Friday, September 30, 2011

In Practice Update: SRA Handbook now online

Further to my In Practice post this morning, the Gazette has announced that the new SRA handbook is now online. It can be found on the SRA website, here. Meanwhile, here is an introductory video by the SRA Chief Executive, Antony Townsend:



Incidentally, a 54-minute SRA webinar on the transit from code-based to outcomes-focused regulation can be found here.

In Practice: Reality bites

Further to my previous In Practice posts, Solicitors Journal yesterday ran a piece about the SRA apologising to solicitors for technical problems they have experienced using mySRA. We are told that:
"According to SRA figures, there are currently around 122,300 solicitors with PCs, and up to 37,000 others likely to want to remain on the roll despite being non-practicing."
Leaving aside the Americanism 'practicing', I find it astonishing that there are, in 2011, some 37,000 solicitors who do not possess a computer. Where are these people? Probably living in caves somewhere, I suppose. Perhaps the SRA could contact them via smoke signals?

OK, I know 'PC' also stands for 'practising certificate' (spelt with an 's') - blame that little digression on my hatred love of initialisms. The article goes on to tell us that:
"Under the old system, hard copy application forms to remain on the roll were sent out in March. The fee for keeping a solicitor’s name on the roll for a year is £20, meaning that around £740,000 in income for the SRA is yet to be collected."
As I am no longer practising (with an 's'), all I want to do on 'mySRA' (not sure why it is mine - I never wanted it in the first place) is keep my name on the roll. I thought that once I had finally activated my account I would be able to do this (why else would I need an account?), but I don't seem to be able to do anything at all - all I seem to get is a lot of 'No records found'. Apparently, the SRA will be contacting me about keeping my name on the roll in the autumn. Meanwhile, solicitors wishing to renew their PCs (no, not their computers) "should visit the mySRA page in mid-October for the latest information".

Moving swiftly on, the SRA has also been busy advising high street firms "to be proactive and take advantage of opportunities presented by alternative business structures", according to this report in the Gazette on Wednesday. Samantha Barrass, the SRA's 'executive director of supervision, risks and standards' (sounds like an exciting job) told a meeting of the Conveyancing Association that: "There is a huge opportunity for high street firms and local estate agents so I would be surprised if they didn’t attempt to use these reforms to refocus their business and widen their service offerings." I agree that these could be hopeful times of opportunity for traditional high street firms, were it not for the small matter of the total collapse of the housing market, and therefore their staple income.

Lastly, and going back to a point mentioned in my first In Practice post, the Law Society has updated their practice note on Information on letterheads, emails and websites, which "explains the information that you must include in order to comply with the Code of Conduct 2011 requirements, and the steps that you should take to facilitate this". Yet more reading to do...

Are 'renewable' marriage contracts a good idea?

The BBC reported yesterday that:
"Couples in Mexico City could soon use "renewable" marriage contracts to try living with their other half before making a lifetime commitment.

Newlyweds would take a minimum of two years before deciding whether to cement their relationship or split up, under plans to alter the city's civil code.

If approved, the contracts would set out in advance marital duties, such as in childcare, schooling and budgeting."
The idea of the contracts is to cut divorce rates, but they have attracted criticism for contributing to a "throwaway culture" in respect of society's institutions, and for putting children through the anguish of wondering whether their parents would stay together.

As to the second point, it would of course depend upon the length of the contract - most children would surely be too young to worry during the first two years of their parents' marriage. Subject to that, though, the point does seem valid.

Otherwise, the contracts would presumably be prepared by lawyers, in the same way as prenuptial agreements are. If so, they would surely be a bonanza for family lawyers, creating a vast amount of work where there was little, and involving the couples in substantial legal costs. Somewhat ironic, given that one of the purposes of the contracts is to reduce family court workload, and therefore legal expense.

The last, and perhaps biggest, objection I would have to such contracts is this: apart from the couples effectively having prenuptial agreements, what difference would they make? If a marriage is going to break down, it's going to break down. All the contract will do is create uncertainty where otherwise there would be none.

Thursday, September 29, 2011

Family Lore News Quiz

Welcome to the first Family Lore News Quiz. The quiz will test your knowledge of family law news and cases from the past month. Select one answer for each question, then click 'Done'.


1. Which family QC was appointed to the High Court bench?

a) Charon

b) Philip Moor

c) Rumpole

2. Why did a footballer say he could not pay his child maintenance arrears?

a) Because his club had suspended him

b) Because of the cost of keeping his Ferrari on the road

c) Because his club had been relegated

3. What was the prison sentence that Elizabeth Watson received for contempt?

a) 9 months

b) 3 months

c) One year

4. How many adults are now living together without being married?

One in three

One in ten

One in six

5. How many children under one were adopted in the year ending March 2011?

600

60

160


Anniversary Gift

This year, get her something she'll remember:

Wednesday, September 28, 2011

News Brief: More statistics, a difficult case, some proposals and a letter

After a short lull, there is suddenly no shortage of family law news. Here are some of the 'highlights'.

The Department for Education has today published statistics for children looked after in England (including adoption and care leavers), for the year ending 31 March 2011. The statistics show that the number of children in care in England has increased by 2%, from 64,400 last year to 65,520 this year, and that there was actually a reduction in the number of children taken into care (27,310, down from 28,090 the previous year). There was also a fall in the number of looked-after children placed for adoption, from 2,720 in 2007 to 2,450. The vast majority of children looked after in 2011, 74 per cent, were in a foster placement.

The Court of Protection has refused an application by the family of a woman in a 'minimally conscious state' for an order authorising the withdrawal of artificial nutrition and hydration. Mr Justice Baker found that "the importance of preserving life" was "the decisive factor" in the case. As The Guardian states:
"The landmark case at the court of protection sets a precedent for future applications to withdraw treatment from patients who are chronically, medically dependent. It is thought to be the first time a judge has ruled on a case involving someone who is minimally conscious as opposed to being in a persistent vegetative state."
A full report of the judgment, W -v- M and S and A NHS Primary Care Trust [2011] EWHC 2443 (Fam), can be found on the Judiciary of England and Wales website, here.

The Telegraph reports that the Law Commission's proposals to reform the law relating to kidnap could mean that "a warring parent who fails to return a child in a domestic dispute could face the prospect of being charged with kidnap, which carries a maximum life sentence". However, the report continues by saying that:
"The Commission insisted the planned reform was not designed to target those cases but to ensure criminals who entice children or vulnerable adults in to their cars or houses can be charged with kidnap."
Which seems to satisfy the somewhat scaremongering Telegraph reporter, who then says nothing more about his fears. Still, it was a good headline...

Lastly, Lucy Reed over at Pink Tape has today published an open letter to Cafcass from former Cafcass officer Charles Place in respect of his resignation from the Service, in which he expresses doubts "as to whether Cafcass as an organisation is fit for purpose". Lucy also publishes further comments by Mr Place, of which she states: "Mr Place raises a number of other points which, if an accurate reflection of how CAFCASS is operating, are very concerning". Lucy invites comment, or response from CAFCASS.

It's that time of the year again!

How many husbands have got into serious trouble for forgetting an anniversary? Well, now help is at hand, or finger to be more precise.

The Remember Ring has a 'hot spot' on its interior surface that, on the appropriate day, will heat up to 120º F for approximately 10 seconds, and continue to warm up every hour, on the hour, all day long. Thoughtfully, the manufacturers have ensured that it is not hot enough to burn, but just hot enough to cause sufficient discomfort that it can't be ignored.

Said one satisfied customer: "It's like a hand gun. Better to have it and not need it, than need it and not have it." Quite.

[Found via Neatorama.]

Tuesday, September 27, 2011

Cohabitants should have scope for financial redress in the event of a relationship breakdown, warns Law Society

Law Society press release:

Cohabitants should have scope for financial redress in the event of a relationship breakdown, warns Law Society

Commenting on the government’s refusal to enact legislation on cohabitation in this Parliament the Law Society says reform of cohabitation law is badly needed as cohabitants should have proper redress in the event of a relationship breakdown, when their financial and property rights need to be adjusted.

The Law Society has long supported reform of cohabitation law and it supports the Law Commission’s proposals for legislation in this area.


Responding this week to the Government’s refusal to enact legislation Law Society President John Wotton said this area of law is in need of reform to provide a more rational and structured system than exists at present.


“The Law Society believes that the current legislative framework for cohabitation is unnecessarily expensive, and that reforms to it could reduce costs, free up time for the Courts, and provide separating couples with a more satisfactory experience.


“The government’s response is that the family justice system is already under review. However the Family Justice Review specifically excludes ancillary relief; the financial proceedings surrounding the separation of a couple, let alone cohabitation law, which remains dealt with under civil - not family – rules.


“One of the roles of the law is to protect the vulnerable. The law that currently exists for cohabitants is disjointed and grossly inadequate. Solicitors practising family law regularly see injustice when cohabiting couples' relationships break down. Unmarried couples who are living together and those who are still married, but are now living with a new partner, need to know where they stand in the event of a break-up.”

Situation Vacant

Found in the jobs section:

Monday, September 26, 2011

Why do lawyers hyperventilate?

You see it all the time - in the general media, in blogs, on Twitter: lawyers getting irate about something, whether it be legal aid, Clause 12, squatting or whatever. It's usually something that's going to happen, which will (apparently) have a terrible adverse effect upon lawyers some poor unfortunates who (whether they realise it or not) need lawyers to protect them.

One feature of such hyperventilations is particularly noticeable: the lawyers are so sure of themselves. But then, we should not be surprised at this: who knew a lawyer who wasn't sure of him/herself?

And they don't even seem to take a break. Last Saturday evening as I was enjoying a glass (or two) of Tempranillo I noticed that they were still doing it on Twitter, whilst others were settling down to watch Dr Who (not myself - I grew out of Dr Who when I was about ten). In a Michael Winner moment I told them to calm down, although I don't think they were listening.

And yet, despite their anger, little seems to change when the horrendous things of which they so bitterly complain come to pass - the Earth still rotates on its axis, Jeremy Kyle still appears on daytime TV and people still smirk at Ed Balls's surname.

So, why do lawyers hyperventilate?

I should say at this point that I don't generally hyperventilate, at least not about legal matters. Whether this is because I'm now of an age when I take a more relaxed attitude to life's little bothers, or because I simply don't give a s**t any more, I will leave to others to say.

It could, of course, be that many of these lawyers are jumping on one of the current 'hyperventilation bandwagons', intent on having some of the glory of a successful cause (or even a glorious failure) reflect back upon them. But that would be a cynical thing to suggest, wouldn't it?

On the other hand, perhaps they really do care. I know, the idea of lawyers caring about anything other than their fees may take some readers a bit of getting used to, but it does happen. Perhaps, therefore, we should put our irritation to one side and accept that lawyers really can be as altruistic as others, even if their self-righteousness can sometimes grate even more than those Michael Winner commercials.

An oldie but a goodie:

Credit: BuzzFeed

LoreCast for the week ending 26th September 2011

Natasha and I bring you the top family law news stories and reported cases for the last week:



(Those without Flash can listen here.)

Civil Partnerships Five Years On

Last week the Office for National Statistics published an article examining civil partnership in England and Wales, five years on from its introduction. Civil Partnerships Five Years On can be downloaded here, in .pdf format, and this is a video summary:

Saturday, September 24, 2011

Something for the Weekend: Experience Zero Gravity

This video left me stunned. I recommend you watch it full-screen (available while playing), with the volume turned up:

Friday, September 23, 2011

In Practice: Of acronyms and initialisms

Next month we will have a new initialism to play with, to go with all the other acronyms and initialisms we all so love (examples of which follow in this post). 'OFR' stands, of course, for 'Outcomes-Focused Regulation', the new regulatory system for the profession, which comes into force on the 6th of October. It is the subject of a practice note issued by the Law Society this week. The practice note "is designed to give you an overview of outcomes-focused regulation (OFR) and the issues you may wish to consider in light of its implementation on 6 October 2011". We are told that the practice note is relevant to all solicitors, so get reading...

Incidentally, for those who have no idea what OFR is, I refer you to the overview of the book Outcomes-Focused Regulation A Practical Guide:
"It is part of the philosophy of an outcomes-focused approach that prescriptive rules are avoided if possible and practitioners make a judgement, reflecting their own clients and the nature of their practice, as to how to achieve the required outcomes. The regulator provides only limited guidance."
If you are still in the dark, then you probably need to buy the book.

Sticking with OFR, the Gazette told us on Monday that the SRA is considering a 'reflective approach' on CPD, as it seeks to align CPD with the principles of OFR. This will mean "that whatever new CPD rules are adopted, solicitors are likely to be required to demonstrate the ‘outcome’ gained from the training they undertook during the year". Sounds like fun, and something that will definitely not impinge on those precious billing hours.

Meanwhile, and changing the subject at last, Solicitors Journal reports that the BSB "has become the latest and only the second of the larger frontline regulators to appoint a board with a lay majority", the other one being ILEX Professional Standards. We are told that earlier this year the LSB consumer panel expressed frustration at the delay by the two main professional bodies in the legal services sector – the SRA and the BSB – in setting up boards with lay majorities. How long will the SRA continue to frustrate them?

On the subject of frustration, there can surely be little more frustrating than getting your LPC but then being unable to find a training contract, a subject mentioned in this letter in the Gazette yesterday, excellently entitled "Train to nowhere". The issue of whether there will be more LPC graduates than training contract vacancies is not, however, agreed as this article, also in yesterday's Gazette, points out.

Finally, with reference to last week's post, I am pleased to report that I have just successfully activated my mySRA account, although it seems odd that there seems to be someone else using my name as their user name (I am the only 'John Bolch' in the profession), and the 'captcha' (which for some reason you have to use twice) irritatingly kept spewing out words that were totally illegible. Such is progress.

TTFN.

Thursday, September 22, 2011

Re K (A Child): No jurisdiction to require father to vacate family home to faciliate contact

Re K (A Child) [2011] EWCA Civ 1075 (28 July 2011), reported today on Bailii, concerned a judge's attempt to establish contact between an eleven year-old child and her mother, who resides predominantly in Bulgaria.

The Facts: The child has for some four years resided with her father in England, and he was granted a residence order on the 15th October 2010. On the 20th June 2011 a hearing took place to determine issues relating to the mother's contact. Neither party was represented, although the child had been made a party and was represented.

The judge ordered that there should be direct contact for a period of three weeks at the family home and that the father should therefore vacate the property for this period.

The father appealed against this (and another order, which I will not deal with here), primarily on the basis that the judge had no jurisdiction to make such an order.

Held: Mr Justice McFarlane gave the leading judgment. He said (at paragraph 20) that the judge had purported to impose the condition on the contact order under section 8 by referring to Section 11(7) of the Children Act.

However, he said (at paragraph 22) that the question of whether this sort of order was within section 11(7) had already been determined by the Court of Appeal, in the case Re D (Prohibited Steps Orders) [1996] 2 FLR 273. In that case, the court was considering a prohibited steps order in which the court had prevented the father from staying overnight in the matrimonial home, effectively an ouster order, and Ward LJ held that that was not within the court's jurisdiction:
"Section 11.7 in my judgment is ancillary to the making of a Section 8 order, it is governed by the provisions for making of a Section 8 order and does not allow the importation by this back door of the matters laid down in the Matrimonial Homes Act or proper adjustment of rights of occupation "
Mr Justice McFarlane therefore concluded (at paragraph 23):
"It would seem to me that, so far as the legal context is concerned, the current case is on all fours with that decision and the judge's order requiring the father to vacate his home under Section 11(7) cannot stand and I would therefore, speaking for myself, allow the appeal on ... that basis."
Interestingly, in a concurring judgment Lord Justice Ward praised the judge "for coming to a sensible pragmatic conclusion" which "had been frustrated by the idiocies of the law".

I know I'm a pessimist, but...

The Gazette today reports the latest avenue to be explored in the continuing fight against the proposed legal aid cuts.

Cris McCurley, partner and head of international family law at north-east firm Ben Hoare Bell, claims that the Legal Aid, Sentencing and Punishment of Offenders Bill contravenes the UK’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women ('CEDAW').

She says that the Bill will have a disproportionate and discriminatory impact on women, and that if it is enacted in its present form, a judicial review on the domestic violence provisions is ‘inevitable'.

If that fails, "she will take the matter to the CEDAW committee, which has the power to make a non-compliance determination against the UK and require it to implement measures to rectify the situation."

Sounds good, but will it make any difference?

I fear not. Honourable though it is, I am convinced that arguing against the legal aid cuts is a futile exercise, for a simple and obvious reason. Governments only care about votes. Voters (i.e. the public) don't care about legal problems unless they have one, and they certainly don't care about lawyers. The Government therefore feel under no pressure to change their policy, Q.E.D.

And as for persuading the Government to keep to its obligations under an international treaty, that could also be an exercise in futility - just ask any prisoner wanting to exercise their right to vote.

On the other hand, for the sake of the thousands who will be denied access to proper legal advice (and therefore access to justice itself), I hope I'm wrong...

Wednesday, September 21, 2011

Peace Day 2011

Today is Peace Day 2011, a day for global ceasefire and non-violence. Sounds a bit hippy, but no one in their right mind can argue with the sentiment (besides, I'm an ageing hippy myself). Here's a short video to explain:



[Note: There may be a slight issue with the video, as it doesn't always play - just keep trying. Sorry, but this is beyond my control.]

Marie would be proud...

Family bar warns of ‘bleak’ future at national meeting - Law Society Gazette, 21st September 2011

Tuesday, September 20, 2011

Doncaster Metropolitan Borough Council v Watson: Defending the system

The report of the judgment in the application by Elizabeth Watson to purge her contempt has now been published on Bailii.

As is well known, the President released Ms. Watson (the nine month prison sentence she previously received was suspended for two years). However, the (short) judgment is remarkable for the number of points that the President makes in 'defence' of the family justice system:
"The first myth I wish to explode is that a person can be sent to prison "in secret". Nobody in this country is sent to prison for contempt of court "in secret"." (Paragraph 2)
"The Family court are frequently accused of acting "in secret". It needs to be emphasised that courts hearing cases involving children under the Children Act 1989 sit in private to hear evidence because they are democratically authorised to do so by Parliament. They do so to protect the interests and confidentiality of children. The courts thus regard - and I certainly regard - with particular seriousness any breach of a court order designed to protect the identify and confidentiality of a child." (Paragraph 5)
"...judges believe in the rule of law and in free speech." (Paragraph 6)
"...where a judge makes an order restricting publicity and forbidding the identification of a child, he or she is duty bound to carry out what has been described by the House of Lords as "an intense focus" on the rights of a child and the rights of everybody else to free speech." (Paragraph 7)
And in a postscript (at paragraphs 22 and 23):
"I conclude by making two points: the first is to note that the independent Family Justice Review, whilst making a number of criticisms of the Family Justice System, went out of its way in paragraph 7 of its Interim Report to say: "We have been impressed by the dedication and capability of those who work in the Family Justice System. Their work is hugely demanding and often highly stressful". Those who criticise the System and the integrity of those who work within it would do well to bear these findings in mind.

Secondly, I wish to re-emphasise that committal proceedings are not issued in order to stifle free speech, but to ensure obedience to orders of the court. Everybody is entitled to free speech; but equally nobody is entitled to breach an order of the court."

Ask a (new) question...

Looking through the search queries that find their way to Family Lore I regularly come across the same questions coming up time after time. I will not (knowingly) be answering those questions again, and would refer to my previous Questions and Answers posts.

OK, subject to that point and, as usual, to my disclaimer (see right-hand sidebar), here are my responses to a few of the recent queries:

my husband wants half my pension as we are going through a divorce

He may be entitled to it, but all assets will be taken into account, along with other factors. You should seek specific advice.

can divorce petition service be dispensed

Yes. You will need to complete this affidavit (see the notes for guidance at the end).

Do you need a consent order for a divorce

No, but it is best to get a final financial/property order before decree absolute, in particular to ensure that pension rights are not lost on divorce.

why do I have to do a statement of information for a consent order

The court requires this so that it can ensure that the order it is being asked to make is broadly reasonable. The court is under no obligation to make an order merely because the parties agree to it.

can we have a clean break order without financial disclosure

You can agree a clean break without disclosure, but I wouldn't recommend it. You will still however need a consent order to give effect to the clean break, and the court will require basic information about each party's means, before making the order (see above).

How much is a consent order

The current court fee is £45. This is usually shared between the parties.

force ex to sigh [sic] clean break order

You cannot force them to sign. If they do not do so, then you will have to make an application to the court.

calculation of spousal maintenance uk

There is no formula. The amount will be based upon the means of the payer and the needs of the recipient.

can i force my ex husband to see his children

In a word: no. The court has no power to force a parent to have contact against their wishes.

is domestic violence a barder event

Extremely unlikely, I would have thought. Certainly, I am not aware of any case where it has been held to amount to a Barder event. To do so, it would have to fundamentally alter the basis upon which the order was made.

Lastly:

why i want to become a family lawyer

You're asking me? I've no idea - must be some kind of psychotic reaction.

One for the ladies...

I rather liked this advert for a Norwegian online bank:


[Found on BuzzFeed.]

Monday, September 19, 2011

All men are equal

The Minister for Women and Equalities,
Whitehall,
London.
19th September 2011

Dear Mrs May,

Re: Gender Reporting Initiative

In accordance with the above I am pleased to report the following information regarding my firm:

  • Percentage of female partners: 0

  • Percentage of female fee earners: 0

  • Percentage of female secretaries: 100

  • Percentage of female cleaners: 100

  • Percentage of females doing other menial tasks: 100

  • Promotion rates by gender: Male 100%, Female 0%

  • Number of maternity leave returners: Not bloody likely.

  • Number of staff on flexible hours: All staff expected to work 24/7.

  • Variances between male and female salaries: N/A (Only a man can do a man's job.)

  • Action required to address issues: None

I trust that this is entirely satisfactory.


Yours faithfully,

Edgar Venal

P.S. Shouldn't you be at home looking after your husband?

* * * * *

Eversheds becomes first law firm on board new Govt sex equality scheme - Legalweek, 19th September 2011

LoreCast for the week ending 19th September 2011

Natasha and I return to bring you the top family law news stories for the last week:



(Those without Flash can listen here.)

Sunday, September 18, 2011

Definitely not boring*

A quick post to mention that Tessa Shepperson of Landlord-Law Blog fame has begun a new blog on the history of law. The aptly-titled History of Law Blog will cover law from Norman times to the present, with the focus on land law. Tessa explains:
"If any reason is necessary for this blog, other than the fact that the subject is interesting in itself, it is that a study of the past helps us better understand the present, and may also give us greater resources to glimpse into the future."
Fine words, and I wish Tessa well in this new venture.

[*The title to this post is not as rude as it looks. For an explanation, see Tessa's Introduction to the History of Law Blog post.]

Saturday, September 17, 2011

Something for the Weekend: Bern Elliott and the Fenmen - Money + Nobody But Me

Funny how things go around. Whilst clearing my late father's house last year I came across this single, which I didn't realise he had (it would actually have been bought by one of my (older) sisters). "Money" reached number 14 on the UK Singles chart in November 1963, but the group were never able to repeat this success.



There is a particular reason why I have an interest in this single. You see, one of my secretaries later married the singer, Bern Elliott:

Friday, September 16, 2011

In Practice: Latest developments in the profession

This is the first of what is intended to be a regular series of posts dealing with some of the latest developments in the area of professional practice and regulation. As the logo above indicates, the posts will concentrate on the solicitors' side of the profession, although I may also occasionally cover the 'dark side' of the Bar.

First, a reminder that solicitors must activate their new mySRA accounts, as explained in a letter they should recently have received from the SRA. I tried to activate mine last week, only to be greeted by numerous irritating error messages that nearly caused me to throw my copy of the Code of Conduct through my monitor. A call to the SRA and I was told that they were having technical issues and that these should be resolved this week. I see that an apology also appears on their website.

Still on the subject of the SRA, a letter that appeared in the Gazette yesterday caught my eye. It was from Elizabeth Muirhead, on the subject of the requirement that by 6 October solicitors need to change the wording on all letterheads, websites and emails from ‘regulated by the Solicitors Regulation Authority’ to ‘authorised and regulated by the Solicitors Regulation Authority’. It doesn't seem like five minutes since this had to be changed previously. As Elizabeth says: "How many hours did this decision consume? How many hours will be spent making the amendment - and at what cost? How many hours will be consumed regulating those failing to comply?" Quite.

Lastly, I thought that reducing indemnity premiums always was a primary reason for getting Lexcel accreditation. Now, the Law Society and broker Hera Indemnity have done a deal to make it 'official', as reported by the Gazette yesterday. The deal also applies to members of the Conveyancing Quality Scheme. So, not all bad news...

Cause and effect

Just a quick post to draw attention to two items I found in The Guardian today.

Firstly, Harry Ferguson, professor of social work at the University of Nottingham, wrote an interesting Comment is free article yesterday on "the Baby P effect". In it he says, as we all know, that this has led to social workers being afraid to make mistakes, for fear of becoming the next scapegoat after Sharon Shoesmith. However, he argues that the case has had another consequence, in that it has shocked social workers into recognising just how manipulative and deceitful some parents can be. He says:
"Social workers are familiar with confronting overt aggression and assaults, but they are having to learn much more about the subtle tactics of avoidance and resistance that prevent them from forming meaningful relationships with children – such as the way in which Peter's mother managed to hide the presence in her home of the two men who contributed to his death, and conspired with them to smear his face with chocolate to conceal his injuries."
He goes on to say that his research indicates that the best way to to find out what is happening to a child is to make contact with them on their own (although I suspect that this is not always easy in practice). Worth a read, I think.

Meanwhile, the Guardian reports that almost half the single parents who use the Child Support Agency would not be able to afford to pay the fees to access the new child maintenance service, according to a survey by the charity Gingerbread. I can't really think of much to say about this, save that it reminds me of Basil Fawlty's "bleedin' obvious" remark (no disrespect to Gingerbread). I suppose that's what you get when policies are driven solely by fiscal considerations...

Give me strength...

OK, I'm sure I've ranted about this before, but I'll rant about it again: it's REGISTER OFFICE, not REGISTRY OFFICE!

The latest miscreant to commit this heinous crime is one that should really know better: the Telegraph, supposedly one of our 'quality' newspapers. In this article today they say: "Sir Paul McCartney and his fiancée have posted marriage banns at the same registry office where he wed his first wife Linda more than 40 years ago, it was reported last night." Accordingly, they have been put on the Nearly Legal Family Lore Naughty Step, and will remain there until they stop it.

For the benefit of the unenlightened, a 'registry' is a place where a register is kept. The word includes reference to place, so appending 'office' is superfluous (you would not say "the place where the register is kept office"). On the other hand, a 'register' is just that - no reference to place, thus 'office' is required, if one wants to refer to the office where the register is kept. So, just remember that as the place where birth, marriage and death records are kept uses the word 'office' in its name, it must therefore be a 'register office'.

Thank you.

Thursday, September 15, 2011

Ninety-five years ago today...

Detail of the Somme battlefield (map approx. 10 miles across)

It is 6am on the 15th September 1916, near the village of Ginchy, on the Somme. The Coldstream Guards are preparing to attack the German positions, some 2500 yards away. It will be the first time in the war that all three battalions of the Guards will have mounted an attack together.

It will also be the first time that tanks have ever been used in warfare, although the three allocated to the Division will soon break down.

Mark I tank

At 6.20 the attack begins. The plan had been for them to capture their targets within two hours, but as we all know, no battle plan survives contact with the enemy. The Guards come under intense shell and machine gun fire and suffer heavy casualties, with the first two waves being decimated.

At this critical moment in the battle, Lieutenant Colonel J V Campbell DSO rallied the 3rd Battalion with his hunting horn, and led them in a successful attack. Later the same day, he led a further successful attack, being himself one of the first to enter the enemy trenches; for his gallantry he was awarded the Victoria Cross.

Showing tremendous discipline and bravery, the Guards succeed in taking and holding all of their initial objectives, but the price has been terribly high. Forty officers and 1326 men had become casualties.

One of those casualties is Private Samuel Walter Bolch, my great-grandfather. Somewhere in the maelstrom he is killed. His body is never found.

He is not, however, forgotten. His name appears on the Thiepval Memorial:


And here is my great-grandfather:

S W Bolch, centre, with comrades in arms

[Note: I have pieced this short account of the battle together from several sources. I believe it is accurate, but any errors are mine.]

Wednesday, September 14, 2011

The Divorce Hotel

Here's an idea from the Netherlands - check into the 'Divorce Hotel' with your spouse, and three days later you've sorted out your divorce, with the aid of various 'specialists'. Commercial Director Jim Halfens explains:

Venal & Grabbit Client Satisfaction Questionnaire


CLIENT SATISFACTION QUESTIONNAIRE

(Check one answer for each question)

1. Did we deal with your matter promptly?

Yes, very promptly

2. Were our charges reasonable?

Yes - you should charge more

3. Were you kept informed of progress in your matter?

Yes, every hour of every day

4. Were you satisfied with our advice?

Extremely - my ex's solicitors didn't know what hit them

5. Did we use enough legal jargon in our correspondence?

Yes - I've no idea what you were talking about, but it was impressive

6. Did your matter have a satisfactory outcome?

I'll say - you screwed my ex good and proper

7. How does our service compare to any previous solicitors you have used?

V & G were much better than those idiots

8. Would you recommend Venal & Grabbit to others?

Of course, who else?


Thank you for completing this questionnaire. We are most grateful for your answers, all of which will be taken into account when setting next year's charging rates.

Monday, September 12, 2011

For Students of the Gray's Inn

On a very similar note, the same clear-out turned up my late father's Gray's Inn student card (left).

Unfortunately, the card is undated, but my father would have been a student there during the mid-sixties.

The card admitted "a Student of the Gray's Inn, to the Hall, Library, Common Room, and to the Lectures and Classes of all the Readers and Assistant Readers appointed by the Council of Legal Education."

It also stated that the card "must be returned to the Under-Treasurer's Office when the Student is Called to the Bar".

Oops.

Christleton Memories

Whilst doing some clearing out over the weekend I came across this - my old student card from the College of Law. OK, not the most exciting of finds, but it did bring back some fond memories of my time at Christleton, the most enjoyable (from an academic point of view) year of my legal studies.

Unlike the dry theory that I had been taught by sometimes incomprehensible lecturers at university, the practical nature of the course was a revelation. Suddenly, everything made sense and there was actually a point in learning this stuff. I did, however, enjoy something of an advantage over most of my fellow students, having spent two years in a solicitors' office prior to attending the College - it was considerably easier to learn, having seen how things worked in practice.

It all nearly ended in disaster, though. I lived with two friends in a farmhouse in the middle of nowhere. I had to sit my finals at the local King's School, and they attended another site. On the morning of one exam I got into my (decrepit) car and it wouldn't start. Panic rose as I looked up to see my friends heading down the driveway. I leapt out and chased after them (I was a little quicker on my feet in those days) and just caught them in time for them to give me a bump-start.

Having to do a re-sit because my car was clapped-out would not have been a good way to start a legal career...

News for the Week Ending 12th September 2011

I must be slipping. This week's summary of the top family law news stories occupies a whopping 3 minutes 26 seconds. Can you spare the time? Can you afford not to?



(Those without Flash can listen here.)

Sunday, September 11, 2011

The lesson of 9/11

If you read nothing else on this anniversary of 9/11, please read this post by Sam Harris. It explains what made "a group of mostly educated and middle-class men" decide "to obliterate themselves, along with three thousand innocents": Religion.

Here are a couple of extracts:
"Ten years have now passed since many of us first felt the jolt of history—when the second plane crashed into the South Tower of the World Trade Center [above]. We knew from that moment that things can go terribly wrong in our world—not because life is unfair, or moral progress impossible, but because we have failed, generation after generation, to abolish the delusions of our ignorant ancestors."
and:
"... we must decline to tell our children that human history began with magic and will end with bloody magic—perhaps soon, in a glorious war between the righteous and the rest. One must be religious to fail the young so abysmally—to derange them with fear, bigotry, and superstition even as their minds are forming—and one cannot be a serious Christian, Muslim, or Jew without doing so in some measure."
This lesson has not been learned in those ten years. How many more decades before it is?

Saturday, September 10, 2011

Something for the Weekend: Milligan

My little 'Something for the Weekend' is usually based, or at least inspired, by something I found during the week. This week, however, I have had no such inspiration, so instead I will give you this video, as my small tribute to one of the funniest people I have ever come across. Enjoy:

Friday, September 09, 2011

Everything you need for sticky situations!

"When you're earning $400+ an hour, the last thing you want to be is organized. If you're organized, everything goes faster. And who wants that? The wheels of justice turn slowly for a reason, my friend. Nevertheless, we're offering you Legal Notes Sticky Notes."

So says the blurb for this excellent product, which includes a 'Blind Justice' notepad, post-it notes including tick-boxes for such things as "Sue", "Offer Inducement" and "Lie", and a set of page-marker arrows (I can imagine the "Idiot" arrow being particularly useful when going through court bundles).

I think there could be a market for these on this side of the Atlantic...

Law Commission's recommendations for reform of cohabitation law shelved - again

OK, it all becomes clear now. I confess I didn't entirely understand the Law Society's reference to "the Government’s decision to drop plans to give couples that live together similar rights to married couples" in their cohabitation agreements press release that I mentioned in my News Brief post yesterday. Unfortunately, the Government's decision 'slipped under the radar'.

This is not entirely surprising, however, given that it was contained in a very brief written statement by Justice Minister Jonathan Djanogly, announced by Lord McNally on the 6th September (see Hansard - you will need to scroll down to the second statement). The statement reads:
"I wish to make the following Statement to the House announcing the Government's response to the Law Commission's report Cohabitation: The Financial Consequences of Relationship Breakdown.

The Law Commission published its report on 31 July 2007, but no action was taken by the previous Administration, who wished to first seek research findings on the Family Law (Scotland) Act 2006. This Government have now carefully considered the recommendations of this thorough report, together with the outcomes of research on the 2006 Act.

The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commission's recommendations for reform of cohabitation law in this parliamentary term."
And that was that. An important and potentially far-reaching piece of legislation shelved (again) in a mere three short paragraphs.

The Law Commission has not, however, entirely given up hope of seeing its reforms come to fruition. In a response to the ministerial statement it said:
"We note the Government’s cautious response to our recommendations, and that reform will not be implemented during the current Parliament. We hope that implementation will not be delayed beyond the early days of the next Parliament, in view of the hardship and injustice caused by the current law. The prevalence of cohabitation, and of the birth of children to couples who live together, means that the need for reform of the law can only become more pressing over time."
Fine words, but I fear that they are likely once again to fall on deaf ears.

(For more information upon the Law Commission's recommendations, see here.)

Thursday, September 08, 2011

Now THAT'S what I call stalking...

The Press Association reports that Dutch prosecutors are charging a 42-year-old woman with stalking, after she allegedly called her ex-boyfriend 65,000 times in the past year. Now, I know that there's nothing remotely amusing about being stalked but, as BuzzFeed points out, that equates to an average of almost 180 times daily. And the woman argued that this was not excessive...

Mansfield v Mansfield: Considering the origin of the family capital (i.e. as compensation for personal injuries)

"This appeal raises a single point of significance, and that is the degree to which the judge in ancillary relief proceedings should reflect the origin of the family assets in a substantial damages award on the settlement of a personal injuries claim". So said Lord Justice Thorpe, beginning his judgment in Mansfield v Mansfield [2011] EWCA Civ 1056. (The case was previously mentioned here, in the comments to this post.)

The Facts: Prior to the marriage the husband has received personal injury damages of approximately half a million pounds, which he invested in two properties: a bungalow known as The Orchards, which was adapted for his needs, and an investment flat.

The parties were married in 2003 and had twins, now aged four. They separated in 2008, when the wife and children moved into rented accommodation, and were subsequently divorced.

The ancillary relief issue went before the district judge in May 2010. She awarded the wife a lump sum of £285,000, giving the husband three months to raise that sum, failing which The Orchards should be sold, and the wife receive £285,000 from the proceeds of sale, or 63% of the gross sale price, whichever was the greater.

The husband unsuccessfully appealed to the circuit judge, and appealed again to the Court of Appeal, seeking a substantial reduction in the award or, alternatively, a charge back.

Held: Lord Justice Thorpe gave the leading judgment, and quickly came to the crux of the matter, at paragraphs 13 to 15, where he pointed out that the district judge had misdirected herself regarding the leading case of Wagstaff v Wagstaff [1992] 1 FLR 333. She had correctly noted that in that case Butler-Sloss LJ had made it clear that personal injury damages were not sacrosanct and could therefore be considered by the court when deciding an ancillary relief application. However, the district judge:
"... seemingly omitted to apply the second and important qualifying part of the guidance, namely that each case must be looked at on its facts, and in many instances the application of the general sharing rule must be tempered to reflect the particular needs of the recipient and the very nature of the acquisition of the capital, namely by way of compensation for personal injuries"
Accordingly, despite the fact that this was a second appeal, the court was entitled to exercise its own discretion in relation two two facets of the award, namely quantum and whether there should have been a charge back.

On the issue of quantum, Lord Justice Thorpe considered (at paragraph 21) that £285,000 "may be on the high side", but felt that it would be "unprincipled" to interfere with the discretion of the district judge.

On the other hand (paragraph 22):
"... on the second question I find the appellant's case is overwhelmingly made good. The need to give special reflection to the origin of the family capital and the special purposes for which it was provided, emphasised by Butler-Sloss LJ in the passage of her judgment in Wagstaff which I have already cited, can be properly reflected in converting the order below into a Mesher order. The rationality of that is obvious. There is a fixed amount of capital within the family. For the immediate future the wife's need for a substantial share rests upon her function as the primary carer ... and that need has a reasonably obvious termination on the majority or the conclusion of tertiary education for these twins."
Accordingly, he quantified the husband's reversionary interest at one third of the capital awarded to the wife (paragraph 23), to be expressed in the bricks and mortar in which the money is invested, so: "that the property to be acquired by the wife in an assumed purchase at about £285,000 will be charged as to one third of its equity in favour of the husband, that charge to be redeemed when the twins achieve maturity".

Lord Justice Jackson and Lady Justice Black gave consenting judgments.

News Brief: The vacation is over...

Now that the summer vacation is over, there is finally enough family law news around to do another News Brief. Four stories caught my eye (so far) today:

Solicitors Journal reports that the legal aid bill committee has rejected all the amendments tabled by Labour MPs to the government’s programme of cuts, including one which would have blocked the removal of areas of work such as private law family, medical negligence and welfare benefits from the scope of the legal aid scheme. The feeling of those opposed to the cuts is perhaps summed up by this tweet by Lucy Reed of Pink Tape, in response to my tweeting the story via Family Lore News:

Quite.

Meanwhile, Cafcass has released its care statistics for August, which show that the numbers of children subject to an application to be taken into care have reached record levels every month in 2011 bar one. August was not the 'one':
"Releasing its care application figures today for August, the Children and Family Court Advisory and Support Service (Cafcass), who receives these applications from the courts, has received the highest number of new care applications for this individual month since it began collecting this data in April 2001, with 885 applications. The figures for August were also the second highest ever recorded for a single month in Cafcass’ 10 year history."
The monthly average to date this year is 814 applications, compared to 754 in 2010, 710 in 2009 and just 460 in 2008. No longer practising, I can only imagine the effect of such an increase upon the resources of the family justice system.

The Law Society has today issued a press release plugging the benefits of cohabitation agreements (prepared, of course, by solicitors). It states:
"The Law Society says that despite the Government’s decision to drop plans to give couples that live together similar rights to married couples, unmarried couples can sign a cohabitation agreement which would give them stronger rights should their partner die or should the couple separate.

The Society says that cohabitation agreements which are drafted by a solicitor could potentially put cohabiting couples in a better legal position than their married counterparts should the relationship breakdown."
Law Society President John Wotton, demonstrating that he is not a family lawyer, is quoted as saying:
"Unlike pre-nuptial agreements for married couples, cohabitation agreements are recognised by the courts in England & Wales as being legally binding. It is not yet established that pre-nuptial agreements for married couples are binding in the courts.

"In light of the Government’s decision not to give live-in couples the same rights as married couples, there is perhaps a greater need for cohabiting couples to make these agreements as they do not have the same automatic protections as married couples."
I wasn't aware that the government, or anyone for that matter, was considering giving cohabiting couples the same rights as married couples, but there you go.

Finally, Family Law has just reported that the Ministry of Justice has announced its new online mediation directory, which will go live on 1 October 2011, replacing the National Mediation Helpline, which is due to close on 30 September. It says that: "The new service is a searchable directory of civil and commercial mediation providers and access will be through www.justice.gov.uk, with links on the Directgov and Businesslink websites." It will be entirely do-it-yourself, as there will no longer be a central telephone number to call. Family Law make the very good point that such a directory is, of course, of no use to those without access to the internet, a drawback for which it seems the MoJ has not yet come up with an answer...

Great things to do with Cellophane, #362

Not sure the agency that created this 1950s advert thought this one through:

[From Mitch O'Connell, via Boing Boing.]

Tuesday, September 06, 2011

New Book: How to Get Your Own Way in Mediation, by Edgar Venal

As a companion volume to How to Bully Litigants in Person, Edgar Venal is proud to announce the publication of his new book, How to Get Your Own Way in Mediation. Subtitled Another Essential Handbook for 21st Century Legal Practitioners, the book deals with the scenario where efforts to avoid mediation have failed or, more likely, the client has failed to take proper advice upon how to avoid it, or has been ignorant of the need to avoid it. The book includes chapters on the following essential topics:
  • Avoiding full disclosure

  • How to be unreasonable without looking it

  • Digging in your heels

  • Ignoring the mediator

  • How to threaten the other party without the mediator realising

  • When and how to bribe the mediator

  • Denying agreements in court
How to Get Your Own Way in Mediation will soon be available at all good legal booksellers, at the very reasonable price of £499.99.

Textbook History

I always thought it was "Clarke (comma) Hall and Morrison on Children", i.e. Messrs Clarke and Hall were two separate people. Indeed, that is how it is listed on Amazon. Wrong.

Whilst searching for nothing in particular this morning I came across the NSPCC history of child law in England and Wales 1884-1989 reading list. Amongst the list one discovers the history of this leading work on children law. It seems that it began with the snappily-titled: The law relating to children: a short treatise on the personal status of children, and the statutes that have been enacted for their protection by William Clarke Hall, published way back in 1894. That was followed by the second edition in 1905, with the equally catchy title of: The law relating to children: a short treatise on the personal status of children, including the complete text of "the Prevention of Cruelty to Children Act 1904" and all of the statutes relating to the protection of children.

In 1909 William was joined by one Arnold H. F. Pretty for the third edition. Pretty perhaps encouraged him to reduce the title to something more manageable, the simple: Law relating to children.

There then seems to have followed something of a lacuna. William (by then Sir William, I'm not sure when he was knighted) died in 1931 and the list make no mention of his famous treatise again until 1947 when Clarke Hall and Morrison's law relating to children and young persons: including the law of adoption by the eponymous A. C. L. Morrison and one L. G. Banwell was published, although strangely the list also refers to this as the third edition.

A sixth edition by the same authors was published in 1960 (not sure what happened to the intervening editions) and a seventh in 1967, by Banwell and J. R. Nichol, complete, for the first time, with a supplement. Clearly children law was expanding, as a second cumulative supplement to the seventh edition was published in 1970, with L. Goodman named as one of the authors.

An eighth edition, with L. Goodman taking over the reigns, was published in 1972 and, moving into my era, Margaret Booth (before she was appointed to the High Court) and Brian Harris edited the ninth edition, which was published in 1977.

The list makes no further mention of the work, before it ends in 1989. At some point it transposed into looseleaf, in which format (along with CD-Rom) it is now published by LexisNexis. Current editors include such luminaries as Baroness Hale, Mr Justice Ryder, Stephen Cobb QC and Professor Nigel Lowe.

As for Sir William Clarke Hall, he was a barrister but was known as 'The Children's Magistrate', for his work in the juvenile court. He devoted his life to the welfare of children, being involved in the reform of child law. According to this obituary of his son, he was instrumental in the founding of the NSPCC, bringing us full circle, although I can find no confirmation of this on the NSPCC website. He married the artist Edna Clarke Hall in 1898 and had two sons, Justin and Denis, the latter becoming a renowned architect.

Monday, September 05, 2011

Two Haigh judgments published: "Be you never so great, the law is still above you"

The two judgments in the Victoria Haigh case have now been published on Bailii. They are:

Doncaster Metropolitan Borough Council v Watson [2011] EWHC B15 (Fam) (22 August 2011)

- which obviously deals with the contempt proceedings against Elizabeth Watson,

and

Doncaster Metropolitan Borough Council v Haigh [2011] EWHC B16 (Fam) (22 August 2011)

- which deals with the applications by the local authority "to put into the public domain aspects of [the] care proceedings" and for a s.91(14) order against the mother.

The latter (chronologically the first of the two judgments) also includes as an addendum the local authority's "information document", containing the information which the local authority considered should be in the public domain. It concludes:
"Such is the extent of the false, unauthorised and tendentious material now placed in the public domain that the Local Authority, who would otherwise be striving to protect the privacy of X [the child], have concluded that the balance has shifted and that in this particular case, X's best interests is served by the true facts being made available. This position has been supported by the Children's Guardian although he does not agree to X being named. It is ironic, of course, that the mother has complained about the privacy of the Family Court process and has historically argued for greater openness. Realising that the professionals in the case would be bound by their respect for X's privacy, the mother has utilised this to promote her own distorted view of the case which she has been able to advance thus far, unopposed by the true facts."
Here is a flavour of the 'Watson' judgment (paragraph 50):
"The mother and Ms. Watson think they are right and that everyone else is wrong and, moreover, everyone who is wrong is also corrupt. Such an unbalanced view is likely to do grave harm to the child. The fact that Ms. Watson has quite unlawfully put the matter in the public domain is very worrying and, in my view, gravely exacerbates the contempt which she has undoubtedly committed."
and here a flavour of the 'Haigh' judgment (paragraph 22):
"The disappointed party in English law is not left without a remedy. Ms. Haigh has a number of avenues open to her, by means of which she can complain. The Family Proceedings Rules (now the Family Procedure Rules) were specifically amended to allow people in her position to do so. Moreover, she has the right, or had the right, to apply for permission to appeal against either order. Nothing, however, alters the rule that no party is entitled to breach the confidentiality of the proceedings by illicitly putting into the public domain material which is confidential to those proceedings and which, moreover, the judge in this case has ordered not to be published."
(The well-known adage quoted in the title to this post is used by the President in both judgments.)

I suspect that the judgments may attract considerable comment* in the coming days...

* * * * *

*See, for example, Carl Gardner's analysis on Head of Legal, and Hayley Trim's analysis on Family Law.