Tuesday, November 30, 2010

CMEC v Beesley: CMEC not a creditor capable of being bound by IVA

For the facts of this case and the High Court decision see this previous post. Briefly, the NRP had entered into an IVA under which his creditors would receive a total of 27p in the pound over a period of 5 years, in full and final settlement of his liabilities. 94% of his debts were represented by arrears of child maintenance. The High Court declared that CMEC was a creditor for the purposes of the IVA, but made an order pursuant to s.262 of the Insolvency Act 1986 revoking the IVA on the ground that it was unfairly prejudicial to the interests of the Commission. CMEC appealed.

In the Court of Appeal Lord Justice Etherton found (at paragraph 50) that the Judge had been wrong to conclude that the Commission was a creditor entitled to participate in, and that it was bound by, the IVA. He said (at paragraph 53) that it was "clear that the legislative policy is to exclude liability to pay child support from the consequences of bankruptcy". Arrears of child support are not a provable debt in bankruptcy, and: "The liability to pay child support, and any arrears of child support, are not released by discharge from bankruptcy". He found (at paragraph 54) that there was "no discernible reason for a different policy in the case of an IVA".

He went on (at paragraph 57):

"In my judgment, it is only possible to make sense of the provisions of IA Part VIII, against the statutory background of the insolvency regimes of bankruptcy and debt relief orders, the discernible policy of the state in relation to the support and welfare of children which I have mentioned, the purpose of an IVA and its function as a consensual agreement of creditors (bound by the decision of the requisite majority), if the creditors entitled to participate in the IVA, and who are bound by it, are restricted to creditors with the capacity to make compromises of debts and liabilities."

Accordingly, he concluded (at paragraph 63) that the Commission was not a creditor entitled to participate in the IVA, and was not capable of being bound by the IVA, because the Commission was not capable of compromising the NRP's liability in respect of arrears of child support.

The appeal was therefore allowed and the declaration in the Judge's order was replaced by a declaration that the Commission was not a creditor of the NRP capable of being bound by the NRP's IVA.

The full report of this case can be found on Bailii, here.

Sunday, November 28, 2010

Something for the Weekend

We shouldn't really be talking law at the weekend (OK, I know I do sometimes), so I thought I would start a new occasional series of weekend posts about something I've found interesting or amusing, that has nothing whatsoever to do with law. I will call the series Something for the Weekend, because I like smutty innuendo.

So, without further ado, here's a video that is “pointless, action-free and totally mesmerising”:



For more details about the video, including how it was shot, see here.

Saturday, November 27, 2010

Run.

This is apparently a plaque that hangs over a urinal at an unnamed jeweller's specialising in diamond engagement rings. As Boing Boing says, if it is genuine, it's 'a remarkable piece of retail psychology'... if it works.

Mr Justice Coleridge sings "If I could turn back time"


Family courts need to reassert their authority, says Mr Justice Coleridge

Friday, November 26, 2010

Thursday, November 25, 2010

Family LoreCast #26

This week Natasha and I discuss the Law Society's campaign to fight legal aid cuts, the Court of Appeal ordering the naming of a couple in big money ancillary relief proceedings and the introduction of domestic violence protection orders. Natasha also mentions the next meeting of the All-Party Parliamentary Group on Family Law and the Court of Protection.

You can listen to the LoreCast here.

Dumping made easy

Having discovered yesterday why people break up, we now turn to how. Well, how some people break up, or more specifically how to effect a break up if you are not prepared, or don't know how, to do it yourself. The answer, according to this article in Time, is to get someone to do it for you, and it seems that there is no shortage of people willing to take on the task, for a small fee. Take, for example, iDUMP4U, "the website where we do all the dirty work for you!" They'll do a 'basic breakup' for $10, an engagement breakup for $25 and even a divorce breakup, for $50. For your money, they'll make the 'breakup call', record it, and even post it to YouTube if you wish. Nice.

Alternatively, how about the iPhone app Erase Ur X? This 'can be used to create a form e-mail sent from your iPhone that breaks the news to your soon-to-be-ex', after which the app deletes the now-ex's number from your phone. You can also save the message, along with any attached audio files and photos, 'for later use on other X's'. Brilliant!

Do I see a business opportunity for all of those soon-to-be-out-of-work legal aid lawyers?

Domestic violence protection orders revived

Well, it just goes to show how much I know. Only two days ago I speculated that domestic violence would be one of the few areas in the family justice system where there would be no change. Today, I find that Home Secretary Theresa May has decided to resurrect the previous government's plans for domestic violence protection orders (otherwise known as "go orders").

Under the plans, the police will have powers to prevent alleged abusers from having contact with the victim, or returning to the victim's home, for 48 hours. A court would then be able to extend the order for a period of up 28 days. The plans will undergo a year-long pilot scheme, starting next summer in the Greater Manchester, Wiltshire and West Mercia police areas.

According to the BBC, the proposed "go orders" could be used even if there was not enough evidence to charge a suspect. Obviously, this raises concerns for innocent alleged abusers, particularly as it may be difficult for them to return to their homes, once they have been ordered to leave. It may also lead to a spate of unfounded allegations by parties who just want to force their partners out of their homes (which could then have a knock-on effect upon other issues, such as arrangements for children, or who is to keep the home). Hopefully, the pilots will address these issues.

The Guardian tells us that 'May said that tackling violence against women was a priority for her personally and for the government', and the BBC article quotes British Crime Survey figures which suggest that more than one in four women in the UK will experience domestic abuse at some point in their life. Both seem to be forgetting that men are of course also victims of domestic violence. However, one wonders how often will the police use these powers against women?

Wednesday, November 24, 2010

Reasons to be single

Having discovered when people break up, here's another graphic showing why they break up. Not sure what is to be learned from this one, save that an awful lot of people in Turkey have had an affair. A bigger version of the graphic can be found here, and more information, including a list of reasons for breaking up given by people on Twitter, here.

Tuesday, November 23, 2010

The dismantling of the family justice system?

"the times they are a changing"

Hardly a day seems to pass without news of some change or proposed change either to, or affecting, family justice in this country. We are, of course, in the middle of the Family Justice Review, but some of these changes go far beyond the remit of the Review. It almost feels as if the family justice system is in the process of being dismantled, after so many years of little or no change, so I thought that I would summarise some of what is going on in the different areas of family law:

Divorce - The government is proposing that legal aid should no longer be available for divorce proceedings, which may obviously lead to some people simply not be able to afford to get divorced. As for the divorce process itself, Andrew Woolley has hinted that the government is considering not just no fault divorce, but "no court divorce", whereby the 'issuing party' simply registers for a divorce, and it comes through automatically a little later.

Private children law - Again, it is proposed that legal aid be abolished, save where there is domestic violence. Instead, there is to be a greater emphasis on mediation. The idea of a presumption of shared residence seems to be gaining ground, something that was discussed by Sir Nicholas Wall in his speech to shared parenting charity Families Need Fathers, in September. There have also been loud calls from some quarters for Cafcass to be abolished, although quite what will replace it, I'm not sure. The Family Justice Review is looking at the possibility of introducing more inquisitorial elements into the family justice system for both public and private law cases.

Ancillary relief - Once again, it is proposed that legal aid be abolished, save where there is domestic violence, with a greater emphasis on mediation. Pre-nuptial agreements may be made binding (although whether this is still required post-Radmacher is a moot point). There are also calls for the introduction of a community property regime, something mentioned by Sir Nicholas Mostyn at the first meeting of the All Party Parliamentary Group on Family Law.

Public law - As mentioned above, may include more 'inquisitorial elements'. Otherwise, we will have to wait until next year for the recommendations of the Munro review. Legal aid will be retained. The government has also recently indicated that the current high fees will be retained.

Domestic violence - Will keep legal aid, but otherwise no change?

Cohabitee disputes - Another area where there has been no mention of change (previous proposals seem to have been shelved indefinitely), which is slightly ironic given that many believe that there should be change.

Child support - The Child Maintenance and Enforcement Commission will become an executive agency of the Department for Work and Pensions. This of course just means that the same job will be done, but within the Department. Whether there will be any further changes, we shall have to wait and see.

I'm sure that there are things that I have missed - an indication of the amount of change in the pipeline - but hopefully the above gives a flavour of what may be to come. How many of these proposals will be implemented is not of course yet clear, but one thing certainly seems to be: the family justice system will never be the same again.

That Voodoo That You Do So Well

The new divorce section in the Huffington Post carries an article recommending some 'divorce novelties'. Most of them I've seen before, but how about the Ex Wife Voodoo Doll? It's covered with appropriate messages to the ex (such as "Hope you get bad acne"), and comes complete with pins. Looks like the perfect Xmas gift, and a snip at only £4.95.

Monday, November 22, 2010

Wanted?

I've posted previously about the American practice of publishing 'wanted' posters for parents who have failed to pay child support. The above is the latest example I have come across, from the Butler County Child Support Enforcement Agency. Whether or not you agree with the practice, their figures suggest a pretty good success record, considering that the poster features parents whose present whereabouts are unknown to the authorities. They claim that: "The agency has located 178 people and collected more than $1.75 million since the first poster was published in 1995." (I understand that there have been a total of 26 such posters.)

Worth considering on this side of the pond?

Friday, November 19, 2010

Why buy a Lada when you can have a Bentley?

There are many law firms out there handling divorce cases, so why do so many people instruct us?

The reason is simple: we charge more than anyone else. That means that our partners can afford the little luxuries in life, which makes them such great people to deal with.

Look at it this way: why buy a second-hand Lada, when you can have a brand new Bentley? You want the best don't you? So don't go to those cheap high street lawyers who don't know what they're doing, come to us. After all, at this most distressing time you need to be thinking of yourself.

To use another metaphor, if you had an embarrassing disease, you wouldn't go to the local quack to get it sorted, sharing a waiting room with the hoi polloi. Of course not - you'd go straight to your Harley Street specialist.

At this most difficult time your life, you want to know that you have the best lawyers that a lot of money can buy – that is why so many people instruct Venal & Grabbit.

Venal & Grabbit. Reassuringly expensive.

[This post was sponsored by Messrs. Venal & Grabbit, Solicitors.]

Thursday, November 18, 2010

Family LoreCast #25

This week Natasha and I discuss the following family law news items: the government's proposed legal aid reforms; LB Richmond v B & W & B & CB, in which the High Court considered the use of hair testing as evidence of alcohol consumption; Hong Kong’s Supreme Court upholds principle of equal division on divorce; and the case of W (A Minor).

You can listen to the LoreCast here.

W (A Minor): Change of residence not due to mother's conduct

The case of W (A Minor) [2010] EWCA Civ 1280, reported today, graphically illustrates the problems faced by a court when dealing with difficult and uncooperative parties.

The facts: The case concerned a 3 year old child, "P" (I'm not sure why the initial is different from the case name). In November 2007 the father applied for contact. There then followed "a lamentable tale of wilful disobedience of court orders by the mother, and a disregard by her not only of the court but, more importantly, of P's interests". In addition to disobeying court orders, the mother made various unsubstantiated allegations against the father and failed to appear for court hearings.

By the time of the final hearing in October 2010 the judge was "satisfied that the spiral of the mother's actions shown over nearly three years is such that there is a real and formidable risk that P will, through at worst total deprivation and at best a disruption and negative distortion of her relationship with her father, be deprived of part of her central emotional needs and rights to have a warm and meaningful relationship with her father". The judge made a residence order in favour of the paternal grandmother.

The mother sought permission to appeal.

Held: It appears that the mother felt that the judge had changed P's residence as a means of punishing her for her failure to obey court orders. As Sir Nicholas Wall said (at paragraph 52): "this would plainly be an inappropriate exercise of discretion, and would form a legitimate basis for an appeal. The mother's conduct is about as bad as it is possible to get, but that is not necessarily a basis for removing P from her care. The judge had to decide that question on the basis of what was in P's interests."

He found, at paragraph 57: "In my judgment, the course which the judge took was one which was properly open to her on the evidence. In my view, the contrary is unarguable. The judge plainly did not move P as an act of frustration or irritation at the mother's contumelious conduct. She moved P because she took the view that P's welfare in the longer term required such a move."

Accordingly, the application was dismissed.

Wednesday, November 17, 2010

Extreme measures

You may not approve of your child's choice of spouse, but I think this Russian mother may have gone a little too far in her attempt to stop her daughter's nuptials:

Russian woman calls in fake bomb threat to prevent daughter's marriage

Tuesday, November 16, 2010

A letter to Prince William

Prince William,
Clarence House,
London.

16th November 2010

Dear William,

May we at Venal & Grabbit congratulate you on your forthcoming marriage. We are so thrilled by this news that we may even allow our staff 20 minutes off to watch the ceremony on TV.

Whilst writing, we felt that it would be prudent to advise you to enter into a pre-nuptial agreement. One cannot be too careful, especially when one stands to inherit such enormous wealth from one's grand-mama. If you agree, then we would be honoured to prepare an agreement for you, for a very reasonable fee.

Your faithful servants,

Venal & Grabbit.

What now for Sandra?

As I'm sure the reader is now aware, the Government has published its Proposals for the Reform of Legal Aid in England and Wales, and they do not make good reading for anyone with an interest in access to family justice. In particular, it is proposed that there will be no legal aid for ancillary relief or private law children matters, save where there is domestic violence.

It seems that the Government has listened to the crass Daily Mail-esque Why should taxpayers' money be used for someone to get divorced just because they don't want to work at their marriage? brigade. That, unfortunately, is a cruel over-simplification. Most people do not want their marriages to fail, and they do not want to have to rely on the state for funding to sort out the mess when they do fail. It is just a position that they find themselves in - no one wants to go to the courts. To illustrate, I will give a not untypical example:

Sandra Clarke had been married for twenty-five years. She had three children, the youngest of which had just finished education. Throughout the marriage she stayed at home and brought up the children. As a result, she has no career, and just works part-time as a school dinner lady. Her husband Ken, on the other hand, runs a business that Sandra believes is doing very well, although she has no knowledge of the running of the business.

Sandra thought that life was good, but then came a bolt from the blue when Ken announced that he had formed a relationship with another woman, and that he wanted a divorce. From there, Ken began to get increasingly nasty: he refused to give Sandra any maintenance, he refused to go to mediation, and he refused to make full disclosure of his finances (Sandra was sure he was hiding substantial sums of money).

Then Sandra started getting threatening letters from Ken's solicitor. Sandra is at her wit's end; she doesn't know what to do, she can't afford a lawyer, and she is scared for her future.

Monday, November 15, 2010

Comments: Five simple rules

Once again, I find myself having to say something about commenting on this blog. I have some simple rules, that all commenters will see, but unfortunately some either don't read them or choose to ignore them, so I thought I would set them out in a post.

The rules are that the following comments will not be allowed:

(A) Comments that are not relevant to the subject of the post. It is unfortunately quite common that commenters wish to pursue their own agenda, irrespective of what the post is about. I had a remarkable example of this only yesterday, when I received an anonymous comment about the 'corrupt family courts' on my remembrance day post, which was not only irrelevant but extremely disrespectful.

(B) Comments that are (or are possibly) defamatory. I will be the judge of this, and if I have any doubt then I will err on the side of caution by removing/not publishing the comment.

(C) Comments that breach court reporting rules. You may not be concerned about committing a contempt of court, but I am.

(D) Comments that contain abusive or threatening language. Obviously. If you disagree with me, then do so in civil language.

(E) Comments that contain 'spam' advertisements. Again, if I have any doubt then I will err on the side of removing/not publishing the comment. Accordingly, if you are a commercial organisation and you have a genuine comment to make, then it would be best if you did not link back to your website - such links in the comment itself (as against the name of the commenter) will almost certainly result in removal/non-publication.

So, please just follow these simple rules, and we'll all get along.

Sunday, November 14, 2010

At the offices of Messrs. Venal & Grabbit, Solicitors...

... Mr Venal is looking forward to the time when poor opponents will not be able to get representation:

Sweeping cuts to the legal aid budget which will greatly reduce the number of people entitled to assistance are to be unveiled within days.

[With thanks to Charon QC, from whom I got the idea.]

Crack whore seeks custody

An excellent video, showing that family lawyers on the other side of the pond have similar problems to their colleagues over here (language NSFW):



[Many thanks to Divorce Discourse for bringing this to my attention.]

Are some fathers their own worst enemies?

They certainly complain the loudest about the unfairness of the system, but are fathers, or at least some of them, simply their own worst enemies when it comes to arrangements for their children?

Every family lawyer has come across it: fathers who are aggressive, obnoxious and generally abusive towards not just their former partners, but everyone they come across whilst trying to resolve children disputes, including mediators, the court, Cafcass officers and sometimes even their lawyers. The reasons for such behaviour are not always clear. Sometimes it may relate just to their present situation - they may, for example, be reasonably aggrieved at being denied contact with their children for no good reason. On the other hand, it may be a long-term thing where they played a dominant (or dominating) role in the relationship, and they are now angry at losing that control.

Either way, such behaviour will obviously be counter-productive when it comes to achieving the outcomes they seek. They won't get the best out of their lawyers (and often won't listen to good advice), they lose the chance of a mediated settlement and they are likely to be unfavourably treated by the courts.

And then they go off and complain ad infinitum about how unfairly they have been treated by the system, when all they need to do to discover the source of their woes is to look in a mirror.

Friday, November 12, 2010

Cafcass: We only get what we pay for

In yesterday's LoreCast Natasha and I discussed the criticism of Cafcass by the Public Accounts Committee. I expressed the view that many of the failures of Cafcass could be attributed to inadequate resources, a problem that I believe it has had for years. I am pleased to see that Sandra Davis of Family Law takes a similar view. She says: "Margaret Hodge [Chair of the Committee] said yesterday that Cafcass's failure to provide an effective service cannot be blamed solely on the rise in public care cases since 2008. I agree. The lack of proper funding by the Government was a significant contributing factor." It's about time we recognised that we only get what we pay for.

No legal aid for 'personal problems'?

The Law Society Gazette told us yesterday that more than eight out of 10 people believe civil legal advice should be free for people on average earnings or below, according to a survey commissioned by the Legal Action Group. Hmm, nice idea, but I think the LAG is wasting its time - with all the cuts going on elsewhere, our lords and masters at Westminster are hardly likely to spare the civil legal aid budget from the chop.

The same Gazette article went on to tell us that justice minister Jonathan Djanogly has (again) hinted that family legal aid is in the line of fire, by saying: "I find that too often in modern society people are too willing to hand over to the state the resolution of their personal problems". The difficulty with such a statement is, of course, that if those 'personal problems' cannot be resolved by agreement, then the only option is to go to the court. The question then is whether legal aid will still be available for such court proceedings, where all avenues of dispute resolution have been exhausted. If so, then there will be little saving, as the vast majority of cases already settle before going to court, but if not, then those parties who cannot afford legal representation will be put at a serious disadvantage.

Wednesday, November 10, 2010

(Pre-) Marriage Licence

I have no idea what the story is behind this licence plate, spotted somewhere in New England. Perhaps it belongs to a family lawyer touting their services, or maybe an ex-husband who saved all his wealth by entering into a prenup. Whatever, I shall not be rushing off to the DVLA to get mine...

[Found on BuzzFeed.]

Blimey, this decision could open the floodgates...

Italian couple's marriage annulled after wife thought about having affair

Tuesday, November 09, 2010

At the offices of Messrs. Venal & Grabbit, Solicitors...

...Mr Venal has been posing for his favourite advert:

New Drugs and Alcohol Advisory Board Established

I have received the following press release:

NEW DRUGS & ALCOHOL ADVISORY BOARD ESTABLISHED

A new Hair Strand Scientific Advisory Board has been established by UK-based Trimega Laboratories. Its purpose is to analyse the fast growing database of information created from the 10,000 hair alcohol tests and 7,000 hair drug tests carried out in the UK each year, of which Trimega Laboratories is responsible for around 40%.

As well as being the world’s largest resource relating to substance abuse from both hair and blood tests, the database also contains vital self-donor reporting information. This will assist the Board in analysing what drink and drugs individuals say they have consumed in relation to what is found in test results.

Furthermore, the database gives the Board unique access to historical information relating to the ‘combined marker’ hair alcohol testing system. This system, which measures both EtG and FAEE markers in hair, has become the UK courts’ preferred method for accurately determining long-term alcohol misuse. As a pioneer of the ‘combined marker’ system, Trimega Laboratories has been using it to compile valuable information around alcohol trends and demographics for the past three years. Indeed a smaller subset of this information, which looked at 644 cases relating to child protection in UK courts, was published in 2009* and contributed to a joint consensus being adopted by leading scientists from around the world.

In addition to alcohol, the Board will also provide guidance on new drug metabolites such as the recently reclassified Mephedrone and other emerging ‘legal highs’ to plot where they fit into the spectrum of substance misuse in the UK.

The findings of the Board will be shared with the Society of Hair Testing (SoHT) which, as a peer reviewed organisation, will assist it in future decisions – particularly those relating to the setting of universal standards/guidelines. Indeed all founder members of the Board are also members of the SoHT – one of them a Past President:
  • Dr. Hans Sachs (Chair) - Past President of the SoHT and lead scientist in high profile cases such as Harold Shipman and “Black Widow” case.
  • Professor Dr Fritz Pragst - an award-winning forensic toxicologist and founding father of Hair Alcohol Testing. He is also a founder member and board member of SoHT, winner of the Alan Curry Award of TIAFT (The International Association of Forensic Toxicologists), of the Jean Servais Stas Award of the GTFCh (German Society of Toxicological and Forensic Chemistry) and of the Robert-Händel Award of the German Society of Legal Medicine and ‘Guest Scientist’ at the Institute of Legal Medicine, University Hospital Charité in Berlin.
  • Dr. Carl Selavka - a member of SoHT and full-time consulting scientist at Trimega Laboratories.
  • Dr. Silke Suese - a member of SoHT and Laboratory Director of Trimega Drogencheck GmbH laboratory.
Douglas MacSween, General Manager of Trimega Laboratories, commented: “Having been first to market with a combined marker hair alcohol testing system and constantly at the forefront of R&D with both alcohol and drug misuse tests, we feel the creation of the Board is a significant milestone. We’re delighted that such a gathering of the world’s top scientists have been able to lend their involvement and that Trimega is so well placed to feed into the pool of knowledge they will be using.”

For more information on hair strand testing, visit www.trimegalabs.co.uk

* Forensic Science International (Prof. Dr. Fritz Pragst, Prof. Tom Mieczkowski, Dr Silke Suesse & Dr. Carl Selavka)

Beware of scammers bearing bouncy cheques

Just a quick post to draw the attention of fellow family lawyers to an article by David Hodson on Family Law warning of scam emails requesting help in enforcing a foreign collaborative law agreement. I received one of these emails myself yesterday (it was immediately marked as spam). The scam is the usual one: the scammer sends a cheque on account of fees, then immediately requests a refund. The refund is paid, and then the cheque bounces.

As David says: "Beware, be wise, be willing to share scamming experiences and be sceptical of easy money!"

Re L-W (Children): The law is not omnicompetent

The case of Re L-W (Children) EWCA Civ 1253, decided last week, perhaps demonstrated the limits of the courts powers when dealing with an intractable contact dispute.

The facts: The father and the mother have two children: M, a boy, born in 1999, and E, a girl, born in 2001. M lives with his father, E with her mother. A contact order dated 13 May 2009 provided for the mother to have contact with M, and further contact orders were thereafter made. The mother issued three applications for enforcement orders and orders for compensation for financial loss. The judge made a compensation order pursuant to section 11O Children act 1989 on 15 December 2009, an enforcement order pursuant to section 11J on 8 January 2010, a further enforcement order dated 27 January 2010, a further compensation order also dated 27 January 2010 and a further compensation order dated 24 June 2010. He also found the father guilty of contempt for six breaches of contact orders, and sentenced him to 28 days imprisonment concurrent, suspended for 12 months on condition that he obeyed the contact orders. The father appealed against all of these orders, essentially on the basis that M was entrenched in his opposition to contact, and the father could not force him to have contact.

Held: The appeals were allowed and the orders were set aside. Lord Justice Munby gave a long and detailed judgment (which certainly merits reading), but Lord Justice Sedley's brief supporting judgment perhaps summarised the case best. He said (at paragraph 119) that the judge had legitimately formed the view that the father was obstructing contact by transmitting to the child his hostility towards the mother. However, "by the time committal was on the agenda it was very plainly the boy's own refusal which was impeding contact". Accordingly (paragraph 120): "The premise on which the judge made his initial order has become absorbed into a much more complex and intractable situation which punishing the father not only cannot solve but will exacerbate."

He went on (at paragraph 121):

"There are at least two morals. One is that before deciding that a parent is the author of a child's resistance to contact and so can be made the subject of a coercive order, the court needs also to be sure that the parent, by one acceptable means or another, can still reverse the child's attitude. The other is that even then a court, despite the affront to its dignity, may have to be prepared, if it comes to the point of committal, to accept that the predictive premise on which it initially acted has turned out to be wrong: that, for example, the child has internalised the custodial parent's hostility, so that punishing the parent can no longer produce the intended outcome and may produce its opposite."

He concluded (at paragraph 122):

"This last point brings me to something which I venture to say less as a judge than as a parent. The critical attitude which M has acquired or developed towards his mother is not one of simple hostility. He wants her to be the mother he remembers when he was little. There is a real pathos about this in a boy, still only ten or eleven years old, who has had and is still having to live through an acrimonious family rift and realignment. If instead of seeking to restore relations with his mother by letting her see him for a few hours at a time the courts were to abandon the blunt instrument of coercion and were to let time take its course, it seems to me much more likely that M will in his own time find his own way back to the affectionate relationship with his mother which both of them wish for. It may not happen, of course; but if we continue down the present road it will certainly not happen. The law does its best in the absence of other means, and modern legislation has done what it can to make the law's own means practical and fair; but the law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers, it is called on to intervene in the subtle and unpredictable business of child care and human relations."

Monday, November 08, 2010

New Humanist Bad Faith Award 2010

This year's New Humanist Bad Faith Award for 'the most egregious contributions to irrationalism and superstition during the course of this year' presents some tough choices, even though last year's winner Pope Benedict XVI is not present.

As a family lawyer I almost voted for Sheikh Maulana Abu Sayeed, who, as the New Humanist 'bookie' states, helped shore up the case for the opposition to Sharia tribunals providing arbitration in the UK by saying that: "Clearly there cannot be any ‘rape’ within the marriage. Maybe ‘aggression’, maybe ‘indecent activity’." I was also tempted by Baroness Warsi, who has scarily told us that the coalition 'does God'. However, in the end I voted for Hojatoleslam Kazem Sedighi, whose linking of adultery to earthquakes takes faith-based insanity to a whole new level.

Be sure to cast your vote!

Friday, November 05, 2010

Kingdon v Kingdon: Order vitiated by material non-disclosure does not have to be set aside

In Kingdon v Kingdon [2010] EWCA Civ 1251, the Court of Appeal yesterday held that where an ancillary relief order is vitiated by material non-disclosure, the order does not necessarily have to be set aside.

The facts: On 18 April 2005 the court had, by consent, made an order for ancillary relief between the parties, on a clean break basis. The husband failed to disclose to the wife prior to the making of the order that on 9 July 2004 he had acquired 200,000 £1 shares in the company of which he was finance director when the order was made. On 2 November 2006, the husband sold 93,749 of the shares, for which he made a net gain of £1,268,000. He made no gain in respect of the remainder of the shares, due to the downturn in the market.

In January 2008 a third party suggested to the wife that the husband had held the shares and received benefit from a sale of them. She instructed her solicitors to make enquiries, and in July 2008 applied to have the order set aside on the basis of material non-disclosure on the part of the husband.

The judge held that the non-disclosure was material, but that it was unnecessary and inappropriate to set aside the whole of the order dated 18 April 2005 and to direct a full rehearing of the wife's application for ancillary relief. Instead, he awarded the wife a further lump sum of £481,000, being 35% of the husband's net gain, plus interest.

The husband appealed.

Held: Lord Justice Wilson dealt with the points raised by the husband's counsel:

1. Materiality: That the judge was wrong to hold that the non-disclosure was material. The husband had contended that, if disclosed in the proceedings in 2004/05, the existence of the shares would not have led to provision for the wife different from that contained in the order dated 18 April 2005, in that the shares had had no value at that time. However, Lord Justice Wilson found that it was: "inconceivable that in April 2005 the court would not have treated the husband's shares ... as likely to prove of value in the foreseeable future and thus as properly subject to the sharing principle in one proportion or another" (paragraph 29).

2. Rehearing: That, having found that the non-disclosure was material, the judge should have set aside the whole order dated 18 April 2005 and have given directions for the wife's application for ancillary relief to be re-heard. Lord Justice Wilson concluded that the judge was entitled to proceed there and then to repair the defect by enlargement of the lump sum provision in the order dated 18 April 2005, for the following reasons (paragraph 38):

(a) he had a discretion as to how best to proceed;

(b) in exercise of the discretion he was required to seek to deal with the case justly, and thus in a way which was proportionate to the complexity of the issues and which would save expense and ensure expedition;

(c) the non-disclosure was of a discrete element of the husband's assets and it generated a defect which could be cured by one simple enlargement, to be devised pursuant to the sharing principle, of provision in the order dated 18 April 2005;

(d) the order had been fully implemented and there was no need to reverse any part of its implementation; and

(e) the husband's lies in the proceedings in 2004-05, compounded by his further lies in correspondence which preceded issue of the present proceedings, yielded a conclusion that, were there to be a second, updated, enquiry into all the matters specified in s.25(2) MCA, no assertion on his part in relation to his financial circumstances, for example of any current inability to pay to the wife what would otherwise have been her appropriate share of the gain on the shares, would be likely to be accepted unless clearly established following protracted and costly examination. In the words of Thorpe LJ in Williams v. Lindley, the procedure needed to reflect the degree of the husband's turpitude.

3. 35%: That the judge was wrong to award the wife as much as 35% of the net gain on the shares, as it was in part post-separation and in part non-matrimonial property. Counsel for the husband argued that in such cases there should be a starting-point of 25%, and that here there were no good reasons to depart from that figure. This argument was not accepted by Lord Justice Wilson, who was not prepared to interpose any subsidiary starting-point into the sharing principle (paragraph 45).

4. Credit for £200,000: In the consent order, the wife had received an extra lump sum of £200,000 over and above what was required to achieve equality of division. It was argued on behalf of the husband that this was to cover her needs, and would not therefore have been required if the order had included provision which would have resulted in her receiving an extra £481,000 - the £481,000 award should therefore have been reduced by £200,000. However, Lord Justice Wilson found that the primary rationale for the extra £200,000 was not the wife's needs, but rather to compensate her for the fact that the husband was likely in the future to generate vastly greater earnings than was the wife (paragraph 47).

The appeal was therefore dismissed.

Montag and Pratt: Divorce can't buy me money

OK, let me get this right. Reality TV 'stars' Heidi Montag and Spencer Pratt faked their 'divorce' in order to win a new TV show, and 'reconciled' when the TV deal fell through. Pratt (the more I hear about him, the more appropriate that name seems) told Life & Style magazine: "The divorce was real - just the idea behind it was different than most people's".

Excuse me while I go and bang my head against a brick wall...

Thursday, November 04, 2010

Family LoreCast #23

After another short break, Natasha and I return to discuss Lord Judge's call to reform the family justice system and the opening event of the All-Party Parliamentary Group on Family Law and the Court of Protection, which was a debate on the future of ancillary relief.

You can listen to the LoreCast here.

Wednesday, November 03, 2010

October Post of the Month

I recall many years ago when I had just started my legal career and was still wet behind the ears appearing before a particularly forbidding High Court Master (they were all forbidding in those days, but this one especially so), and being advised beforehand by a senior colleague not to say anything about the (rather mangy) dog that always sat on a chair behind the Master. The Master did not like anyone to mention his dog. It was a good job too that I was given this advice as, being an animal lover, I would almost certainly have put my foot in it.

Know your judge is the subject of my Post of the Month for October, in which BabyBarista learns this salutary lesson the hard way. I can almost feel the pain...

BabyBarista's adventures as a pupil barrister, now going under the title Law and Disorder, is now available on Amazon at the ludicrously low price of £5.62. Grab yourself a copy if you've not done so already.

Venal & Grabbit win contact case!

Yesterday Venal & Grabbit won a famous victory for their client by successfully opposing a father's application to have contact with his children.

Speaking outside court, Mr Venal said: "It just goes to show that you get what you pay for. The father's cheap solicitors were hopeless. We at Venal & Grabbit pride ourselves in providing a superior service for a superior fee."

The father was seen to leave the court in tears. "I've got no sympathy for him," said Mr Venal, "that's what happens when you don't instruct the best."

If you have problems with your ex wanting to have contact with your children then we at Venal & Grabbit have people who can help. Just call this number: 01234 666-666. (Note: if you need to ask what our charging rates are, then you probably can't afford us, sorry. Requests for legal aid will be met with laughter, followed by the phone being hung up.)

Tuesday, November 02, 2010

Facebook DOES have a purpose!

It seems that Charlie Sheen's separation was unusual, as the divorce papers he has filed show that it occurred on Xmas day. According to Facebook, that is the least likely day of the year for couples to split up. On the other hand, the data indicates that more couples split up before the 'Spring break' (March), on April Fool's day, before the summer holiday, in the lead up to Xmas and on Mondays.

These facts have not gone unnoticed at Messrs. Venal & Grabbit:

You win one, you lose one

I have been somewhat negligent in my reporting of celebrity marital shenanigans recently, so thanks to Jailhouselawyer for pointing out to me that actor Charlie Sheen has filed for divorce from his third wife Brooke Mueller. In the light of Sheen's recent (alleged) behaviour (only a week ago he allegedly trashed a hotel room "in a drink and drug-fuelled tryst with a porn actress"), perhaps the only surprise here is that he is doing the divorcing, rather than his wife.

The news is not so good, however, for the lawyers of (former) Guns N' Roses star Slash and his wife, Perla Ferrar. Apparently, the guitarist has decided to bury the axe (geddit?), and called off his divorce. Perhaps he had no Appetite for Destruction...