Saturday, March 31, 2012

Something for the Weekend: The Graduate (finale)

The Graduate has always been one of my favourite films. Whether this was due to the story, the music of Simon and Garfunkel or (more likely) the presence of Katharine Ross, I can't say. Anyhow, here is the great end sequence, for your weekend enjoyment:

Friday, March 30, 2012

BLEAK SPOUSE: Chapter 5 – The Computer-Guru


HIDDEN in one of the less salubrious back-streets of London's legal district, Steve Jobby, Computer-Guru, pursues his not-entirely-lawful calling. In the shade of the Royal courts of Justice, at many times a shady business, Mr Jobby has dealt in all forms of computer-trickery for the legal profession, from the mundane to the arcane.

We find him in his dingy office, sitting before a bank of computer screens, talking into a Skype headset. "Of course, Mr Venal, you know me - maximum discretion at all times." He says. "Why don't we meet in The Sober Judge at six? Excellent. See you there."

He ends the call with a wry smile, recalling the previous business he has done for Edgar Venal, such as hacking into the computer systems of rival firms. Mr Venal was particularly pleased when he found that one firm had been systematically breaking Solicitors' Accounts Rules, and had taken great delight in reporting them anonymously to the Solicitors Regulation Authority.

He wonders what Mr Venal might want now.

*            *            *

The day is closing in and the street lamps are on, but are not yet fully effective, for it is not quite dark. Edgar Venal alights from his cab.

The Sober Judge is not the sort of establishment that Edgar would normally frequent, but it is Steve Jobby's local, and Edgar has met him here previously precisely because he is unlikely to be recognised. It is the kind of pub for which the term 'spit-and-sawdust' was invented. Edgar takes a deep breath of (relatively) fresh air, before he steps inside.

Jobby spots Edgar immediately, and gestures him to his table in a secluded corner of the bar. As Edgar approaches, he sees that Jobby is eating a rather dubious-looking plate of food. It looks like broken sea-shells on a bed of limp leaves. Jobby sees Edgar taking an interest.

"Lobster and lettuce, Mr Venal." He says. "Most excellent. Would you like a plate?"

Edgar declines.

Jobby looks disappointed for a moment, then swiftly moves on to business. "So what can I do for you, Mr Venal?" He asks, swallowing a mouthful of lobster.

Edgar glances from side to side, making sure they cannot be overheard. "I need to know the identity of someone on Twitter." He whispers.

"Shouldn't be a problem." Replies Jobby, picking a piece of lobster shell from his teeth. "What's their name?"

Edgar looks around again. "BigWad123". He says, spying a small slug on Jobby's lettuce.

"OK, Mr Venal," says Jobby, "I'll have that for you in no time."

"Remember," says Edgar, "absolute discretion on this one."

"Mum's the word." Replies Jobby, tapping his nose with his finger.

"Good." Says Edgar, as he watches Jobby put a forkful of lettuce in his mouth, complete with slug. Edgar feels a little nauseous. He takes his leave and heads for his club, and a strong gin and tonic.

Thursday, March 29, 2012

Lawrence v Gallagher: Judicial creations should not be elevated to the status of s.25 criteria

Lord Justice Thorpe
The case of Lawrence v Gallagher [2012] EWCA Civ 394, decided today, has caused a number of headlines, primarily because it is said to be the first substantial appeal concerning financial orders made following the dissolution of a Civil Partnership. As will be seen, however, that is not of particular importance of itself.

In this post I will not deal with the facts in this case, or with the decision itself. As Lord Justice Thorpe said giving the leading judgment, the case itself was comparatively simple. What, then, can be usefully taken from the judgement? I would suggest that there are two things:

Firstly, and surely obviously, as stated by Lord Justice Thorpe in paragraph 2: "The fact that the claim arises from the dissolution of a Civil Partnership rather than a marriage is of little moment since it is common ground that the language of schedule 5 of the Civil Partnership Act 2004 is identical to the language of s.25 of the Matrimonial Causes Act 1973."

Secondly, until such time as the law is clarified, for example as a result of the Law Commission's review of two aspects of the law on financial provision, "judges should consistently apply the s.25 criteria to the facts of the individual case wherever possible avoiding the over complication of the resulting judgment" (paragraph 37). This was a reference to the various "new approaches often expressed in newly-minted phrases" developed by judges since White v White, "designed to guide the search for a fair outcome or to safeguard against the unfair outcome". In this case, counsel on both sides were criticised for complicating the matter by using "one judicial creation or another" to achieve their goals. In his concurring judgment Mr Justice Ryder agreed (at paragraph 57):
"There is a prevalent practice of coining ever more sophisticated phrases which are intended by practitioners to highlight particular aspects of the notion of ‘fairness’. That practice has created an expectation that the judge will consider the same in judgment. That expectation is inappropriate not least because the linguistic devices employed are not terms of art: they are no more than tools to assist in the interpretation of fact which should not be elevated to the status of factors that have to be considered alongside the section 25 criteria. Not only does such a misconception risk inappropriate weight being given to an analysis born out of a linguistic device, it carries with it the real danger of miscalculation... "
Quite where this leaves all of the jurisprudence since White v White in terms of practical value to lawyers attempting to advise their clients, I'm not sure. Let us hope that the Law Commission will provide greater clarity and certainty.

Because nothing says "I do" quite like the sound of gunfire...

"Have your wedding ceremony, vow renewal or commitment ceremony on our state-of-the-art indoor range and shoot from a selection of exotic firearms." So says The Gun Store in Las Vegas, advertising its "Shotgun Weddings" service - "just what you need to make your special day unique and unforgettable". I certainly wouldn't want to argue with them that.


[Found on Oddity Central. Title to this post adapted from video there.]

Wednesday, March 28, 2012

Uplifting

This video was uploaded by the Department for Education a couple of weeks ago, but I've just come across it. It's such an uplifting story of adoption that I thought it merited further exposure:

Tuesday, March 27, 2012

Another blow to journalism


How many things can you find that are wrong and/or annoying in a newspaper article? Well, if the newspaper is the Daily Mail, quite a few (but then you probably already knew that).

Today the Mail excels itself with an article entitled: Another blow to marriage as top judges demand no-fault divorce and say current laws are vastly outdated. The article is a classic piece of right-wing scaremongering suggesting that, when it comes to marriage, the world will end if we do not stop the march of progress and return to the 'values' of the 1950s. The villains of the piece are Sir Nicholas Wall who, in a speech to Resolution at the weekend, said that he could find no good arguments against no-fault divorce, and Lord Justice Thorpe, who has refused Susan Rae's appeal against her divorce, which she said was based on "trivial" grounds.

OK, let's analyse the article. I shall start with the second paragraph:
"At present, couples can be legally parted within six months if one party is shown to be at fault."
I really don't know what this is on about. What does "legally parted" mean? Where does the six month period (presumably from the date of the marriage) come from?

Moving swiftly on to the next paragraph:
"The most common grounds are unreasonable behaviour, which can include committing adultery or devoting too much time to one’s career."
Unreasonable behaviour and adultery are, of course, entirely separate ways of proving that the marriage has irretrievably broken down (although I do accept that unreasonable behaviour may be used as an alternative where adultery can't be proved).

The article then discusses what our two wicked judges said. I strongly agree with Sir Nicholas Wall, but I can understand that others, particularly those who, unlike family lawyers, have little experience of marriage breakdown, may take a different view, so I will not directly argue his point here. However, the Rae case is surely an example of why his view is correct. The article impliedly denounces Lord Justice Thorpe, but all he is saying is that there is no point keeping a marriage going if one party wants out. His point that Mr and Mrs Rae would have been spared "these painful investigations" into their marriage if we had an entirely no-fault divorce system is, in my view, perfectly valid and beyond criticism.

The article then finishes by saying that "politicians and family experts yesterday warned against removing fault from divorce", citing Tory MP Julian Brazier and Jill Kirby 'who writes about family life'. What have these two authorities on the subject got to say?

Julian Brazier really does want to turn back the clock. He says that: "The real issue is whether we need to reintroduce fault for the determination of child custody and division of resources". I'm sorry, fault for 'custody' (Mr Brazier is such an authority that he doesn't know the terminology changed twenty years ago) disputes? What, are we going to deny a child the right to see a parent because that parent has committed adultery? (If Mr Brazier is referring to domestic violence then perhaps someone should tell him that that is fully considered by the court in 'custody' disputes.) As for reintroducing fault when considering financial applications, I had hoped we had moved on from that argument.

Finally, we have Ms Kirby, who writes a weekly column at Conservative Home. She makes the point that many who go through divorce feel a sense of injustice that no fault was attributed to their spouse, who they feel was to blame for the marriage breakdown. It is a valid point in the sense that it does occur - I recall coming across it quite often when I was practising. However, that does not make it right. Firstly, it is usually quite artificial to attribute blame for a marriage breakdown entirely to one party and secondly, it is surely not the job of the court in the twenty-first century to punish someone for marital misbehaviour (save, possibly, by making them pay the other party's costs). Further, if the ultimate aim of such a policy is to dissuade married people from 'misbehaving', then that is just pie in the sky.

Monday, March 26, 2012

New service: Practitioner Essentials


Family Lore has always been primarily about the latest developments in family law (plus a little nonsense thrown in for light relief). However, there can be an awful lot of family law news, cases and articles. The busy practitioner cannot possibly expect to read every story, law report and article. That is where Practitioner Essentials comes in. With it, I will 'flag up' those items that I come across that I consider to be essential reading for all practising family lawyers. Whilst not promising to be comprehensive, I will try to sift out the wheat from the chaff, and at least attempt to reduce the burden.

I will begin with a brief story in Family Law Week, highlighting the issue of getting a pension provider to implement a pension sharing order. I remember having problems with this when I was practising, and I'm sure many others will have had similar experiences. The story details how the Pensions Ombudsman recently upheld a complaint against a pension provider which failed to implement a pension sharing order made in financial remedy proceedings. Clearly, something to bear in mind when dealing with a recalcitrant provider.

New report into family conflict and violence


Children and families charity 4Children has today published a report into family conflict and violence, as part of its Give Me Strength campaign.

The report, The Enemy Within, includes the results of a survey of 1,018 parents with teenage children, carried out by YouGov for the charity. The survey found that 53% of families with children experience serious or frequent conflict, with 9% experiencing physical violence. 21% said that the cause of the conflict was worries over finances and debt.

The report makes six recommendations to deal with the problem of family conflict and violence:

1. That definitions of domestic violence should be widened "to fully encapsulate family violence", for example by including parent-on-child violence and adolescent-on-parent violence.

2. That family violence be made a high priority by both national government and local authorities, "to ensure that families receive the joined up support they need".

3. That a 'whole family approach' be introduced to responding to family violence by police and family workers, "to ensure that the whole family is strengthened and has the support they need to overcome their problems".

4. That awareness be raised among professionals about the extent of family violence, "to ensure that victims of family violence can receive the support they need at the
earliest opportunity, and that opportunities for intervention are not missed".

5. That the impact of family violence be recognised in national initiatives, by making it a key measure in any 'payment by results' scheme.

6. That there be a move to an early intervention approach, "to prevent family violence and crisis".

The report can be read here. You can also read about it in The Independent and at Children & Young People Now.

News for the week to the 26th March 2012

 
With Natasha away on far more important duty, for the next month you will have to put up with me alone bringing you the top family law news. Sorry about that.

Anyhow, here are the stories from the past week:



(Those without Flash can listen here.)

Saturday, March 24, 2012

Something for the Weekend: The Stars as Viewed from the International Space Station

This video has been getting a lot of attention on the internet this week, and with good reason. It comprises a series of beautiful time-lapse videos depicting the stars from low Earth orbit, as seen from the International Space Station. There are also some spectacular views of the surface. For more information, see here.

Friday, March 23, 2012

BLEAK SPOUSE: Chapter 4 – A Morning Misadventure


GRIM GRANGE. Although the morning was raw, and although the fog still seemed heavy — I say seemed, for the windows were so encrusted with dirt, that they would have made midsummer sunshine dim — Prissy was sufficiently aware of how bored the children were, and sufficiently appalled that they were so poor that they did not possess the latest model iPhones, to think it a good idea to take Clint and Chantelle into town to correct that travesty.

*            *            *

Thirty minutes later Prissy and adopted cousins are walking from the multi-storey into town when they encounter a shady-looking man in the street, supervising two equally shady-looking men, who are throwing furniture and clothing out of a second-floor flat window on to the street, while a distraught-looking man looks on.

Nosey as ever, Prissy asks the first shady-looking man what is going on.

The man explains that he is Mr Crooked, the landlord of the flat, and that the tenant (he nods towards the distraught-looking man) hasn't paid the last month's rent, so he is evicting him, and his belongings.

Prissy has a feeling that there could be something wrong about this, but as nobody else in the street seems to give a damn (other than about having their progress impeded by broken furniture and worn-out clothing), she decides not to press the matter.

At that point, a dishevelled tramp-like man enters the building. He and Prissy exchange glances. The man has a far-away look in his eyes, but Prissy thinks she knows him from somewhere. She asks Mr Crooked if he knows who the man is.

"'Im? 'E's Larry Lizzard, anovver one o' me tenants. Used to be some sort of big-shot, but now 'e's just a junkie." Replies Mr Crooked.

"A junkie?" Asks Prissy.

"Yeah," says Mr Crooked, "always drugged up to the eyeballs, that one. Still, 'e does pay 'is rent, or at least harsin benefit does."

Prissy watches Larry Lizzard shamble inside. As he disappears, she turns towards the distraught-looking man, who is forlornly gathering his belongings, or at least those few items that remain intact, whilst clutching a bag of papers. An emotion arises in Prissy's chest that she has not felt before. For some reason that escapes her, she feels pity for the man.

Prissy is not quite sure what to do - helping others is something of which she has no experience. She asks the man his name. He says it is Matt, Matt O'Gridley.

"Where are you going to go now?" Asks Prissy.

"No idea," says Matt. "My wife chucked me out of my home, now my landlord has chucked me out of here. I've nowhere to go but the street."

The thought of having to sleep on the street abhors Prissy. She racks her brains for a suggestion, and remembers from somewhere that there is a homeless shelter not too far away.

"Why don't you go to Bellend House?" She asks.

"Bellend House? What's that?" Asks Matt.

"A homeless shelter - they'll take you in. It's just down there." Says Prissy, pointing towards the seedier end of town.

Matt agrees to give it a try, and in a fit of philanthropy Prissy finds herself agreeing to go and visit him once he has settled in, an offer she immediately regrets.

Just then Prissy realises that Clint and Chantelle are getting exceedingly agitated at the delay in the purchase of their new mobies. She says a quick farewell to Matt, and resumes her journey into town.

Wednesday, March 21, 2012

A "Break-Up Budget"?

George makes his point

There have been concerns that the Budget could threaten the stability of family life by adding to financial pressures on families, and increasing conflict within couples. So, what has the Chancellor done for families?

I only found two items in the Chancellor's speech that are directly relevant to families:

  • Personal income tax allowance will be raised to £9,205 from April 2013, making 24 million people £220 a year better off; and
  •  
  • Child benefit will be phased out when someone in a household has an income of more than £50,000. It will fall by 1% for every £100 earned over £50,000. Only those earning more than £60,000 will lose the entirety of the benefit.

However, the following measures were previously announced:

  • Next month, jobseeker's allowance, income support, most income tax allowances, national insurance thresholds, inheritance tax allowance, disability benefits, maternity benefits, incapacity benefit and child benefit will all rise in line with the Consumer Prices Index last September (5.2%);
  •  
  • The child element of child tax credits will rise by £135 in 2012-13;
  •  
  • The couple and lone-parent elements of working tax credit will not go up in line with inflation;
  •  
  • Couples with children will have to work for 24 hours a week between them, not 16, in order to qualify for working tax credit;
  •  
  • Personal allowance will rise by £630 on 6 April to £8,105 for the 2012-13 tax year;
  •  
  • The upper threshold of the basic rate of income tax will fall by £630 to £34,370 in April; and
  •  
  • The 1% stamp duty rate for first-time buyers, on properties costing between £125,000 and £250,000, is being reintroduced on 24 March.

Does this amount to a "Break-Up Budget"? I will leave it to the reader to decide, although Barnardo's is not impressed.

Jesus & Mo get to the heart of the matter

Link: Jesus and Mo

New Book: A Guide to Family Arbitration, by Edgar Venal


As a companion volume to How to Bully Litigants in Person and How to Get Your Own Way in Mediation, Edgar Venal is proud to announce the publication of his latest book, A Guide to Family Arbitration. Subtitled Yet Another Essential Handbook for 21st Century Legal Practitioners, the book deals with the scenario where the client comes to you having foolishly agreed to resolve their family dispute via arbitration, rather than through the courts. The book includes chapters on the following essential topics:

  • Knocking-down the arbitrator's fee;
  •  
  • Bribing the arbitrator;
  •  
  • Avoiding full disclosure;
  •  
  • Ensuring that favourable awards are enforceable; and
  •  
  • Ensuring that unfavourable awards are unenforceable.

A Guide to Family Arbitration will soon be available at all good legal booksellers, at the very reasonable price of £499.99.

Monday, March 19, 2012

LoreCast for the week to the 19th March 2012


In a bumper edition, Natasha and I bring you all the top family law news stories and cases from a busy last week, in a short, easy to listen podcast:



(Those without Flash can listen here.)

Saturday, March 17, 2012

Something for the Weekend: Les Dawson, playing the piano

A short video this Saturday, the subject of which I was reminded about during the week. Les Dawson may not have been my favourite comedian, but he couldn't half play the Joanna:

Friday, March 16, 2012

BLEAK SPOUSE: Chapter 3 – Little Progress


GRIM GRANGE. Home of John Jaundiced and his adopted daughter Prissy.

The Grange has been a sad quiet place since John's beloved wife passed away. These days, John takes little interest in its upkeep, leaving that to Prissy, who is now twenty. Prissy, however, loathes the place and yearns to be swept away by her knight in shining armour, just like in all those Thrills and Swoon romantic novels she has read.

Prissy is sitting by the window with her iPad on her lap, updating her Facebook page with pictures taken on a girls' night out last night. She is still nursing the hangover, and wonders how she and her friends avoided being arrested, after they way they behaved.

She spies a taxi pulling up outside. The door opens and out step the familiar figures of Michelle Lucrative and her children Clint and Chantelle. Michelle is her aunt (by adoption), making Clint and Chantelle her cousins (by adoption).

Prissy also notices a car draw up in the lane outside, but she thinks nothing of it, for now.

*            *            *

Dinner that evening. Prissy has cooked the latest recipe from celebrity chef Gordon Profanity: Roast groin of lamb in a peanut butter and Marmite coulis, served with baked bean mash.

"So, to what do we owe the pleasure of this visit Michelle?" Asks John, pushing his food around his plate.

"Well," replies Michelle, "I've come to ask a favour." She places her knife and fork together, trying to hide as much uneaten food as possible beneath them.

"Oh? And what is that?" Asks John, also taking the opportunity to finish his meal.

"Well, as you know, I need to raise funds for the divorce case." Replies Michelle.

John's face falls. "You know it's a waste of money," he says, "you'll never get anything out of that no-good ex-husband of yours. All you're doing is giving the money to the lawyers."

Michelle ignores him. The case has taken her over. It is all-consuming. She must get her just desserts from Scot. She must teach him a lesson. She is entitled. "There is this Russian billionaire I know," she continues, "I think I can persuade him to lend me all I need to fight the case - all the way to the Supreme Court, if need be."

"I see," says John, "and how can I help?"

"Well, this billionaire is presently on his yacht in Monaco. I need you to look after the children while I go there to err... see him."

"But what about Scot. Can't he look after them?" Asks John.

Michelle gives him a dirty look. "I'm not letting that man have them!" She exclaims.

John lets out a sigh. "I see. Of course we'll look after them." He says, looking anxiously at Prissy, who scowls back.

The children, meanwhile, are obliviously playing with their food.

*            *            *

The next morning Prissy pops outside to her Fiat 500byGucci to get her iPod, which is plugged in to the stereo. As she does so, she notices the same car as before, parked in the lane outside. In the driver's seat is a man, pointing a large-lensed camera at her. She presumes he is a paparazzo, spying on the celebrated Mrs Lucrative.

She is almost correct. The man is spying on Mrs Lucrative, but he is not a paparazzo. He is William Piranha, following Mrs Lucrative on the instructions of Mr Venal. He runs off some pictures of Prissy. Looking at them later, he thinks he sees a likeness to Lady Wedlock. He takes a fancy to Prissy.

Thursday, March 15, 2012

Gay marriage consultation launched


The government has today begun its Equal civil marriage consultation. The consultation sets out the government's proposals to enable same-sex couples to have a civil marriage.

The key proposals of the consultation are:
  • to enable same-sex couples to have a civil marriage i.e. only civil ceremonies in a register office or approved premises (like a hotel);
  •  
  • to make no changes to religious marriages (this will continue to only be legally possible between a man and a woman);
  •  
  • to retain civil partnerships for same-sex couples and allow couples already in a civil partnership to convert this into a marriage;
  •  
  • civil partnership registrations on religious premises will continue as is currently possible i.e. on a voluntary basis for faith groups and with no religious content; and
  •  
  • individuals will, for the first time, be able legally to change their gender without having to end their marriage.
You can find the consultation document here (see Annex B for a list of the consultation questions) and the impact assessment here.

Respondents can use this online form, or send their responses by post or email to the Government Equalities Office.

 The consultation closes on the 14th June.

Wednesday, March 14, 2012

Venal & Grabbit arrange family law tweetup


Venal & Grabbit are proud to announce their first family law tweetup. This exclusive event will take place at The Gitz luxury hotel in The Strand, London, with gourmet cuisine provided by five-star chef Heston Blumenheck.

Entrance to the tweetup will cost a very reasonable £500 per head, a sum which V & G assure attendees does not include any profit element, and is purely to cover the cost of organising the tweetup.

The event will be sponsored by leading family law chambers 1 Crooked Orifice Row, Temple. Any business interested in advertising at the tweetup should contact Venal & Grabbit for details.

As Senior Partner Edgar Venal says: "Great organisation, good food, a splendid venue and, for the rest of you, good company, assuming I can be bothered to attend."

Please note: Plebs need not apply, although ever actually having used Twitter is not a prerequisite for attendance.

Adoption Action Plan published


The Government's Action Plan for Adoption has been published today. The Plan sets out "to overhaul the system for prospective adopters and strengthen the performance regime for local authorities". It includes proposals for:
  • New adoption scorecards, to hold local authorities to account (the first scorecards will be published in the coming weeks);
  •  
  • A revised approval process for new adopters, cutting it to six months; and
  •  
  • A national gateway for adoption, providing a first point of contact for anyone interested in adoption.
You can read a Department for Education press notice here, the Plan itself here and a response from Barnardo's, here.

Grotesque

Link: The ever-excellent Jesus and Mo.

S (a Child): Supreme Court unanimously allows mother's appeal


The Supreme Court has today unanimously allowed the mother's appeal in S (a Child). You can read a press summary of the judgment here, and the full judgment here.

To recap (from the Supreme Court case summary), the issue was the approach that the court ought to take to summary applications under the Hague Convention when Article 13(b) is engaged; and the application in this regard of the guidance given in Re E [2011] UKSC 27.The facts were:
The Appellant mother and the Respondent father lived in Australia with their young son. The mother asserts that the father was a drug user, became violent, abusive and threatening towards her and that there were severe financial problems. In February 2011 she took the child to the UK, from where she originated, without the Respondent’s consent or knowledge. The father sought an order for the child’s return to Australia under the Hague Convention. The mother asserted that a return to Australia would cause practical problems, and would cause psychological upset to her, to the extent that the child would be placed in an intolerable situation. The High Court refused to order the child's return to Australia, finding that the exception provided for by Article 13(b) of the Convention was engaged and satisfied. The Court of Appeal reversed that decision and ordered the child's return. The case concerns the approach that ought to be taken to the assessment of the evidence in such situations. The High Court and the Court of Appeal refer to guidance on the Article 13(b) exception given by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 A.C. 144, including as to the potential relevance of protective measures. The main questions before the Supreme Court are (i) as to whether, and if so in what circumstances, the Article 13(b) exception can be established on the basis of the subjective perceptions of the abducting parent; and (ii) the circumstances in which an appellate court is entitled to interfere with an assessment made by the judge at first instance.
The Supreme Court has unanimously reversed the decision of the Court of Appeal, and restored the order of Mr Justice Charles in the High Court. Delivering the judgment, Lord Wilson concluded:
"As we have explained, the Court of Appeal failed to appreciate that the mother’s fears about the father’s likely conduct rested on much more than disputed allegations. Equally it paid scant regard to the unusually powerful nature of the medical evidence about the mother ... Overarchingly, however, it failed to recognise that the judgement about the level of risk which was required to be made by article 13(b) was one which fell to be made by Charles J and that it should not overturn his judgement unless, whether by reference to the law or to the evidence, it had not been open to him to make it. Charles J was right to give central consideration to the interim protective measures offered by the father. But his judgement was that, in the light of the established history between the parents and of the mother’s acute psychological frailty for which three professionals vouched, they did not obviate the grave risk to W. It must have been a difficult decision to reach but, in the view of this court, it was open to him to make that judgement; and so it was not open to the Court of Appeal to substitute its contrary view."
The judgment has been welcomed by the child abduction charity reunite (which was permitted to intervene in the proceedings), for "reaffirming the clear principles stated in the helpful and important previous decision of the Court in In re E (Children) (Abduction: Custody Appeal)."

Father Figures: How a conservative think tank proposes to deal with 'feckless fathers'

Image: Policy Exchange (presumably signifying that mothers can only afford one sock)

The conservative think tank Policy Exchange has today published a report setting out its recommendations as to how absent fathers on welfare benefits could pay 'meaningful' child support.

The 48-page report Father Figures: How absent fathers on welfare could pay meaningful child support is interesting for its content and language, so I shall summarise it in a little detail.

The report starts slightly oddly with two blank pages, one about the author/authors (I understand the author is a Peter Saunders, an independent consultant and former Professor of Sociology at the University of Sussex, who has previously authored reports for Policy Exchange), and the other an acknowledgement page.

Moving swiftly on, the Introduction begins by telling us about Britain’s ‘most feckless father’ Jamie Cumming, a 34 year-old unemployed man from Dundee who, we are told, has fathered fifteen children by twelve different partners in the space of just sixteen years, with two more babies due soon. How does Mr. Cumming afford to support all these women and maintain all these offspring? The report asks. The answer, of course, is that he does not - the taxpayer does.

Nor is Mr Cumming alone. We are told that "as many as half a million non-resident fathers are living on welfare benefits", none of whom is expected to pay more than the price of a weekly pack of cigarettes towards the costs of maintaining their children, i.e. £5. This, says the report, "is unfair on their children, their former partners, other fathers who are doing the right thing, and taxpayers, who have to pick up the tab."

The next section of the report examines how absent fathers on welfare could pay meaningful child support. This looks at the history of making absent fathers pay, from canon law in medieval England (not sure of the relevance of that) to affiliation orders (which I remember), to the "rise and fall" of the Child Support Agency, including the present government's proposals to reform the system. After looking at the number of absent fathers on welfare and the reasons why they should be required to pay a more significant financial contribution (i.e. to reduce the burden on taxpayers), we are treated to a section neutrally entitled: "How to get blood out of a stone: learning from the US and Germany". This tells us how those aggressive Americans and those efficient Germans get six and seven times more out of absent fathers than we do.

Skipping over the rest of that section, the third section of the report sets out "Eight Policy Recommendations to Strengthen Parental Responsibility" (read: to recover more money for the state), as follows:

1. Restore the obligation on single parents claiming Income Support to use the CSA to assess and collect child support payments from their former partner/s, and exempt them from the charges which are being introduced for the use of these services. Well, I certainly agree with the latter.

2. Impose work experience obligations on absent fathers claiming welfare, with men who refuse being stripped of their benefits. This is the proposal that has (or will) make the headlines, scarily similar to the government's recent work experience scheme, where the government was forced into a U-turn to drop benefit sanctions against young people on the programme.

3.  Balance CMEC efficiency targets with an explicit recognition of the costs involved in enforcing child support payments on fathers with relatively low incomes - because in the past such men have increasingly been left alone, as they are the most difficult group of men to chase for money.

4. Make maternal and paternal grandparents responsible for supporting the cost of grandchildren in cases where parents fail to discharge their responsibilities. Yes, you read that correctly. This seems to me to be the most controversial recommendation, and I'm not sure why it hasn't made the headlines.

5. Require fathers to be registered on birth certificates. We've been here before...

6. Make full use of existing sanctions, including incarceration when all else fails. Well, you wouldn't expect anything less from a conservative think tank, would you?

7. Child support entitlements of existing children should not be reduced if their father goes on to have more children with new partners. Extreme cases where men run up very large support liabilities that they cannot pay should be identified with a view to bringing criminal charges of neglect. You also shouldn't be surprised that a conservative think tank believes that feckless fathers should be treated as criminals...

8. Lastly: Review the 100% disregard of child benefit receipts for single parents on welfare, i.e, mothers on benefits should not be better off because the father pays - in other words, payments by the fathers should benefit taxpayers, not the mothers.

Whether any of these recommendations will ever see legislative daylight, we will have to see. I suspect some of them at least may find their passage through parliament a little difficult...

Tuesday, March 13, 2012

Venal & Grabbit response to Social Justice Report

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

London, 13th March 2012: Leading firm of divorce lawyers Venal & Grabbit today condemned the irresponsible government report Social Justice: transforming lives, saying that it would 'strenuously oppose' any attempt to reduce the number of couples who separate or divorce.

In a terse statement Senior Partner Edgar Venal said: "It is simply appalling. How can an honest family lawyer expect to make a decent living if the government encourages couples to stay together? It's enough to make me retire to my villa on Mustique."


===ENDS===

Social Justice Strategy aims to increase the number of families staying together

IDS makes his point
Work and Pensions Secretary Iain Duncan Smith has today launched the Government's Social Justice Strategy, with the publication of the report Social Justice: transforming lives.

A large part of the strategy is about supporting families, with the aim of reducing divorce and separation rates. The report talks of dealing with the 'risk factors' that can put pressure on relationships and lead to family breakdown, such as poverty, unemployment, educational failure, mental ill health and drug and alcohol dependency. The strategy sets out how the Government intends to tackle these factors.

Otherwise, the report lists three ways in which it says previous government policy has exacerbated the 'rising trend in family breakdown':
  • By penalising couples in the welfare benefits system;
  •  
  • By focusing resources on the consequences of relationship breakdown, rather than prevention of relationship breakdown; and
  •  
  • By "an antagonistic child maintenance system that does not encourage people to make family-based arrangements".
You can read IDS's speech here, and the report itself, here.

Monday, March 12, 2012

The arguments against gay marriage







[See also this post.]

Adoption myths busted

The Government is due to launch its much-vaunted Adoption Action Plan this week. Ahead of that, here is a video recently published by the Department for Education, which seeks to deal with common myths related to adoption. Nothing new here for family lawyers, but I thought it was worth publicising:

LoreCast for the week to the 12th March 2012


Natasha and I bring you the top family law news stories and cases from the last week, in a short, easy-to-listen podcast:



(Those without Flash can listen here.)

Saturday, March 10, 2012

Something for the Weekend: Abdullah Ibrahim (Dollar Brand) - Soweto

I heard this during the week, for the first time in many a year. Although this video doesn't play the complete track, the images accompanying it are excellently chosen. If you do nothing else this weekend, listen to and watch this - I promise you will feel uplifted.

Friday, March 09, 2012

BLEAK SPOUSE: Chapter 2 – In Defamation


AT THE OFFICES of Messrs. Venal & Grabbit, Solicitors. Edgar Venal is instructing his trainee D’Arcy Downtrodden to draft defamation proceedings against Matt O'Gridley.

"I want him ground into the dust." Says Edgar.

"U-Understood, M-M-Mr Venal." Stammers D'Arcy in reply.

"One million pounds in damages should make him ponder before he opens his nasty little mouth again, don't you think?" Asks Edgar.

"W-Well, quite, Mr Venal." Replies D'Arcy, wondering where on Earth O'Gridley might find such a sum.

Edgar's telephone rings. It is his secretary Brunhilde. "Sir Basildon and Lady Wedlock are here, Mr Venal." She says.

Edgar puts the phone down and, with a dismissive wave of his hand, sends D'Arcy away. D'Arcy collects up his papers, drops them, collects them up again, and scurries from the room.

Sir Basildon Wedlock is Venal & Grabbit's richest, and therefore most important, client. He is a hedge fund manager in the City, said to have earned a cool £3 billion last year, although he claims it was far less. Edgar does not wish to keep him waiting, and instructs Brunhilde to show him in immediately.

"Sir Basildon and Lady Virginia Wedlock." Announces Brunhilde, as they enter Edgar's room.

"Do take a seat", smiles Edgar, noticing that Lady Virginia is even better looking in the flesh than in her many pictures in the media. Not bad for a woman in her forties, he thinks. Lady Virginia, however, looks totally disinterested in the proceedings. She has accompanied her husband to London from their country estate merely so that they can spend the rest of the day shopping in Harrods. Lady Virginia enjoys the good life.

"I have come to see you about a most serious matter." Proclaims Sir Basildon, his furrowed brow emphasising just how serious.

"Oh?" Replies Edgar, trying to sound suitably grave.

"Yes," says Sir Basildon, "I am being defamed by someone on Twitter."

Edgar raises an eyebrow. He notices that Lady Virginia is staring absently out of the window.

"Yes," continues Sir Basildon, "an anonymous err... 'tweeter' - I think that's the word - keeps accusing me of doing him out of his fortune. He says that he used to work in the City and that I was responsible for him losing all his money when the crash came, by giving him bad investment advice. Complete nonsense, of course, but it is damaging my good reputation."

"Do you have any idea who it is?" Enquires Edgar.

"No. I've given investment advice to so many people over the years, I couldn't possibly remember them all."

"I see. Then what is this man's Twitter name?" Edgar asks.

"'BigWad123'." Replies Sir Basildon.

At that moment Lady Virginia turns sharply to stare at her husband, her face suddenly pale and worried. "Did you say 'BigWad123'?" She asks.

"Yes, my darling," replies Sir Basildon. "What of it?"

Lady Virginia slumps forward in a faint, her hand catching Edgar's desk, stopping her from falling to the floor. She has clearly been taken unwell. Edgar calls Brunhilde, and asks her to escort Her Ladyship to the ladies' room.

Edgar notes events with interest.

*            *              *

As Sir Basildon and a recovered Lady Virginia leave the office, they bump into William Piranha, a young private investigator who has arrived to receive instructions from Edgar in connection with the matter of Lucrative v Lucrative. With a lurid smile, Piranha acknowledges Lady Virginia's good looks.

Thursday, March 08, 2012

News Bites: New rules, and support for children of divorce

Just a couple of quick news items:

Firstly, the Family Procedure (Amendment) Rules 2012 have been published, amending the Family Procedure Rules 2010. I can't see anything of earth-shattering importance in the amendments (most of them seem to correct errors or omissions in the 2010 rules), but obviously all practitioners are advised to have a glance at the explanatory note, if nothing else. The new rules will come into force on the 6th April.

Secondly, Family Law has today published an article by the founders of a kidspace, the support programme for children going through divorce or separation. The title of the article is a quote from leading child and adolescent psychiatrist Sebastian Kraemer: "There is a conspiracy of silence against the painful effects of divorce". I'm not sure that there is any "conspiracy", but clearly more support for children of divorce is needed in this country, and the programme developed by a kidspace (which is intended for all children, not just those whose parents can afford it) is to be welcomed.

International Women's Day

To coincide with International Women's Day, seven short films by Yorkshire artist Beverley Addy inspired by abusive relationships will be played in pubs, hairdressers, shops and other public places around Huddersfield and beyond from today. The films, called Lives, will contain harrowing images of abuse against women and are intended to stimulate debate about domestic violence. For more details, see this article in The Guardian and the films' Facebook page. I've not seen the films, but here is the trailer, which gives an impression of what they will be like:

Wednesday, March 07, 2012

The Family Justice Modernisation Programme: Third update of Mr Justice Ryder

Mr Justice Ryder
Mr Justice Ryder's third update on the Family Justice Modernisation Programme has been published. In it, he concentrates on the changes and improvements which the judiciary can bring about in the family courts, and says that he has begun to look at what he calls ‘quick-wins’, i.e. those changes which it is agreed should be made without delay and where changes in legislation may not be necessary.

He details progress achieved in relation to the ten 'workstreams' he identified in his first update, including:
  • That the proposed national Family Justice Board is expected to be launched by Government in April 2012.
  •  
  • That he is confident that it will be possible during 2012 to provide reliable data from court hearings and about the volume and type of work that takes place in the family courts (the new data collection and reporting systems will be the object of a national pilot beginning in April).
  •  
  • That the government is expected to create a statutory Family Court within the next year.
  •  
  • That with regard to case management, he is recommending "evidence-based plain language pathways which set out the expectations the court has of the parties and the expectation the parties may have of the court as to how family cases will be managed". A "statement of inquisitorial principle" is being considered. He also recommends the creation of standard and exceptional case tracks, with guidance in the form of a pathway that describes how some cases can and should be completed within 26 weeks.
  •  
  • That he is "working closely with Government lawyers and the Family Proceedings Rules Committee to identify rule and/or Practice Direction changes to give more clarity about when it is appropriate to appoint an expert and to ensure that the work commissioned from experts is necessary and relevant to the issues to be decided by the court".
He concludes with the proviso that "some of these recommendations will develop and change over time".

Personally, I can't see anything wrong with this clothes label...

[Via BuzzFeed]

Tuesday, March 06, 2012

Only A Fool would take on Edgar Venal in Divorce Court...

Checkmate!

Arbitration: No alternative to litigation?

Miles Geffin
Further to this post, I was interested to see this article in Solicitors Journal yesterday, in which Miles Geffin, a legal director in Mishcon de Reya’s family department, expresses the view that the new family arbitration scheme is no alternative to litigation. (Note that the article may only be available for non-subscribers to view for a few days.)

Whilst he welcomes the availability of alternatives to traditional litigation in the family law arena, Geffin raises three concerns about family arbitration:

Firstly, the point that has already been made, that it is doubtful whether any award made in arbitration can be fully binding. "Whether or not the award is contractually binding", he says, "it will still need to be subsequently approved by a judge before it can be converted into an enforceable order of the court." As I indicated in my previous post, I agree with this assessment.

Secondly, a point that I have not seen raised elsewhere, he says that: "...the scheme offers no independent organisation that is mandated to investigate complaints about the arbitrators’ appointments process or where allegations are made concerning the arbitrators’ conduct." I'm not sure of the validity of this argument - I would have thought that most people going to arbitration would be satisfied that the Institute of Family Law Arbitrators could deal with any such issues, not that they are likely to consciously consider such matters,

Lastly, he considers "the most significant issue" to be whether there will be much of an uptake for arbitration as an alternative to litigation. He points out that in the commercial sphere, where arbitration has been particularly successful, parties will contract into arbitration when they negotiate the terms by which they are conducting business. With divorce, he says, the only opportunity to agree to arbitration in advance would be in a pre-nuptial agreement, but few couples would include such a term in a pre-nup, and very few couples enter into a pre-nup anyway. I'm not too sure that the use and contents of pre-nups will have much bearing, but I do fear that take-up for arbitration will be low, and limited to those of higher means.

Geffin expresses doubt whether, given his first two points above, lawyers will advise their clients to go to arbitration rather than litigate. I suspect that that may be putting it rather strongly - I'm sure many solicitors would be happy to suggest arbitration, in appropriate cases. Geffin does conclude, however, by acknowledging that arbitration "may prove to have a significant part to play in the resolution of family dispute[s]." Indeed it may.

Monday, March 05, 2012

Fisher Meredith LLP v JH & Anor: The obligation to join a third party

Mr Justice Mostyn
In Fisher Meredith LLP v JH & Anor [2012] EWHC 408 (Fam) Mr Justice Mostyn considered an appeal against a wasted costs order made against the wife's solicitors in financial remedy proceedings.

The case involved a company in which the husband had been allocated shares, which he claimed he had only ever held as a nominee for his uncle "and/or" his uncle's brothers. He transferred the shares to his uncle's wife shortly before the parties separated. The wife applied for ancillary relief and sought a reversal of that transfer, under s.37.

Just two clear business days before the (5 day) final hearing of the wife's applications the aunt's solicitors served the wife's solicitors with 123 pages of further documents, which had been very heavily redacted, which related to events in 1998 when the company had been formed. On the day of the hearing, the aunt's skeleton argument was served, asserting that it was "incumbent on W to join the beneficiaries", without whom she could not ask the court to make any findings as to the beneficial interests in the shares

Accordingly, at the hearing counsel for the wife sought an adjournment, as the point of the skeleton argument was that even if the court set aside the share transfer, that would not affect the beneficial ownership of that shareholding, because it was held for persons who were yet to be specified. Both the husband and the aunt agreed to the adjournment, provided the wife paid the costs thrown away, and that a wasted costs order was made against the wife's solicitors, on the basis that they had failed to join the beneficiaries.

A wasted costs order was duly made by District Judge Bassett-Cross, with the costs estimated at over £100,000. The wife's solicitors appealed.

Referring to his own judgment in TL v ML & Ors [2005] EWHC 2860 (Fam), Mr Justice Mostyn stated that it was essential in every instance where a dispute arises about the ownership of property in ancillary relief proceedings between a spouse and a third party, that the third party should be joined to the proceedings at the earliest opportunity. However, that judgment said nothing as to who should achieve the joinder. He found (at paragraph 42) that:
"...there is a clear distinction to be drawn between the state of affairs where a claimant is saying that a property held in the name of a third party is the property of the respondent; and the situation (as here) where the respondent says that property to which he has legal title is beneficially owned by a third party."
In the former case, there was a clear obligation on the claimant to apply to join the third party. In the latter situation, the duties were by no means so clear cut.

After examining the argument of counsel for the aunt and the judgment of District Judge Bassett-Cross, Mr Justice Mostyn concluded (at paragraph 58):
"In my judgment the findings and criticism made against [the wife's solicitors] are wholly untenable. All of W, H and [the aunt] had assented either expressly or tacitly to the preliminary issue being determined without joinder of other members of H's family. If this was the wrong decision then in my judgment the blame falls primarily and equally on (i) H for not inviting other members of his family to intervene, (ii) [the aunt] for not suggesting the same to her husband and other family members and (iii) the family members for not intervening to protect their (alleged) property."
In the circumstances, the judgment and award of the District Judge were set aside in their entirety.

LoreCast for the week to the 5th March 2012


You've guessed it: Natasha and I bring you the top family law news stories from the last week in a short, easy-to-listen podcast.



(Those without Flash can listen here.)

Saturday, March 03, 2012

Something for the Weekend: The Monkees - "Pleasant Valley Sunday"

I was saddened to hear of the death of Davy Jones during the week, not because I was a particular fan of the Monkees (I am a Beatles man), but because of the loss of another small part of my childhood. Growing up in the late sixties, I remember watching The Monkees on TV on Saturday evenings, with the rest of the family. By way of tribute, here is my favourite Monkees song. Pleasant Valley Sunday is perhaps slightly more serious than most of their other songs, a social commentary on status symbols written by Gerry Goffin and Carole King:

Friday, March 02, 2012

BLEAK SPOUSE: Chapter 1 – In the Family Division


LONDON. Michaelmas Term lately begun, and the President of the Family Division Sir Nicholas Brick-Wall sitting in the Royal Courts of Justice. Implacable October weather. As many puddles in the streets as if the waters had but newly retired from the face of the earth, and it would not be wonderful to meet a train of Chelsea tractors, waddling like an elephantine lizard up Holborn Hill. Pedestrians, jostling one another’s umbrellas in a general infection of ill-temper, struggle to find their way in the fog.

The raw afternoon is rawest, and the dense fog is densest, near the Temple. And opposite the Temple, at the heart of the fog, sits the Royal Courts of Justice.

Who happen to be in the President's court this murky afternoon? Why, it is the suit of Lucrative v Lucrative, in which the wife Michelle Lucrative seeks once more to persuade the court that her former husband Scot Lucrative has salted away assets, to prevent her from receiving her just divorce settlement. She is appealing the decision of the court below, which found that he had not arranged for a banker friend to make his money "disappear", as she alleged. Her appeal, alas, is hopeless.

Scot Lucrative has instructed Edgar Venal, Senior Partner at Venal & Grabbit, and Edgar in turn has instructed Quentin Pompous-Arse QC to represent Scot.

Lucrative v Lucrative has passed into a joke in the Family Division, having been before the court on so many occasions, over so many years. That is the only good that has ever come of it, save of course for the costs that it has earned Venal & Grabbit. The last President, Sir Mark Potty, handled it neatly when an eminent silk before him, referring to the likelihood of the Child Support Agency completing their assessment within a year, suggested that "pigs might fly". "Or Lucrative v Lucrative might settle", observed Sir Mark, to the amusement of all lawyers in court.

The present President spies the renowned Edgar Venal in his court. "Ah, I see Mr Venal is in court!" He says.

Edgar Venal slowly turns towards the President, and looks him squarely in the face with his piercing eyes. "My Lord." He says, with a slight nod.

Edgar's look is so intense that the President is slightly unnerved.

*            *            *

Lucrative v Lucrative drones on. The President is explaining to Mrs Lucrative that her case is hopeless, when there is a disturbance at the back of the court.

A dishevelled man has entered the room. A groan of "Not him!" goes up as he is recognised as the infamous father's rights protester Matt O'Gridley. He begins shouting a tirade of abuse, directed initially at the President.

"What about my f-ing case!" He cries. "When will I get justice?"

The President looks at him wearily, but does not reply.

Undaunted, O'Gridley continues: "I've been trying to see my kids for six years, but this corrupt and biased so-called family justice system has stopped me seeing them. Where's the bloody justice in that?"

The President again chooses to remain silent. He knows that there is no point attempting to reason with such a person.

O'Gridley then spies Edgar Venal. "Him!" He screeches, pointing at Edgar, his voice reaching falsetto levels as his temper gets the better of him. "He's the worst! He represented my vindictive ex-wife, and invented all sorts of false accusations to make sure I didn't see my kids! He's a lying bastard, that one!"

Edgar gives the President a look that says: "Get rid of this awful man." The President unconsciously finds himself compelled to comply with Edgar's wishes. He gestures towards an usher, who begins to man-handle O'Gridley out of the court.

"It's all a f-ing conspiracy, I tell you!" O'Gridley is heard saying, as he is dragged from the room.

Thursday, March 01, 2012

A Little-Known Fact


It is a little-known fact that Venal & Grabbit have been in existence for more than 150 years. The original firm, Venal & Co., was established by Edgar Venal's great-great-grandfather Josiah Venal in 1857, to take advantage of the boom in divorce work caused by the passing of the Matrimonial Causes Act of that year. He would often appear before Sir Cresswell Cresswell in the Court for Divorce and Matrimonial Causes.

What is even less well known is who Josiah was articled to prior to setting up his own firm. Josiah learned much from his Principal, and those lessons have been passed down to his great-great-grandson...

News Brief: A warning, a concession and an increase


Three stories in the news in the last couple of days:

The National Audit Office has warned that plans by the Child Maintenance and Enforcement Commission to reduce its spending are "high risk". They say in their latest report that there is already a £44 million shortfall in the £161 million reduction originally expected by 2014-15, and that the Commission is reliant on raising £71 million in fee income from parents as part of its planned savings. These estimates are very uncertain, they say, increasing the risk that additional cuts might be needed late on in the Spending Review that could have an adverse effect on services. As the Guardian says, the report will concern ministers at the Department for Work and Pensions and officials at the commission. You can read the full report here.

As the Guardian also reports, more victims of domestic violence will be entitled to legal aid, following 'significant concessions' by the Ministry of Justice to its legal aid bill. The amendment adopts the definition of domestic violence used by the Association of Chief Police Officers ('ACPO'), acknowledging that as well as physical abuse, psychological abuse, emotional abuse and financial abuse through bullying a partner by controlling their finances will all be regarded as domestic violence. The amendment has been welcomed by Resolution Chair David Allison, who said in a news release:
"We are pleased that the Government has finally decided to adopt the almost universally-accepted ACPO definition of domestic violence. However, while they may have amended the definition, they have not yet changed the evidence gateway criteria that determines whether victims actually receive the protection of legal advice and representation, when dealing with the consequences of their divorce or separation. The Government has said today that mediation is unsuitable for victims of domestic violence – in which case they need to amend the gateway criteria before this Bill goes back to the Commons."
Lastly, a little good news for future divorce lawyers: the latest figures from the Office for National Statistics show that the (provisional) number of marriages in England and Wales in 2010 increased by 3.7 per cent, to 241,100, and that the (provisional) marriage rate increased to 8.7 people marrying per thousand unmarried population aged 16 and over, up from 8.5 in 2009. The figures also showed a surge in middle-aged couples deciding to tie the knot. However, before the Tory masses get too excited about the rise in popularity of marriage, the ONS urges caution:
"It is not possible to determine at this stage whether the small rise in the provisional number of marriages in 2010 signifies an end to the long term decline of marriages or whether such increases will continue."
 You can find all the thrilling details in the ONS's Statistical Bulletin.