Wednesday, June 30, 2010

Family Justice Review 'Call for Evidence'

As part of the Government's Family Justice Review, the Family Justice Review Panel today launched a ‘Call for Evidence’ so that "anyone with an interest in the family justice system can contribute their views on how it can work better in the future". The call for evidence take the form of a questionnaire, which can be completed online. Questions the Panel is seeking views on include:
  • How can the justice system focus more on helping family members to reach agreement rather than pitting them against each other?
  • How best can the courts working with other agencies support children involved in the care system?
  • How best can the system provide greater contact rights to non-resident parents and grandparents?
The evidence will be "carefully considered and used to inform the Review’s recommendations on how to improve the system". The final report from the review panel will be published next year.

S (A child): Children orders must have jurisdictional foundation within the statutory language

The case of S (A Child) [2010] EWCA Civ 705, recently reported on Family Law Week, involved a technical point of language. It concerned a six year old child, where the mother sought a sole residence order and the father sought shared residence.

A two-day hearing was fixed before HHJ Donald Hamilton at the Reading County Court on the 11th and 12th of June. For most of those two days the parties were allowed to negotiate, but 'all sorts of issues escaped agreement' and the judge had to decide those issues late on the second day. His order comprised fifteen recitals setting out the various matters that were agreed between the parties, and nine paragraphs of order. The entire order is not set out in the report, but we are told that:

"Paragraph 1 of the order provides: "The father shall have the care of [L]..." Slightly different language in paragraph 2: "The care of [L] within the school holidays shall be arranged as follows:". In paragraph 2c the language moves into the passive: "L will be cared for by her father". Then in d "L will spend Christmas 2009 with her father". And in paragraph 4 the language becomes: "L may be in the care of her father for such further alternative periods as shall be agreed in writing""

The father was dissatisfied with the order (indeed, with his whole experience during the two days of trial), and appealed. The primary ground of appeal was that the court simply has no jurisdiction to issue orders in such terms.

Lord Justice Thorpe agreed. He pointed out that section 8 of the Children Act defines 'a contact order' as 'an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other' and that: "As Ward LJ observed in paragraph 9 of his judgment in the case of Re B (A Child) [2001] EWCA Civ 1968, necessarily the contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person" (also paragraph 9 of this judgment). (With the greatest respect to Lord Justice Thorpe, Lord Justice Ward did not say that in Re B, rather that: "one cannot have a contact order without having first determined who the person is with whom a child lives because it is that person who has to allow the child to visit or stay with the applicant for the contact order" - there does not, I believe, therefore need to be a residence order in force before there can be a contact order.)

Lord Justice Thorpe then looked at the definition of a residence order ('…an order settling the arrangements to be made as to the person with whom a child is to live') and therefore found that: "there is nothing within the statute to enable a court permissibly to impose provisions as to one or other parent either caring for a child or having the care of a child or dividing a holiday other than in the form of a contact order" (paragraph 11).

Counsel for the mother sought to found this language not as a residence or contact order but as a specific issue order, but this was swiftly dealt with: paragraph 9(5) (a) of the Children Act makes it clear that the court may not exercise its powers to make a specific issue order or prohibited steps order with a view to achieving a result which could be achieved by making a residence or contact order.

Counsel for the father (somewhat generously) drew the attention of the court to Re N (A Child)[2009] EWHC 1807 (Fam), in which Munby J approved the use of similar wording in a consent order. However, in that case the parties had reached a full agreement, whereas in this case they clearly had not - there is nothing to prevent parents reaching agreement in whatever terms they wish (and for the court to approve that agreement, perhaps as a schedule to an order), but if the court is being asked to impose an order upon the parties then "it must find its jurisdictional foundation within the statutory language" (paragraph 16).

Accordingly, the order was set aside and the case remitted for further hearing in the Reading County Court. The court refused counsel for the father's suggestion that it exercise its discretion to make a shared residence order as, although the arrangements enshrined in the order "are to all intents and purposes a good illustration of a modern shared residence order operating in detail", the issues had not been sufficiently investigated to enable the Court of Appeal to make such an order. However, the arrangements set out in the order have apparently "worked extremely well in practice" (paragraph 17), and Lord Justice Thorpe expressed the wish that the parents can agree matters, and avoid the expense and stress of retrial. Let us hope that they do.

Two further points, one serious, the other a curious coincidence:

1. Whilst he found that the objective of the court in leaving the parties for so long to attempt to reach settlement was laudable in one sense, in another sense it was misguided: "There are many instances in which the pursuit of an accord extends rather than reduces the duration of a final hearing" (paragraph 2) and: "very often in these cases where there is a head-on conflict between parents, one saying I want a sole residence order and I am not prepared to compromise, the other saying I want a shared residence order and I am not prepared to compromise, by far the quickest route to resolution is for the judge to hear the case out and deliver his judgment" (paragraph 17).

2. This was an appeal against a decision of His Honour Judge Donald Hamilton sitting at the Reading County Court. The cited case Re B was also an appeal against an order of a Judge Hamilton, although it was not clear there which Judge Hamilton. However, when pondering exactly which Judge Hamilton made the original order in Re B, Lord Justice Ward did give a descriptive mention of Judge Donald Hamilton (presumably the same one): "We are told it is neither Judge Donald Hamilton, he of imposing physique, who sits a great deal in Birmingham and Coventry, nor is it His Honour Judge John Hamilton who ordinarily sits in Luton. I believe it is His Honour Richard Hamilton, recently retired from the Liverpool County Court".

Monday, June 28, 2010

In Loco Parentis

The independent think-tank Demos has today published its report on the care system, In Loco Parentis, commissioned by Barnardo's.

The 300-page report concludes that "the popular notion that it is the care system alone which generates poor outcomes is simply not grounded in the evidence, and so the view that care somehow fails all children catastrophically is inaccurate" and that "we should not doubt the capacity of the system to provide a nurturing, safe haven for many children, and we should be using care more confidently and proactively to provide this when it is needed". The executive summary goes further by saying that: "The mistaken belief that care consigns all looked after
children to a lifetime of underachievement and poor outcomes creates a culture of uncertainty, increasing delay and leading to instability later on".

The report identifies three areas in need of reform, and makes recommendations in each:

1. Delay in entering care. They argue that 'early or decisive' entry into care (where appropriate) is likely to lead to better outcomes for the children concerned, and could even result in considerable cost savings to the state.

2. Instability in the 'care journey': "Stability can promote resilience for looked-after children in two respects: by providing the young person with a secure attachment (which can also reduce the likelihood of placement breakdown), and by providing continuity in other areas of the child’s life, such as their school and their friendship group". Here, they see a significant correlation between the child's emotional and behavioural problems and a high risk of placement breakdown. Their recommendations therefore include that mental health training be included in training standards for foster and residential care workers.

3. An abrupt exit from care: "There are four factors that can significantly improve a young person’s experience of leaving care and give young people a chance of better adult outcomes: the age at which young people leave care; the speed of their transition; their access to preparation before leaving care and support after leaving care; and maintaining stability and secure attachments after leaving care". One recommendation here is that the care leaving age be raised from 16 to 18.

The report broadly supports the views of Barnardo's chief executive Martin Narey, who caused controversy last year when he suggested that many more children need to be taken into care at birth to stop them being damaged beyond repair by inadequate parents, and that less effort should be directed at "fixing families that can't be fixed".

Neither mediation nor collaboration is a panacea

It seems that the proponents of mediation and collaborative law are very passionate about their subjects, but are they in danger of misleading the public as to just what mediation and collaboration can achieve? The enthusiasm that they show sometimes seems to me to give the impression that mediation and/or collaboration are panaceas that will resolve any divorce/separation dispute, completely replacing more 'traditional' ways of resolving those disputes. I don't know if it is just me who thinks that these things are over-sold, but if the general public were to get this impression, then I think we could have a problem.

I have said previously that I was sure that any collaborative lawyer would agree that collaboration was not a panacea, but now I'm not so certain. Some of the claims made for it and for mediation verge on the hyperbole. I'm not going to give any specific examples, as I don't want to single anyone out, but they certainly give me the impression that they are the answer to everyone's family law problems, or even that you would be foolish not to use them.

Why does it matter? After all, surely any attempt to resolve matters by agreement is a good idea? Well, yes, but only to a point. Many cases just aren't going to settle in mediation or collaboration. If people are duped into thinking that their case will settle when manifestly it won't, then they will suffer unnecessary delay, frustration and expense. Now, I'm sure that the best mediators and collaborative lawyers exercise some sort of vetting system at the outset, sifting out those cases that are not suitable, but I worry that the fervour of some (or just the need for a return on the investment in training) will blind them into accepting cases that are patently unsuitable.

Clearly, the public should be made aware of all of the possibilities for resolving their family disputes, but they should also be made aware of the limitations intrinsic in some of the alternatives. Sometimes, getting a matter before the court as quickly as possible really is the best option.

Sunday, June 27, 2010

Happy Unarmed Forces Day

Yesterday was Armed Forces Day. I know all about Armed Forces Day, as the first one took place in Chatham last year, and I was living right in the middle of it. In fact, HMS Let's Kick the Shit Out of Johnny Foreigner sailed right past my window.

We are told that Armed Forces Day "is an annual opportunity for the nation to Show Your Support for the men and women who make up the Armed Forces community", and who can argue with that? Well, the people behind Unarmed Forces Day can: "Unarmed Forces Day takes place on 27 June every year. It is a celebration of the power of non-violence, and a protest against the British government’s Armed Forces Day – which is an attempt to shore up support for its unpopular wars in Afghanistan and Iraq by rallying the British public behind the armed forces."

Do they have a point? Is it all too easy to be impressed by our military and its hardware, like some bunch of overgrown schoolboys, and miss the subliminal message of jingoism? Certainly, the Iraq war was unpopular and in serious need of public support. As for the war in Afghanistan, support is surely likely to drain in inverse proportion to the growing death-toll. That toll might be just a little more bearable for the families of the deceased if there were some discernible progress, but there is not: to this inexpert eye the most likely scenario when we leave that unhappy country is that our 'enemies' will quickly regain control of those areas that we took from them, resulting in nothing whatsoever being achieved.

And what of the civilians who actually have to live in the war-zone? How many of them have lost their lives as a result of our presence in their country? I hope that our military personnel do all they can to minimise civilian casualties, but reading of soldiers at some remote location in America merrily releasing bombs from UAVs flying over Pakistan as if it were some Playstation game does make one wonder. Those exciting-looking toys that are displayed each Armed Forces Day do kill real people.

The campaigners behind Unarmed Forces Day spent yesterday in "counter-recruitment activity and informing soldiers of their legal right to object to war", and today set off on a five-day 'Peace Walk' from the Ministry of Defence to the military prison in Colchester where soldier Joe Glenton is in prison for refusing to fight in Afghanistan. Lance Corporal Glenton is quoted as saying: "When I went to Afghanistan I was proud to serve the Army and to serve my country, but before long I realised the government was using the Army for its own ends. It is distressing to disobey orders, but when Britain follows America in continuing to wage war against one of the world’s poorest countries I feel I have no choice. Politicians have abused the trust of the Army and the soldiers who serve." Hmm, what happens if all soldiers refuse to fight? Peace, I guess ...or is that just naive?

None of this may have any relevance to family law, but it most certainly has relevance to families. Quite what it must be like for all the parents, spouses, partners, children and siblings of those in the war-zone, constantly hoping that they do not receive that terrible news from the Ministry of Defence, I can't begin to imagine.

Friday, June 25, 2010

Anatomy of a Divorce - Part 11: Bias

Brian Jones sat in his office, reflecting upon the latest developments.

After the first hearing he had thought that the judge had been biased against him; after the second hearing he was convinced that he was.

Clearly, he was never going to get a fair hearing. The question was: what should he do now? Should he throw in the towel, let Liz have everything and give up on ever having proper contact with his children? Or should he fight it out, making a stand against a system that was prejudiced against husbands and fathers?

It didn't help that his own solicitor was clearly also one of the system. He was always telling Brian what he couldn't do, or what he had to do, never what Brian wanted to hear. At times, it had seemed as if he was on Liz's side, not his. Perhaps he should instruct a solicitor who was prepared to fight for him. On the other hand, all solicitors were probably biased. Perhaps now was the time to go it alone - he felt sure he could do a better job on his own.

He glanced up at the clock on his office wall. An hour had passed, and he hadn't even looked at the pile of papers on his desk. He realised that he had hardly done any work for days, and the pile was getting ever larger. The whole divorce thing had become all-consuming, and he just couldn't concentrate on work. If he didn't snap out of it soon, his business would go under.

But that thought didn't stay in his mind for long.

It was all so unfair. Why should he have to see his kids at a contact centre? He was a good father - he'd never done anything wrong to them. How could he ever have a relationship with them if he only saw them for two hours once a fortnight? His solicitor had told him that this was only a temporary arrangement, but he wasn't so sure. He couldn't see that judge ever letting him have proper contact. He knew the game Liz was playing: she hoped that he would get fed up going to the centre and give up on contact altogether. Maybe he would grant her her wish...

And as for the divorce settlement, Liz was clearly after everything: the house, his pension, even his business (she had made sure the court ordered him to disclose his business accounts). Why should he come out of a ten year marriage with nothing? How could that be right? The whole stinking system was biased against him.

The clock ticked on.

Bizarre

A child protection group in America thinks that this is a good idea for an advertisement:

Thursday, June 24, 2010

Sound advice.


Hopefully, Mrs B will have no further problems getting to work...

[Found on BuzzFeed.]

Family LoreCast #14

This week Natasha and I discuss the recent cases Re AR (A Child: Relocation) and T v B, which involved a lesbian couple, where the mother sought maintenance for their child from her former partner. As usual, Natasha finishes with a quotation...

You can listen to the LoreCast here.

A very bad idea...

Another remarkable story from Florida Divorce tells of a father who wanted to see his son, so he forced his way into the mother's home and used pepper spray to enable him to take the child. Thankfully, I don't think pepper spray is legally available in this country. However, lest any parent should obtain some and think it would be a good idea to use it to secure contact, they should consider that this father was subsequently arrested and charged with breaking and entering with intent to commit a felony, child endangerment, child abuse, assault and battery, and domestic assault and battery. He is also likely to have severe difficulty in securing any future contact with his son.

Wednesday, June 23, 2010

Foreign child support news

I see that the child support system in Australia (upon which, as I recall, ours was modelled) is suffering the same failures as the child support system over here. This story in The Australian today reports that parents owe their ex-partners more than $1 billion in child support payments and that no fewer than half of separated parents are failing to pay all, or any, of their child support liabilities. And all of this despite a five-year reform process. Sounds remarkably similar to our own experiences.

I don't know what it is about child support that governments persist with it, despite its manifest failure to achieve what it was designed to do. No business would be allowed to operate in such a way - it simply would not survive. Just how bad does it have to get before those in power admit that child support was an experiment that failed?

Meanwhile, in America Florida Divorce reports a case where a husband was ordered to pay $1,106 in monthly child and spousal support and then left his job and joined a religious commune which forbids members from making money outside the commune. The husband failed to pay the support and the wife filed for contempt. Interestingly, the court held him to be in contempt, despite finding that his new religious beliefs are genuine, and this decision was upheld on appeal. "Defendant did not quit his job and join a religious community until after entry of the support order," stated the judge. "That defendant's religious beliefs are sincerely held, as the trial court found, is irrelevant." In other words, as I understand it, you cannot simply avoid liability to pay the support by voluntarily giving up work, which makes sense.

Tuesday, June 22, 2010

The Budget: How it will affect the family

Here is a quick summary of the Budget measures/aims that directly relate to the family:
  • Families earning more than £40,000 will have their tax credits reduced.

  • Benefits, tax credits and public service pensions will increase in line with consumer prices rather than the retail price index.

  • Rise in the state pension age to 66 will be accelerated.

  • Child benefit will be frozen for the next three years.

  • Lone parents expected to look for work when their first child goes to school.

  • Housing benefit will be limited to a maximum of £400 per week for a four-bedroom house.

  • Two year council tax freeze.

  • The child element of child tax credit will rise by £150 above inflation next year.

  • Sure start maternity grant will go to the first child only.
(For a reaction as to what effect all of this will have on families, see this article in The Guardian.)

Humanist Week

As this is Humanist Week I thought I would mention a couple of news stories appearing on the British Humanist Association's website, both relating to the education of our children:

Teaching of evolution - In a joint letter to Michael Gove, Secretary of State for Education, twenty-six of the UK’s top scientists and science educators, including three Nobel laureates, have called upon the Government to protect and promote science in the school curriculum, with the specific inclusion of evolution in the primary curriculum. The letter was organised after key reforms to the primary curriculum, which included evolution for the first time, were dropped just before the election.

The new government has, in its more general education programme, also announced that it will ensure ‘all schools have greater freedom over the curriculum’. The British Humanist Association (BHA) is concerned that this will mean that there will be less evolution taught in schools and a greater risk that some schools, particularly ‘faith schools’ may try to introduce creationism into the science classroom.

Contrary to popular belief, evolution is not a theory, it is a fact, long-since proved by an enormous body of evidence. It is the central concept underlying biology, and should therefore be included in the science curriculum in all schools. Creationism (and, come to that, so-called 'intelligent design'), on the other hand, is not science, and accordingly has no place in the science curriculum.

Faith schools
- Meanwhile, in a formal response to a parliamentary question on “faith schools” admissions, the government has made clear it does not intend to prevent current or new faith schools from discriminating in their admissions. This is extremely disturbing. As Andrew Copson, BHA Chief Executive, comments:

"The government’s statement makes clear that religious discrimination in admissions is here to stay, going against what was implied in the Coalition Agreement, and against an explicit Liberal Democrat policy, that no new schools would be able to discriminate in admissions. State-funded “faith schools” which discriminate in their admissions are hugely unrepresentative of their local areas, dividing up children and communities along religious, socio-economic and often ethnic lines, creating huge social problems now and in the future".

We are not allowed to discriminate in other areas of life, why on Earth should schools be allowed to do so? In any event, surely it is more important now than ever that we should promote integration, rather than division?

Monday, June 21, 2010

Sharia Law in Britain – A Threat to One Law for All and Equal Rights

The One Law for All Campaign has published a new report Sharia Law in Britain – A Threat to One Law for All and Equal Rights. The report may be downloaded here (PDF) and a press release, summarising its findings and recommendations, may be found here.

The Report confirms many of the things we know already, including:

1. That whilst Muslim Arbitration Tribunals purport to arbitrate in family cases, they have no legal jurisdiction to do so as the Family Courts retain jurisdiction over family cases.

2. That many of the principles of Sharia law are contrary to British law and public policy, and that it is discriminatory against women and children in particular.

3. That the voluntary nature of Sharia courts is a sham: "women are often pressured by their families into going to these courts and adhering to unfair decisions, and may lack knowledge of English and their rights under British law. Moreover, refusal to settle a dispute in a Sharia court can give rise to threats and intimidation, or at best being ostracised".

The Report recommends that Sharia courts be closed on the grounds that they work against rather than for equality, and are incompatible with human rights. Let us hope that it comes to the attention of the new government.

Sunday, June 20, 2010

"Of course I love you darling. Just not as much as I love my money..."

The frenzy of anticipation is reaching a fever pitch. Will this be the week when the Supremes give us their decision in Radmacher v Granatino?

Damned if you do...

I see that the constant war between those who deride social services for failing to protect children and those who complain of the 'secretive' family courts 'kidnapping' children from their parents has escalated with more than 100 British families about to launch a class action at the International Criminal Court, arguing that their human rights were breached when their children were removed. The action, which is being brought by Freedom, Advocacy and Law, alleges that British courts and local authorities have breached Articles 6 (right to a fair trial) and 8 (the right to respect for private and family life) of the European Convention for the Protection of Human Rights.

A spokesperson is quoted in the Telegraph report as saying that: "The possibility of future emotional neglect and abuse is not good enough, unless courts have a crystal ball I don't know how they can justify that." Indeed, if only the courts (and social services) had a crystal ball, they would never make any mistakes, including leaving children in a place where they subsequently suffer significant harm. Unfortunately, they do not have a crystal ball, and mistakes will still be made, in both directions.

Incidentally, there is a nice example of unbiased journalism in the Telegraph piece, where they state that the claim "will be lodged on July 1 at the International Criminal Court at The Hague, where political leaders are tried for genocide". Nice comparison. The campaign for the opening of the 'secretive' family courts is, of course, led by the media - no doubt, not entirely for altruistic reasons.

As I have said here before, child protection is a lose-lose game. You're damned if you do, and you're damned if you don't. It may sound cynical, but a thought occurs to me: if the volume of the voices on the one side complaining of failures to protect children is roughly equal to the volume of the voices on the other side complaining that children are unnecessarily removed, then perhaps the system is getting the balance about right?

Friday, June 18, 2010

Lesbian partner not liable to maintain child

If you have parental responsibility for a child then logic would suggest that you should be responsible for maintaining the child. Not so, said Mr Justice Moylan, according to this report in The Telegraph yesterday.

Mr Justice Moylan was deciding a case involving a lesbian couple (who had not been through a civil partnership ceremony), where one had had a child through artificial insemination. After the relationship broke down, her partner ('B') obtained a shared residence order and therefore acquired parental responsibility for the child. The mother then sought a maintenance order against B, but Mr Justice Moylan ruled that B was not a 'parent' within the law, and therefore the court had no power to make a maintenance order. He said: "In some respects the outcome in this case may seem objectively surprising. However, in my view it is for the legislature to determine who should be financially responsible for children if it is to extend beyond those who are legal parents."

Now, I've not read a full report of this case but the result, although perverse, does seem correct as a matter of law. Whilst it is accepted in all quarters that one of the duties included in 'parental responsibility' is, of course, the duty to maintain (see, for example, Cretney, Principles of Family Law, 8th Edition, para 17-028), Schedule 1 of the Children Act clearly only enables the court to make orders for financial provision for children against 'parents' (the Child Support Act s.1 also only provides that each 'parent' is responsible for maintaining a qualifying child). 'Parent' is defined in the Child Support Act (s.54) as "any person who is in law the mother or father of the child". Clearly, B is neither the mother nor the father of the child.

In the circumstances, Mr Justice Moylan is surely correct that it is for Parliament to determine whether a person in the position of B should be responsible for maintaining the child. For what it's worth, I would submit that they should.

Thursday, June 17, 2010

Solicitors launch new collaborative legal group

I have received the following press release issued on behalf of Latimer Hinks:

SOLICITORS LAUNCH NEW COLLABORATIVE LEGAL GROUP

Solicitors in County Durham and Wearside are launching a group to spearhead an innovative new approach to help reduce the emotional cost on couples and their children when families in the area split up.

Instead of negotiating by letter or litigating in court, the alternative method, called collaborative law, involves couples working with their solicitors, all together in the same room, to reach agreement without the need for costly and stressful court battles.


To launch the scheme in County Durham and Wearside, family lawyers from across the county, are hosting an event in the Prior’s Hall at Durham Cathedral on June 22 at 6pm for all professionals involved in family issues.


Resolution spokesman and trained collaborative lawyer Judith Middleton, from Latimer Hinks in Darlington, said: “Sadly, family breakdown is a fact of life.


“As members of Resolution, a 5,500-strong group of family lawyers, we commit to minimising the financial and emotional pain it causes.


“We do this by adopting a conciliatory approach which puts the needs of any children involved first. Collaborative law is a natural extension of this idea. By all sitting together, we ensure that couples stay in control of their own futures, instead of leaving decisions to a judge in a courtroom.

“It takes a certain kind of couple, and a special kind of lawyer – one who is focused on solutions rather than confrontation – to make it work. Where it has been practised elsewhere in the UK, it has achieved remarkable results. We are confident it will here too.”


Anyone wanting to attend the event at 6pm on June 22 should contact Judith Middleton on 01325 341500.

Wednesday, June 16, 2010

Anatomy of a Divorce - Part 10: The First Appointment

Liz Jones felt drained as she left the court. It had been the second time that she had been forced to sit opposite Brian in the district judge's room, but the experience had been just as traumatic as the first. Even the sight of Brian and his lawyer being torn off a strip for filing an incomplete Form E had done little to make her feel better.

Her solicitor told her afterwards that she had obtained all of the orders she had sought, but Liz did not feel that any real progress had been made towards a financial settlement - only a lot of lawyer's talk. Instead, all she could see was the matter dragging on interminably, while she had to suffer the uncertainty of whether she and the children would even have a home to live in when everything was eventually sorted out.

To compound matters Brian had shown up at court with Shirley in tow. Liz was sure that he had done this just to upset her, and he had succeeded. Watching the two of them holding hands at the other end of the waiting area had been almost too much for her to bear.

"Trust him to bring that trollop with him." Commented Liz's mother, as they made their way back to the car.

Liz wanted to appear unbothered, but the tears welled up in her eyes. "At least he couldn't bring her into the judge's room." She replied.

"You know, you should make him pay - take him for every penny. That'll wipe the smug grin off his face."

Liz recalled how the district judge had already achieved that when he had told Brian off. "He wasn't grinning when he came out of the court." She said.

"Hmm, maybe he'll realise now that he has to do as he's told, for once."

Liz doubted that. The look on Brian's face as he left the court had suggested to her that he was now even more determined than ever to make her life a misery. "He won't." She said. "He's stubborn. He's just going to keep dragging things on as long as he can."

Her mother stopped and turned to Liz. "You've just got to keep fighting." She said. "Don't let him win."

"I'm not sure there are any winners in something like this." Liz replied. "We all lose - except the lawyers."

Liz's mother didn't reply. Even through her biased eyes she could see the truth in that. They walked in silence into the car park.

"And how much longer will I be able to keep that?" Asked Liz tearfully, pointing at her 4 x 4. "I need that to ferry the kids around, but I can't afford to run it on the money Brian's paying me." She broke into sobs.

Liz's mother cuddled her. "Never mind, love." She comforted. "We'll make him pay. We'll make him pay..."

World Cup Report #2

On a day when there is, as yet, no family law news upon which I am inspired to blog, I thought I would write my second World Cup Report.

Whilst the goings-on on the pitch may be less than enthralling, it seems that there is plenty of entertainment to be had in the crowd, and I am not just referring to the mindless vuvuzelas (more of which later).

The Guardian reported yesterday Another triumph for Fifa's chillingly efficient rights protection team, proving the fact that is obvious to all: that the World Cup is about money, not football. Thirty-six women wearing orange dresses available from the leading Dutch beer brand Bavaria (although bearing no logo) were apparently ejected from the Holland v Denmark game by a Fifa official, despite having tickets for the match, which were kindly supplied to them by ITV pundit and one-time mediocre footballer Robbie Earle. They were subsequently taken to a "facility", where they were questioned by the authorities. Quite how Fifa distinguish between women wearing orange dresses and the hordes of orange-clad Holland supporters is not entirely clear, but may be explained by this quote by Marina Hyde, who wrote the article:
"Sepp Blatter & Co's priorities have always tended toward the skewed. When racist chanting rained down on England players during a 2004 friendly against Spain in Madrid, Fifa imposed a risible £44,750 fine on the Spanish FA. In that same year, Cameroon wore an unauthorised kit at the African Cup of Nations – an offence for which Fifa saw fit to fine the Cameroonian FA £86,000."
Clearly, Fifa are working for the best interests of the beautiful lucre game.

Meanwhile, last night the amateurs from North Korea almost held the over-paid prima donnas of Brazil to an unlikely draw. The real interest, however, was the one small group of apparent North Korean fans in the crowd, just enough to fill a TV screen. They seemed genuinely North Korean: all in identical uniforms, all dutifully cheering on the unhappy land of the Great Leader, in perfect unison. However, things were not quite as they seemed. The Independent reports today that: "The regime in Pyongyang – unwilling to let its citizens leave the fatherland lest they abscond – recruited Chinese nationals to travel to South Africa to pretend to support its players". Perhaps there is a lesson there for the British Government: in the unlikely event of England qualifying for the next World Cup they should send a bunch of Scotsmen to cheer the team, to avoid the national embarrassment of English hooligans shaming this sceptred isle.

And so to the vuvuzela. If you want to watch the match on TV, but retain sufficient rationality to want to avoid being driven insane by the dulcet monotone of this witless instrument (let alone the asinine commentary), you can always mute the volume. But you may still wonder just how long you could withstand the noise before delirium sets in. Well, now you can find out. The vuvuzela game allows you to test your sanity (and your eardrums) to the limit of willpower, and records the result. I managed ten seconds, before having to call for a straitjacket.

And if you have already been driven insane by the vuvuzela then you can continue to enjoy it long after the last ball has been kicked, by investing in the CD Now That's What I Call Vuvuzela!, which includes such staples as Vuvuzela when your team scores!, Vuvuzela when the opposing team scores! and Man playing vuvuzela when someone gets sent off!. I've already ordered my copy...

With that, I'm off to rest in a darkened room. If I recover, I may write some family law later.

Tuesday, June 15, 2010

DNA Testing - There's an App for that

The few things left in this world for which there isn't an iPhone/iPod/iPad App became one fewer this morning with the launch of iDNA by Cellmark. iDNA "is designed to provide you with the information you need before you decide to undergo DNA relationship testing", and includes a facility that "offers existing customers the opportunity to check the progress of their DNA testing case", whether they be lawyers, doctors or private individuals. It also includes "details of the wide range of different types of DNA relationship testing that Cellmark offers".

Cellmark Marketing Manager Paul West says: "The key thing for the legal community is that it provides an aide memoire about DNA testing – offering advice on the effectiveness of each type of testing and also provides videos about the key issues and for existing customers of Cellmark they can quickly and simply check on the progress of a case."

iDNA is available from the iTunes Store for the princely sum of zero pence (yes, it's free!).

Conduct inequitable to disregard

Wives hiring hitmen to kill their husbands is clearly a common occurrence in California. In fact, such is the scale of the problem that politicians there are seeking to pass a law to stop wives who unsuccessfully hire hitmen to kill their husbands from then benefiting in a divorce, according to this report in The Telegraph today.

Under Californian law a couple's assets are usually shared equally on divorce, but if one spouse is convicted of attempting to murder the other then they may not benefit from the divorce. However, this rule does not apply where they hire someone else to do the job, and one husband who avoided the hitman's bullet but not the divorce court's hatchet has asked state politicians to change the law.

Over here, I rather suspect that hiring a hitman to kill your spouse would amount to conduct "such that it would in the opinion of the court be inequitable to disregard", thereby extinguishing (or at least seriously reducing) that party's financial claims.

Quite why so many Californian wives are going to such lengths to rid themselves of their husbands, rather than simply divorcing them, is not explained in the report.

Monday, June 14, 2010

Find a Contact Centre

Way back in 2006 I posted about the National Association of Child Contact Centres' website, complaining that the site did not include the NACCC's Directory of Child Contact Centres. Well, I am pleased to report that the site does now have a 'Find a Contact Centre' facility, which will be of great use to family lawyers, especially when seeking a contact centre outside of their area. My thanks to Wendy Hannah for informing me of this.

How to improve family law

There is much talk these days of reforming the family justice system. Well, here is my five-point plan:

1. Introduce no-fault divorce
Reform of divorce law is long overdue; way back in 1996 it was recognised that the time had come for our archaic fault-based system to be replaced by a system where fault would not play a part. Unfortunately, Parliament made such a hash of the Family Law Act that it had to be shelved, and here we are fourteen years on, with no sign of reform in sight. As to the nature of a new system, I am in favour of something simple - perhaps just one method of divorce whereby a petition (or whatever you wish to call it) is filed with the court and the divorce goes through six months later, provided that arrangements for any dependent children and financial/property matters have been resolved.

2. Introduce a presumption of shared parenting
I discussed this recently. I believe that there should be a starting-point of shared parenting, a rebuttable presumption that it is in the best interests of children that they share their time equally with each parent. I believe that this would be good for both children and parents, and that it could substantially reduce the number of private law children applications that go to court.

3. Clarify ancillary relief rules
We need more certainty in the rules for determining financial/property settlements on divorce. S.25 MCA was designed to give the courts a wide discretion, but has resulted in something of a lottery, with courts often making conflicting decisions, and judges attempting to 'fill in the gaps' left by Parliament. The biggest example of this was, of course, the 'yardstick of equality' introduced in White v White in 2000, but Parliament made no mention of equality in s.25. At the very least, such judicial decisions need to be given statutory certainty. But I think we could go much further, and set out statutory guidelines on a number of issues, such as division of pensions, treatment of pre-nuptial agreements, treatment of inheritances and definition of 'matrimonial assets'. We could even consider going further still, and introduce a community property regime, as favoured by Baroness Deech.

4. Introduce property rights for cohabitees
Another matter that I have mentioned recently, in this post. As I said there, I am broadly in favour of Resolution's proposals, which are set out (in PDF format) here.

5. Scrap the child support system
By any reasonable measure the child support system has failed. I believe that child maintenance should be returned to the courts. This will, of course, put a considerable extra burden upon the courts, but resources saved by scrapping the CSA/CMEC could be put into the courts system. One of the primary motivations behind the child support system was the lack of consistency in how much child maintenance the courts would award across the country. This could be resolved by the retention of a formula for the calculation of child maintenance, but with the courts having a discretion to depart from the formula in appropriate cases, thereby creating a much fairer system than we have with just a rigid formula and no discretion. But the biggest advantage of returning child maintenance to the courts is that it would return to the parents with care the power to pursue the matter themselves, rather than leave it to some distant bureaucrat , who has little or no personal interest in recovering child maintenance. In this way, the amount of unpaid child maintenance would surely be slashed.

* * * * *

There are, of course, other matters that need to be addressed and/or considered, such as court delays (which is largely a resources issue) and compulsory mediation. I have also confined myself to only considering private law children matters. However, I believe that a package of reforms along the lines of the five matters I have set out above would go a very long way towards providing us with a simpler, fairer and more modern family justice system.

Saturday, June 12, 2010

Larceny, allegedly

Personally, I can't see anything wrong with stealing money to pay your divorce lawyers, but Divorce Saloon reports that in New York Guy Albert de Chimay has been charged with larceny and forgery in connection with an alleged investment fraud in which nearly $600,000 in investor funds were diverted to pay his divorce lawyers. Let us just hope that the poor lawyers are not required to return the money...

Friday, June 11, 2010

Enforcing contact, New York style

Daniel Clement at the New York Divorce Report details a novel way that a judge dealt with a mother who repeatedly violated the terms of a contact order in favour of the father. Having found "instance after instance of the mothers deliberate and wilful attempts to alienate the children from the father, including false reports of child abuse, bad-mouthing the father in the presence of the children, and deliberately scheduling theater tickets, family events and social activities for the girls during the father’s visitation", the judge obviously felt that serious action was needed. He therefore made an order requiring the mother to report to prison every other weekend, coinciding with the father's scheduled contact and thereby both punishing her for breaching court orders and ensuring that the contact went ahead.

It's a clever and (to my knowledge) unique idea, but is it the best solution? Imprisoning the 'custodial' parent is always an option for a court when dealing with the flagrant disregard of a contact order, albeit an option of last resort, but one of the problems with it is: who will look after the children whilst that parent is in prison, where the non-custodial parent is not in a position to do so? The order made in this case does gets around that problem but, as Daniel says, it is still hardly likely to endear the father to his daughters, who will clearly blame him for their mother's imprisonment. As usual in such situations, there are no winners, only losers.

It is not clear from the report whether anything of this nature has already been tried, but surely the best option is to attempt to educate the mother, along the lines of our own contact activity directions? Of course, if that has already been tried and failed, then the court may have to do something more drastic. As Daniel also says, transfer of custody is another possibility, but the judge may not have considered it suitable here, in view of the mother having destroyed the children's relationship with the father. In which case prison may, after all, have been the only option.

* * * * *

UPDATE: Much more detail about this case can be found here. As will be seen, "remedial intervention through counselling and parental training during the course of the trial was unsuccessful".

Thursday, June 10, 2010

Family LoreCast #13

This week Natasha and I discuss the adoption case Oxfordshire County Council v X, Y & J, along with the agreement between 14 EU states that will allow couples of different European nationalities to choose which nation's divorce laws will apply to them. Natasha finishes with a quotation...

You can listen to the LoreCast here.

R and G and BabyB

The excitement surrounding the impending Supreme Court decision in Radmacher v Granatino has reached the chambers of BabyBarista. His Head Clerk sees a business opportunity...

Green Form blues

When I posted last month about the old Application for Legal Aid Certificate (Matrimonial), a couple of commenters mentioned the old Green Form, used to give 'Legal Advice and Assistance'. Well, I also found a few of those amongst my old papers, left over from when they were replaced by 'Legal Help' forms, back in the mists of time. I actually liked the Green Form - it comprised just one sheet of A4 and was, unsurprisingly, green (which made it easy to find in the file). You only had to fill in the front at the first interview, a task that took but a minute, and even the claim for payment on the reverse was quite simple to complete. Of course, those in charge of legal aid decided that all of this was too easy, and the good old Green Form had to go. I am informed that the current Legal Help form comprises no fewer than seven pages, thus ensuring that maximum time is spent on form-filling, rather than actually helping the client.

Wednesday, June 09, 2010

World Cup Report

The BBC reported a couple of weeks back that the Association of Chief Police Officers has warned of the threat of increased domestic violence during England's World Cup campaign. Apparently, reports of domestic violence increased by an average of 25% on England's match days during the last World Cup in 2006. Today, the Ministry of Justice informs us that staff at West Yorkshire Probation Trust have teamed up with local police in a campaign to raise awareness of domestic violence and support its victims during the World Cup. The campaign, appropriately called 'Don’t let the World Cup leave its mark on you', includes posters, leaflets and radio advertisements.

I find it remarkably sad that watching 22 grown men kick a ball around a field can lead to domestic violence, but I suppose that consuming copious amounts of alcohol in the process may have something to do with it. So much for the 'beautiful game'...

Let us hope for the sake of domestic violence victims that England play as few games as possible in this tournament.

(As an aside, and without wishing to trivialise this serious issue, someone on Twitter (who obviously doesn't know me) recently asked me who I thought would win the World Cup. I didn't reply, but having applied my full footballing knowledge to the question, I can now reveal my answer: the World Cup will be won by a team of overpaid prima donna ball kickers. Who said I didn't know anything about football?)

Tuesday, June 08, 2010

Anatomy of a Divorce - Part 9: Form E reprised

David Charles looked despairingly at the bundle of papers before him. He should have filed his client's Form E with the court a week ago. He had sent his client several reminders to let him have the required information and documentation, but only today had this shabby bundle of paperwork arrived.

The trouble was, the bundle did not include all of the information and documentation that the court required - far from it. Brian Jones had scribbled some brief answers to some of the questions on the blank form that David had sent him, and returned the form together with an unsorted bundle of miscellaneous bank statements, many of which were missing, and other documents, many of which were not required. It would take David a couple of hours just to sort through the papers, time that he would have to charge to his client, who was already complaining about the amount of his fees.

David had explained to his client that, whilst he would complete the form for him, he could not manufacture the required means details, that his client would have to supply to him. He had also explained that a failure to provide the required information and documentation could result in his client paying further costs. Not for the first time, his client had ignored his advice.

Now David was left with the usual equally unsatisfactory alternatives: go back to his client to request the missing information and documents, which would further delay the filing of the form, or just go ahead and file an incomplete form. In either case, he would risk the wrath of the court, not to mention the other side.

Taking a deep breath, David reached reluctantly for the telephone.

Clients from Hell

It's an old joke amongst lawyers that the job would be great if it wasn't for the clients, and some clients are far worse than the rest. Well, I've got this great new idea for lawyers to fight back: a website that names and shames those clients who make their lawyers' lives a misery. I shall call it Clients from Hell. For a small(ish) fee, lawyers can have details of their most odious clients listed online for all to see, and for other lawyers to avoid. Of course, clients who wish to have their names removed from the site will be able to do so, for a slightly less small fee.

Any takers?

Monday, June 07, 2010

An ode to R and G

As The Observer reported yesterday, family lawyers are salivating at the prospect of the forthcoming Supreme Court decision in Radmacher v Granatino. Meanwhile, before we all get too carried away, may I recommend this excellent poem by Chris Barton for Family Law.

Fathers' rights: Some good ideas, but also some bad eggs

Continuing the fathers' rights theme of my last two posts, Lucy Reed at Pink Tape has posted about the relaunch of Fathers 4 Justice, but asks how they, as the 'official campaign' should "deal with the splitters and splinter groups that persistently damage its reputation and undermine the progress it is striving to make". Certainly, the general public is unlikely to differentiate between the various fathers' rights groups when it comes to attributing blame for defacing national monuments and similar 'extremist' activity. However, it would be quite wrong to characterise all fathers' rights campaigners as barely-literate thugs. Indeed, some are extremely well-read, not just in matters of law but also research into the issues - better read than many family lawyers (some seem to have an all-consuming fixation about the injustice that they feel they have suffered, such that they appear to devote their entire lives to the subject), and there is much merit in some of their ideas.

Take, for example, the proposal that there be a starting-point of shared parenting, a rebuttable presumption that it is in the best interests of children that they share their time equally with each parent. Should it not be the right of the child to have an equal relationship with each parent, save where there are good reasons (by reference to the welfare of the child) where this should not be the case? Once such a starting-point became common knowledge, most separating parents would hopefully understand that they must negotiate arrangements for their children from a position of equality with the other parent rather than, as now, one parent so often dictating terms from a position of strength. At a stroke this could substantially increase the number of cases that settle, and therefore reduce the number that go to court. Now, I admit that after full consideration it may transpire that a shared parenting system may not after all be the best way forward, but surely it should at least be given such consideration?

The other great plank of the fathers' rights manifesto is, of course, the opening up of the 'secretive family courts'. I have to say that I am not convinced about this. Even if there were no good reasons not to open the courts, I think that very few cases (save, for example, for those involving celebrities) would be reported by 'independent' journalists, and any such opening is therefore unlikely to make much difference. I note with interest that the former President of the Family Division Sir Mark Potter has said in an interview with The Guardian that he only "reluctantly supported the change to more open courts because it had got to the point of allegations being made of secret justice and injustice taking place behind closed doors". In other words, the making of allegations against the system (by fathers' rights groups and others), rather than the truth of those allegations, had forced the government into action. As one who was until recently a part of that system, I have always taken great exception to the suggestion that there is some anti-fathers conspiracy going on behind closed doors. It may be true that the system sometimes appears to operate in a biased fashion, but I am certain that the vast majority of those working within it are not biased against fathers - why should they be? They are dedicated professionals working hard to achieve the best outcomes for the children caught up within the system. If the system is wrong, blame the system, not those who have to work within it.

By the same token, though, if there are some bad eggs within the fathers' rights basket, blame them, and not those who use legal means to put their views across.

Saturday, June 05, 2010

Uffington: New F4J's response

Following my last post I have received this email from fathers' rights group New Fathers 4 Justice:

"Although we can not condone the purple painting of the Uffington White Horse in the words of Martin Luther King

'Our lives begin to end the day we stay silent about things that matter'

.......................And our children and their future matter!!


Every day we hear from disgruntled dads who are becoming more millitant with the lack of contact with their children and support from the new coalition government.

Daily distressed fathers contact us in desperation about the abuse they are suffering in hands of the family court system.

In the 21st century fathers deserve equality when it comes to child contact and nothing less will suffice.

It is only a matter of time before angry fathers climb rooftops,Courts,bridges and landmarks again.

We would rather be spending time with our children but feel we have no other option.

David Cameron could open the Family Courts up tomorrow if he wants but instead remains silent on this issue. He even ousted Shadow Justice Secretary Herny Bellingham MP from this post after the election, the man who he asked to organise a review of the Family Court system.


If it takes a bit of purple paint or disruption to traffic to raise awareness to the fact that this new goverment is already dragging its heels over fathers rights then we say 'So be it'

Expect the unexpected!
New Fathers 4 Justice


For mor information please visit www.newfathers4justice.info

See you at Djanolgy house on the 12th??"

The reference to Djanolgy house is to a protest that the group intend to make outside the home of new Parliamentary Under-Secretary of State at the Ministry of Justice Jonathan Djanogly, similar to the one they made outside the home of David Laws MP, pictured above.

Pink Tape has already given her own take on the activities of fathers' rights groups. I suspect that she, too, may be receiving an email...

Friday, June 04, 2010

Vandals deface Uffington White Horse

According to this BBC report, the head and eye of the ancient monument had been sprayed with purple paint and a banner that read "fathers 4 justice stop the secret family courts" was recovered from the scene. Purple was, of course, the favoured colour of protest of the old Fathers 4 Justice group. Here we go again... ?

[Thanks to the tireless John Hirst of Jailhouselawyer's Blog for the link to this story.]

Family LoreCast #12

Following the half-term break Natasha and I return to discuss the President's Guidance in relation to split hearings and the case of Kernott v Jones. This time I end with an appropriate quotation...

You can listen to the LoreCast here.

Thursday, June 03, 2010

Blogroll weeding

Having put off the task for quite long enough, I've finally begun weeding out moribund (or apparently moribund) blogs from my blogroll. If you think that I have wrongly applied the weedkiller to your blog please let me know, and I'll reinstate it.

Wednesday, June 02, 2010

International Family Lore Day

As this seems to be 'International Family Law Day' here on Family Lore, I thought I would mention three other stories with an international element:

I shall start with another example of what our young men and women are fighting for in Afghanistan. The New York Times amongst others reports the case of two Afghan girls aged 13 and 14 who fled their homes to escape their illegal, forced marriages to much older men. Found by the police, they thought they had reached safety, only to be sent back to their village where they were "publicly and viciously flogged for daring to run away from their husbands". The flogging was videoed, presumably for the later delectation of their tormentors, who included a former warlord, now a 'pro-government figure'.

Meanwhile, in China a man has shot dead three judges, apparently in an act of revenge over a ruling made in a property dispute three years ago during his divorce proceedings. Zhu Jun, the head of security at the Lingling district post office in Yongzhou in Hunan province, took an automatic weapon and two pistols into the unnamed court in central China (where security must be somewhat lax), fatally shot the three judges and wounded three others, before turning the gun on himself. Unfortunately, his 'revenge' was flawed, as none of the three judges had been involved in his divorce case.

Lastly, the Telegraph reports the depressing news for lonely British males that in future they will have to pay a £38,000 'deposit' for their Indonesian brides. The new law, which is being tabled by the Indonesian religious affairs ministry, "is designed to ensure Muslim Indonesian women are financially secure in case of divorce and to prevent foreigners entering convenience marriages to set up businesses or buy property". If the couple divorce within ten years, the wife gets the £38,000, but if the marriage lasts more than ten years, the money becomes shared property. The Telegraph tells us that Asian women are "biddable, beautiful and beddable", according to the nauseating blurb of UK dating agencies, but whether many men will be prepared to fork out £38,000 for such delights remains to be seen.

Study finds shared parenting detrimental to children

I came across this story in Adelaide Now, via the Australian Divorce Blog.

In 2006 the Australian Government introduced a shared parenting model, in response to lobbying by fathers' rights groups, to replace the idea of ‘custody’ or 'ownership' of children. Now, a University of South Australia research paper, which was based on interviews of children from divorced families, has found that: "the one-size-fits-all practice now favoured by the courts was focused on what parents wanted rather than children's wellbeing", and that it has resulted in bad outcomes for many children.

I'm not going to make much comment upon this, as I'm obviously not an expert upon the Australian shared parenting model, and I haven't read the research paper. However, I have previously indicated here that I am in favour of a presumption (or starting-point) of shared residence, which appears to be similar to the Australian model, and this research does remind us that any such model must remain centred upon what is best for the child, rather than what is best for the parents.

Collaborative law: is it just the "trend of the week"?

"Collaborative law" seems to be the buzzphrase of the moment in family law circles (certainly collaborative lawyers are always eager to sing its praises), but just how important is collaborative law, and what role is it likely to play in the future? Is it the "new big thing", or just the latest fad?

An article in Crain's Chicago Business, linked to by Florida Divorce, gives a progress report on collaborative law, and I think that its findings can best be summarised as 'mixed'. The article does give examples of collaborative law successes, but I do find it hard to disagree with lawyer David Novoselsky, whose client is suing his former collaborative lawyer: "If you have two reasonable people and two decent lawyers who are interested in helping clients, you don't need to go through this formal process that's been named 'collaborative law.'"

Novoselsky says that collaborative law is a 'boondoggle' (a wonderful American word meaning 'a project that wastes time and money'), and indeed as the article states, many couples attempt collaboration only to find that it breaks down and they then have to go the conventional litigation route, having wasted considerable time and money (one man mentioned spent $35,000 on a collaborative divorce before having to quit). The fact that the parties must instruct new lawyers if the collaborative process breaks down only adds to the expense.

The lawyer who took on the case of the man who wasted $35,000 suggests, perhaps somewhat unfairly, that collaborative law has created a cottage industry for lawyers who can't stomach the stress and aggravation of trying a case and "does nothing to serve the client at all." I can't see that being the case over here, at least not yet, as I don't think there is the volume of collaborative work available for a lawyer to specialise in it and nothing else.

Is collaborative law just the "trend of the week", as Novoselsky also described it? Well, it's certainly not a panacea, as I'm sure any collaborative lawyer will agree, but it does seem to be here to stay. Perhaps the best way to view it is as another tool, along with mediation, available to couples who want to resolve their differences between themselves, without asking the court to do it for them, and just as with mediation those couples must be prepared for the possibility that the tool will not be up to the job.

Tuesday, June 01, 2010

Kernott v Jones may have been the correct decision, but was it the RIGHT decision?

I reported briefly on Kernott v Jones in this post, shortly after the judgment was published (for a far more comprehensive report see this post by Nearly Legal). Now that I have had more time to consider, I thought that I would look at this important case in a little more detail, at least in relation to its implications.

It seems to be generally accepted that the decision of the Court of Appeal was legally correct, but that is not the same as saying that it was the right decision in the circumstances. It has been said that the case re-establishes some certainty in this difficult area, but I'm not so sure that it does. The case does not make new law, relying as it does on the House of Lords' test in Stack v Dowden, yet two judges in the lower courts and one Lord Justice in the Court of Appeal, applying that test, considered that the respondent was entitled to a 90% share in the property. In other words, they considered that the facts were sufficient to infer a common intention that the parties' interests in the house were to vary over time. Lord Justice Wall (at paragraph 58) said that the mere passage of time was not sufficient to displace the equal interests, but it was not just the passage of time, but the fact that during that time the respondent had paid the mortgage and all outgoings on the property.

Given the above, would it be right to advise a client in a similar position to the respondent that she had no hope of recovering more than 50%? I'm not sure that it would, save in the unlikely case that that the facts matched Kernott v Jones exactly. There must still be a good possibility that a judge would be prepared to make the necessary inference to award more than 50%.

But what of fairness? I know that Baroness Hale in Stack made it quite clear that it is not the job of the court to search for the result which it considers to be fair, but isn't that the job of the law? It seems to me that many people would consider the result in Kernott to be unfair (Nearly Legal calls it "a somewhat harsh outcome", and it certainly raised a few media eyebrows (see e.g. here)), and if it is then should not the law be changed? Of course, there will also be many who have no problem with the result (after all, the respondent may have been paying everything, but she did have the sole use of the property), so 'fairness' is always arguable, but shouldn't it be the yardstick against which any case is measured?

As I have made clear here previously, I am in favour of the introduction of property rights for cohabitees. Broadly, I support Resolution's proposals, which are set out (in PDF format) here. As will be seen, they propose that cohabitants meeting certain eligibility criteria should have a right to apply for certain financial orders if they separate, and that the courts should only be able to make a financial award if that is fair, having regard to all of the circumstances.

Of course, one man's fairness is another man's injustice...