Friday, June 29, 2012

Winning.

A community of marital property regime?

Nicholas Cusworth QC
The Law Society Gazette reported yesterday that Nicholas Cusworth QC, chair of the Family Law Bar Association, is in favour of a regime of ‘community of marital property’, under which all assets, except inheritances, gained during a marriage are presumed to be jointly owned and are divided upon divorce. I thought I might set out some of my observations upon such a proposal. (Obviously, this is an area that has already been the subject of considerable scrutiny and research - see, for example, this 2006 study by the University of Reading - but this post is just intended to set out my initial thoughts, as someone who is not an expert upon community property, but has dealt with many divorces under our current system.)

Firstly, let me say that I am definitely in favour of more certainty in the laws governing division of marital assets on divorce (and, of course, asset division on breakdown of Civil Partnerships). As Cusworth himself said, the current lack of certainty (i.e. lack of 'definite' rules) works in favour of lawyers by encouraging parties to go to court. Not only that, it can actually make it very difficult for lawyers to give clients a 'definitive' answer as to what is likely to happen in their case, much to the frustration of many clients.

Our current discretionary system is, of course, designed to be that way for a reason: it must surely be the case, goes the argument, that no strict formula-based system can possibly result in a fair outcome in every given set of facts, and therefore giving the judge a wide discretion is considered by many to be likely to result in a greater proportion of 'fair' decisions. Can a community property regime provide more certainty and still get over this hurdle?

Secondly, a little background about community property regimes. As I said above, I am certainly not an expert upon them, but they exist in a number of other jurisdictions, including the western United States and several European countries. They can vary in their detail, but essentially they work by calculating what assets are 'matrimonial' (usually only those acquired by the efforts of the parties during the course of the marriage), and requiring that those assets be divided 50:50 between the parties, with all other assets (primarily those acquired prior to the marriage) belonging to the party who originally owned or acquired them. As far as I can tell from my (limited) research, some jurisdictions build in an element of discretion to cover certain circumstances where a strict 50:50 division would result in clear unfairness, such as where one spouse is at an economic disadvantage, for example because they have children to look after.

OK, now I am not necessarily against a community property regime, but here are some points that spring to mind, after a brief initial consideration:

Mixing of assets: Obviously, it will often be the case that assets that were originally not 'matrimonial property', such as assets acquired prior to the marriage or inheritances, will get mixed in with matrimonial assets, especially in longer marriages. Are we going to try to unravel this 'mixing', or just say (as courts already do here now) that the assets have become 'matrimonial'?

Children and other economic disadvantage: There does I think need to be some discretion (as mentioned above) to ensure, for example, that a party looking after children has sufficient assets available to them to do so. Obviously, incorporating any measure of discretion could lead back to a system similar to what we have at present, unless the limits of the discretion are clearly defined - a task that may be easier said than done. As for children, I suppose you could have some sort of 'deferred split' arrangement similar to that used in Children Act Schedule 1 applications, whereby for example the party looking after the children has the benefit of the former matrimonial home until the children grow up, whereupon the property is divided equally.

Valuation of assets: One current problem that a community property regime will certainly not resolve, and which gives rise to considerable dispute, is the valuation of assets. Now, this will obviously not be a problem where the asset is to be sold, but often there will not be, or cannot be, a sale. One party will retain an asset, and will want the value of that asset to be as low as possible, so that the other party gets as little as possible from the remaining 'pot'. I'm not sure that a community property regime would exacerbate this issue, but it could mean that many cases would still have to go to court, even with such a regime.

Pre-nuptial agreements: Most community property regimes allow couples to 'contract out', by entering into agreements between themselves. This clearly raises the possibility of the 'stronger' party putting pressure upon the weaker party to agree to something that would clearly be disadvantageous. Would the court have a discretion to disregard such agreements?

The contents of the pot: Lastly, and obviously, a community property regime may give rise to even more argument than at present as to what is or is not a matrimonial asset.

There are, I'm sure, many other issues that need consideration. Whatever the merits of community property, however, it would be very nice if Nicholas Cusworth's comments were to lead to a wide debate upon the issue of reform of the law on financial remedies - a subject which, quite frankly, is more urgent than some of the other reforms of family law that the Government is pursuing.

BLEAK SPOUSE: Chapter 18 – Lawyer and Client


AT THE OFFICES of Messrs. Venal & Grabbit, Solicitors, you will find on the wall in each room a sign setting out the firm's motto: "The one great principle of the English law is, to make business for itself." It is a sentiment that has guided Edgar Venal through a successful career, to the position of pre-eminence that he enjoys today.

Edgar's career has also, however, been guided by a second principle: Always stay one step ahead. In pursuance of this principle, Edgar has been using a friend he knows in the newspaper trade to hack into Lady Wedlock’s mobile phone. As a result, he knew of her conversation with William Piranha. He therefore got to Mr Crooked first (he will deal with Piranha’s double-crossing later).

Three days ago Edgar slipped into Dilapidated House under Piranha's very nose, disguised as the pizza delivery man...

Edgar knocks hard on the door of Mr Crooked's basement flat. Eventually, he hears a stirring inside, and a voice calls: "Who is it?"

"Pizza delivery." Replies Edgar.

Mr Crooked can't recall ordering a pizza today, but then he orders so many, that he could easily have forgotten. He looks suspiciously through the peephole, and is reassured when he sees the man outside carrying a box big enough to hold his favourite extra-large deep-pan stuffed-crust-with-extra-cheese pizza. He feels his stomach rumble, and opens the door.

Edgar swiftly puts his foot in the doorway to prevent Mr Crooked closing it. "Remember me?" He asks, taking off his Pizza Hovel baseball cap.

Mr Crooked does remember Edgar, and curses himself for concentrating on the pizza box rather than Edgar's face, before he opened the door. "Whadda you want?" He asks warily.

"I have a proposition for you, Mr Crooked." Replies Edgar. "Can I come in?"

Mr Crooked grudgingly accedes to Edgar's request. Edgar glances round the chaotic hallway, noticing the pile of unpaid bills and court papers. "How's business?" He asks Mr Crooked.

"I've 'ad it better." Replies Mr Crooked.

"How would you like to solve all of your money worries in one go?" Asks Edgar, gesturing towards the pile of papers.

Mr Crooked looks sceptical. "An har am I goin ter do that?" He asks.

"By selling Dilapidated House." Replies Edgar.

Edgar then explains how Venal & Grabbit have a big developer client looking for land in the area, that they can turn into a block of exclusive luxury apartments (they would have to demolish Dilapidated House, of course). Edgar offers to persuade the client to buy Dilapidated House for big money, in return for Crooked giving him Larry’s laptop.

Crooked readily agrees.

Minutes later, William Piranha doesn't notice anything odd about the pizza delivery man leaving the building still holding the pizza box, which is now rather heavier than before.

Thursday, June 28, 2012

Pre-birth paternity tests


Here's an interesting development. A new type of blood test is becoming available that can determine paternity as early as the eighth or ninth week of pregnancy, without an invasive procedure that could cause a miscarriage. Such a procedure raises the possibilities of the woman terminating the pregnancy if the 'preferred man' is not the father, and of the father contributing financially during the pregnancy.

There are, however, two problems with the new test. Firstly, a blood sample is required from at least one of the fathers, which may prove problematic in many cases. Secondly, the tests have a 'discrepancy rate' — when the presumed father is not the biological father — of anywhere from 0.8 percent to 30 percent, with the median being 3.7 percent.

[Story: The New York Times, via Family Law Prof Blog.]

Wednesday, June 27, 2012

Mid-life crisis

If things should go a little quiet around here, it's because I have a new toy:

Tuesday, June 26, 2012

News Update: 26th June 2012


WELCOME to the third Family Lore News Update. Here are some of the items that have attracted my attention since the last update:

NEWS
Minister unveils Innovation Fund to pioneer new support services for separating parents
The Government is taking radical steps to promote collaborative parenting in separated families. A fund, worth up to £14 million over two years, is being established to develop effective and innovative support services for separated and separating families. One such service is to be a 'divorce app', giving advice upon such issues as how to prevent fighting in front of the children and (most importantly for the DWP) arranging child support, as reported by the Telegraph. Full story: Department for Work and Pensions.

Divorce woman wins house-move fight
A woman embroiled in a divorce fight is celebrating after overturning a prohibited steps order which prevented her from moving house. Full story: The Press Association.

Outcry over family court closure plan
A group of 160 leading family lawyers and social workers has written to senior judges raising concerns over the proposed closure of a court rated a ‘centre of excellence’. This has also been covered by Pink Tape. Full story: Law Society Gazette.

CASES
A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) (21 June 2012)
Case concerning two brothers who went into care in 1998 and were freed for adoption but no adopters were found. The brothers are now taking Human Rights Act proceedings against the local authority. What struck me most about this case was the volume of paperwork that had been amassed. As Mr Justice Peter Jackson pointed out, the history of the case was "recorded in a staggering 19,000 pages of social work records". Full report: Bailii.

F (Children) [2012] EWCA Civ 828 (3 April 2012)
Appeal by mother against findings of fact as to what happened during a supervised contact session between her and the two younger children, and the making of consequential orders in relation to contact. Appeal dismissed. Full report: Family Law Week.

A Local Authority v A Mother & Ors [2012] EWHC 1637 (Fam) (15 June 2012)
Public law proceedings. Child adopted by her aunt. Application by aunt for an order that the local authority should pay her costs of the latter part of the proceedings. Held that this was an exceptional case that justified an order requiring the local authority to contribute towards the aunt's costs. Full report: Bailii. Discussed by suesspiciousminds (see below).

ARTICLES
Mediation in Dubai
David Hodson on International Family Law. Full article: Family Law.

Social Media and the Voice of the Child in Hague Convention Cases
Emma Pinder, Solicitor, of Spring Law considers a Hague Convention case which has attracted extensive attention in Australia and analyses the potential wider impact of the coverage, especially that within social media. Full article: Family Law Week.

BLOGS
Firstly, congratulations to fellow blogger Lucy Reed of Pink Tape for being nominated for not one but two Family Law awards, Most Innovative Family Lawyer and Best Readers’ Commentary. Good luck Lucy!

The genie is out: divorce procedure has changed forever, so why hasn’t the law?
The procedure to obtain an uncontested divorce has altered almost beyond recognition over the last 40 years, even though there has been no change in the law, says Marilyn Stowe. As she states: "few others outside of the profession ... seem to have fully appreciated what has already happened and cannot be changed". Interesting stuff. Full post: Marilyn Stowe Blog.

Shared parenting: are the Government’s proposals up to scratch?
The prolific (if I am allowed to say that) Marilyn Stowe gives her views on the Government's co-parenting consultation. Full post: Marilyn Stowe Blog.

Aunts aren’t gentlemen
Discussion of a new High Court decision (see above) ordering the LA to pay 50% of the aunt’s costs in care proceedings. Full post: suesspiciousminds.

Judge orders that anorexic woman can be force-fed | Analysis
Mr Justice Jackson has ruled that it would be lawful and in the best interests of a 32 year old woman for her to be fed, using physical force or chemical sedation as necessary, for a period of “not less than a year”. Discussion of the Re E case that I referred to in the last News Update. Full post: UK Human Rights Blog.

Impressive anti-cheating ring


From The Cheeky.com, a wedding ring to discourage people from cheating. "The negative engraving on the inside means that when you are in the ‘Club’ and an attractive woman…or man comes along to chat, slipping your wedding ring off is not an option. The mark left on your skin says…’I’m Married’" (and buying one for your betrothed tells them how much you trust them). A snip at $550.

[Found on Neatorama.]

Monday, June 25, 2012

LoreCast for the week to the 25th June 2012


Guess what? Yes, 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, June 23, 2012

End the misery today, and get your next divorce half-price!

I've no idea if this advert is real, but I wish I had thought of it:

[Found on Neatorama.]

Something for the Weekend: The Rolling Stones - As Tears Go By

For no reason other than that I heard it recently. I particularly like this live version by the Stones (the song was, of course, written by Jagger and Richards, as Jagger mentions at the beginning):

Friday, June 22, 2012

BLEAK SPOUSE: Chapter 17 – Near Wedlock House


UNDAUNTED by her previous experience when she was arrested by Lady Wedlock's security guards, Prissy has taken to walking alone in the countryside around Grim Grange and Wedlock House, primarily as a means of getting away from Clint and Chantelle, who are always fighting with one another.

Of course, Prissy doesn't like the countryside so much that she can manage to go for a walk without listening to her MP3 collection on her iPhone.

And so it is today as she is walking along a woodland path listening to the latest X-Factor boy band sensation, No Direction. As a result, she does not hear the footsteps behind her and jumps when a hand touches her on the arm.

Prissy turns and is relieved to find that the hand belongs to Lady wedlock, who smiles back at her kindly. She removes her earplugs and returns the smile, once her expression of shock has gone.

"I'm sorry if I surprised you, my dear." Says Lady Wedlock, in a reassuring voice.

"That's alright, My Lady," replies Prissy, "I was listening to some music and didn't hear you coming." She waves her earplugs at Lady Wedlock, by way of emphasis.

The pair carry on walking in silence for a few steps, then Lady Wedlock speaks again. "It's actually quite fortuitous that I have bumped into you." She says.

"Oh?" Replies Prissy.

"Yes," says Lady Wedlock, "there is something that I've been meaning to tell you."

"Oh?" Replies Prissy.

"Yes," says Lady Wedlock, "something very important."

"Oh?" Replies Prissy.

"Yes." Says Lady Wedlock, wondering if Prissy has reached the limits of her vocabulary. "I think we should sit down first - there's a bench just along the path."

The pair carry on walking in silence. Once they have reached the bench and are safely seated, Lady Wedlock continues: "I will come straight to the point." She says. "I am your mother."

"Oh!" Exclaims Prissy.

Lady Wedlock goes on to explain the circumstances of Prissy's birth. She says that she was working as a high-class prostitute when she met Larry Lizzard, who was then a high-flying City banker. They formed a relationship, and Prissy was the result. She decided that she couldn't keep Prissy, so put her up for adoption.

"Of course," says Lady Wedlock, "all of this must be kept secret."

Prissy was actually already contemplating selling the story to a national newspaper. Lady Wedlock, however, has anticipated this. She explains that she has only told Prissy her story now, before Prissy decides to find out her parentage herself, and that she will make it worth Prissy's while to keep quiet. She also says that she will make life extremely difficult for Prissy if she does not keep quiet.

"Oh." Replies Prissy.

Thursday, June 21, 2012

Edgar Venal admits "terrible error" over tax avoidance scheme

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

London, 21st June 2012: Leading divorce lawyer Edgar Venal has today admitted a "terrible error of judgement" over using a tax avoidance scheme. He said:

"I have made a terrible error of judgement in using the 'K2' tax avoidance scheme, enabling me to pay 1% income tax. I should have used the 'Everest' scheme, which would have enabled me to pay no income tax at all." 


===ENDS===

Break the circle


An excellent advertisement for a Mexican child abuse awareness campaign. The caption reads: "70% of abused children turn into abusive adults." The campaign has just won a 'Golden Lion' award at Cannes.

[Found on BuzzFeed.]

Law firm helping to combat climate change

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

London, 21st June 2012: Leading law firm Venal & Grabbit are at the forefront of the fight against climate change, says Senior Partner Edgar Venal.

"Our clients will be pleased to know that we have implemented a range of measures that demonstrate environmental responsibility and will ensure that the planet is safe from global warming." He said.

Those measures include:

Recycling/ Resource Use

  • Prohibiting staff from using the drinks vending machine, to reduce the use of disposeable cups
  • Limiting the use of the firm's disposeable pens, by requiring staff to use their own
  • Taking away waste bins from desks and making staff put their waste in their pockets
  • Starting to compost all correspondence received from the SRA
  • Recycling old computer equipment by selling it to local charities
  • At Christmas, asking people to send us donations rather than cards

Paper Use

  • Rationing staff toilet paper (both sides should be used)
  • Printing internal documents on the back of used stamps
  • Collecting and re-using name badges after events and meetings where possible*

Energy Use

  • Minimising energy costs by turning off heating in staff areas
  • Requiring the accounts department to use abacuses rather than computers
  • Requiring staff to use candles, rather than light bulbs

Transport use

  • Saving time and inconvenience by requiring other solicitors to come to meetings, rather than go to their offices
  • Providing staff with high-interest season ticket loans
  • Partners sharing their cars with their chauffeurs

When asked whether their divorce clients were really bothered about climate change, Edgar Venal said: "Oh yes, the first thing they ask us is whether our divorce service has a smaller carbon footprint than our competitors."


===ENDS===


Law firms' collaboration helping to combat climate change - Law Society Gazette, 21st June 2012. See also here.

*Note: I couldn't possibly parody this one.

Tuesday, June 19, 2012

News Update: 19th June 2012


WELCOME to the second Family Lore News Update. Other than the items I've already posted about, here are some of the things that have caught my eye since the last update:

NEWS
Fathers could be forced to be named on birth certificates
Fathers could be forced by law to be named on their baby’s birth certificate under plans being drawn up by ministers to boost their role in family life. The latest idea from the Government aimed at promoting fathers' feelings of responsibility for their children. I'm not sure that this would do much to change the attitude of feckless fathers, or indeed how you go about forcing them, but there you go. Full story: The Telegraph.

Family lawyers express doubts over MoJ's plans for statutory presumption
Family lawyers have expressed doubts about Ministry of Justice (MoJ) proposals to introduce a statutory presumption of shared parenting. Full story: New Law Journal.

On the same subject:

Children’s Minister clarifies nature of proposals for shared parenting after divorce
Minister writes to The Times to deny the creation of ‘right of artificial equality of time’. Full story: Family Law Week.

For what it's worth, I'm not sure that any of the Government's co-parenting options are likely to have much if any bearing upon outcomes, and could just make things worse, by reducing the number of cases that are agreed and increasing the number of court decisions that are challenged.

CASES
Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (COP) (15 June 2012)
Woman suffering from severe anorexia and close to death. Application by local authority regarding her medical treatment. Held that she lacked capacity to make a decision about life-sustaining treatment and declared that it was in her best interests to be fed against her wishes. As mentioned by ObiterJ in this post, this case includes the very memorable quote by Mr Justice Peter Jackson (at paragraph 137):
"We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know."
Full report: Bailii.

ARTICLE
Children: Public Law Update (June 2012)
John Tughan of 4 Paper Buildings, reviews some recent important judgments concerning children public law matters. Full article: Family Law Week.

BLOGS
A Dad is for life, not just for Xmas
Baroness Deech gives her take on the Government's co-parenting consultation, which she says "misses the point". "The genuine scandal", she says, "is that fathers, in situations where the mother has no objection to their contact with the children, fail to exercise those rights." Hmm, I suspect the odd fathers' rights group might have something to say about that... Full post: Lords of the Blog.

Help, it’s the care-hair bunch!
Meanwhile, suesspiciousminds (in my ignorance I assumed that susspiciousminds was a woman by the name of 'Sue', until I learned better) asks whether hair-strand tests for alcohol and drug misuse are sufficiently accurate for the court to rely on. Full post: suesspiciousminds.

Monday, June 18, 2012

LoreCast for the week to the 18th June 2012


Once more 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.)

Sunday, June 17, 2012

What fathers really want


What better gift for Father's Day than to have your child support paid for you? That is what Fort Wayne Indiana radio station ClickHop 106.3FM is offering as a competition prize. OK, they'll only pay for a month, but at least that'll reduce the arrears a bit, won't it? For all the details, see this article on Indiana News Center.

Happy Father's Day!

Saturday, June 16, 2012

Something for the Weekend: The Stone Roses - Elizabeth My Dear

I see the Diamond Jubilee Sycophancy Virus is still prevalent, so I thought I would dispense a short but effective antidote:

Friday, June 15, 2012

Healthier than a pint of ice cream!

"Although the proven benefits of self-pity are numerous, sometimes the best way to get over your ex is to simply snap out of it. Offer a friend—or yourself—maximum relief from the distressing effects of heartache with our all-new Breakup Recovery Kit. It’s guaranteed to turn your affliction into conviction!"
So says the sales blurb for the 'Breakup Recovery Kit', sold by Californian product design company Knock Knock. The kit contains:
  • A 16-page 'remedy booklet', where you can check your symptoms, such as lack of personal hygiene, indiscriminate promiscuity and uncontrollable spending; 
  •  
  • A silicone bracelet with the inscription 'Heartbroken';
  •  
  • 5 affirmation cards, at least one of which says "I will survive (barely)"; 
  •  
  • 5 'healing bandages', to treat loneliness, hysteria etc.;
  •  
  • A 'recovery certificate', in recognition of your achievements, such as removal of all evidence of your ex from your home; and 
  •  
  • A metal charm in the shape of a human heart (presumably, to replace the one that was broken).
A bargain at just $7.50!

Charon QC podcast with Natasha Phillips

It's a rare thing for Charon QC to dip into the murky waters of family law, but today he has published a podcast with my LoreCast co-presenter Natasha Phillips (left), in which they discuss a range of topical family law issues, including no-fault divorce, gay marriage, forced marriage and the problem of troubled families. You can listen to the podcast here.

BLEAK SPOUSE: Chapter 16 – The Unappointed Time


DILAPIDATED HOUSE. William Piranha looks at his watch. It is 9.30 am. He has been observing the property for several days, waiting for Mr Crooked to leave his basement flat, so that he can get in and recover Larry Lizzard's laptop.

Now he may have his chance. He watches as Mr Crooked comes out of the main door, dressed in a shabby ill-fitting suit and not looking very happy with life (Piranha does not know that Crooked is heading for the county court, where a former tenant is suing him for wrongful eviction).

Once Crooked has gone, Piranha enters the building and heads downstairs to the basement. Ignoring the odour of urine, he quickly unlocks the door to Crooked's flat using his Topman store card, and slips inside.

The flat is a mess. On a table in the hallway there is what looks like a pile of unpaid bills, court papers and solicitors' letters. In a corner there are an assortment of baseball bats and other implements that could be used as weapons, and everywhere there are empty beer cans and pizza boxes.

Piranha starts to search the flat. It is a process made considerably more difficult not just by the mess but also by all the miscellaneous items of furniture and other possessions that Mr Crooked has 'acquired' from his various departing tenants over the years.

Despite this, after half an hour Piranha is satisfied that he has searched everywhere. Unfortunately, however, he has not found Larry's laptop. The only computer he can find is an old desktop PC in the living room. The machine has been left switched on and, so far as Piranha can tell from a brief examination, is used primarily for viewing porn sites.

Frustrated, Piranha slips back out of the flat.

*            *            *

"He definitely doesn't have it." Piranha tells Lady Wedlock on the phone.

"Can you be certain of that?" Asks Lady Wedlock.

"Absolutely." Says Piranha. "I searched the whole place. A complete mess. Plenty of beer cans and pizza boxes, but no laptop. And he wasn't carrying it when I saw him leave."

"Then where is it?" Asks Lady Wedlock.

"I reckon he threw it away." Replies Piranha hopefully.

"Or sold it." Says Lady Wedlock. "You find it, or you'll get no money from me." She hangs up.

Piranha curses.

Now THIS is how to announce a wedding:

[Found on Neatorama.]

Thursday, June 14, 2012

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

Mr Justice Ryder
Mr Justice Ryder's fifth update on the progress of the Family Justice Modernisation Programme has been published. Points of note:
  • In early May the outline proposals that will form the basis of his recommendations were agreed in principle by the senior judiciary.
  •  
  • The design of the planning and implementation process for the recommendations has already begun. The President is to chair an implementation board, which will be supported by a project team, supported in turn by the Judicial Office, with the intention to develop a blueprint for the long term leadership and management of the Family Court.
  •  
  • Mr Justice Ryder has asked the Faster Family Justice Group (which includes the Law Society, the FLBA, Resolution and the ALC) to take forward detailed work with all professional groups and agencies to help identify the good practice materials and guidance (see the third update) which will be published towards the end of this year.
  •  
  • The Family Justice Council has been asked to identify priority work which will include guidance on the use of experts, self represented litigants and good practice in cases involving domestic abuse.
  •  
  • Training plans are being developed with the Judicial College to provide leadership and management training for all leadership judges and to provide a comprehensive new programme of good practice training for all judges authorised to hear public law cases and family lead legal advisers/justices’ clerks before the launch of the new Family Court.

Of course...

This Jesus and Mo cartoon from October 2009 seems just as appropriate this week:

Sweet Dreams

Wednesday, June 13, 2012

Co-operative Parenting consultation launched

It seems that consultations are like buses: you don't see any for ages, and then two come along at once.

Hard on the heels of the Consultation on Revised Safeguarding Statutory Guidance yesterday, the Department for Education has today launched its much-anticipated 'shared parenting' consultation, under the catchy title 'Co-operative Parenting Following Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child's Life'. The consultation blurb reads:
"The majority of parents who separate reach their own agreements about the care arrangements for their children. However, when disputes about these arrangements arise there is a risk that children's needs are overlooked. In too many cases one parent is left in a position where it is very hard to retain a strong and influential relationship with his or her child. The Government firmly believes that parents who are able and willing to play a positive role in their child's care should have the opportunity to do so. The aim of the proposed legislative amendment is to ensure that this happens in court cases and to reinforce the expectation generally that both parents are jointly responsible for their children's upbringing. The Government also believes that a tougher approach is needed in cases where court orders are breached, and it intends to explore the scope for additional enforcement sanctions for the courts. This consultation includes options and questions on how court orders in private family cases regarding the care of children can be more effectively enforced."
On the main question of shared (or 'co-operative', to use the DfE's preferred form of words) parenting, the consultation offers 4 options:
  • Option 1 requires the court to work on the presumption that a child's welfare is likely to be furthered through safe involvement with both parents - unless the evidence shows this not to be safe or in the child's best interests. This is the Government's preferred option.
  •  
  • Option 2 would require the courts to have regard to a principle that a child's welfare is likely to be furthered through involvement with both parents.
  •  
  • Option 3 has the effect of a presumption by providing that the court's starting point in making decisions about children's care is that a child's welfare is likely to be furthered through involvement with both parents.
  •  
  • Option 4 inserts a new subsection immediately after the welfare checklist, setting out an additional factor which the court would need to consider.
These options are explained in paragraphs 10 to 13 of the consultation document.

On the question of enforcement, a 'new approach' is proposed, to include:
  • Arrangements will be put in place to return breach cases to the court "within a matter of weeks" (paragraph 7.1).
  •  
  • Possible extension of enforcement powers to mirror those already agreed by Parliament for enforcing payment of child maintenance, allowing the withholding of passports and driving licences as well as the imposition of a curfew order requiring the parent concerned to remain at a specified address between specified hours (paragraph 7.3).
  •  
  • Amending the warning notices on court forms and changing court information materials to emphasise to parents, from the outset of the court process, the potential consequences of breaching an order, including the possibility of ordering a change of residence (paragraph 8.2).
Consultation responses can be completed online here, by emailing sharedparenting.consultation@education.gsi.gov.uk or by downloading a response form which should be completed and sent to:
CYPFD Team,
Department for Education,
Area 1C,
Castle View House,
East Lane,
Runcorn,
Cheshire,
WA7 2GJ.
The closing date for responses is Wednesday 5th September 2012.

*      *      *      *      *

UPDATE: A DfE press notice can now be found here.

Press release: Consultation on involvement of both parents after separation heralds change

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


Consultation on involvement of both parents after separation heralds change

Family separation charity, the Centre for Separated Families, has welcomed the government's consultation on plans to increase the involvement of both parents in a child's life following family separation.

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

'We believe that the government is taking the right approach to dealing with the issue of children being able to maintain a meaningful relationship with both parents after separation.'

'In too many cases, one parent finds that they are effectively pushed out of their child's life and that they are unable to retain a strong and meaningful relationship with their child'

'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.'

'This consultation is likely to be extremely contentious and the organisations that campaign on behalf of mothers and those that campaign on behalf of fathers are likely to be unhappy with some of the proposals, but we feel that the government is striking the right balance and trying to look at what works best for children.'

'We have never supported an automatic presumption that children's time with be split 50:50, as some people have called for, because it is artificial 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 - and that has to be addressed as a matter of urgency.'

'Far too often, it's a winner takes all situation. The lone parent model of post separation family life has failed countless children over the last forty years and we welcome the governments determination to tackle this issue.'

'But this isn't just about parents who use the courts to sort out parenting time after separation. A strong message that establishes the need for children to have a meaningful relationship with both parents, will set an expectation that all parents will aim towards achieving that. 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, June 12, 2012

Twitter

Batman Twitter, not quite following brand guidelines
Just a quick post to say that I am not presently using Twitter, other than to auto-tweet blog posts. Accordingly, I will not be able to respond to tweets, and therefore a lack of response should not be considered disrespectful. If you wish to contact me, please do so via email, john[@]familylore.co.uk. Of course, if you have anything to say about any posts on this blog, then feel free to comment here.

Consultation on Revised Safeguarding Statutory Guidance launched

The Government has today launched its Consultation on Revised Safeguarding Statutory Guidance. The consultation seeks views on the following:
  • Radically reduced guidance that clearly states the law so all organisations know what they and others must do to protect children. It does not tell professionals how to do their job, but provides a checklist setting out their duties.
  •  
  • New guidance on undertaking assessments of children in need. The guidance proposes to replace nationally prescribed timescales for assessments with a more flexible approach focused on the needs of each child.
  •  
  • New guidance on Serious Case Reviews (SCRs) to help all services properly learn the lessons from them. The guidance proposes changes so SCRs get to the heart of what happened in a particular case and why, and set out what improvements need to be made to help prevent recurrence.
You can read the consultation document here, and a Department for Education press notice here. In addition, the DfE has produced this video, in which Children's Minister Tim Loughton explains the Government's plans to overhaul the child protection system, "helping social workers and other professionals to do better for vulnerable children":



The DfE has also today uploaded some 23 videos on the subject of childhood neglect. In some, victims discuss their experiences. Other videos show social workers and others involved in the child protection system. All of the videos are "part of a framework of training resources for professionals working with neglected children", and can be viewed on the Department for Education YouTube channel.

News Update: 12th June 2012


WELCOME to the first Family Lore News Update. These updates will keep readers informed of the most important new items appearing on Family Lore Focus, but may also add extra information, links and commentary to those items. In addition, there may be the odd items that do not appear in Family Lore Focus, for whatever reason.

NEWS
Church of England warning on gay marriage
Government proposals for gay marriage would dilute an institution "vastly" important to a healthy society, the Church of England has warned. Full story: BBC News.The warning comes in the Church's response to the Government's Equal civil marriage consultation. The full response can be found here, and a press release, here. One of the arguments raised in the response is that "if the proposal to redefine marriage were to be implemented, it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights", a point discussed in this post on the UK Human Rights Blog.

New support programme for children affected by family breakdown launches this week
a kidspace, a new support programme for children affected by family breakdown, is launched this week. Full story: Family Law Week.

Councils back troubled families scheme
Every eligible council in England is to take part in the government's programme to tackle the problems of "troubled families", ministers have said. Full story: BBC News.

STATUTORY INSTRUMENT
The Family Procedure (Amendment) (No.2) Rules 2012
These rules amend rule 31.17 of the Family Procedure Rules 2010 to give the court a discretion to permit urgent enforcement where necessary to secure a child’s welfare notwithstanding the general position that enforcement is suspended pending expiry of relevant appeal periods. The rules can be found here.

ARTICLE
Opportunity knocks
Geraldine Morris advises a cautious approach to clean-break orders. Full article: New Law Journal.

BLOGS
Two posts each from Marilyn Stowe and Pink Tape:

A Very Private Divorce?
"The popularity of Twitter, and the apparently compulsive desire by some to give a real-time account of a floundering marriage to millions of strangers, has left me thinking about privacy, the divorce process and what happens when a divorce is played out in the public domain", says Marilyn Stowe. Full post: Marilyn Stowe Blog.

Also on the Marilyn Stowe Blog, guest poster Lindsey Randall examines the case of Aspden v Elvy, in rather more detail than I did.

Party Animals
Family barrister and blogger Stephen Twist writes a guest post asking the interesting question whether now is the right time to withdraw party status from parents in private law children disputes. He says:
"I envisage a system where, when an issue arises in relation to the care or management of a child, the court is notified, and decides if a ‘children’s guardian’ should be appointed. This first step would be the norm, and the guardian would mediate between the parties, aiming for the middle ground that is so often adored by judges. Where agreement was not possible, the guardian’s solicitor, owing an equal duty to the child and the court, would take over the whole case management. One of their tasks would be to obtain statements from the parents setting out their concerns, positions and requests. Like any other witness, the parents /grandparents /extended family members would remain witnesses, having a right to have their voice heard but not to manage and control the case."
Full post: Pink Tape.

Finally, Lucy Reed risks her career with:

Kamikaze – you’re all thinking it, but I’ll say it out loud
... in which she explains why 26 weeks. Will. Never. Work. Full post: Pink Tape.

Monday, June 11, 2012

Mini Anniversary, by 5secondfilms

LoreCast for the two weeks to the 11th June 2012


After a break for the Jubilee weekend, Natasha and I return to bring you the top family law news stories and cases from the last two weeks, in a short, easy to listen podcast:



(Those without Flash can listen here.)

Sunday, June 10, 2012

Now with added search


Just a quick post to say that I've finally gotten around to adding a Google site search function to Family Lore Case Digest. This should hopefully make the Digest more useful, by allowing users to do a full Google search for any term that may occur in the heading or summary of any case in the Digest (which should give much better results than a basic search). By unticking 'only search Family Lore Case Digest' users can also search the whole of Google, from within the Digest.

Hopefully now it will be easier to find that elusive case you've been looking for!

The Digest presently includes links to some 841 family law cases, including every (freely) reported case since 2008, of which I am aware.

Saturday, June 09, 2012

Something for the Weekend: Thin Lizzy-Whiskey in the Jar

By request!

I once did a dance to this, with a couple of Irish lasses. They were great (naturally), but my efforts were akin to a drunken hippo on speed, and ended with me collapsing in a big heap, gasping for breath. Thankfully, it wasn't captured on film...

Friday, June 08, 2012

BLEAK SPOUSE: Chapter 15 – The Young Extortionist


WEDLOCK HOUSE. Lady Wedlock is searching agency websites for a replacement au pair, preferably this time an ugly one, when her mobile phone rings. A glance at the screen tells her that the call is from an unknown number. She initially ignores it, assuming that it's just another call from some claims management company, telling her that she's entitled to £6,500 for some accident that she's never had.

The phone continues to ring (she has switched off the answering service, as it gets clogged up with messages from unsolicited callers). Annoyed by this caller's persistence, she reluctantly decides to take the call.

"Yes, who is it?" She asks irritably.

"Is that Lady Wedlock?" Says a sly voice at the other end.

"Yes," replies Lady Virginia, "and who are you?"

"Never mind that." Says the voice. "I've got a little proposition for you."

"A proposition? Who is this?" Demands Lady Virginia.

"I told you not to worry about who I am." Replies the voice.

Lady Virginia is now getting angry. "Young man," she says, "if you don't tell me who you are, I'm going to hang up."

"Oh, I think you will want to hear what I have to say." The voice says, even more slyly.

"Nonsense," exclaims Lady Virginia, "I'm hang..."

"Larry Lizzard." Interrupts the voice.

Lady Virginia freezes.

"Yes, I thought that would get your attention." Continues the voice. "You see, I followed you to his grave."

There is silence for a moment, then Lady Virginia gathers her senses. "Alright," she says, "so what is this proposition?"

"I understand," replies the voice, "that Larry had a laptop computer. I thought you might want it. You see, I've been instructed to recover it."

"Who by?" Asks Lady Virginia.

"By Edgar Venal."

Lady Virginia gasps. The name strikes fear into her heart, as it has done into the hearts of all those whose spouses have instructed Edgar Venal over the years. She daren't even think what he might do with the contents of the laptop, and quickly realises that she must stop him getting it at all costs.

"Whatever he's paying you," she says, "I'll treble it."

At the other end of the phone William Piranha's youthful face breaks into a satisfied smile. "Agreed." He says.

Thursday, June 07, 2012

You couldn't make it up...

Generic picture of man on roof
I've got to share this.

We all have problems with unsolicited calls, but I've just witnessed a great one.

I've just had a builder round to have a look at our roof. He got his ladders out and climbed to the very top. Whilst he was standing there next to the chimney, his mobile phone (in his pocket) rang. It was an unsolicited caller, asking if he wanted to renew his last will and testament!

As he said, they could have chosen a better time...

Wednesday, June 06, 2012

Brief summary: HMRC v Charman

Mr Justice Coleridge
The report of Revenue and Customs v Charman & Anor [2012] EWHC 1448 (Fam) has now been published on Bailii.

For those unaware of the case, it concerned an application by HM Revenue and Customs for disclosure of documents produced in ancillary relief proceedings (which also happened to be the proceedings in which the highest award was made in a post divorce contested hearing). They documents were sought in connection with a tax appeal by the husband. They were sought from both parties, but only the husband refused to produce them.

The case was heard by Mr Justice Coleridge, who heard the original case. He paraphrased the law simply:
"As a general rule documents and other evidence produced in ancillary relief proceedings (now called financial remedy proceedings) are not disclosable to third parties outside the proceedings save that exceptionally and rarely and for very good reason they can be disclosed with the leave of the court."
Here, he had "no hesitation in finding that there is nothing rare or exceptional about this case which takes it outside the general rule". For example, there was no suggestion that the husband was guilty of tax evasion or criminal conduct in relation to his tax affairs.

Accordingly, the application was dismissed.

Toxic


Whilst I'm sure many hen-pecked husbands would not raise much objection to the adjective 'toxic' being used when referring to their better halves, comparing an angry wife to radiation may be going just a little too far.

Yet this is precisely what a Japanese research agency did, at least until they were shown the error of their ways.

In a campaign aimed at educating women (!) about nuclear safety, the Japanese Atomic Energy Agency devoted a page on its website to an effort to "make the hard words used in the nuclear power industry" more easy to understand, particularly for women (who are obviously too stupid to understand such words). The page, which included the above cartoon of an angry, fist-waving wife and her husband (who looks to me like he is about to blow a fuse), compared the wife's scream to radiation, her anger to radioactivity, and the wife herself to radioactive material.

The page was removed on Monday, after the agency received 'dozens of complaints'. An agency spokesman admitted that it discriminated against women, "which is inappropriate".

Still, at least we are all better educated now about radiation.

Or maybe not...

[Story found on Boing Boing.]

Monday, June 04, 2012

It's not ALL nonsense around here...

Family Lore Focus - my serious alter ego
Quite a few people seem to be unaware of what I do, so I thought I would point out once more that I do actually do some things that those interested in family law may find useful, rather than just spending the whole of my time producing nonsense.

The serious 'services' (if you can call them that) that I offer are all based around Family Lore Focus. They comprise links to free family law resources on the net, and are aimed primarily at family law practitioners, although they may be useful to anyone with an interest in family law. They include:

Family Lore News - Contains links to family law news stories and legislation, gleaned from every reputable source of which I'm aware, including family law sites, general law sites, newspapers and news sites, UK Parliament, government department sites and many others.

Family Lore Case Digest - Links to the latest reported family law cases (including full reports and summaries), coming from Bailii, Family Law Week, Family Law and others. You can search for older cases, either using the search function, or by subject.

Family Lore Articles - Links to family law articles that I think will be useful to practitioners, sources including Family Law Week, Family Law, the Law Society Gazette and others. Articles can be searched for directly, or by subject.

Family Lore Blogs - Highlights what I consider to be the most useful blog posts for family lawyers that I come across (including, occasionally, the odd post that I write here). Again, includes search facilities.

(All of the latest news, cases, articles and blog posts can be found on the front page of Family Lore Focus.)

Family Lore Focus Newsletter - A free weekly email summarising the best of the above, for you to peruse at your leisure, from the comfort of your own Inbox. You can subscribe to the Newsletter here.

@familylaw Twitter feed - Now with over 4000 followers, @familylaw 'feeds all news items, cases and articles from Family Lore Focus on to Twitter, thereby providing a convenient way to stay up to date', as I said in a previous post.

Friday, June 01, 2012

BLEAK SPOUSE: Chapter 14 – An Unappealing Case


BELLEND HOUSE. Matt O'Gridley is sitting alone in his shabby room, perusing for the four-hundredth time the papers relating to his divorce and subsequent ill-fated application for contact with his children. Deep-down he doesn't know why he does this, as it only makes him angry again.

He is contemplating taking a walk down to the local internet café, where he can vent some of his anger by having another rant on the forums of fathers' rights group The Real Families Need Fathers 4 Justice, when there is a loud knock on his room door.

He looks up with a start. He is sure it's not going to be good news, and contemplates for a moment pretending to be out. He quickly realises that the shelter manager will know that's not true.

There is another, louder, knock. Matt starts to panic. He thinks about climbing out of the window, but he is three floors up and he doubts that the rusting drainpipe outside will hold his weight (he has previous experience of climbing buildings).

A deep voice outside calls: "Open the door, Mr O'Gridley, we know you're in there!"

Matt resigns himself to the inevitable. "Who is it?" He asks feebly.

"Inspector Gormless." Says the voice. "I've got some papers for you."

"Papers, what papers?" Asks Matt.

"Just open the door, there's a good sir." Says the voice.

Matt realises from past experience that he is about to be served with some court papers. He racks his brain to think what they might be - after all, it is some time since he last breached the injunction requiring him to stay away from his ex-wife. What could she be up to now? Whatever it was, it was bound to be bad for him.

He thinks of all the advice that other members of the forums have given for ways to avoid being served with papers, and comes up with a couple of ideas.

He opens the door, and is greeted by Inspector Gormless, flanked by two burly police constables. The presence of the latter convinces Matt that running away isn't an option, so he decides upon drastic action.

As Inspector Gormless goes to tap him on the shoulder with the papers, Matt theatrically grabs his chest, lets out a scream of pain and collapses to the floor, shouting: "My heart, my heart!"

Unfortunately, the performance is of insufficient quality even to fool Inspector Gormless, who quickly surmises that Matt has not, in fact, suffered a heart attack. He therefore completes service, and leaves Matt squirming on the floor.