it is vital that, if child protection is to command public respect and agreement, such powers must be exercised lawfully and proportionately and that the exercise of such powers should be the subject of public scrutiny. This litigation demonstrates that child protection only comes at a cost: to an innocent parent who is subject to it based on emergency assessment of risk and to public authorities who have had to account in a judicial setting for their exercise of power. It is, however, a cost that has inevitably to be exacted if the most vulnerable members of our society, dependent children, are to be protected by the state."

Friday, July 02, 2010

Guardian secures deal with BabyBarista

I have received the following press release:


Guardian News & Media (GNM) today announces a new partnership with former Times blogger, BabyBarista.

BabyBarista is a fictional account of a junior barrister practising at the English Bar, and previously appeared on The Times website. Tim Kevan, author of BabyBarista, decided to stop working with The Times after they announced plans for their online paywall. Tim’s blog will now be published on the new law section on and on his own web site at

Janine Gibson, Editor,, said: "This is a great example of how we are pioneering digital innovation and openness, working both commercially and editorially with the online community through our Open Platform, rather than shutting them out. This is just the first step towards working in new ways with talented writers, bloggers and creators.”

Tim Kevan said: “Not only does the Guardian have what I consider to be the most vibrant and innovative online presence of any of the national newspapers but also what is now the very best law section, freely available to all. I’m particularly impressed by the way they have introduced the idea of partnering with bloggers such as myself, allowing me to retain my own website and identity. It’s a paradigm-shift away from the old-school need for ownership and exclusivity and is definitely the way forward for traditional media to harness the power and energy of the web’s creative forces.”

To read the BabyBarista blog visit:

[Although not in the original press release, I have taken the opportunity to include another of the excellent cartoons drawn for BabyB by Alex Williams. I hope that neither he nor Tim minds!]

Grandparents' rights: No 'rose-tinted glasses'

There is much discussion these days of grandparents' rights. Promoting contact rights for grandparents is, of course, one of the matters that will be considered by the Family Justice Review. I was therefore interested to come across this post on Florida Divorce, indicating that in the USA grandparents' rights "were all but eliminated" by a Supreme Court decision in 2000. Are things moving in the opposite direction on the other side of the pond?

After a little research, I found that the decision referred to was Troxel v. Granville, in which the paternal grandparents sought contact with their grandchildren under a Washington State Statute. The State Court of Appeals dismissed their petition and this decision was affirmed by the State Supreme Court, which held that the Statute unconstitutionally infringes on parents’ fundamental right to rear their children. That decision was in turn affirmed by the US Supreme Court.

The exact impact of Troxel v Granville is not entirely clear (and I am certainly not qualified to comment upon US law), but it seems that since the decision many states have amended their "grandparent visitation" statutes (interestingly, all 50 states apparently have such a statute), in such a way as to make applications for contact by grandparents more difficult, for example by putting the onus upon the grandparents to prove that contact is in the best interests of the child, or even that the child will suffer harm if contact is not allowed.

None of this is, of course, directly relevant to the law over here, but it is illustrative of the problems that can arise if grandparents are given rights that can put them into conflict with the parents of the child. We therefore need to give the issue very careful consideration before we give any special rights to grandparents, else I can see scope for many more damaging family conflicts being played out before the courts, with those special rights spurring more grandparents to make applications. In most cases it is of course beneficial for children to have a (continuing) relationship with their grandparents (and this is already recognised by the courts here), but to suggest that it is always likely to be beneficial (for example by there being a presumption in favour of grand-parental contact) is, unfortunately, wrong. Those lucky enough to be in 'happy' (extended) families may find this hard to understand (and may view the whole idea of 'family' through rose-tinted glasses) but, as anyone who has worked within the family justice system will know, sometimes relationships between parents and grandparents have deteriorated to such a point that imposing grandparent contact can be seriously detrimental to the child (or there may be other good reasons for there being no such contact). We therefore need to take a realistic view of any changes, rather than have them driven by the 'rose-tinted glasses' brigade.

Under the present law, grandparents can and often do apply for contact orders (usually successfully), and the only extra obstacle put in their way (as against applications by a parent) is that they must first seek the leave of the court to make the application. My experience was that this was almost always granted, with the result that the leave requirement did no more than delay the application and add to the costs. I would therefore have no problem with the leave requirement being removed, but I'm not sure that any further reform is needed.

Thursday, July 01, 2010

Family LoreCast #15

This week Natasha and I discuss the case S (A child), the proposed closure of 157 courts and the latest quarterly court statistics. Natasha finishes with a story that suggests that the rights of the child may have gone a little too far...

You can listen to the LoreCast here.

June Post of the Month

June marked the very welcome return of that most deliciously venal product of Charon QC's fertile mind, Matt Muttley, managing partner of Muttley Dastardly LLP.

My only problem in deciding my June Post of the Month was: which Muttley Dastardly LLP post to choose? I could have gone for Muttley Dastardly LLP: Done with your wife or your husband?, with its relevant family law theme, but in the end I decided that my favourite was Muttley Dastardly LLP: This game’s in the refrigerator! The door’s closed, the lights are out, the eggs are cooling, the butter’s getting hard and the Jell-O is jiggling … (the title is a 'Chick-ism', and if you're not quite sure what the hell Matt Muttley is on about, look here).

The post is a chilling account of a meeting between partners and associates, vividly demonstrating the kind of thinking that is required to ensure that a top law firm retains its position in these troubled and difficult times. Compulsory reading for all those firms out there struggling to cope with the recession and the challenge from 'Tesco law'.