Thursday, May 31, 2012

Aspden v Elvy: Ascertaining the common intention

Leeds Combined Court Centre
The recent case of Aspden v Elvy [2012] EWHC 1387 (Ch) is an example of the application of the principles in Jones v Kernott.

The Facts: The parties met in 1985. In 1986 Mr Aspden purchased Outlaithe Farm, which comprised a farmhouse, a number of outbuildings, a derelict barn with planning permission for conversion to a dwelling and about 6 acres of land. The parties began cohabiting shortly after this, and there were two children of the relationship, both of whom are now grown up.

The parties separated in late 1995 or early 1996. Ms Elvy left Outlaithe Farm with the two children and went to live nearby. By a Transfer dated 21 January 2006 Mr Aspden transferred Outlaithe Barn (which included almost the whole of the land which had been comprised in Outlaithe Farm save for the farmhouse itself) to Ms Elvy. There was considerable dispute as to the circumstances of the transfer and the parties' intentions at that time (set out in detail at paragraphs 58 to 64), but essentially Mr Aspden maintained that there was a common intention that he should retain an interest in the barn. Ms Elvy denied that there was any such intention.

Following the transfer Mr Aspden remained living at the farmhouse until it was sold in January 2008. Mr Aspden received about £188,000 from the sale, after discharging creditors. Thereafter he lived in a static caravan situated (with Ms Elvy's consent) on part of the land within the curtilege of Outlaithe Barn.

Steps were taken to convert Outlaithe Barn into a dwelling-house. Mr Aspden made a substantial financial contribution to the cost of the conversion works but the extent of the contribution was disputed. Mr Aspden contended that the payments he made were pursuant to a common intention that the parties would marry and cohabit as a family, or a belief on his part that that was the position. Ms Elvy contended that there was never any common intention that they would marry or cohabit, and that the payments were gifts to her in recognition of her contributions to the family, and in respect of her interest in Outlaithe Farm.

Mr Aspden put his case on the basis of a constructive trust and/or proprietary estoppel. Ms Elvy contended that she was the absolute owner of Outlaithe Barn and denied that any proprietary estoppel arose.

The Decision: The case was heard by His Honour Judge Behrens, sitting as a Judge of the High Court in Leeds. After going through the facts in detail, he set out the relevant law at paragraphs 92 to 101 of his judgment. In particular, he referred to Stack v Dowden and Jones v Kernott, the recent authorities on the beneficial entitlement to a shared home. As he pointed out, both of these were joint names cases, but there are passages in the speeches which refer specifically to the situation where the legal title is vested in one person. In particular, in paragraphs 16 and 17 of the judgments of Lord Walker and Baroness Hale in Jones v Kernott they said:
16. …To the extent that we recognise that a "common intention" trust is of central importance to "joint names" as well as "single names" cases, we are going some way to meet that hope. Nevertheless it is important to point out that the starting point for analysis is different in the two situations. That is so even though it may be necessary to enquire into the varied circumstances and reasons why a house or flat has been acquired in a single name or in joint names…

17. The starting point is different because the claimant whose name is not on the proprietorship register has the burden of establishing some sort of implied trust, normally what is now termed a "common intention" constructive trust. The claimant whose name is on the register starts (in the absence of an express declaration of trust in different terms, and subject to what is said below about resulting trusts) with the presumption (or assumption) of a beneficial joint tenancy.
As to proprietary estoppel, Judge Behrens referred to the three elements identified by Lord Walker in Thorner v Major: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance.

Judge Behrens then set out his findings, including the following:

1. That on the crucial issue of the parties' intentions at the time of the transfer, he preferred the evidence of Ms Elvy, and that therefore the transfer by Mr Aspden was and was intended to be an outright transfer of his legal and beneficial interest in the barn (paragraph 118).

2. That on the issue of the financial contribution to the cost of the conversion works, he preferred Mr Aspden's evidence, and found that his contribution was between £65,000 and £70,000 (paragraph 122).

3. That he could not accept that the proper inference was that the contributions were intended to be gifts (paragraph 124) - if that was the intention Mr Aspden would have left himself nowhere to live except the caravan.

4. The proper inference from the whole course of dealing was that there was a common intention that Mr Aspden should have some interest in the barn (paragraph 125).

5. That he valued Mr Aspden's interest at 25%, which he felt represented a fair return (paragraph 128).

6. That it was not necessary to consider in detail the claim based on proprietary estoppel, as in his view the result would be the same (paragraph 129).

7. That accordingly, the barn was held by Ms Elvy as to 75% for herself and 25% for Mr Aspden (paragraph 130).

Tuesday, May 29, 2012

Venal & Grabbit deny billing client £300-an-hour to play golf

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

London, 29th May 2012: Leading law firm Venal & Grabbit today denied an allegation that their Senior Partner Edgar Venal had charged a client £300 an hour whilst he was on the golf course.

Litigation Partner Ebenezer Grabbit said: "This vicious allegation is completely without foundation, and libel proceedings will be commenced forthwith. Edgar Venal would never charge any client as little as £300 an hour."


===ENDS===


Solicitor denies billing client £300-an-hour to play golf - The Telegraph, 29th May 2012

Monday, May 28, 2012

LoreCast for the week to the 28th May 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.)

Sunday, May 27, 2012

This post has nothing to do with family law






A kind of madness is gripping the nation...

I certainly didn't watch it, but last night millions across the country joined in the annual celebration of musical mediocrity that is the Eurovision Song Contest. I read this morning that Sweden won - well, at least they are actually in Europe, I suppose. As for our sad entry, surely the way it fared is a hint that perhaps it is time we took a stand for good music and boycotted the competition.

Next weekend we will all witness the nauseating spectacle of her subjects fawning over one of the wealthiest and certainly most privileged women in the World. That this country still has hereditary monarchy in the twenty-first century is surely a mark of how backward we really are, but it is particularly poignant that in such difficult economic times such a lot is to be spent on celebrating an institution that already costs the taxpayer so much. Perhaps people just want a party to help take their minds off things, but I certainly won't be joining in.

Meanwhile, the Olympic torch carrying circus continues to wend its merry way around the country, stopping people from carrying on their normal lives wherever it goes. I thought that the idea was that ordinary people would get a chance to carry it, but I see that celebrities who have no connection either with the Olympics or even with this country are not missing the opportunity for some cheap publicity. Still, it was good to see that some of the carriers are entering into the true Olympic commercial spirit by selling their torches on eBay...

Saturday, May 26, 2012

Friday, May 25, 2012

Diamond Weeding

BLEAK SPOUSE: Chapter 13 – Mr Smallmind


IN A RATHER ill-favoured and ill-savoured neighbourhood, Reg Smallmind runs his business from his office above the betting-shop. The sign on his door informs his customers that he offers payday loans of up to £1000 at "competitive rates" and points those unlucky enough to visit whilst he is out to his website, www.spondulicks4u.co.uk, where a few clicks will secure them the cash they need to achieve lasting happiness.

Of course, for some unfortunates lasting happiness will cost rather more than £1000. Reg, however, will cater for them too, although he is less eager to publicise this side of his business. It would be somewhat of an exaggeration to describe as "competitive" the interest rates that these unfortunates must pay, and somewhat of an unpleasantness to describe what Reg or his underlings might do to them if they don't.

Reg is, however, a reasonable man. Before he takes enforcement measures against those foolish enough not to keep up with their repayments, he will always pay them a visit, to see if a little mild persuasion might make them see the error of their ways.

Today he is making such a visit; the debtor in question being one Matt O'Gridley.

*            *            *

Reg does not like to be called a 'loan shark', but that is one of the descriptions of him used by Inspector Gormless, others including 'extortionist', 'blackmailer' and 'thief'.

Inspector Gormless and Reg Smallmind have crossed paths on many occasions, usually in the custody suite or at the entrance to the local magistrates' court. These days, the Inspector has his men follow Reg and his underlings as a matter of routine.

So it is that today DCs Razor and Sharp have followed Reg to Bellend House. Having previously seen Reg's underlings snooping around the same location, quick as a flash they come to the conclusion that 'something must be going on' there.

Accordingly, they report back to Inspector Gormless, who responds like any good police officer by having a surveillance camera set up outside Bellend House.

*            *            *

Three days later Inspector Gormless is viewing the first surveillance tape from the camera.

"Hello, hello." He says, resisting the temptation to repeat the word a third time. "Who have we got here?"

Who we have got is Matt O'Gridley, caught on the camera leaving Bellend House. He is clutching a plastic bag full of papers, and appears to have a recently-acquired black eye.

Theresa May comes Out4Marriage

The best thing she's done yet (the only good thing she's done?):

Thursday, May 24, 2012

Culture change in child protection system

Further to my post on Tuesday, here is a DfE video in which Professor Munro discusses the changes in the child protection system:

Wednesday, May 23, 2012

Statistics of separation and divorce

"Separation", Edvard Munch

An interesting little article on the statistics of separation and divorce, found in USA Today, via the Family Law Prof Blog. The statistics come from research done at Ohio State University and obviously therefore refer to couples in America, but they seem to tally with my own experience over here. Points of note include:

  • About 79% of married couples who separate end up getting divorced;
  •  
  • Separation is very common and is more common than immediate divorce;
  •  
  • Most separations last one year or less, but a few drag on a decade or more before ending in divorce;
  •  
  • The decision to separate is driven by time spent in the first marriage, and for women, by the presence of young children;
  •  
  • The average length of a first separation is about four years, and for respondents who divorce after separating, it's three years; and
  •  
  • After three years, the only outcomes observed are ongoing separation or divorce, i.e. no reconciliations.

Tuesday, May 22, 2012

Update on the implementation of the Munro review


As anticipated, the Department for Education has today published an update on the implementation of the Munro review of the child protection system. The full press release reads as follows:

Munro: Child protection reforms welcomed but pace needs to be accelerated

Professor Eileen Munro, author of the Government’s review of the child protection system, today said a “culture change” was underway in the child protection system but outlined an urgent need to now accelerate reforms to create a more child-centred system.

She said reforms had reached a “watershed moment” but, while progress is moving in the right direction, it now needs to move faster with more prescription and bureaucracy stripped away so social workers are able to focus on giving children and young people the help they need.

Professor Munro said social workers must be confident to use their judgment instead of applying rules that do not match a specific child’s needs.

Professor Munro said:

This report shows an urgent culture change in our child protection system is now underway. We are finally moving away from the defensive rule-bound culture that has been so problematic.

Reforms are rightly moving the focus of help and protection firmly onto children and young people and away from excessive bureaucratic demands.

What is particularly encouraging is that some local authorities are already developing innovative ways of working that are enhancing the quality of help received by families.

I believe there are many front line managers and social workers who now have the confidence to exercise their judgment and provide effective help, based on the individual needs of a child. However, I am concerned there are also some who are uncertain how to do this and I hope the examples of good practice that I have included in this report will lead further change.

Professor Munro highlights the following progress in her report:

  • The removal of fixed assessment timescales. The experience of the trial authorities who were granted exemptions from these statutory timescales has been positive. They report that the additional flexibility has encouraged better, more thoughtful working practices, and better and clearer consideration of priorities.
  • Ofsted’s revised child protection inspection framework. This rightly focuses on the impact and effectiveness of help and protection for children, young people and their families.
  • The report has found many encouraging examples of services working together and with social services to provide better understanding of children’s needs.
  • Important improvements are already being made to initial education, in selecting the right people and training the next generation of social workers.
  • The Government has taken steps to appoint a Chief Social Worker and local authorities are now starting to recruit Principal Social Workers to their teams.

The report calls for faster progress in the following areas:

  • A reduction in statutory guidance so that there is more scope for professional and local autonomy. There has been a delay in implementing these changes, due to the need for proper public consultation. Once this has been removed services should be better placed to work together to offer improved early help.
  • The Government needs to encourage better understanding between services as reforms take place in health and policing.
  • The importance of implementing all the proposed reforms together in full. Implementing these reforms as a whole will give professionals the scope and skills they require to better protect children.

Welcoming the report Children’s Minister Tim Loughton said:

I am pleased to hear that our reforms are beginning to fundamentally change the child protection system and we now need to make sure they are implemented as quickly as possible. We agree the pace of reform now needs to be accelerated and are committed to creating a system that is sustainable in the long term.

This report shows progress is being made towards freeing hardworking social workers and other professionals from excessively restrictive structures, procedures and rulebooks so they can do their best for vulnerable children and their families. It is encouraging to see evidence in Professor Munro’s report that services are increasingly stepping in early, rather than waiting for problems to escalate.

These reforms go to the heart of our child protection system and require a new mindset and a new relationship between central Government and local services. We are committed to keeping up momentum and doing everything we can to get the right mechanisms in place and to strengthen public confidence. But this is about putting the power of decision making back into the hands of local authorities and they all need to step up to the challenge and be strong and confident leaders who are ready to innovate.

*            *            *            *            *

The report itself can be found here.

A response by Barnardo's can be found in this press release.

Professor Munro also gives an insight into the reforms to date on Children & Young People Now.

Monday, May 21, 2012

LoreCast for the week to the 21st March 2012


Once again 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, May 19, 2012

Inflammatory

Something for the Weekend: Jimi Hendrix - Hey Joe

Heard during the week. Still literally makes the hairs stand up on the back of my neck (despite the bad miming):



Hey Joe, where you goin' with that gun in your hand?
Hey Joe, I said where you goin' with that gun in your hand?
I'm goin down to shoot my old lady,
You know I caught her messin' 'round with another man.

Friday, May 18, 2012

Establishment of a Family Court

The Family Justice Review of course recommended the establishment of a single family court, with a single point of entry. That recommendation was accepted by the Government and, as ObiterJ of Law and Lawyers has explained, the recommendation is to be given effect by the Crime and Courts Bill.

You can find the draft Bill here, and explanatory notes here. I don't propose to go through the relevant provisions of the Bill in depth as many of them are quite tedious, but here are the main points:

Clause 17 inserts a new Part 4A into the Matrimonial and Family Proceedings Act 1984, section 31A of which establishes the family court.

Schedule 10 sets out the detail. Part 1 adds further sections to Part 4A of the Matrimonial and Family Proceedings Act 1984. These include:

  • Section 31C, which essentially makes everyone who presently deals with family cases, from the Lord Chief Justice down to magistrates, into a judge of the family court.
  •  
  • Section 31D, which provides for the making of rules as to the composition of the family court and the distribution of business among judges of the court (certain 'lower' judges may be prohibited from conducting specified business).
  •  
  • Section 31E, which enables the family court to make any order that could be made by the High Court if the proceedings were in the High Court, or any order that could be made by the county court if the proceedings were there.
  •  
  • Section 31F, which bestows on the family court certain powers relating to hearings and orders that mirror existing powers contained in the County Courts Act 1984 and the Magistrates’ Courts Act 1980.
  •  
  • Section 31I, which provides that the High Court may transfer proceedings pending in the family court to the High Court, where it considers it desirable to do so.
  •  
  • Section 31K, which deals with appeals.
  •  
  • Section 31L, which deals with the court's enforcement powers.

Part 2 of Schedule 10 makes amendments to other enactments arising out of the creation of the family court, principally to enable existing family legislation to apply to proceedings in the new family court.

Part 3 of Schedule 10 lists repeals and revocations to legislation in consequence of Parts 1 and 2 of the Schedule.

Finally, Schedule 11 makes amendments to legislation providing for the transfer of jurisdiction to the family court. As the notes state, principally these amendments reflect the fact that the county court and magistrates’ courts will no longer deal with family proceedings and to transfer their family jurisdiction to the new family court.

BLEAK SPOUSE: Chapter 12 – Mr Gormless


AT THE OFFICES of Messrs. Venal & Grabbit, Solicitors. Edgar Venal is sitting at his desk pondering how he might make certain assets belonging to a divorce client 'disappear' so that the client's wife will not get her hands on them, when the phone rings.

It is his secretary Brunhilde. "A young woman has just come into reception. She says she has some information for you that you may find interesting. She says she must tell you in person." Says Brunhilde.

Edgar's interest is certainly piqued. He closes the file he is looking at and tells Brunhilde to show the woman in.

The woman is young. She is attractive, but is wearing a cheap coat. She speaks with a thick Russian accent. Edgar recognises her as Elena Brezhnev, au pair for Sir Basildon and Lady Virginia Wedlock. She tells him that she is no longer in their employ.

"Why did you leave?" Asks Edgar.

"I deed not leave," replies Elena, "Lady Vedlock deesmeesed me."

Edgar's interest piques a little more. "Oh," he says, "why was that?"

"She zinks zat I seeduced Sir Basildon, but eet ees not true - he tried to seeduce me!" Exclaims Elena.

Edgar's interest piques yet more. "I see," he says, "but what is this information you have for me?"

"Eet ees about Lady Vedlock." Replies Elena. "Zee other day she took zis coat from my vardrobe and left Vedlock House vearing eet. She voz up to sometheeng - maybe she ees seeing another man."

Edgar's interest reaches maximum pique. This could have possibilities. He thinks. "So vy - err, I mean why - are you telling me this?" He asks.

"I hate Lady Vedlock." Answers Elena. "She has made sure zat I vill never get another job een Eengland. I vill have to reeturn to Russia - how vould you like to live een Moscow?"

"Well, quite." Replies Edgar.

Edgar thanks Elena. When she has left he rings Piranha to tell him the news.

As he puts the phone down there is a timid knock on his door. It is his trainee D’Arcy Downtrodden, who has finally issued the defamation claim against Matt O'Gridley.

"A-all w-we n-need t-to d-do now is find him and serve the claim on him, M-M-Mr Venal." Says D'Arcy.

Edgar thinks that D'Arcy's stammer is getting worse. "Don't worry," he says, "I have an idea as to how we will do that."

D'Arcy looks relieved. Edgar dismisses him from the room and picks up his phone again.

This time he rings Police Inspector Gormless. The Inspector owes Edgar a favour, after Edgar represented him in his divorce, and made sure Mrs Gormless never found out the true value of his police pension. Edgar decides it is time to call in the favour. Gormless may not be the sharpest truncheon in the force, but Edgar thinks even he should be capable of locating Matt and serving the defamation claim upon him.

Thursday, May 17, 2012

S (A Child) and B (A Child): Too much haste...

"In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."

We are always being reminded these days of the need to reduce delay in proceedings concerning children. However, two cases reported on Family Law Week yesterday serve as reminders that there can be such a thing as too much haste. In both cases the court made s.8 orders without properly considering the evidence.

In S (A Child) [2012] EWCA Civ 617, a mother successfully appealed against an order for supervised contact that had been made without hearing from the Cafcass officers. The case concerned the father's application for contact with his three year old daughter. The court had made findings of violent conduct by the father against the mother and her 16-year-old son, and had directed a Cafcass report, which recommended supervised contact. As the court indicated it was likely to follow the recommendation, the mother consented to an interim contact order, and an addendum Cafcass report was ordered on the progress of the contact. A different Cafcass officer was appointed to prepare the addendum report and, having met the father in the course of her enquiries, she took a different view of the case and wrote to the judge expressing concerns about supervised contact commencing.

A directions hearing took place, and the mother submitted that the court should hear oral evidence from the Cafcass officers and adjudicate upon what should happen about contact and that until that had been done supervised contact should not proceed. The judge rejected this submission, on the basis that it would cause further delay, and ordered supervised contact to go ahead. The mother appealed.

In the Court of Appeal Lady Justice Black allowed the appeal. She said (at paragraph 34):
"I have very great sympathy with the judge, who had to decide what to do about a most unusual situation, knowing that if he were to accede to the mother's suggested course he would inevitably be delaying the start of contact for a father and daughter who had already not been in contact with each other for a very significant period of time. He would have been aware of the pressures on the court lists and on the time of the Cafcass officers. But I cannot accept that in the exceptional circumstances that he faced it was appropriate to proceed without the attendance of the officers to give oral evidence."
The case B (A Child) [2012] EWCA Civ 632 concerned residence applications by a mother and the maternal grandmother. At a hearing just a few days after the applications were made, the judge made directions for contact, and a residence order in favour of the mother. The grandmother appealed against the residence order, on the basis that it had been made without proper evidence or argument.

In the Court of Appeal Lord Justice Hughes found that the judge had not had the material on which to make the decision that she had (the only documents were the applications), and had heard no real argument about it at all (she had conducted the short hearing entirely by way of judicial question and advocates' answer). She had merely concluded early in the proceedings that it was inevitable that the child would need to live with the mother. Whilst Lord Justice Hughes agreed that this may turn out to be the case, he felt that "the judge in this case out of the best possible motives moved in the end too fast". Accordingly, the residence order was set aside.

In a consenting judgment, however, Lord Justice McFarlane took pains not to close the door to courts taking "a robust and interventionist role", particularly in the light of the pressure on the family courts:
"Where a court is satisfied that it has the material necessary to determine an issue, and after the court has conducted a fair process, albeit maybe a robust and pragmatic process, during which all parties, particularly those who may oppose the order that the court has in mind, have been heard, then there is nothing to prevent a court at an early stage in proceedings making a determination of the sort that was made in this case."

Wednesday, May 16, 2012

Alimony in the US

An infographic on US Alimony, created (for reasons unknown) by UK chartered accountants Saffery Champness, and found on Maryland Divorce Legal Crier. Not all profound ("The spouse with greater earnings or future finance is more likely to pay a higher alimony amount"), but interesting points include the low number of divorced people who receive alimony (I suspect it is even lower here), the increasing number of women who pay alimony and the limitations upon alimony in some states.

Déjà vu

Childhood
I've just returned from a walk into town. On the way back, I decided to take a short detour via a road that I thought I had never been along before, despite living here for most of my life.

As I did so, I was overwhelmed by a sense of déjà vu, taking me way back to my childhood in the 1960s. Whether I had in fact been along that road in my childhood, or whether (more likely) its barely altered Victorian and Edwardian houses simply reminded me of so many streets I knew when I was a child, I could not say.

What has this little story got to do with family law? Well, not a lot, but the experience naturally triggered memories of my childhood generally. I was lucky enough to have a very happy childhood, growing up in a close family, with a sense of absolute security. Unfortunately, as all family lawyers know, not all children are so lucky.

Of course, the fact that I grew up to be a no-good bum should not be seen as any reflection of the childhood that my parents provided for me...

Monday, May 14, 2012

Family Arbitrator: A useful resource


Family arbitration received a somewhat mixed reception when it was launched in February. This was at least in part due to a lack of understanding as to the status of arbitration in a family law context, and as to the exact procedures involved. For this reason, I thought it would be useful to publicise a new resource for information on the subject.

Family Arbitrator is a group of (at present) three qualified family arbitrators, comprising former High Court judge Sir Peter Singer and barristers Gavin Smith and Rhys Taylor. Obviously, Family Arbitrator was established to market their arbitration services, but it also "aims to promote informed understanding of family arbitration principles and to encourage the use of family arbitration as a form of private dispute resolution in finance-related family cases". To this end, their website includes several useful resources that are not available on the Institute of Family Law Arbitrators (IFLA) site.

Those resources include:


All in all, a very useful first point of call for anyone seeking information on family arbitration.

LoreCast for the week to the 14th May 2012


You guessed it: 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, May 12, 2012

Something for the Weekend: Apocalypse Now - Kilgore talks surfing and napalm

The famous line has become something of a cliché these days, but this is still a wonderful scene from one of my favourite films. I particularly love the look on Willard's (Sheen's) face at the end of the clip.

Friday, May 11, 2012

BLEAK SPOUSE: Chapter 11 – Lady Wedlock


GRIM GRANGE. John Jaundiced has decided that the children Clint and Chantelle spend far too much time in front of their PlayStations, so he asks Prissy to take them for a walk in the countryside around the Grange. The request does not go down well, either with Prissy or the children, but John is adamant.

The three young people don their best Nike Air-head trainers and head off into the nearby woods. Soon, however, they are quite lost, as their mobile phones are unable to obtain a GPS signal.

They wander around for what must be minutes, before they are arrested by two burly security guards. Unbeknown to them, they have strayed into the grounds of Wedlock House, and tripped an intruder alert.

The guards take the hapless wanderers to the House. They would normally be brought before Sir Basildon but he is still away on business, so they are brought before Lady Wedlock instead.

As Lady Wedlock descends the stairs to where Prissy is waiting in the Hallway with the children, Prissy thinks her Ladyship looks agitated about something, but Lady Wedlock soon gathers her composure.

Her Ladyship looks at the three youthful captives, pausing momentarily as she regards Prissy.

"Where are you from?" She asks. Her tone suggests she already knows the answer.

"From Grim Grange, Your Ladyship." Replies Prissy, thinking that there is something strangely familiar about Lady Wedlock.

"I see, and how did you come to be in the grounds of Wedlock House?" Asks Lady Wedlock

"We were just out for a walk - we got lost." Says Prissy. She wonders whether she has seen Lady Wedlock somewhere previously.

Lady Wedlock turns to the guards. "I don't think we need detain these young people." She says. "Let them go." She swiftly disappears back up the stairs.

There's something about her. Thinks Prissy.

As the children are escorted from the house, there is a commotion behind them. Another security guard is manhandling a young woman out of a side entrance, and the woman is screaming at him in a language that Prissy does not understand.

What Prissy does not know is that the woman is the au pair Elena Brezhnev. She is also unaware that whilst her husband has been away, Lady Wedlock has found a love note from him to Elena, and has assumed that Elena has seduced him. Lady Wedlock has therefore dismissed Elena from her employ, before Sir Basildon has a chance to stop her.

Thursday, May 10, 2012

W-B (A Child): The complexities of jurisdiction

The recent case of W-B (A Child) [2012] EWCA Civ 592 demonstrates some of the complexities of resolving jurisdictional issues within the United Kingdom.

The case involved a mother who, in 2006, removed the child from England to Scotland, without the consent of the father. The father immediately issued proceedings for residence and contact in the Southend County Court, where the following subsequent orders and applications were made:

April 2008 - Residence order in favour of mother (the father accepted that the child became habitually resident in Scotland in or around 2006).

11th March 2009 - Contact order.

15th July 2010 - Father applied to vary the contact order (he also sought a contact enforcement order, but such orders are only available against anyone habitually resident in England and Wales - see Children Act 1989, s.11K(4)).

28th July 2010 - Mother applied to discharge the contact order.

22nd February 2011 - Consent order made providing for variation of the contact order, with a review in September 2011.

June 2011 - Father applied for a residence order and to vary the consent order.

September 2011 - At the hearing of the father's application, the mother raised the issue of jurisdiction. Initially Brussells II was erroneously referred to but that is not of course relevant, as both England and Scotland are part of one member state, namely the United Kingdom. However, the Family Law Act 1986 is relevant. Under that Act, the crucial question is the habitual residence of the child at the 'relevant date'. The court found that the relevant date for determining the court's jurisdiction was the beginning of the whole process, namely the applications made by the father in 2006, at which time the child was not yet habitually resident in Scotland. Accordingly, the English court had jurisdiction throughout. The mother appealed against this decision.

Giving the leading judgment in the Court of Appeal, Lord Justice McFarlane began by referring to the relevant provisions in the 1986 Act. Firstly, under s.1(1)(a) a section 8 order made under the Children Act is "a Part 1 order" to which the relevant provisions apply. Jurisdiction is dealt with under s.2, which states that a court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless it has jurisdiction under the Council regulation, or the Council regulation does not apply but the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of the Act is satisfied, or the condition in section 3 of the Act is satisfied. Here, s.3 was the relevant provision, and that essentially states that on the 'relevant date' the child must be habitually resident in England and Wales.

The 'relevant date' is defined in section 7(c):
"'the relevant date' means in relation to the making or variation of an order –
(i) where the application is made for an order to be made or varied, the date of the application (or first application, if more are determined together), and
(ii) where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order"
Lord Justice McFarlane then referred to one other relevant provision, s.41, which deals with the issue of habitual residence where, as here, the child had been removed without consent. In such cases s.41 provides that the child should be treated as still being habitually resident in the original part of the United Kingdom for one year after their removal.

Applying the above, His Lordship found that, pursuant to s.41, the English court had jurisdiction to deal with the original proceedings in 2006. However, those proceedings came to an end when the contact order was made in March 2009. Accordingly, all further proceedings were without jurisdiction as the relevant date for them was the date of the application under s.7(c)(i), by which time the child was habitually resident in Scotland. His Lordship therefore allowed the appeal and set aside any orders made by Southend County Court since March 2009, leaving the March 2009 contact order in force. Any further applications would have to be made before the court in Scotland.

Lord Justice Hughes and Lord Justice Thorpe gave concurring judgments.

Seems reasonable...

[Found here.]

Wednesday, May 09, 2012

The Queen's Speech: As anticipated


Considering that it was heralded as having a family-friendly agenda, the Queen did not say that much about families in her Speech to Parliament today. This is what she said:
"My Government will strive to improve the lives of children and families.

My Government will propose measures to improve provision for disabled children and children with special educational needs. New arrangements will be proposed to support children involved in family law cases, reform court processes for children in care and strengthen the role of the Children’s Commissioner.

Measures will be proposed to make parental leave more flexible so both parents may share parenting responsibilities and balance work and family commitments."
I understand, however, that these measures will be contained in a new Children and Families Bill. I also understand that the following matters of note (but no surprise) to family lawyers are on the agenda:

  • A speeding-up of the adoption process, particularly for ethnic minority children;
  •  
  • Reforms to the family justice system to speed up care proceedings so no cases take more than six months; and
  •  
  • A consultation on legal options to strengthen the law to ensure that, "where it is safe and in the child's best interests", both parents are able to have a relationship with their children after they separate.

As anticipated, the Queen's Speech did not include a Bill to introduce gay marriage.

*          *          *

UPDATE: You can find details of the Bill in this DfE press notice.

Press Release: Government support for shared parenting is the right way forward

I have received the following press release from the Centre for Separated Families:

Government support for shared parenting is the right way forward

Family separation charity, the Centre for Separated Families, has welcomed the government's proposals to encourage more shared parenting arrangements after separation.

Commenting on the announcement, Karen Woodall, Director of the Centre for Separated Families said:

'We believe that the government's intention to introduce a legislative statement into the Children Act (1989) is by far the most appropriate way to support children's ongoing relationships with both parents after divorce or separation.'

'All the evidence shows that the children who adjust most successfully after family separation are those who are able to maintain meaningful relationships with both of their parents. In most cases, that has to mean much more than a couple of hours a week.'

'We have never supported an automatic presumption of 50:50 shared care, as some people have called for, because it is artificial and arbitrary and fails to take children's individual needs into consideration. But far too many children are missing out on the input of one parent - usually dad.'

'Over the last 40 years, we've seen huge increases in divorce and separation, fatherlessness and inter generational family breakdown. The lone parent model of support to separated families has failed countless children over that time and we welcome this government's approach of helping parents to work together around children's needs.'

'And this isn't just about parents who use the courts to sort out parenting time after separation. A strong message in the Children Act, that establishes the need for children to have a meaningful relationship with both parents, will set an expectation that all parents will aim towards that goal. In many ways, it's about changing the environment in which parents make choices.'

'But we also think that the government needs to go further. We believe that it is vital that they invest in training all of the services that families come into contact with after separation. Unless family mediators, Cafcass officers, social workers, child support professionals, children’s centre staff and all the other individuals and agencies that parents come into contact with start to work outside the lone parent paradigm, children will continue to miss out on the vital relationships that allow them to grow and develop into psychologically secure and fulfilled adults.'

'We absolutely support the government's drive to encourage more collaboration between parents after separation and ensure that children do maintain meaningful relationships with both parents. But we also need to see services that support that change, services that can offer parents the information and advice they need to make it work.'

Tuesday, May 08, 2012

Sold Down the River barristers offer fixed-price divorces to wealthy

An innovative legal practice today launched a barrister-led fixed-price divorce service to get costs from wealthy couples.

Sold Down the River Law, which combines law firm Venal & Grabbit and chambers 1 Crooked Orifice Row, will offer the service, which it claims will guarantee the costs of divorce, for couples with assets worth more than £5,000,000.

The service is offered in four stages, with prices depending on whether a QC or junior barrister is instructed.

Prices start at £10,000 for an initial conference with a junior barrister to examine the merits of the case and develop a strategy. The first court appointment to decide how the case will proceed starts at £50,000, and the fee for financial dispute resolution hearing starts at £170,500. A bespoke fixed fee will then be quoted if the case goes to trial.

By appointing a barrister-led team to conduct the case from the outset, the firm says it can increase the cost of the traditional model.

Sold Down the River says it provides access to a team of barristers with experience in high profile divorces, including Quentin Pompous-Arse QC, who acted for Lucinda Tiara-Smythe in her divorce from a Saudi prince.

Sold Down the River Law’s chief executive, Edgar Venal, said that the practice had received a high number of calls from people with a lot of money. "There is clearly a requirement for this service amongst people with wealth. Unfortunately, the pressures of having such wealth can put strain on people's marriages," he said, "so we offer to reduce that wealth by a clear, transparent fixed-fee."

*          *          *          *          *

Riverview barristers offer fixed-price divorces to wealthy - Law Society Gazette, 8th May 2012.

(See also this post.)

Monday, May 07, 2012

Appalling...

... that in 1893 husbands had to put up with wives who hadn't finished the housework by the time they got home.

Sunday, May 06, 2012

LASPO: Changes to the MCA

My thanks to ObiterJ of Law and Lawyers for reminding me today that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (as it unfortunately now is) makes certain changes to the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004. Just to go into a little more detail, the changes are as follows:

Section 49 of LASPO begins by specifying that an order for maintenance pending suit under s.22 MCA may not require a party to pay to the other party any amount in respect of legal services for the purposes of the proceedings, and then inserts a new s.22ZA, enabling the court to make 'an order or orders requiring one party to the marriage to pay to the other (“the applicant”) an amount for the purpose of enabling the applicant to obtain legal services for the purposes of the proceedings' ('Orders for payment in respect of legal services'). Such orders may be made in proceedings for divorce, nullity of marriage or judicial separation and also in proceedings for financial relief in connection with proceedings for divorce, nullity of marriage or judicial separation.

Under sub-section (3), the court must not make an order unless it is satisfied that, without the amount, the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of the proceedings, and for the purposes of subsection (3), the court must be satisfied, in particular, that—
(a) the applicant is not reasonably able to secure a loan to pay for the services, and
(b) the applicant is unlikely to be able to obtain the services by granting a charge over any assets recovered in the proceedings (s.22ZA(4)).
An order may be made to enable the applicant to obtain legal services of a specified description, including for a specified period or for the purposes of a specified part of the proceedings (s22ZA(5)), and may provide for payment of the amount by instalments (s.22ZA(6)).

S.22ZA(9) makes the obvious provision that, for the purposes of the assessment of costs in the proceedings, the applicant’s costs are to be treated as reduced by any amount paid to the applicant pursuant to an order under this section for the purposes of those proceedings.

S.22ZA(10) defines 'legal services', which include advice and assistance in the form of representation and any form of dispute resolution, including mediation.

Moving on, section 50 of LASPO inserts a new s.22ZB, which sets out the matters to which the court is to have regard in deciding how to exercise power under section 22ZA. These include the means and needs of both parties, the subject matter of the proceedings and, interestingly, whether the applicant has taken any steps to avoid the proceedings (for example by proposing mediation) and the applicant’s conduct in relation to the proceedings. They also include the effect of the order on the paying party and, for these purposes, the court must have regard, in particular, to whether the making or variation of the order is likely to—
(a) cause undue hardship to the paying party, or
(b) prevent the paying party from obtaining legal services for the purposes of the proceedings (s.22ZB(3).
Section 51 of LASPO amends s.24A(1) MCA by adding orders under s.22ZA to the types of order that can 'trigger' the making of an order for sale of property under s.24A.

Finally, ss.52, 53 and 54 of LASPO make similar provisions as above in respect of civil partnerships, by making the appropriate amendments to the Civil Partnership Act 2004.

Saturday, May 05, 2012

Something for the Weekend: Foo Fighters - Learn To Fly

A change of tempo this week. One of my favourite Foo Fighters songs, and one of their best videos:

Friday, May 04, 2012

BLEAK SPOUSE: Chapter 10 – Not-Quite-Alone


WEDLOCK HOUSE. My Lady Wedlock is restless, very restless. She has been waiting for Sir Basildon to go on a business trip, so that she can go on a short trip of her own, without him knowing. Today, at last, she will get her chance, as Sir Basildon is off to a conference in Liechtenstein, to give a speech on the benefits of short selling.

Before she leaves, however, she makes a detour to the attic room of her au pair Elena Brezhnev. She has given Elena the task of counting her designer handbags, which she thinks should occupy Elena for more than long enough to enable Lady Wedlock to go to Elena's room and take Elena's coat from her wardrobe, without Elena seeing her.

Lady Wedlock correctly believes that she will not be recognised wearing something as cheap as Elena's coat. She also incorrectly believes that Elena has not seen her, but Elena has taken a fancy to one of Lady Wedlock's handbags, and decided that Her Ladyship has so many that she will surely not miss one. She is therefore returning to her room to secret the bag she has chosen away, when she sees her mistress taking her coat. She quickly turns around, before Lady Wedlock can see her.

Lady Wedlock puts the coat on and slips quietly from the house. Elena discreetly watches her from a window. Lady Wedlock is oblivious of this. She is also oblivious that another pair of eyes is now watching her. They belong to William Piranha, who Edgar Venal has re-assigned to watch Lady Wedlock, now that his cover has been blown with Prissy (Piranha has just recovered from the seven-day bender he went on after being turned down by Prissy).

Piranha believes that the figure in the cheap coat is Lady Wedlock's au pair. She seems furtive, so he thinks she may be on a secret errand for Lady Wedlock, and decides to follow her.

The pursuit takes them to the public cemetery. There, after consulting with the Warden, the woman make her way to a secluded corner of the cemetery, where she stops before an unmarked grave. Piranha watches as she places a teddy-bear holding a heart next to the grave.

After a few moments the woman leaves. Piranha does not follow. Instead, he checks with the Warden to see whose grave it is. The Warden tells him that the grave belongs to Larry Lizzard.

*            *            *

Later that day Piranha rings Edgar and reports what he has seen.

"Are you sure it was the au pair?" Asks Edgar.

"Pretty sure, Mr Venal." Replies Piranha. "The only other person in the house when she left was Lady Wedlock, and she wouldn't wear a cheap coat like that."

Edgar ponders that for a moment. "Alright," he says, "now, I've got another job for you. I need you to recover a laptop..."

Thursday, May 03, 2012

AV v RM: The test for permission to appeal

AV v RM [2012] EWHC 1173 (Fam), reported on Family Law Week today, serves as a reminder and clarification of the test for permission to appeal.

The case concerned residence proceedings involving two children. There was already a shared residence order, which provided for the children to spend four nights out of fourteen with the father. On the 9th February 2012 the district judge continued the shared residence order but provided that the children should move to be with their father primarily, contrary to the recommendation of the CAFCASS officer.

The mother sought permission to appeal.

Mr Justice Moor pointed out that permission to appeal is now governed by rule 30.3 of the Family Procedure rules 2010. Rule 30.3(7) provides:
"(7) Permission to appeal may be given only where—

(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard."
He went on to point out (at paragraph 10) that no gloss should be placed upon on the words of the rules other than to say that "real" means that the prospect of success must be realistic rather than fanciful (see Tanfern Limited v Cameron MacDonald [2000] 1 WLR 1311).

In the present case, he was satisfied that the appeal had a real prospect of success, and therefore granted permission to appeal (paragraph 13).

Tuesday, May 01, 2012

Channel 4 News: Expert testimony leading to family breakups

On Channel 4 News last night (I make no comment, as this is a subject upon which I have little current knowledge and no recent experience):


[Thanks to Jailhouselawyer for the link.]

Featured on The Barrister Blog!

I am very pleased to be the first subject of a new series on The Barrister Blog entitled 'Person of the Week', in which the chosen person answers questions about themselves posed by the blog's author, Tim Kevan. All my dark secrets are revealed here.