Saturday, December 31, 2011

Old John's Almanac 2012


Following the success of my predictions for 2011, here are my predictions for 2012:

January - Fathers' rights group The Real Families Need Fathers 4 Justice carry out their most audacious protest to date, when they daub Big Ben with the words: "A farver iz 4 liff, not jest 4 contraseption".

February - The government has launched a consultation into why there are so many consultations into various aspects of family law. The closing date for the consultation is the first of April.

March - In the Budget the Government announces a 1p married tax allowance. Chancellor George Osborne says: "It was all we could afford, but we're sure it will be enough to persuade people to marry, rather than live in sin."

April - There is consternation at the High Court when the duty judge can't be found during the Easter vacation. Mr Justice Mostyn is eventually traced to a remote island in the South Pacific, where he can be contacted by carrier pidgeon.

May - The Government publishes its response to the consultation into why there are so many consultations into various aspects of family law. The response concludes that the best way forward would be to have another consultation.

June - The Government announces it will solve the debt crisis by introducing £5,000 fees for anyone wishing to apply for child support.

July - The issue of homeless families in the south-east is resolved, as the residents of London flee the capital prior to the Olympics.

August - At the Olympics there is disaster for the British Legal Aid relay team, when Ken Clarke drops the baton.

September - After further technical issues, the SRA finally admits that the Sinclair ZX81 that it bought to run the new mySRA system is not up to the task. It invests in a Commodore 64 instead.

October - The estate of the late Tarquin Farquhar-Obnoxious QC recieves payment from the LSC for some legal aid work he did in 1950. This is not believed to be a record.

November - The Government announces that it is considering banning Facebook, after the latest statistics reveal that the social networking site was not mentioned in only one divorce in the last year.

December - The Supreme Court hands down its judgment in Smith v Smith, in which it is severely critical of delays in the family justice system. The case was heard by the Supreme Court in October 2009.

Happy New Year!

Something for the Weekend: Kenny Burrell - Midnight Blue

Time for a little jazz guitar:

Friday, December 30, 2011

Review of the Year, Part 4

And so thankfully finally we come to the last part...

October
Political party conference season. If you could stay awake, David Cameron set out his plans for families, including making adoption easier (more of which below), married tax relief (again) and, perhaps most controversially (at least as far as his audience were concerned) a consultation on legalising gay marriage.

In the realm of practice,  October the 6th saw the implementation of 'outcomes-focused regulation' ('OFR') for solicitors, hailed by the SRA as 'regulation in the public interest and for the benefit of clients'. Whether OFR will work better for this profession than it did for the Financial Services Authority, only time will tell...

On the 13th of October the Government published its response to the Report of the Justice Select Committee on the Operation of the Family Courts. Basically, and entirely predictably, the Government said: "Thanks very much, but we're already conducting the Family Justice Review, so let's wait for the outcome of that."

Meanwhile the 'lottery winnings' case S v AG was grabbing the headlines. In it, Mr Justice Mostyn had found that the wife's lottery winnings were non-matrimonial property (at least when she received them), which many felt would encourage spouses not to share their wealth, and cause more acrimony on marriage breakdown.

The month ended with news of the Government's initiative to improve the adoption system, including performance tables to 'name and shame' under-performing councils, and the launching of the 'Give a Child a Home' campaign.

November
November began with the publication of the final report of the Family Justice Review. Highlights, as expected, included the establishment of a Family Justice Service and a six-month time limit for the completion of care and supervision proceedings. Many of the headlines, however, were about what was not recommended: any legislation that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents. This was greeted with a swathe of erroneous stories along the lines that fathers were being denied a right to see their children.

Then we finally got the Supreme Court's decision in Jones v Kernott, only six months after it was heard. In a unanimous judgment announced by Lady Hale (left), Ms Jones's appeal was allowed, and the order made by the county court giving her 90% of the property was restored. The judgment was generally welcomed by practitioners, as representing a fair outcome, and for providing clarification upon a difficult area of law.

After these excitements, anything else that happened in November was an anti-climax, so I shall move swiftly on...

December
December began with the unveiling of the detailed proposals for the new child maintenance scheme. Key changes included that payments will usually be based on the non-resident parent’s latest tax-year gross income, sourced directly from HM Revenue & Customs, that the 'flat-rate' will be increased from £5 to £7 and that there will be annual reviews.

The Office for National Statistics released the latest statistics for divorce in England and Wales, for divorces which took place in 2010. These showed an unexpected increase in the divorce rate, the first since 2003. So, at least some good news for divorce lawyers there...

There was still time left before the end of the year for a couple more consultations: one on the definition of domestic violence and the other on reducing the arrears owed to the Child Support Agency. Get your responses in now...

Finally, I found myself in the unusual position of agreeing with a politician, when Nick Clegg told Demos and the Open Society Foundation that we should not try to preserve the 1950s ideal of family (if indeed 1950s families were ideal), and that the state should not use the tax system to encourage a particular family form, i.e. marriage. Not everyone agrees with me and Nick, though.

Wednesday, December 28, 2011

Siren call

Does someone know something that she doesn't?


[Found on BuzzFeed.]

Tuesday, December 27, 2011

Do Your Own Divorce website


I am pleased to announce the launch of Do Your Own Divorce, a new website to complement my book by the same name. The purpose of the site is:
  • To provide updates to the book;
  •  
  • To provide readers with additional material which may be of use or interest, and useful links; and
  •  
  • To promote the book!
I hope that users find the site (and my book) helpful.

Monday, December 26, 2011

Review of the Year, Part 3

Once more unto the breach...

July
On the 12th July the Government published its response to the Green Paper consultation on the future of child maintenance. The most controversial proposal, of course, is the introduction of charging for using the statutory scheme, but the Government remained adamant, saying that it would encourage parents to agree child maintenance arrangements. Yes, especially if you can't afford the fees...

On the very next day, we had another Government response, this time to Professor Eileen Munro’s recommendations to reform the child protection system. The Government confirmed its intention to "build a system focused on the needs, views and experiences of vulnerable children" and that it would "reduce central regulation and prescription and place greater trust and responsibility in skilled professionals and local leaders to bring about long-term reform".

To complete a busy week, on the following day the Justice Committee published its report on the operation of the Family Courts, one of the highlights of which was the somewhat less than surprising warning that courts are going to have to make adjustments to cope with more litigants in person as a result of cuts to legal aid. Good job we have these clever MPs to tell us things like this...

Moving on, the business of divorce in this country staggered into the twenty-first century with the launch by Mills & Reeve LLP of its Divorce UK iPhone app, aimed at helping users navigate their way through marriage breakdown, separation or divorce. According to the App Store, customers who 'bought' the app (it's actually free) also bought Tesco groceries - a precursor of Tesco Law, perhaps?

August
The flow of serious family law news somewhat dried up for the silly season. We did have some brief excitement over the Vicky Haigh case, but August was notable primarily for rather more frivolous stuff, such as the Malaysian man who is suing his former fiancĂ©e for more than $360,000 (£219,000) for leaving him six hours before their wedding, and the man who dumped a 20-tonne boulder on his ex-wife's lawn (picture).

Otherwise, Grant Thornton published its eighth annual matrimonial survey. The survey (which has nothing at all to do with getting publicity for Grant Thornton) "looks at the divorce arena in detail as well as the key issues in the forefront of the minds of family solicitors", by canvassing the opinions of 101 of the UK’s 'leading family lawyers'. As I reported, opinions were divided as to the most important nugget of information to take from the survey, ranging from fewer couples apparently thinking that an affair was a reason to divorce, to the assertion by the Daily Mail that, due to human rights laws, a third of husbands were getting away with hiding their assets from their wives, or something like that.

September
Back to more serious things, September began with the news that the Government had shelved the Law Commission's recommendations to give property rights to cohabitees. In a brief written statement by Justice Minister Jonathan Djanogly it was announced that the Government had "carefully considered the recommendations of this thorough report" and also research on similar legislation which the much more advanced Scots had passed in 2006, and decided not to take forward the Law Commission's recommendations for reform of cohabitation law in this parliamentary term. Some will say good riddance, others that it was an opportunity missed.

One of the latter were the Law Society, which responded firstly by issuing a press release plugging the benefits of cohabitation agreements (why miss a marketing opportunity?) and secondly by issuing another press release three weeks later, condemning the Government's decision.

Meanwhile, I began writing my regular weekly In Practice posts, looking at the area of professional practice and regulation. To be honest, I didn't expect to enjoy writing about such a subject as much as I have. One of the first news stories I dealt with was the implementation of mySRA, the new online system by which solicitors and other legal services providers have to 'interact' (their word) with the SRA. The implementation did not exactly go to plan...

Sunday, December 25, 2011

Happy Isaac Newton Day!

Sir Isaac Newton by Sir Godfrey Kneller (detail)
Once again it is time to celebrate the greatest person ever to be born on the 25th December: Happy Isaac Newton Day!

Saturday, December 24, 2011

Something for the Weekend: Terry Gilliam - The Christmas Card

There seems to be some Christmas-thing going on this weekend, so I thought this excellent Terry Gilliam cartoon might be appropriate:


[Found on BuzzFeed.]

Friday, December 23, 2011

In Practice: Xmas Edition

OK, I know you've got better things to do, so I'll keep this brief.

Going back to the shambolic shiny new mySRA, the online renewals process finally began on the 20th December. It is slightly confusing, however, as the renewals are in two bands, depending on the first-occurring letter in the full name of the firm or individual. Thus, Fred Bloggs will be in Band E to Z, not Band A to D, as one might expect. For all the details, see here.

Meanwhile, the Gazette reported on Tuesday that The Law Society and the SRA have agreed "new arrangements for dealing with shared support services and with Law Society oversight of the SRA". I confess that I don't know what these arrangements are, and nor do I want to know. Nevertheless, it sounded like an important story that I should bring to your attention.

Finally for this year, the SRA has issued a news release warning solicitors "to ensure they pay close attention to clients' needs from the outset to make sure they deliver a proper standard of service". Apparently, the authority "is particularly alive to the risks of the most vulnerable members of society not receiving the right service". Well-meaning or meddling? I'll leave it to you to decide...

Seasonal Goodwill

I rather liked this video, which was sent to me yesterday - relevant both to the season and this blog:

Thursday, December 22, 2011

Happy Winter Solstice!

Winter Landscape, Rembrandt
However you choose to celebrate the winter solstice (or, if you're reading this in the southern hemisphere, the summer solstice), I hope you have a good one, with a peaceful and (reasonably) prosperous New Year to follow. Thank you for reading Family Lore.

Wednesday, December 21, 2011

Review of the Year, Part 2

Continuing this exciting trip down (short-term) memory lane:

April
After the compulsory initial silliness, April heralded the biggest changes to family law procedure for many a year, with the introduction of compulsory mediation assessment and the Family Procedure Rules 2010, both of which were generally favourably received. As the President said, the creation of a unified single set of rules for the family jurisdiction was a significant achievement, and also a very welcome one.

Sir Nicholas enjoys some Easter sun
Then came Easter, and with it some not particularly good publicity for the Family Justice System, when the Sunday Mail picked up on the story that the family court's duty judge Sir Nicholas Mostyn would be conducting hearings by phone from his hotel in Tenerife. As Mark Stephens was quoted as saying: "I find it remarkable that a duty judge has gone away at this time." Quite.

And that was about it for April. Oh, apart from some minor wedding taking place in London...

May
On the 4th May, the Supreme Court heard the appeal in Jones v Kernott. More of this (much) later in this Review...

Meanwhile, in the less lofty echelons of the High Court, Mr Justice Peter Jackson was dealing with yet another cautionary tale, involving "a financial disaster for a divorced couple and their child", caused by "a combination of dissension, misfortune, improvidence, and over-lengthy litigation in three courts". As a result of these things, almost nothing would be left of assets once valued at £300,000. A very sad (but unfortunately not unique) case.

On the 10th May the final report of the Munro Review of Child Protection was published. The 'headline' recommendation was that "local areas should have more freedom to develop their own effective child protection services, rather than focusing on meeting central government targets". Professor Munro urged a move away from the 'tick-box' culture of the past, and a greater focus on the needs of the child.

On the 23rd and 24th May the Supreme Court heard the appeal in Re E (Children). More of this not much later at all...

June
On the 10th June the Supreme Court delivered its judgment in Re E (Children). At issue was the correct approach to the Article 13(b) exception to the duty to return under the Hague Convention. The court considered that the words of Article 13(b) were "quite plain and required no further elaboration or "gloss"". The appeal by the mother, who had removed her two daughters to England from Norway against the wishes of the father, was dismissed.

On Father's Day David Cameron launched an attack against runaway fathers who abandon their families, calling for them to be "stigmatised" by society in the same way as drink-drivers are. Needless to say, his comments were not greeted with universal approval...

Finally (at least for this part of this Review), on the 21st June the Government published the Legal Aid, Sentencing and Punishment of Offenders Bill. Its subsequent passage through Parliament would not go without the odd comment...

Tuesday, December 20, 2011

I agree with Nick Clegg


I'm not ashamed to admit it: I agree with what Nick Clegg says regarding families and marriage.

Despite the many headlines, what Nick Clegg said regarding families and marriage in his speech to Demos and the Open Society Foundation was actually quite brief:
"The institutions of our society are constantly evolving. Just look at the way the roles of men and women, and attitudes to marriage and divorce, have changed over the last century.

"We should not take a particular version of the family institution, such as the 1950s model of suit-wearing, bread-winning dad and aproned, homemaking mother – and try and preserve it in aspic.

"That’s why open society liberals and big society conservatives will take a different view on a tax break for marriage. We can all agree that strong relationships between parents are important, but not agree that the state should use the tax system to encourage a particular family form."
I believe that all family forms people choose to enter are equally valid, and none should be picked out for special treatment by the state, in an attempt to encourage more people to choose it. In any event, it is highly doubtful that the state can do much about such choices. As Clegg said to Sky News, it is unlikely that offering them "20 quid back would make much difference to people's decisions" on whether or not to get married. The state should react to social change, not try to drive it.

Conservatives will of course say that there is overwhelming evidence that marriage produces better outcomes for children, but this is not clear, and even if it were, the simple fact is that more and more couples are choosing not to tie the knot. We must deal with the situation as it is, not how some of us may wish it to be.

I realise that there are many who take a different view, including some who I respect highly, such as Marilyn Stowe, but it is not the first time that Marilyn and I have agreed to differ. On the Tory right, others have predictably got quite hot under the collar about Clegg's comments, including the old dinosaur Norman Tebbit in The Telegraph (who seems most offended at the slur against the decade in which he got married) and the slightly hysterical Nick Wood in the Daily Mail, but I am not sorry to differ from them.

Incidentally, I also agree with Nick Clegg regarding an elected House of Lords, but don't tell anyone...

Best excuse for missing court

Over the years I've heard many different excuses for failing to attend a court hearing, but this one is in a different league to "I thought the hearing was next week" or "I had a puncture on the way to court".

At a hearing in the High Court yesterday relating to the validity of an alleged marriage, Martin Pointer QC informed Mr Justice Bodey at the last minute that his client was unable to attend to give evidence, as he had been recalled by the ruler of Dubai to attend a meeting in Riyadh. Now, most people could not get get away with this, but when your client is Sheikh Ahmed bin Saeed al-Maktoum, the head of Emirates Airlines and a member of Dubai’s ruling family, I suppose it does have a possible ring of truth.

For this impressive piece of hearing-avoidance, the Sheikh receives my 'Best excuse for missing court' trophy.

Unfortunately, Mr Justice Bodey was not so impressed, saying that he had been left "frustrated".

Ken has his say on LASPO

A totally unbiased (and unaltered) image of Justice Secretary Ken Clarke
Ahead of the LASPO debate in the Lords today, Ken Clarke has had his say in the Comment is free column in the Guardian.

Highlights:
"Without legal aid, and the dedicated lawyers who deliver it, our system of justice would quite simply collapse."
Ah, he admits legal aid lawyers are 'dedicated'!
"Even the lawyers who deliver legal aid tear their hair out over the bureaucratic way the scheme operates."
Agreed - it was bad when I did legal aid work years ago, what must it be like now?.
"It [legal aid] must be available where people's life, liberty or home is at stake, where they are at risk of serious physical harm or are victims of domestic violence, where they seek to challenge state action, and where their children may be taken into care."
Can't argue with that, can you?
"...we are putting a stop to routine availability of legal aid in cases involving family disputes, which can sometimes help string out cases for months or years, causing conflict not compromise."
Yes, sometimes.
"I fear that those who defend the status quo have fallen prey to a kind of well-intentioned legal paternalism."
A little patronising?
"The threat I want my reforms to pose is to a failing system, outdated methods and unreformed working practices, not to the needy."
Isn't he just a wonderful human being?

Monday, December 19, 2011

DWP consultation on child maintenance arrears management powers

The Department for Work and Pensions has today launched a consultation on the planned implementation of two new arrears management powers within the Child Maintenance and Other Payments Act 2008 ("the 2008 Act"). The powers to be implemented are:

Section 32 - Power to accept part payment in full and final satisfaction; and
Section 33 - Power to write off arrears.

By way of background, the 2008 Act gave the Child Maintenance and Enforcement Commission a number of new arrears management powers designed "to allow the Commission to manage efficiently the level of child maintenance arrears that have previously accumulated and are owed to the Child Support Agency". The Government proposes to take regulations to Parliament in spring 2012 to enable the introduction of these powers.

You can find the consultation here and a news release from CMEC, here.

The consultation closes on the 12th March 2012.

News for the Week to the 19th December 2011

An audio summary of the top family law news stories from the last week, in three minutes and thirty-one seconds.



(Those without Flash can listen here.)

Fathers could be obliged to sign birth certificates

It wouldn't be the first time, but I'm not sure the Government has thought through this idea.

Saturday, December 17, 2011

We'll take it from here

I have already posted a video of the late and very lamented Christopher Hitchens, but this tribute is so good and such an inspiration that I had to post it as well, and I do so with no apology:

The gift for a perfect Christmas (Post sponsored by Venal & Grabbit)

[Found on Boing Boing.]

Something for the Weekend: Laurel and Hardy dance from Way Out West

This needs no introduction from me. You may have seen it a thousand times, but it's still as fresh and funny as ever:

Friday, December 16, 2011

In Practice: A little good news, and some practical realities

The Law Society Gazette has reported that the number of practising solicitors hit a record high last month. They make the point that this is despite the parlous state of the economy, although cynics may suggest that it is because of the parlous state of the economy. The Gazette does point out, however, that the number of PC-holders may have been artificially inflated by this year’s phased renewals process. Even so, it is interesting to think that the profession may be weathering the economic storm.

Not all within the profession is sweetness and light, however. I discussed the Bar's proposal to seek a greater share of the pie through direct access in my In Practice post last week, and I see that Marilyn Stowe in Solicitors Journal has also raised the issue, with her thoughts also leading to the possibility of fusion. She argues that direct access is pitting solicitors and barristers against each other when instead the two sides of the profession should be working together:
"I believe it would make more sense, for the consumer and us all, if we fused our profession under one name and worked together, rather than competed to do jobs that neither profession is fully equipped or trained to complete."
As I suggested last week: Is it time to re-open the fusion debate?

To finish this short post on a lighter note, direct access was also the subject of a BabyBarista post this week. However, the members of chambers debating the idea soon perceive one of its main drawbacks - that barristers having direct access to clients also entails those clients having direct access to their barristers:
"It’s bad enough having solicitors being able to bother us day in day out,” said HeadofChambers. “But at least they filter out the worst excesses of the lay clients."
Perhaps the enthusiasm for direct access may wane a little when the hideous practical realities hit home...

Christopher Hitchens, 1949 - 2011

I awoke this morning to the sad but not unexpected news that author and journalist Christopher Hitchens has died of pneumonia, a complication of the oesophageal cancer that he was diagnosed with in June last year. A formidable intellect, Hitchens fearlessly championed reason, against the forces of superstition and hatred. He will be sorely missed.

Here's one of my favourite videos of 'The Hitch' in action, debating free speech at Hart House, University of Toronto, in 2006:

Wednesday, December 14, 2011

Domestic Violence Consultation

Theresa May
Home Secretary Theresa May has today launched a consultation on whether the current cross-government definition of domestic violence should be widened.

The consultation seeks views on three areas:

  • whether the current cross-government definition of domestic violence introduced in 2004 is working and should remain;
  •  
  • whether 'coercive control' should be reflected in the definition; and
  •  
  • whether the definition of domestic violence should include younger victims below 18 years of age.

You can find the consultation document here. The consultation closes  on the 30th March 2012.

    Review of the Year, Part 1

    As the year comes to an end, it has become compulsory traditional to review the events of the last twelve months, so I thought I would get in first with my look at what has happened in the world of family law in 2011, or at least the first part of my look at what has happened in the world of family law in 2011.

    January
    The year began just like any other, with newspapers predicting that the first day back at work would be 'Divorce Day', the busiest day of the year for divorce lawyers when, to use the words of the Telegraph, "thousands of couples decide that after yet another unfestive season, marked by rows, resentments and recriminations, it is time to call it a day on their marriages". Expect a spate of similar stories this coming January the 3rd.

    Meanwhile, two important consultations were launched during the month. First we had the Law Commission's consultation on marital property agreements, which looked at reform of the law relating to pre-nuptial agreements, post-nuptial agreements and separation agreements. That was followed by the Department for Work and Pensions' Green Paper Strengthening families, promoting parental responsibility: the future of child maintenance, which set out the Government's controversial proposals for a new child maintenance system.

    The month concluded with the entertaining Court of Appeal decision in Jones v Jones, which included this quote from barrister Ashley Murray:
    "There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles." 
    Excellent stuff.

    February
    February was not a day old when the second report of the Munro Review was published. This interim report dealt with the child’s journey through the courts and care proceedings, and included the recommendation that the 'core guidance' Working Together to Safeguard Children, which had bloated to 55 times longer than it was in 1974, be reduced in size. A relief to many, I'm sure.

    Later in the month the Ministry of Justice announced the news we all already knew: that as from April, "Anyone setting out to contest the terms of their separation in court will first be required to consider mediation". Perish the thought that the Government was just promoting mediation to mask its planned cuts to legal aid, as the Telegraph suggested...

    On the subject of the legal aid cuts, opposition began to get more organised, with the Law Society launching its high-profile Sound Off For Justice campaign, encouraging members of the public to 'sound off', by signing up to the campaign. As I write this, it seems a total of 31,498 people have done just that. A fair number, but will it be enough?

    March
    March began quietly enough, with no single story dominating the headlines. Then we had the case of Re T, in which the High Court dealt with the awful scenario of a contact application by a father who had been convicted of the manslaughter of the mother. As Judge Clifford Bellamy stated, the 'proverbial man on the Clapham omnibus' may be 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, but there is of course no presumption in law that murder would be a bar to contact.

    On a lighter note, I was pleased to report on the 16th of March the marketing of my favourite memento of the forthcoming royal wedding, also known as 'The Fairytale Romantic Union Of All The Centuries'. Described as "A beautiful cup to commemorate the most beautiful occasion", this bone china mug featured "an exquisite design of the happy couple". Upon closer inspection, however, I'm not entirely clear that the makers got the right 'happy couple'.

    Finally, March ended with the publication of another interim report, this time of the Family Justice Review. Amongst a host of recommendations were the establishment of a Family Justice Service and a six-month time limit for care and supervision proceedings. We would hear more of these things when the final report was published later in the year...

    Stay tuned for the next exciting instalment of the Review of the Year!

    Monday, December 12, 2011

    LoreCast for the week to the 12th December

    Natasha and I bring you the top family law news stories from the last week, in our final LoreCast for 2011.



    (Those without Flash can listen here.)

    Saturday, December 10, 2011

    NG v SG: Dealing with wiful non-disclosure

    Mr Justice Mostyn
    The judgment in NG v SG [2011] EWHC 3270 (Fam) is perhaps most notable for the fact that Mr Justice Mostyn spends the first sixteen paragraphs discussing how the Court should deal with wilful non-disclosure in relation to financial remedies following divorce, before he even mentions the case itself. In the last of those paragraphs he sets out the approach that the Court should follow where it is satisfied that the disclosure given by one party has been materially deficient:
    i) The Court is duty bound to consider by the process of drawing adverse inferences whether funds have been hidden.

    ii) But such inferences must be properly drawn and reasonable. It would be wrong to draw inferences that a party has assets which, on an assessment of the evidence, the Court is satisfied he has not got.

    iii) If the Court concludes that funds have been hidden then it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms.

    iv) In making its judgment as to quantification the Court will first look to direct evidence such as documentation and observations made by the other party.

    v) The Court will then look to the scale of business activities and at lifestyle.

    vi) Vague evidence of reputation or the opinions or beliefs of third parties is inadmissible in the exercise.

    vii) The Al-Khatib v Masry [[2002] 1 FLR 1053] technique of concluding that the non-discloser must have assets of at least twice what the Claimant is seeking should not be used as the sole metric of quantification.

    viii) The Court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that than that the Court should be drawn into making an order that is unfair to the Claimant.
    The case itself concerned an application by the (ex-)husband ('H') for downward variation of a maintenance order and remission of arrears. The (ex-)wife ('W') made a cross-application for variation and for leave to enforce arrears that were more than 12 months old.

    The District Judge found that on the basis of ten findings "of evasiveness and opacity", H was "a serious and serial non-discloser", and ordered him to pay to W a total of £996,419.40. H appealed.

    I will not go into the details of the appeal and his judgment, but Mr Justice Mostyn found (at paragraph 48) that the District Judge had not worked through the steps set out above, and that:
    "Most significantly he at no point attempted even a broad estimation of what he believed H had hidden away in residue. It may be said that tacitly he must have found that H had access to around £2m, of which he was awarding £1m to W. But how do his ten findings lead to that conclusion? In many respects they strike me as either stale or inconsequential and incapable of leading to a tenable finding that H had salted away a vast sum." 
    In the circumstances, the appeal was allowed. The District Judge's order was set aside and a retrial was directed.

    Something for the Weekend: Too Late

    This amused me when I found it during the week (not for the squeamish):


    (Via BuzzFeed.)

    Friday, December 09, 2011

    Engaging The Enemy

    In Practice: Is it time to talk about fusion again?

    Two stories in the Gazette grabbed my attention over the last week. First, we had the eye-catching headline last Friday: Bar aiming to bypass ‘superfluous’ solicitors and this was followed on Tuesday by Barristers plan escrow scheme for holding client money.

    A little explanation. The first story informs us that the Bar Standards Board is examining whether barristers should be able to accept direct instructions from clients eligible for public funding. In a consultation paper it says that:
    "The purpose of allowing lay clients to instruct barristers directly is to remove unnecessary barriers to the provision of barristers’ services and to save costs by cutting out superfluous intermediaries."
    Sounds all very noble, but such a change would also of course have the effect of increasing business for barristers in hard economic times. A problem, however, that barristers have when it comes to taking business from solicitors is that they are not, of course, allowed to handle client money. Well, the second story tells us that the Bar is working on a solution. Incoming Chairman Michael Todd QC has said in a speech that he is chairing a working group led by the Bar Council’s member services team to examine the feasibility of a service that would provide entities regulated by the Bar Standards Board and public access barristers with an escrow account facility in which client monies could be placed.

    I'm not going to make any comment upon whether these developments represent a serious threat to solicitors, but if barriers are going to be broken down, then why not go the whole hog and fuse the profession? That would certainly be a lot simpler (and less confusing) for the public.

    Early in my career there used to be quite a debate about fusion, but that largely subsided after solicitors were given greater rights of audience and direct access to barristers was allowed. Is it time to revisit that debate, particularly given the present economic situation? After all, the reduced cost of only having to instruct one lawyer was always one of the biggest arguments in favour of fusion. Also, with more lawyers on both sides dealing with cases from start to finish the lack of a 'second opinion' (i.e. from a barrister), one of the alleged disadvantages of fusion, is becoming more and more irrelevant.

    Just a thought.

    Thursday, December 08, 2011

    AJ v JJ & Ors: The wishes of the children in abduction cases

    In AJ v JJ & Ors [2011] EWCA Civ 1448 the court was required to deal with the situation where the children wished to have their views heard in an abduction case.

    Lord Justice Thorpe
    The Facts: As Lord Justice Thorpe said giving the leading judgment, on the face of it this was a paradigm case for a return order. The parents are Polish and had three children, now aged 15, 13 and 10. They separated in 2005 and in 2006 the Polish court awarded custody to the father.

    The mother subsequently emigrated to this country and obtained an order in Poland providing for her to have holiday contact with the children in this country. Pursuant to that order, she collected the children on the 5th July this year, and was due to return them on the 26th July. However, on the 25th July she issued an application to the Polish court for custody, and for the children's relocation to this jurisdiction.

    When the mother failed to return the children on the 26th July, the father issued an application for their return under the Hague Convention.

    The mother raised an Article 13b defence, but this was "hardly pursued", and effectively the only issue for trial was her other defence, i.e. the children's stated objections to return.

    The Judge granted the application for return, although it was not clear whether he did not find that the children objected, or whether he found that they did object, but he nevertheless ordered their return, exercising his discretion under Article 13.

    The children then applied for leave to intervene and for permission to appeal.

    Held: Counsel for the children submitted that he was entitled to succeed on two grounds.

    The first ground was that the Judge had fallen into error by not of his own motion ordering separate representation for the (mature and articulate) children, or alternatively that the Judge should of his own motion have required a meeting with the children to gauge their true positions and particularly to involve them in the process, as "it was simply unacceptable for the Judge to impose on the children the return that they dreaded without engaging them in the process".

    The second ground was that the Judge had failed to make a clear finding on what was effectively the primary issue in the case, namely did the children object to return.

    Lord Justice Thorpe held that the children should succeed on the second ground. He said (at paragraph 29):
    "A clear finding that the children's objection had not been made good would have been the end of case and presented the mother with a single and clear ground of appeal. Equally a proper exercise of the discretion would only be triggered and conducted by an unequivocal finding that the objections had been made good."
    As to the first ground, he held (at paragraph 30) that the submission that the Judge of his own motion should have joined the children as parties was unsustainable. However, he was "impressed" by the submission that the Judge should of his own motion have engaged the children in the process (paragraph 31), and felt that he had erred by not at least raising with the parties the need for him to meet the children face to face (paragraph 41), particularly in the light of recent guidance, such as Lord Justice Thorpe's own judgment in Re G (Abduction: Children's Objections) [2011] 1FLR 1645.

    Sir Mark Potter and Lady Justice Hallett agreed.

    The application was therefore granted and the case remitted for re-hearing.

    Venal & Grabbit welcome rise in divorce rate

    I have received the following press release from Messrs. Venal & Grabbit, Solicitors:
    ===PRESS RELEASE===

    London, 8th December 2011: Leading firm of divorce lawyers Venal & Grabbit have welcomed the rise in the number of divorces in England and Wales, as disclosed today by the latest figures from the Office for National Statistics.

    Senior Partner Edgar Venal said: "So much for all the doom-merchants who were predicting that the divorce rate would continue to fall. This will bring Christmas cheer for deserving divorce lawyers everywhere.

    "And if the speculation that the rise is due to the effect of the present economic hardship on marriages is correct, then it just goes to show that the recession is not all bad news.

    "Now, if you'll excuse me, I'm off to have my Bugatti Veyron gold-plated..."


    ===ENDS===

    Latest divorce statistics released

    The Office for National Statistics has released the latest statistics for divorce in England and Wales, for divorces which took place in 2010. The Statistical Bulletin may be found here.

    The key findings were:

    • The number of divorces in England and Wales in 2010 was 119,589, an increase of 4.9 per cent since 2009, when there were 113,949 divorces
    •  
    • The divorce rate rose in 2010 to 11.1 divorcing people per thousand married population from 10.5 in 2009 
    •  
    • 22 per cent of marriages in 1970 had ended in divorce by the 15th wedding anniversary, whereas 33 per cent of marriages in 1995 had ended after the same period of time
    •  
    • The number of divorces in 2010 was highest among men and women aged 40 to 44

    Wednesday, December 07, 2011

    Transparency in New York

    Interesting to see that transparency in the family courts is also an issue in the US. There, however, it is not that a change in the law is being sought to open up the family courts, but rather that an existing transparency law is not being adhered to.

    According to this article in the New York Times last month, New York law has specifically said for more than a century that "the sittings of every court within the state shall be public", and that was confirmed by the state's Chief Judge in 1997, when a new rule was issued setting out a presumption that Family Court hearings be open to the public and news organizations, with judges having a discretion to close cases, but only for compelling and specific reasons.

    However, recent visits to courts across New York City by a reporter have "revealed officials and security officers routinely disregarding the open-courts rule in ways both large and small, direct and implied, insistent and even hostile". During one week the reporter tried to enter 40 courtrooms, but was only allowed into five, some where no case was under way.

    Responding to this, the administrative judge of the New York City Family Courts said she was troubled to hear that courts around the city had not been open and that she planned a review.

    I don't know what the rules are in other US states, save that Florida Divorce, where I found the link to this story, says that in general Florida courtrooms are open, even in family court.

    Incidentally, and off-topic, I notice again from the NYT article that some things about family justice systems worldwide appear to be universal, viz: "people waited in bleak assembly areas for their cases to be called" and: "resource-starved system plagued by delays".

    Venal & Grabbit Xmas eCard

    Tuesday, December 06, 2011

    What is "a family"?

    Stock image of 'traditional family'
    It seems like a simple question, but it doesn't necessarily have a simple answer. Research by a new "think tank" (why do I hate that expression?) tells us that:
    "The traditional 2.4 British family is a thing of the past, with eight out of 10 people now describing their family set-up as not traditional, or not conforming to the stereotypical two married parents with two or more children. The majority of people feel their family is unrepresented by politicians, the media and advertising with 52 per cent claiming the Government does not take their family set-up into account."
    The above is the first paragraph of a press release from the Centre for the Modern Family, which "aims to improve the understanding of the challenges facing British families, by providing insight and perspectives for Government, businesses, media, communities and faith groups to help improve family lives". The press release tells us that the research and further information on the panel of experts that analysed it can be found on the Centre's website, but at the time of writing this, clicking that link merely tells us that the website is 'coming soon', so I've not seen the research, which was apparently based upon "a nationally representative survey of 3,000 adults aged 16 and over living in Great Britain".

    The press release goes on to tell us however that the research:
    "...reveals that just 16 per cent of people define themselves as part of a 'traditional' family of two married parents living together with two or more children.  Instead, the findings indicate family structures are becoming increasingly diverse.  A quarter of all couples are childless, and one in five lives alone.
       
    As a result of this, half of the population believe society is out of date in its view of the family.  In addition to married mums and dads with two or more children, Britons are increasingly likely to describe single-parent, same-sex, or unmarried couples as 'proper' families."
    There was, however, a significant minority of those canvassed who disagreed with these views:
    "A third, 34 per cent, thinks that a couple should be married to be a family.  Just under a third, 29 per cent, believe that same sex couples are not a proper family, and almost one in five, 17 per cent, feel that single parents are not a proper family."
    Such feelings have unsurprisingly been echoed by the Daily Mail, which dismisses the research as the work of a "trendy thinktank" that is trying to kill off the 'traditional' family.

    Monday, December 05, 2011

    LoreCast for the week to the 5th December

    The penultimate LoreCast of the year, with all the top family law news stories from the last week:



    (Those without Flash can listen here.)

    Fun-ambulist Wedding

    Just shows that the idea of getting married in a crazy place is nothing new:


    (Found on BuzzFeed.)

    Sunday, December 04, 2011

    Whingeing fathers? You've never had it so good!

    Fleet Debtor's Prison, from A Rake's Progress, Hogarth
    Over the years I've had many comments on this blog from absent fathers complaining bitterly about the unfairness of the child support system. This recent example from 'Lee', responding to the new child maintenance proposals (under which absent fathers will have to pay more, according to The Telegraph) may seem somewhat extreme, but is not untypical:
    "If this goes through I'd probably take to beating up me ex and he [sic] new boyfriend out of frustration and annoyance out of being treated in this appauling [sic] manner. I'd rather live in the gutter than pay it and wish it doesn't happen."
    Well Lee, if you think things are going to be bad, then perhaps you should spare a thought for absent fathers two hundred years ago, who faced the prospect of a spell at His Majesty's pleasure if they were caught.

    In an article about the British Library's online newspaper collection, the BBC reports a story in the Manchester Mercury of 1811 with the headline: "Runaway Husbands from Bury, Lancashire", which goes on to name four men: Thomas Crompton, George Booth, Robert Wardle or Leach and William Kay. The story continues:
    "The above persons have left their Wives and Families Chargeable to Bury. Any person apprehending any of the above persons, and lodging them in any of his Majesty's gaols shall receive Two Guineas reward for each on application to the Churchwarden or Overseers of the Poor of Bury."
    Things did not get much easier for absent fathers as the nineteenth century progressed. The BBC article goes on to tell us that:
    "The issue of runaway husbands was one that became so prevalent during that century that newspapers in the 1870s started to report incidents of lashings being meted out as punishment."
    Certainly makes the new child maintenance proposals seem a bit tame.

    Right, I'm off to turn in a runaway husband I know and claim my two guineas...

    Friday, December 02, 2011

    Best Law Firm Domain Name: EverArguedWithAWoman.com

    Time for another special award (well, I've got to get rid of these old trophies somehow).

    Melissa A. Wilson Esq.
    The legal profession in this country has a lot to learn about marketing from its American cousins. Meet Melissa A. Wilson, Esquire, the attorney at Advocate Law Firm, P.A., of Lakeland, Florida. Her firm's website uses the irresistible domain name EverArguedWithAWoman.com, a sentiment repeated at the top of the home page. How could you not instruct a lawyer with a domain name/slogan like that? I certainly wouldn't fancy being on the other side to her or, come to that, being a judge before whom she appeared.

    Melissa's areas of work include family law. Something tells me that most of her cases settle in her client's favour. As for mediation, forget it.

    You can see an example of the firm's advertising, here.

    Legal aid reforms postponed: Venal & Grabbit statement

    I have received the following press release from Messrs. Venal & Grabbit, Solicitors:
    ===PRESS RELEASE===

    London, 2nd December 2011: Responding to the Government’s announcement that legal aid reforms are to be postponed from October 2012 to April 2013, Senior Partner Edgar Venal said:

    "We are dismayed at yesterday's announcement, and are appalled that Ministers have listened to the very self-serving concerns expressed by family lawyers who are only interested in preserving their legal aid income. At the same time, it is important to remember that this is only a delay in implementation, rather than a significant policy change, so it's not as bad as some mistakenly think.

    "Nevertheless, we hope that the Government will take this opportunity to think again about the Legal Aid Bill. We have said from the start of the process that the proposed reforms will have a detrimental impact on access to justice for the most affluent people in society, by clogging up the courts with more of those awful unwashed litigants in person (who should be refused access to justice at all), and will not go far enough to reduce the burden on honest taxpayers like ourselves (well, we would pay tax if we weren't able to avoid it).

    "We know that around 90% of divorce cases are resolved outside the courtroom. We will continue to work to reduce this figure, but this can only happen with the support of well-paid legal professionals.

    "We are therefore looking forward to working with Ministers to ensure that there are more people having to pay their lawyers, by taking legal aid away from families who just sponge on the state."


    ===ENDS===

    *      *      *      *      *

    In Practice: Personal tragedies

    I was going to write about something else in this week's In Practice post, but then I read the list of SRA interventions in the Gazette yesterday, and noticed that one of the firms mentioned was local and (in my previous life as a practising solicitor) well known to me. The firm had been practising, in one guise or another, for as long as I can remember. The principal has been suspended from practice for an indefinite period. I did not know him very well, but I knew others who worked for the firm.

    This is not the first time that a firm or solicitor I know of has fallen foul of the profession's regulators, but it still comes as something of a shock to see a name you know appearing in the 'wrong place' in the Gazette. The report says that the grounds for intervention included failure to comply with both the Accounts Rules and the Code of Conduct, but otherwise I have no idea of the detailed reasons for the intervention. The firm (to my knowledge) used to be perfectly respectable.

    This got me thinking: what goes wrong when a previously reputable firm finds itself in such a position? I'm not talking of what they did wrong, but why they did it. I don't know whether any research has ever been done into this, but here are some of my thoughts.

    In the present economic climate, money problems must come high on the list of possible factors. Things are extremely hard out there, particularly for small high street firms which were once dependent on conveyancing for the bulk of their income. I can imagine how easy it must be for money worries to escalate, and for a 'head in the sand' mentality to take over, with creditors unpaid and essential practice tasks being left undone. There must also be a temptation to 'resolve' problems by breaking the rules, for example using clients' money.

    Another possibility is that personal problems could be the cause - perhaps relationship problems, or health problems. In a small firm with little support, or especially with sole practitioners, such issues could easily have a serious adverse effect upon the practice. Consciously or not, practitioners might quite understandably take the view that their own welfare is more important than that of the firm.

    The last possibility that springs to mind is, of course, criminal intent. Unfortunately, some unscrupulous practitioners may set out with the intent to defraud, usually for monetary gain. Obviously, such people deserve no sympathy, and if the regulators catch up with them, then that is to the good of all others.

    Leaving that last category aside however, many of the rules transgressions must hide stories of personal tragedies, of differing scales. I wonder whether more could be done to prevent them.

    Thursday, December 01, 2011

    Proposals for new child maintenance scheme unveiled

    Detailed proposals for the new child maintenance scheme have been published today, in a consultation document snappily entitled The Child Support Maintenance Calculation Regulations 2012 – A technical consultation on the draft regulations. In a deluge of information from CMEC, you can also find a news summary here, an Impact Assessment here, an Equality Impact Assessment here, a draft of The Child Support Maintenance Calculation Regulations 2012 here and a draft of The Child Support (New Calculation Rules)(Consequential and Miscellaneous Amendment) Regulations 2012 here. Got all that?

    Some key changes:
    • Payments will usually be based on the non-resident parent’s latest tax-year gross income, sourced directly from HM Revenue & Customs (which it is hoped will reduce application times).
    •  
    • The 'flat-rate' will be increased from £5 to £7, with the Government consulting on whether this should be increased further.
    •  
    • Addition of a second level within the basic rate for those non-resident parents with weekly income in excess of £800.
    •  
    • Annual reviews of the maintenance calculation by using updated income information supplied by HMRC.
    •  
    • Parents who share the care of their children exactly equally will no longer be required to pay maintenance through the statutory scheme, although it is recognised that this will be a small minority of cases.
    •  
    • Maintenance calculations will take account of a child supported by a non-resident parent outside of the statutory scheme.
    •  
    • No need to adjust calculations for small changes in income.

    The closing date for submissions in respect of the consultation is 23rd February 2012.