Thursday, March 31, 2011

Family Justice Review Interim Report

The interim report of the Family Justice Review has been published today. Amongst its recommendations the following caught my eye:
  • There should be a Family Justice Service established to oversee the family justice system.

  • There should be judicial continuity in all family cases.

  • Judges and magistrates should be enabled and encouraged to specialise in family matters.

  • A single family court should be created, with a single point of entry, in place of the current three tiers of court. All levels of family judiciary (including magistrates) should sit in the family court and work would be allocated depending upon case complexity.

  • With regard to public law, courts should refocus on the core issues of whether the child is to live with parents, other family or friends, or be removed to the care of the local authority. Other aspects and the detail of the care plan should be the responsibility of the local authority.

  • A time limit for the completion of care and supervision proceedings within six months should be put into legislation.

  • No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents.

  • A statement should be inserted into legislation to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.

  • The need for grandparents to apply for leave of the court before making an application for contact should remain.

  • Parents should be encouraged to develop a Parenting Agreement to set out arrangements for the care of their children post-separation.

  • Residence and contact orders should no longer be available to parents who hold PR, but disputes over the division of a child’s time between parents should instead be resolved by a specific issue order.

  • A father without PR who wishes the court to consider the child living with him (currently a residence order) should first apply for PR, and then negotiate for this to be included in the Parenting Agreement or apply for a specific issue order. If a father does not wish to seek PR he is still able to make a contact application.

  • An online information hub and helpline should be established to give information and support for couples to resolve issues following divorce or separation outside court.

  • Provision should be made to ensure that a signed Parenting Agreement has weight as evidence in any subsequent parental dispute.

  • Where intervention is necessary it should be compulsory for the parties to attend a session with a mediator, who should assess the most appropriate intervention, including mediation and collaborative law, or whether the risks of domestic violence, imbalance between the parties or child protection issues require immediate referral to the family court; and provide information on local Dispute Resolution Services and how they could support parties to resolve disputes.

  • Judges will retain the power to order parties to attend a mediation information session and may make cost orders where it is felt that one party has behaved unreasonably.

  • Those parents who are still unable to agree should next attend a Separating Parent Information Programme and thereafter if necessary mediation or other dispute resolution service.

  • Where agreement cannot be reached, having been given a certificate by the mediator, one or both of the parties will be able to apply to court for determination on a specific issue.

  • The First Hearing Dispute Resolution Appointment (FHDRA) should be retained. Where further court involvement is required after this, the case will be allocated to a track system according to complexity.

  • Where an order is breached, a party should have access to immediate support to resolve the matter swiftly and the current enforcement powers should be available. The case should be heard within a fixed number of days, with the dispute resolved at a single hearing. If an order is breached after 12 months, the parties should be expected to return to Dispute Resolution Services before returning to court to seek enforcement.

  • There should be no automatic link between contact and maintenance. When contact is continually frustrated and it is in the child’s best interests, the courts should have an additional enforcement mechanism available to enable them to alter or suspend the payment of maintenance.

  • People in dispute about money or property should be expected to access the information hub and should be required to be assessed for mediation.

  • Ancillary relief should be separately reviewed.

  • The process for initiating divorce should begin with the online hub and should be dealt with administratively in the Family Justice Service, unless the divorce is disputed.

  • The current two-stage process of decree nisi/decree absolute should be replaced by a single notice of divorce.

  • Fees in private law should in principle reflect the full cost of services.
The review is inviting responses to the report. Answers to the consultation questions can be submitted online or in hard copy using this form before midday on 23 June 2011.

W (Children): Performing the balancing exercise in relocation cases

W (Children) [2011] EWCA Civ 345 concerned a mother's appeal against the refusal of her application for permission to relocate to Australia with her children. Sir Nicholas Wall P gave the leading judgment.

The facts: The mother is Australian. She and the father never married, nor did they ever live together as a couple. There are two children of the relationship, a girl aged 12 and a boy aged 8.

The mother issued her application on the 2nd September 2009, at which time she said that the father had very little contact with the children. The father made a cross-application for contact.

The application was finally heard on the 15th October 2010, when the judge dismissed the mother's application, adjourned the father's application for contact and directed a further CAFCASS report.

The mother appealed, setting out eleven grounds, although Sir Nicholas Wall P stated that: "there is, in my judgment, one principal ground of appeal, namely that that judge has got the "balancing exercise" wrong".

Held: Sir Nicholas Wall found (at paragraph 95) that it was his "clear conclusion that this [is] one of those rare cases in which the judge, in the exercise of his discretion, has plainly reached the wrong conclusion, and that it is not only open to this court to interfere, but that in the best interests of the children it has a duty to do so". He went on (at paragraph 96):
"Having reflected carefully on this case, I have reached the clear conclusion that the best interests of the children require the mother's application to relocate with them to Australia to succeed. I am also of the view that the judge has made a number of serious errors in his performance of the balancing exercise, and that the conclusion which he has reached is "plainly wrong"."

The President said (at paragraph 99) that the judge had found that the mother would be "devastated" were her application to be refused, and that this was "a critical finding". No criticism could be made or was made of her relocation plans and thus: "It follows that not only was her motivation unimpeachable, but that the plans themselves were plainly in the best interests of the children". He said (at paragraph 102) that even when the loss to the children of their newly gained relationship with their father and other members of his family was weighed in the scales, "the balance still comes down heavily in favour of relocation".

The President then found that conclusion supported by an application of the Payne v Payne exercise (paragraphs 111 to 118).

Accordingly, he allowed the appeal. Lord Justice Lloyd and Lord Justice Elias both gave concurring judgments.

Wednesday, March 30, 2011

News Brief: The only stories in town

Sometimes it seems that the only family law stories about at the moment are to do with the new Family Procedure Rules and the proposed changes to legal aid, and so it is today.

Mind you, the new rules are giving family lawyers quite enough to think about. For the many who I suspect are still not up to speed, Marilyn Stowe is this week publishing a series of posts on her blog giving guidance on the rules, identifying the most important changes and analysing the likely implications, with an emphasis on finances on divorce. The first two posts can be found here and here.

Meanwhile, Family Law has been heroically churning out individually all the new forms to go with the new rules (all 140 of them, by my reckoning), including such essentials as C69 'Application for registration, recognition or non recognition of a judgment' and D50K 'Notice of Application for Enforcement by such method of enforcement as the court may consider appropriate'. A full list of the forms can be found here.

Lastly, The Guardian reports today that the Commons justice select committee is warning the government that: "Making eligibility for legal aid in divorce and custody cases dependent on accusations of domestic violence will create a "perverse incentive" that encourages false allegations", a point that many others have of course made. The warning comes in the Justice Committee's report Government's proposed reform of legal aid, which was published today and can be found here.

Tuesday, March 29, 2011

Priorities...

As a plane lover and one-time flyer myself, I have to say that Carlos Gomez has his priorities right. Before he purchased his DC-7B six years ago to add to his collection of historic aircraft, his wife told him that if he bought one more airplane she would divorce him. He did, and she did.

DE v AB: If a child is born, then the parents have obligations under law

DE v AB [2010] EWHC 3792 (Fam), just reported on Bailii, concerned a father's appeal against a Schedule 1 Children Act award. It was heard by Mrs Justice Baron.

The facts: The parties were in a relationship for a short period but never married. The mother gave birth to the child, C, on 2nd March 2008. She then applied under Schedule 1 for financial provision to be made for C.

The mother's circumstances were that she was unemployed at the time of the appeal but had been earning £60,000 gross plus commission at the date of the hearing before the district judge, and Mrs Justice Baron considered it probable that she could re-establish herself in employment at a similar income. She owned a property subject to a £600,000 mortgage, which was worth £725,000 at the date of the hearing. She also had other debts, totalling some £111,000. She wished to retain her house, but the district judge was clear that she had to sell it, a finding supported by Mrs Justice Baron.

The father was also unemployed at the date of the appeal, but Mrs Justice Baron considered his earning capacity to be in the region of £100,000. He owned a property with a net equity (as found by the district judge) of £358,000. The district judge told the father that this property had to be sold, and again Mrs Justice Baron agreed with this.

The district judge ordered that the father pay £85,000 towards the mother's overall indebtedness. In addition, he made an order that the father provide a trust fund of £250,000 to assist with C's housing, on the usual terms that the money resulted to the father upon C attaining majority and ceasing full-time education. The total of the award was therefore £335,000.

The father appealed, submitting that the award was excessive in the context of the total liquid assets of some £358,000 as found by the district judge, given that it would leave the father with a mere £23,000. On appeal, the father offered a lump sum of £40,000, but "simply eschews a housing fund because he considers it to be "unfair"", contending that the mother should rent, rather than buy.

Held: Mrs Justice Baron found (at paragraph 40) that the district judge was entitled to take a broad brush approach when assessing such sum as was fair in all the circumstances. However, she went on to say (at paragraph 41) that the district judge should have undertaken a final analysis as to the overall effect of his award on each party.

She concluded (at paragraph 42) that the district judge was "absolutely justified" in his award that the father should contribute £250,000 towards a housing fund, saying that: "Given the net equity in his property, as found by the district judge, was £358,000, prima facie that figure is completely unappealable". However, as to the additional lump sum of £85,000, she came to the conclusion (at paragraph 43): "that the district judge did not analyse this part of his award with sufficient care, particularly when assessing its impact upon the parties. The effect of the award was to leave the father with effectively little or no capital, after his very significant contribution towards housing for C. That is unfair."

Accordingly, Mrs Justice Baron reduced the lump sum to £40,000, which she considered would leave him with sufficient capital to provide him with a modest deposit for a flat for himself. The total award was therefore reduced by 13%, to £290,000.

Save for dealing with the issue of costs (she made no order as to costs), Mrs Justice Baron ended her judgment (paragraph 46) with what almost amounts to a warning:
"Neither of these parties seems sufficiently to have considered or expected that a sexual relationship would lead to the birth of a child. However, that is a known consequence. If a child arrives, then parenthood brings with it significant financial and other responsibilities. Both these parties have to make a continuing contribution in that regard for the good of their son. Both will suffer financially because the new circumstances will mean that they do not have the freedom and the financial flexibility that they once had. But that is a consequence of their own actions. As adults, they have to bear responsibility for such. Statute provides that the child must be protected and that is why my order is, as I have explained, fair. That is my judgment in this appeal."

Sunday, March 27, 2011

Wives should be kissed and not heard

One of 20 Ridiculously Politically Incorrect Comics, found on Buzzfeed. I believe he is Mr Fantastic of the Fantastic Four, and she is his wife Susan Storm, also known as Invisible Woman. The divorce should be interesting...

Saturday, March 26, 2011

Cheats Charted

Here's the latest great idea from the US of A. CheaterVille is a site where people can spill the beans on someone who is cheating on their partner, so that it can be used by others to check that their (prospective) partner isn't a 'cheat'. As the site says: "Cheaterville was created with one goal in mind, keeping you ahead of the heartache -- even when it hurts." The site even has a section listing 'Cheaters of the day', a sort-of 'cheats chart'.

Now, I suspect that those with strong morals may disapprove of a site like CheaterVille, but as a divorce lawyer I have to say that I'm all for it...

Something for the Weekend: Saturn fly-by

This wonderful video was created from still photographs taken by the Cassini spacecraft as it approached Saturn. Best watched in full screen (click the icon bottom-right):



For more information about this film, see here.

Friday, March 25, 2011

News Brief: Forms, rules (again) and dynastic trusts

With only a matter of days to go before they have to be used, Family Law has published the new forms to go with the new Family Procedure Rules. A full list of the forms, together with links to the forms in .pdf format can be found here, for your delectation and delight.

Family Law has also published a revised, full and (for now) final list of the practice directions that go with the new rules, which can be found here. If (as is likely) you are none the wiser after reading the rules and PDs, Lucy Reed at Pink Tape has very kindly made her Family Procedure Rules 2010 seminar notes available, here. As Lucy says: "I would say “Enjoy!” – but you won’t."

Finally, as a bit of relief from the excitement of rules and forms, the Daily Mail today reports upon a case being heard in the Court of Appeal involving the vexed issue of "dynastic trusts". Now, I know that most family lawyers don't often come across dynastic trusts, but nevertheless I'm sure that there will be many who will be salivating over the prospect of reading the judgment, after it is handed down.

Above and beyond...

The latest gem from the mouth of the ever-entertaining Katie Price is that she'll marry 40 times if she has to, in order to find "the right one". I really think we divorce lawyers should get together and give this woman a medal...

Thursday, March 24, 2011

Webinar: Testing for alcohol misuse using hair – an open discussion forum following the findings of the Moylan Judgment in Richmond v B

This is a recording of a webinar hosted by Trimega Laboratories on the 17th February.

Discussion points:
  • What does this now mean for family law clients?
  • What does this mean from a local authority perspective?
  • What does this mean from an expert consultant paediatrician that has a special interest in fostering and child protection?
  • What is the latest update relating to the Society of Hair Testing?
  • Does the judgment impact existing cases?
  • Maximising the accuracy of interpretation in alcohol testing.
  • The body of evidence. How valid is hair testing in comparison to more traditional methods?
Speakers include:

Chair: Melanie Abbott

Panelist: Professor Dr. Fritz Pragst, University Of Berlin

Panelist: David Brown, Head of Children’s Legal Services,
Birmingham City Council

Panelist: Dr. Heather Payne, Consultant Paediatrician

Panelist: James Campbell, Forensic Toxicologist

Family LoreCast #38

This week Natasha and I discuss the cases Re A (a child) and N v F, Lord Neuberger's speech on open justice and the recent parliamentary debate on 'hyper-injunctions'.

You can listen to the LoreCast here.

Be Prepared

Wednesday, March 23, 2011

N v F: Taking pre-marital wealth into account

N v F [2011] EWHC 586 (Fam) dealt with "the vexed question of how the court should, when exercising its powers to award ancillary relief, reflect, if at all, the property that the husband bought to the marriage back in 1993".

The facts: The parties were married in 1993, at which time the husband ("H") had assets worth £2.116m, which equated to £4.2m today. It was agreed that the assets in the case now amount to about £9.714m in value ("This is a not very big money case", said Mr Justice Mostyn).

H did not ask that all of the value of his pre-marital property be reflected in the result, proposing that the wife ("W") should receive £4.17m out of the £9.714m, or 43%. W argued that there should be no departure from equality, on four grounds:

1. That H's pre-marital property had now merged with matrimonial property signifying, in effect, an agreement by H to share it with W;

2. That H had "alienated" certain sums during the marriage;

3. That H had since 2007 eschewed the exploitation of a substantial earning capacity in the financial sector in favour of a lowlier paid job as a schoolmaster; and

4. That H had conducted the litigation unfairly, and had caused unnecessary costs to be incurred.

As a result, the parties were £687,000 apart. "Not very surprisingly," said Mr Justice Mostyn (at paragraph 5), "the combined costs of the parties amount to £652,000. It seems to be an iron law of ancillary relief proceedings that the final difference between the parties is approximately equal to the costs that they have spent."

Held: After reviewing the law, Mr Justice Mostyn concluded (at paragraph 44) "that it would be wrong and unfair for none of H's pre-marital wealth to be excluded from the sharing principle". However, "the marriage was long and the monies were well and truly mingled with marital funds, signifying an acceptance by H that to a great extent the monies, or at least their growth or earnings, would be shared with ... W" (he rejected W's arguments in paragraphs 2-4 above). He concluded from that that £1,000,000 should be excluded from the 'divisible amount' of £9,474,000 (£9,714,000 less £240,000 set aside for the daughter's education), saying that this satisfied the justice of the sharing principle, whilst still just leaving sufficient to meet W's needs.

W therefore received 50% of £8,474,000, or 44.7% of the divisible amount.

Incendiary

Many was the time through my career that a client would come in to see me bearing a set of divorce papers that had been hastily sellotaped back together. It's understandable that when you're upset at receiving divorce papers then the first reaction might be to rip them to shreds. However, it seems that Shawn Gawronski had rather more incendiary ideas when he was served with his divorce papers. Instead of tearing them up, he apparently took them to his wife's shop in Frenchtown, Montana, and used them to set fire to the place. Definitely inadvisable - Gawronski has now been charged with arson, and faces a maximum penalty of 20 years in prison and/or a $50,000 fine.

Tuesday, March 22, 2011

I am DEFINITELY buying one of these...

The Will and Kate fridge.

Backs of heads, blades of grass and guests' feet: The worst wedding video ever?



(Amusingly, Google places context-related ads on the video, one of which (at least in my location) is for a wedding photographer...)

Til death or political ambition do us part...

Well, I've come across many reasons for divorce, but never seeking a political position. That, however, is why Guatemalan President Alvaro Colom and his wife Sandra Torres (left) have filed a divorce petition, according to this BBC report.

Apparently, Ms Torres wishes to succeed her husband as President, but Guatemala's constitution bans close relatives of the president from standing to succeed him, hence the decision to divorce. Needless to say, the opposition candidate thinks the couple are defrauding the system, although the final say will rest with Guatemala's Constitutional Court.

Classic BBC divorce documentary

The BBC has released from its archives a selection of recordings and videos from the 1950s and 60s on the subject of marriage. Amongst them is a Panorama report from 1963 which 'looks into the current proposal for changes to the law that would prevent the need for a 'matrimonial offence' to have been committed and grant a divorce if a couple have been separated for seven years'. In other words, Leo Abse's Matrimonial Causes Bill, which became the oft-forgotten Matrimonial Causes Act 1963. I thought that the video would be of historical interest, but I have to admit that it was more amusing (in a 'Mr Cholmondley-Warner' sort of way) than educational.

Highlights include:
  • a wonderfully non-pc sequence with a young couple where the man lights two cigarettes and hands one to his partner;

  • a private eye trying manfully (and failing) to re-enact a meeting with an adulterer;

  • interviewees hopelessly 'anonymised' by a sort of shadow-burqa; and

  • an interview with Mrs Olive Parker, who was everything one would expect a Mothers' Union spokesman to be.
Sixteen minutes classic viewing.

Monday, March 21, 2011

Post on OnlyDads

Earlier this month I was kindly invited by OnlyDads.org to write a post on their blog, as part of a series of guest posts on various family law topics. The topic that I 'drew' was: How do young people get heard during divorce and separation?, and the post can be found here.

Hyperventilating over hyper-injunctions

There has been much hyperventilation in the blawgosphere in recent days over so-called 'hyper-injunctions', after John Hemming MP used the term in a Parliamentary debate last Thursday to refer to "an injunction in a case where someone is not even allowed to refer to the existence of these proceedings", even (or especially) to their MP. Unsurprisingly considering Mr Hemming's history, the family courts were one of the targets of his ire: "it is a dreadful abuse of state power to threaten to remove a child from the care of the parents because they deign to speak to their Member of Parliament". For all of the details, you can read the Hansard report of the debate here. If you don't have time to wade through Hansard, read this blog post by Anna Raccoon.

* * * * *

UPDATE: I also recommend that you read this excellent analysis by Carl Gardner: John Hemming MP: abuse of power, and privilege.

Saturday, March 19, 2011

Friday, March 18, 2011

News Brief: Rules and cases

The latest (final?) tranche of Practice Directions supplementing the new Family Procedure Rules has been published this week, including such delights as Practice Direction 34B – Practice Note (Tracing Payers Overseas), Practice Direction 12O – Arrival of Child in England by Air and Practice Direction 12N – Enforcement of Children Act 1989 Contact Orders: Disclosure of Information to Officers of the National Probation Service (High Court and County Court). The verdict on the new rules is still out. Some seem to think they are a nightmare, whilst others, such as Andrew Woolley, are calling them 'a victory for plain English'. One thing is clear: the Ministry of Justice has done its usual efficient job of leaving things until the last minute.

Meanwhile, the Court of Appeal has been busy, deciding three children cases yesterday:
  • Re A and D (Children), which was an appeal by a mother against the dismissal of an application for an order that the children be returned from Cameroon (the order was refused on the basis that the children were habitually resident there). The appeal was dismissed.

  • M v F & Others, an appeal of a mother against a judgment refusing her a wide ranging series of declarations, the object of which was to deny the father all knowledge of the birth and subsequent development of his legitimate child. Again, the appeal was dismissed. (This case also made it into The Telegraph.)

  • Mercredi v Chaffe, an appeal by a mother against an order requiring her to return the child from La Réunion. This appeal was allowed.

Thursday, March 17, 2011

The challenges ahead

I wrote a post a few weeks back musing over whether there was a future for family lawyers. Today, the Law Society Gazette runs an article on a similar theme - the challenges that lie ahead for family lawyers. The thrust of the article is that things are going to be tough, and some will certainly not survive, but that there will be opportunities for those who are prepared to innovate. Recommended reading for all who intend to still be practising family law five years from now.

Wednesday, March 16, 2011

"The Fairytale Romantic Union Of All The Centuries"

My thanks to @ManxStef for bringing my attention to this quality memento of the forthcoming marriage of HRH Prince Harry William and his stunning lady bride to be, Miss Kate Middleton. This wonderful object can be purchased, for just £9.99 + p&p, here.

A day in the life...

Further to my last post, The Guardian has been running other stories relating to World Social Work Day, including an article following two newly qualified child protection workers for a day, and an audio slideshow following one of them. These seem to me to give a good impression of the typical work of a social worker involved in child protection. Indeed, they bring back distant (and not particularly pleasant) memories of the child-care work I did long ago. Again, definitely worth a read/look.

Tuesday, March 15, 2011

World Social Work Day

Today is World Social Work Day. Marking the occasion, The Guardian has a short but thought-provoking piece by Wally Harbert, in which he argues that social workers in this country are made the scapegoats for wider failures in the child protection system. He concludes that the entire system needs a shake-up, including a review of the responsibilities of all professionals involved. Definitely worth a read.

Re A (a child): Withdrawing care proceedings where the child has suffered significant harm

In Re A (a child) [2011] EWHC 517 (Fam) Mr Justice Hedley considered the unusual circumstance of an application by a local authority for permission to withdraw care proceedings, notwithstanding that the child ('A') had sustained injuries which amounted to significant harm.

The facts: A was born in 2009. From birth he has suffered from a very severe neurodevelopmental and neuromuscular disorder, resulting in 'both complex and demanding care needs', which have been met essentially by his parents.

The proceedings came about as a result of a scan in January 2010 which demonstrated fractures of the 5th and 6th ribs on the right side, the 7th rib on the left side and (very unusually) bilateral acromial fractures. Since no explanation was forthcoming for these injuries, the working diagnosis was that they were inflicted and care proceedings were instituted. A has, however, remained with his parents, albeit with supervision.

Expert evidence concluded that the injuries were caused by an episode (or episodes) of squeezing of the chest, a finding accepted (or at least not contested) by all parties. No-one sought to suggest otherwise than that the infliction of the injuries amounted to significant harm. However, at the time that the injuries were sustained A was an in-patient in hospital and there was a real possibility that the injuries could have resulted from handling by medical staff.

It was clear 'that the commitment of the parents to A is unquestioned and that the general standard and effect of the care given by them is admirable'. No-one sought to (or could) suggest a viable alternative to care by his parents which would promote the welfare of this child, and this was reinforced by the reduction in the supervision of their care. Accordingly, the local authority applied for permission to withdraw the care proceedings.

Held: Mr Justice Hedley found (at paragraph 13) that on the evidence it was not justifiable to exclude the possibility that the parents (or either of them) caused the injuries. Accordingly, following Lancashire County Council & Anor v. Barlow & Anor [2000] UKHL 16, he concluded "that had this matter been tried out it was highly probable that the local authority would have established the threshold criteria".

It therefore followed that the question of withdrawal must be determined on a welfare basis. Both the local authority and the guardian were of the view that A's welfare would be best served by his remaining in the care of his parents, and Mr Justice Hedley reminded himself (at paragraph 16) that nothing has been proved against the parents. Indeed, he said that: "Certainly one can be confident that, whatever may have happened in this case, these parents have never inflicted deliberate harm on this child."

"In those circumstances", he said (at paragraph 17), "it seems clear to me that were this case to have been heard it would almost inevitably result in the conclusion that the outcome was governed by Section 1(5) of the Act with the making of no order". He therefore acceded to the local authority's application to withdraw the proceedings.

He added (at paragraph 18):
"It is important that the court's conclusion that the threshold may have been crossed is not understood as implying criticism of the parents. Such a finding will of course usually do so but it is not inevitable having regard to Section 31(2) as understood in the Lancashire case. It is not intended to do so here. On the contrary, the parents' fortitude in the face of the disabilities of their first child and the pressures of the proceedings and the scrutiny to which they have (properly) been subjected can only excite admiration. ... Moreover, I gave permission to withdraw not only because of the prospective outcome but because (insofar as the evidence went) I am entirely satisfied that it is in the interests of A that he is brought up by his parents without the compulsive intervention or supervision of the State."

Sunday, March 13, 2011

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

... Mr Venal is generously passing on his wisdom:

Strange echo

Florida Divorce has reported a US case with a strange echo of the recent Re T case over here. Here, the father was murdered by the mother's grandmother, and the father's parents sought contact with the child. They obtained an order, but the mother is apparently refusing to comply, and has been held in contempt.

Saturday, March 12, 2011

Celebrity Watch: Useful and lucrative

I have once again been somewhat negligent in my reporting of celebrity marital (or extra-marital) goings-on recently (I can't imagine why), but I have found a couple of items (just) worthy of a mention.

When I began Celebrity Watch I speculated whether there was anything useful to be gained from observing such goings-on. Well, perhaps there is. The mere sight of a headline such as Mel Gibson gets probation for domestic violence in The Guardian today (and presumably similar headlines elsewhere in the media) will hopefully send out a message as to the seriousness of domestic violence, and that no one is above sanction for perpetrating it.

Meanwhile, on a slightly lighter note, the news that none of us were expecting: Katie Price has taken the first steps to divorcing husband Alex Reid, by lodging a petition with a court. This is not, of course, bad news for all; in fact, it is very good news for those punters who are looking forward to collecting their winnings. So, watching celebrities can be lucrative too...

* * * * *

UPDATE (if you can take any more of this): The News of the World today (Sunday) carries a headline regarding Ms Price's relationship with her 'new Latin toyboy' Leandro which reads: "Leandro hardly speaks English.. so I'm not with him for his mind!" I wonder if he is with her for her mind?

Something for the Weekend: Our incredible Sun

As regular readers will know, I do like to take them somewhere at the weekend. Today, it is a small trip of a mere 93 million miles to our Sun:

For details of how this incredible picture was taken, see here, and don't miss the enlarged version of the picture, here.

Friday, March 11, 2011

Litigation without end

Afua Hirsch in her blog today tells us that Nicolas Granatino has apparently commenced libel proceedings in France against Katrin Radmacher's solicitor Simon Bruce. Quite what it is that Bruce said to which Granatino takes exception will hopefully become clear as the case proceeds...

Thursday, March 10, 2011

Tick "No religion"

I think this message is worth repeating:

Men Only

The Family Law Prof Blog today links to a story about a rather unusual, perhaps unique, family law firm. Leigh, James & Associates only act for men. The Florida firm until recently had a slogan that read: "Men Only. Family Law Only.", and indeed the URL http://www.menonlyfamilylawonly.com/ still directs to their website. According to the story, Senior Partner Kenny Leigh considers that family law is unfair to men, although that doesn't necessarily explain why he won't represent women.

Of course, refusing to act for women could get the firm into trouble with the local Bar, but as yet no action has been taken, as no discrimination complaint has been made. Leigh, however, says he will fight it if the Bar tells him he has to represent women.

The firm is also not interested in any modern namby-pamby non-confrontational approach to family law. Its website proudly proclaims: "We believe in aggressive legal representation, fighting for men and focused on both personal and professional support."

I'm not aware of any firm quite like Leigh, James & Associates on this side of the pond, although I'm sure it would go down a storm in some quarters.

Family LoreCast #37

After a break, Natasha and I return for our 37th LoreCast. Stories discussed this week include:
You can listen to the LoreCast here.

Tuesday, March 08, 2011

Re T (A Child: Murdered Parent): The approach of the court remains the same

The case Re T (A Child: Murdered Parent) [2011] EWHC B4 (Fam), reported on Bailii today, considered an issue that does not seem to have been considered in any previously reported case: an application for a contact order by a father who had been convicted of the manslaughter of the mother.

The facts: The father and mother had a relationship together over a period of some four years. There are 3 children of the relationship: T, who is now aged 8, J now aged 12 and K now aged 10.

On 3rd February 2005 the father stabbed the mother, who died from her injuries. The father was charged with the mother's murder. On 16th August 2005 he was convicted of manslaughter on the grounds of diminished responsibility. He was made the subject of orders under sections 37 and 41 Mental Health Act 2003.

Immediately following the mother's murder all three children were placed in local authority foster care. The mother's sister ('MS') and her then partner put themselves forward as long-term carers for all three children, and the children were placed in their care. They then sought special guardianship orders, which were made on 3rd September 2007. The order recorded an agreement that the father could have indirect contact with all three children by way of cards sent three times a year, and provided that face to face contact between the father and the children should be at the discretion of the MS. The father has not had face to face contact with T since he was first remanded in custody.

I will not go into the detail of the aftermath of the murder and the father's mental health; this is set out fully in the judgment.

On 1st May 2010 the father issued an application for contact with T. The application was opposed by MS, and by T's guardian ad litem, the National Youth Advocacy Service ('NYAS'). MS made a cross-application for an order under section 91(14) Children Act 1989 preventing the father from making any further applications in respect of T without the leave of the court.

Held: The judge (who is not named in the report) began his/her discussion (at paragraph 60) by making it clear that the approach of the court remains the same as in any other application by a parent for contact with his child:
"Whatever may be the twenty-first century equivalent to the proverbial man on the Clapham omnibus, he or she would likely be very surprised to learn that a parent who has murdered the other parent should nonetheless be entitled to make an application for contact with his child and even more surprised to be told that the court will not dismiss that application out of hand. However, I am satisfied that that is the position in law. ... There is no presumption that when one parent murders the other the offending parent has to surmount a prima facie barrier of no contact. As a matter of principle, murder of itself cannot constitute a bar to contact. It is one factor – albeit a profoundly significant factor – in the difficult and delicate balancing exercise of discretion. That exercise must begin with a welfare checklist analysis."

The judge then considered the checklist factors and concluded (at paragraph 70) that: "the outcome of the welfare checklist analysis leaves me in no doubt that there should be no contact of any kind between [the father] and T."

The judge then moved on to consider the s.91(14) application. The application was not opposed by the father, but there remained the issue of the length of time for which the order should remain in force. The father, supported by the NYAS caseworker, contended that it should last until T's thirteenth birthday. MS contended that it should last until T's 16th birthday. The judge came to the conclusion (at paragraph 72) that in the exceptional circumstances of the case the longer period was more appropriate.

The judge then considered the interface between these proceedings and those before the Mental Health Tribunal, which had imposed an exclusion zone upon the father, preventing him from approaching within a 25 mile radius of MS's home. The judge considered (at paragraph 84) that in the exceptional circumstances of the case such an exclusion zone order was both proportionate and reasonable.

Accordingly, the court made the following orders (paragraph 86): that the father's contact application be dismissed; that there shall be no contact between the father and T; that pursuant to s.91(14) Children Act 1989 the father shall not, without the leave of the court, make any further application to the court for an order under s.8 Children Act in respect of T before 21st November 2018; and that there shall be an injunction mirroring the conditions imposed by the Mental Health Tribunal, that injunction to remain in force until further order.

* * * * *

UPDATE: The report has now been amended, to include the identity of the judge, His Honour Judge Clifford Bellamy.

Stylish.

"A knock-out, jaw-dropping adornment the ‘Til Death do us Part [Engagement] Ring from designer Kate Bauman packs a stylish punch", and can be yours for only £174. Just make sure you stay on her good side...

International Women's Day

Today is the 100th International Women's Day. To celebrate the centenary, The Guardian has published a list of the the women that it considers to be "the top 100 social, economic, artistic and political achievers". Amongst their number is our 'very own' Baroness Hale, the first woman and the youngest judge to become a Law Lord, and currently the only female Justice of the Supreme Court. The final list was selected by a panel, one of whom we are told "marvelled: "She's a real troublemaker. She's brilliant.""

Monday, March 07, 2011

News Brief: A mixed bag

A mixed bag of news over the weekend, including:

Children & Young People Now reported a warning from national charity Coordinated Action Against Domestic Abuse that 'domestic violence victims and their children are at serious risk of harm as a result of funding cuts to police, health, legal aid and social services budgets'. No surprise there, but worrying nevertheless.

Meanwhile, The Guardian informed us that another charity, Childline, has reported a rise in the number of calls from children in care. The story appears to be about failings of the child care system, although we are told that only 1 in 26 of the calls are about failings in the system, not that I am of course saying that this isn't something which requires serious consideration.

Elsewhere, Family Law Week passes on the good news from the Child Maintenance Enforcement Commission that '91,000 children benefit from maintenance agreements after contacting Child Maintenance Options', an increase of 30,000 over a year ago. Not satisfied with that, CMEC has set up a new initiative whereby parents on tax credits who contact HMRC to report changes of circumstance following family breakdown can now choose a call-back from Child Maintenance Options, which seems quite a good idea.

This morning I read that research by investment management firm Rensburg Sheppards indicates that a third of parents are reluctant to leave money to their married children when they die, in case they get divorced. However, 72% said they would like to see pre-nuptial agreements become legally binding, "as this would enable them to make gifts to their children, safe in the knowledge that if they later got divorced, the money would still benefit their child". Anything to keep it in the family, I suppose...

Lastly, not news but comment upon news reporting. Lucy Reed at Pink Tape picks up on something I have spoken about here before, most recently in this post last week: the Telegraph's hysterical campaign against our child care system, led by columnist Christopher Booker. Lucy deals with the matter in far greater detail and far more eloquently than I ever could. She concludes: "Far from righting wrongs, this type of journalism corrodes the trust that is vital in order for vulnerable parents to achieve access to justice." It would be nice to think that Mr Booker might read this post.

Saturday, March 05, 2011

Something for the Weekend: Shuttle launch from an airplane

You may have seen this already (a lot of people have), but even so, it is still pretty impressive:

Thursday, March 03, 2011

The word of the moment

Mediation: it seems to be what everyone is talking about at the moment. Here are three recent examples:

Yesterday the BBC ran a piece (demonstrating the level of interest in the subject) by Katie O'Callaghan of Boodle Hatfield, Divorce: Mediation should help married couples split up. Basic information, but Katie seems to be a supporter of mediation, as the title suggests.

Christina Blacklaws of Blacklaws Davis is also a supporter of mediation, but she points out that it is not the panacea for all family problems that the government would have us believe, in an article in the Law Society Gazette today.

Lastly, Pink Tape relates the views of David Jockleson of Miles and Partners in her post More Mmmmmediation (a title I could have used for this post, had I been more creative). He describes the introduction of compulsory mediation assessment as "a headline grabbing, political announcement", which was unexpected, ill thought out and premature in the light of the ongoing Family Justice Review.

More to follow, no doubt...

Tuesday, March 01, 2011

Questions, questions...

Here, subject to my usual disclaimer - see sidebar - are my answers to a few of the keyword queries that have brought recent visitors to his blog:

Can I get compensation from husband who has abused me for 33 years?

From a matrimonial point of view, you could only get compensation for abuse included in a financial settlement on divorce if you could show that the abuse amounted to conduct that would be 'inequitable to disregard', which means conduct that is considerably more serious than the 'usual' 'misconduct' involved in the breakdown of many marriages. As to whether you could make a civil (as against a matrimonial) claim, you would have to take advice from a civil claims lawyer, although I would doubt it.

Can a court refuse a consent order in ancillary relief?

Yes, if the judge is not satisfied that the terms of settlement contained in the draft order are fair.

How to win equal parenting time in UK family court?

Well, first of all, the law does not talk in terms of 'winners' and 'losers' when it comes to arrangements for children. As to obtaining an order giving equal time to each parent, the answer is quite simple: you will have to persuade the court that this would be the best thing for the child(ren).

Is mediation for child visitation compulsory in UK?

No, but from the 6th April, anyone wishing to apply to a court for a child contact order will first have to have the case assessed to see whether it is suitable to go to mediation.

Can I go to CSA if maintenance is included on consent order?

Under the present rules, only after the order has been in effect for one year.

How long does a consent order take?

Good question. It depends upon how busy the court is (specifically, the district judges). In some courts, it can take a couple of weeks, in other courts several months. It also depends, of course, upon whether the judge raises any queries regarding the order.

She refuses to sign consent order

You cannot force her to do so. You may be able to persuade the court that a binding settlement has been agreed, depending upon the circumstances. If not, you will need to apply to the court for a financial/property settlement ('ancillary relief'), if this has not been done already.

Can you get no win no fee lawyers for divorce?

I've never heard of it.

Can I apply for a consent order after decree absolute?

Yes, although it may be best to get the consent order first.

Lastly:

How do I get a divorce without it costing me a fortune?

Why, buy my book Do Your Own Divorce, of course!

(The law is, of course, correct as at the date of this post.)

February Post of the Month

Bringing to a close my third year of awarding Post of the Month trophies (the first one, for March 2008, was actually called 'Blawgpost of the Month'), the Oscar (the real one, not that fake they hand out in Los Angeles) for February 2011 goes to Pink Tape for her post Mediation Assessment.

Mediation Assessment tells the story of the breakdown of a long-standing relationship. It is a sorry tale, familiar to all family lawyers, of a significant power imbalance between the parties, which ultimately makes the case unsuitable for mediation. Who are the parties? Well they, too, are familiar: Mr Ministrio O Justice and Ms Accessa D Justice.

A compulsory read for all who have an interest in family justice (hint, hint, Messrs Clarke and Djanogly.)