Friday, November 30, 2012

THE FIRM: Chapter 11 - The Hitman


AT THE OFFICES of Messrs. Venal & Grabbit, Solicitors, Mike McCheap has finished printing off all of the evidence he needs.

It's time to go and see Ronnie and Reggie Molotov.

He stuffs the papers into his briefcase and hurries out of the office.

What he does not yet know is that he is being followed...

*            *            *

Ronnie and Reggie Molotov have recently moved into their new luxury apartment on the sixty-fifth floor of The Shard, London Bridge (they have always liked to look down on others). Such prestigious apartments are only sold to the right kind of person, the sellers being "extremely selective" when choosing the people they wanted to do business with.

McCheap is taking the tube to London Bridge. He looks behind him before he enters the station, but can't see anyone he recognises. Satisfied that no one is following him, he enters the station.

What he has not noticed is a highly-suspicious looking tall blond man who IS following him.

What he does not know, even if he had noticed him, is that the Blond Man is Venal & Grabbit's resident hitman.

*            *            *

McCheap pushes his way on to the crowded platform. He looks up at the display and sees that his train is due next.

He makes his way through the crowd towards the platform edge, to make sure he gets on the train when it arrives. He occasionally glances behind him, but still does not notice the Blond Man, despite him sticking out like a sore thumb and looking highly-suspicious.

McCheap hears the train approaching. He looks down to make sure he is not too close to the platform edge, and notices that one of his shoe laces is undone. He bends down to tie it. As he does so, the Blond Man lunges at him.

The Blond Man flies over the top of the crouched McCheap and lands on the track in front of the on-coming train.

What McCheap DOES now know, although he would rather he didn't, is what it's like to see a highly-suspicious tall Blond Man get run over by a tube train.

Thursday, November 29, 2012

Help for separating parents at their fingertips as new web app launches. A third of children now live in separated families

The Department for Work and Pensions has issued the following press release:



For the first time, the 300,000 families undergoing separation every year in Britain will be able to get free online advice tailored to their needs.

The Government is today (Thursday) launching an easy-to-use web app, called "Sorting out Separation", featuring an innovative and interactive tool, which offers parents personalised advice and shows where they can access further support.

Around five million parents have gone through separation and the new figures show over four million children now live in separated families - equal to a third of children in Britain.

However, a YouGov poll out today commissioned by the DWP reveals that more than half of parents (52%) find it hard to access help and support they need when they separate.

Work and Pensions Minister, Steve Webb, said:

"Parents tell us they don’t know where to turn for support when they’re going through a separation. A third of British children now live in separated families and it’s vital we help parents to access better advice. Parents working together is in the best interests of the children, and more collaboration helps minimise the impact of separation on them.

"That’s why we’re launching a new web app, named Sorting out Separation and hosted by leading parenting websites, to give people support tailored to their needs."

Sorting out Separation is a one-stop-shop for any parent going through a separation. It covers everything from how to avoid a separation to coping with the emotional impact of breaking up, accessing legal or housing support and arranging child maintenance. The web app will be hosted by a range of leading family websites, starting with the likes of Relate, National Family Mediation, Mumsnet, Dad.info, Gransnet and Wikivorce.

Other findings from the new YouGov survey show:

39% of parents didn't access any professional support when they separated from their partners, of whom 25% said it was because they couldn't find the right help or support or felt embarrassed.
Of those parents who did seek professional help, 27% of them felt they received conflicting advice.

The Department for Work and Pensions worked closely with the Department for Education and Ministry of Justice in developing the new service, in conjunction with the voluntary and community sector. It forms part of a £20m fund announced earlier this year to help support separating parents.

Ruth Southerland, CEO of Relate, commented:

"We know more than anyone the profound difficulties that relationship breakdown can throw up for people. Finding the support to overcome these issues can be challenging, so the Government should be commended for introducing this new web app. We're pleased that it will help people identify the help they need and direct them to support - and we're proud to be hosting it."

Justine Roberts, CEO and Co-Founder of Mumsnet, said:

"The beauty of this new service is that parents thinking of separating won't need to go to great lengths to seek it out. We're pleased the Government is using technology cleverly to bring resources to the people who need it."

Ken Sanderson, CEO of Families Need Fathers, also welcomed the app:

"We’re very happy to be involved in this initiative. We’re confident it will help separating families more easily access the wealth of specialist support services out there to help them reach arrangements focused on what’s best for their children."

Family Lore Clinic: Are costs claimable in private law proceedings?


The reference in the question to 'private law' suggests that the questioner was referring to children proceedings (but not proceedings involving local authorities, which are 'public law'). Nevertheless, I will deal with all types of non-public law proceedings in this post.

The general rule on costs is that the unsuccessful party will be ordered to pay the costs of the successful party. However, that rule does not apply to family proceedings, where the rule is simply that "the court may at any time make such order as to costs as it thinks just." Further, in financial remedy proceedings the rule is that the court will not make an order requiring one party to pay the costs of another party, unless it considers it appropriate to do so because of the conduct of a party in relation to the proceedings.

So, the answer to the question is that costs can be claimed, although only in limited circumstances in financial remedy proceedings. However, the reality is that family courts very rarely order one party to pay the other party's costs. In fact, in children cases, costs orders are hardly ever made, unless there is an exceptional reason, such as proceedings knowingly being brought despite the fact that they clearly have no prospect of success.

The best advice, therefore, is that you should approach family proceedings on the basis that you will have to pay your own costs.

(As usual, if you require more details or specific advice, you should consult a specialist family lawyer.)

Tuesday, November 27, 2012

News Update: 27th November 2012


WELCOME to this week's Family Lore News Update. Take a deep breath, it's a long one...

NEWS
Information obtained under mutual legal assistance provisions cannot be disclosed in financial remedy proceedings
The Home secretary and the Crown Prosecution Service have won their appeal against Moylan J's decision in P v P [2012] EWHC 1733 (Fam). Family Law Week reports upon the CPS and Another v Gohil case - see below.

Government supports Thurrock in tackling violence against women
A new strategy to tackle violence against women and girls has been launched in Thurrock by Victims and Equalities Minister Helen Grant. Full story: Ministry of Justice.

Rotherham council leader: Ukip membership is no bar to fostering
Roger Stone says case that caused national furore is complex, and children involved are 'safe and in good care'. Of course, I doubt that this will satisfy the media frenzy. Full story: The Guardian.

Petrodell v Prest appeal to be heard by the Supreme Court
The Court of Appeal, comprising Lord Justices Thorpe, Rimer and Patten, have given permission to Yasmin Prest to appeal to the Supreme Court against its decision in Petrodell Resources Limited v Prest [2012] EWCA Civ 1395. The appeal will be heard on the 5th and 6th of March next year. Full story: Family Law Week.

Anti-stalking legislation has come into force
New offence of stalking involving fear of violence carries a maximum 5 year sentence. Full story: Family Law Week.

Ministers preparing tax breaks for married couples in next year's Budget
Conservative ministers are drawing up plans to deliver tax breaks to married couples from next year in a move which will please their own MPs but spark a new clash with the Liberal Democrats. It may also be intended to placate those Tory MPs who oppose gay marriage - see story below. Full story: The Telegraph.

Domestic violence accounts for 10% of emergency calls, data shows
Home Office figures obtained under FoI requests prompt fresh demands for strategy to deal with 'hidden crime'. Full story: The Guardian.

Divorcing parents turn to 'brainwashing' children in custody battles
Warring parents are increasingly attempting to “brainwash” their children to get the upper hand in custody disputes, according to lawyers. Is this really news? Or is it a story manufactured for publicity? You decide... Full story: The Telegraph.

UKIP couple have foster children removed from care
A couple have had three foster children removed from their care because they belong to the UK Independence Party. I get very uncomfortable when politicians and the media make pronouncements on such matters as child care, especially when all the facts are not known. Full story: BBC News (and many others). For some common sense on this, see the blog post by Dr Julie Doughty, below.

A master of half truth: the man who lied about wealth in £1.8m divorce
A businessman has been described as “a master of the half truth” by a judge who said the man lied to his wife about how rich he was when they agreed a £1.8 million divorce settlement. Mr Justice Coleridge lays it on the line. Full story: The Telegraph.

Fifteenth state signs up to EU’s enhanced cooperation procedure on international divorce
The European Commission has confirmed Lithuania's decision to join the enhanced cooperation procedure allowing international couples to select which country's law would apply to their divorce and legal separation. Full story: Family Law Week.

ICO fines council £60k after details of child neglect case given to wrong person
The Information Commissioner’s Office has fined a local authority £60,000 after details of a child neglect case were sent to the wrong recipient. Full story: Local Government Lawyer.

Mr Justice Ryder calls for an ‘investigative’ family justice system
Delivering the keynote speech to the ALC Annual Conference on the 16th November, Mr Justice Ryder called for a significant change of culture in the litigation of family disputes. Full story: Family Law Week.

Ofsted publishes first annual data on the number and profile of adopters and children
Ofsted has published for the first time its collection of data on adoptive families received from adoption providers. The data were collected via a survey in April-June 2012 and are used to inform the inspection of adoption provision. Full story: Family Law Week.

Gay marriage could be approved within weeks
David Cameron and Nick Clegg have reportedly agreed to speed up legislation to allow gay marriage, meaning it could be approved in the coming weeks. About time! Full story: The Telegraph.

Life after family break-up: research challenges law change proposal
Government plans to amend the 1989 Children Act by introducing a presumption of shared parenting are well-intentioned but misguided, say the authors of new research into childhood experience of family break-ups. Full story: Family Law. See also the post by Pink Tape, below.

CASES
Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550 (26 November 2012)
Ancillary relief. Appeal against order that CPS should disclose to wife documents which they had obtained from foreign states pursuant to letters of request under section 7 of Crime (International Co-operation) Act 2003. Appeal allowed. Full report: Bailii. See also the news story above, and Marilyn Stowe's post, below.

Slater v Condappa [2012] EWCA Civ 1506 (22 November 2012)
Appeal by former cohabitee against dismissal of her claim to a beneficial interest in a property in which she had cohabited with the respondent. Appeal dismissed. Full report: Bailii. See also Marilyn Stowe's post, below.

S v M [2012] EWHC (15 November 2012)
Appeal by husband against maintenance order. Appeal allowed. Report: Family Law.

Sharbatly v Shagroon [2012] EWCA Civ 1507 (21 November 2012)
Appeal against decision that the 'wife' could proceed with an application under Part III MFPA 1984, on the grounds that there had never been a valid marriage. Appeal allowed. Full report: Bailii. See also my post, below.

Re C (Contact) [2012] EWCA (14 November 2012)
Care proceedings. Appeal by father against s.34(4) order. Appeal dismissed. Report: Family Law.

Re F (Contact Application Via the Official Solicitor) [2012] EWCA (8 November 2012)
Parents of 2 children classed as vulnerable. Father's application through Official Solicitor to have contact with child living with mother refused. He appealed. Appeal allowed. Report: Family Law.

X and Y (Children), Re [2012] EWCA Civ 1500 (19 November 2012)
Appeal against order varying reporting restriction to permit publication of Executive Summary of Serious Case Review. Appeal allowed. Full report: Bailii.

Re B (Placement For Adoption: Grandmother’s Objection) [2012] EWCA (9 November 2012)
Care proceedings. Appeal by grandmother against placement order. Appeal allowed. Report: Family Law.

ARTICLES
Family Mediation – The option of first resort for separating couples?
Amina Somers, a consultant and mediator with Goodman Ray, asks whether the implementation of the Family Justice Review recommendations will see the court usurped by mediation as the primary dispute resolution process following relationship breakdown. Full article: Family Law Week.

Lucia Clark on Scottish Family Law: To English family lawyers - please be less polite!
"This is a heartfelt plea to English matrimonial solicitors - please, please, be less polite. Take a hint from Scots family lawyers - be rude!" says Lucia Clark on Family Law.

Finance Cases Round-Up: November 2012
Gavin Smith, barrister, arbitrator, mediator and author (is there no limit to this man's talents?) of 1 Hare Court reviews some recent key finance cases. Full article: Class Legal.

Children: Private Law Update (November 2012)
Alex Verdan QC of 4 Paper Buildings reviews important recent developments relating to private children law. Full article: Family Law Week.

BLOGS
Myths about fostering and adoption - Dr Julie Doughty
"On Friday, 23 November, the Daily Telegraph published a story about foster carers in Rotherham who had three children removed from their care, eight weeks after an emergency placement, because of the carers’ membership of a political party, namely the United Kingdom Independence Party (UKIP)." Some common sense from Dr Julie Doughty in this Cardiff Law School post.

Court of Appeal rules against disclosure in divorce case
"The Crown Prosecution Service (CPS) and the Secretary of State for the Home Office have succeeded in an appeal against an order that they disclose documents relating to the international criminal activities of a former solicitor." The CPS and Another v Gohil case - see above. Full post: Marilyn Stowe Blog.

Court of Appeal throws out girlfriend’s claim to house
Should a former cohabitant who has had a child and worked in a successful business which has helped maintain the house he owns in his sole name be able to claim over that property when the relationship ends? The Slater v Condappa case - see above. Full post: Marilyn Stowe Blog.

'Social work reform is key to reforming family justice'
If children are to get a better deal from the family courts, reform must extend throughout the care system, writes Cafcass chief executive Anthony Douglas on The Children's Services Blog.

More on Vitamin D and rickets
A discussion of the Court of Appeal decision in Re C (A child) [2012] EWCA Civ 1477 (16 November 2012). Full post: suesspiciousminds.

Sharbatly v Shagroon: You must be married to get divorced
A summary of Sharbatly v Shagroon [2012] EWCA Civ 1507 (21 November 2012) [above]. Full post: Family Lore.

Perspectives of young adults who experienced parental separation Study published
"The report [see the last news story, above] is an empirical study, funded by the Nuffield Foundation, and looks at how the contact arrangements made by separating parents for their children affect children’s long-term relationships with their parents throughout their childhood and then into adulthood." Full post: Pink Tape.

You can’t take it with you?
A knotty issue about Special Guardianship:- “If a Special Guardian appoints a guardian to have PR for the child in the event of their death, would that stand up if a parent challenged it?” Suesspiciousminds has the answer. Maybe.

Classy

Found here.

Monday, November 26, 2012

News Podcast: For the week to the 26th of November 2012

Bring yourself up to date with the top family law news stories and cases from the past week, in less than five minutes.



(If you can't see the audio player above, you can listen to the podcast here.)

Saturday, November 24, 2012

Something for the Weekend: Cheap Trick - Lucy In The Sky With Diamonds

Another Beatles cover, but I make no excuse for posting this enjoyable version of Lucy, which was brought to my attention earlier this week:

Friday, November 23, 2012

THE FIRM: Chapter 10 - The Plan


MIKE MCCHEAP has been thinking about Bill Devastator's threat to show the film of him and Brenda Buxom to his wife. Clearly, he can't now go to the police, but what should he do?

He had to find a way to get out of this mess. He was, after all, a top lawyer and therefore an expert in the art of cunning, so surely he could come up with a plan?

Then it dawned on him.

Ever since he had begun work at Venal & Grabbit he had known that they overcharged their clients. Of course, like any good lawyer he was quite happy with this (after all, if they didn't overcharge, they couldn't afford to pay him so much), but what if they also overcharged The Firm?

The Firm would take a pretty dim view of that.

It would be easy enough to check. McCheap knew that Edgar Venal had just finished dealing with Ronnie Molotov's divorce from his fourth wife, Chardonnay. It had been a very successful outcome, not that it had ever been in doubt after the judge received threats of severe violence from The Firm.

All McCheap had to do was check the bill against the time recording.

Sure enough, the figures on the bill bore as much relation to the figures on the time recording as a headline in a tabloid did to actual news.

McCheap set about printing off bills and time sheets for a selection of files in which Venal & Grabbit had acted for The Firm. Once he had gathered enough evidence, he would make an appointment with Ronnie and Reggie Molotov...

*            *            *

Naturally, McCheap's activity comes to the attention of the all-seeing Bill Devastator, Head of Security at Venal & Grabbit. He soon puts two and two together (not an easy task for a former police officer), and realises what McCheap is up to.

He decides to make a phone call to Edgar Venal, who is currently on vacation at his villa on Mustique...

Thursday, November 22, 2012

Charon QC UK Tour gains pace

Caterham and Jag Rouge
OK, so it may presently be more like odd days out than a full tour, but nevertheless the Charon QC UK Tour is getting into full swing. Our intrepid roving reporter has now filed no fewer than eleven reports, the latest being a somewhat feisty encounter with Toby Craig, Head of Communications at the Bar Council.

You can follow the Tour on its own dedicated blog, here.

Michael Gove speech on child protection

The Department for Education has uploaded a video of Michael Gove's recent speech on child protection. I thought I would put it here, for those who haven't already read it (the DfE ask you to note that the text of the speech may not reflect the exact words given by the speaker (whatever that means), and apologise for the sound quality). No booing at the back, please!

Wednesday, November 21, 2012

Sharbatly v Shagroon: You must be married to get divorced

Lord Justice Thorpe
A summary of Sharbatly v Shagroon [2012] EWCA Civ 1507 (21 November 2012).

Sometimes you wonder how it can be that certain apparently obvious matters can be argued all the way up to the Court of Appeal. I suppose that such a thought forgets the ingenuity of litigants and, in particular, their lawyers.

The particular matter that was argued here was whether a 'wife' could proceed with an application under Part III of the Matrimonial and Family Proceedings Act 1984, despite the fact that the marriage ceremony, conducted at an hotel in London, "could never have achieved the status even of a void marriage in English law".

Let us start with the basics. Section 12(1) of the 1984 Act provides:
"Where—
(a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and
(b) the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales,
either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act."
Thus, to be eligible to apply for financial relief, the applicant must show that they were married and that they went through an overseas divorce/annulment/legal separation that is recognised as valid in this jurisdiction.

The marriage ceremony that these parties went through took place, as I have said, at an hotel in London. It was purported to be an Islamic marriage. However, at that time the 'husband' was already married. "A further obstacle to its recognition in this jurisdiction as a valid marriage", said Lord Justice Thorpe in his leading judgment, "is that no attempt was made to comply with the Marriage Act 1949 to 1986 nor was any attempt made to supplement the hotel ceremony with a civil ceremony that complied with English law."

I will not go into any detail as to the background of this case, which has dragged on for some ten years. Suffice to say that the relationship broke down in 2001 and in 2002 the 'husband' obtained a talaq divorce in Saudi Arabia. The 'wife' sought to pursue a claim under Part III and on 4th April 2012 Mr Richard Anelay QC, sitting as a High Court judge, held that her application was well-founded, after rejecting the husband's jurisdictional challenge:
"52. Mr Turner QC [formerly the 'husband's' counsel], if he had been present at the latest hearing, would have sought to submit that Cambridge Gate was not a matrimonial home at any stage during the "marriage" because such marriage was polygamous and as such was not recognised by English Law. Equally, he would have advanced that argument in support of a submission that the ['wife'] was not entitled to any relief because the talaq was not pronounced in respect of a marriage which was recognised by English Law. I prefer the submission of Mr Cusworth [counsel for the 'wife'] who, in my judgment, correctly submitted that the jurisdiction under Part III of the 1984 Act is exercised in respect of a marriage which "has been dissolved or annulled…by means of judicial or other proceedings in an overseas country and the divorce, annulment…is entitled to be recognised as valid in England and Wales" see s12 (1) of the 1984 Act.

53. I am satisfied that there [sic?] irrevocable talaq prounounced by the ['husband'] is valid under Saudi law. In line with the decision of His Honour Judge Horowitz QC in H v S [2011] EWHC B23 (Fam) which I respectfully follow, the talaq is entitled to be recognised as valid in England and Wales. In my judgment, it is the validity of the overseas divorce or annulment which is the crucial matter and not the validity of the marriage under English Law."
The 'husband' appealed. His essential jurisdictional challenge was:
"Was there ever a marriage sufficient to satisfy the provisions of s.12 of the 1984 Act?"
- i.e. that that it was incumbent upon the applicant to prove there was a marriage valid or void according to the lex loci celebrationis, as had been decided by Mr Justice Holman in Dukali v Lamrani [2012] EWHC 1748 (Fam).

Counsel for the 'wife' argued that:
"...the requirement on the applicant was to prove the divorce etc. was entitled to recognition as valid in this jurisdiction. The requirements of section 12 (1)(a) were satisfied because the marriage between the parties was valid according to Saudi law. That flows from the fact that the marriage had been dissolved according to Saudi law."
In other words, the divorce was valid, therefore the marriage must have been.

In a unanimous judgment, the Court of Appeal found in  favour of the 'husband', and allowed the appeal. Lord Justice Thorpe put it simply. He said that fundamental to the right to apply under Part III was the existence of a valid or void marriage, and that:
"It would be fanciful, and clearly contrary to policy, to suggest that a person without that foundation could acquire a right of application by virtue of the pronouncement of a talaq divorce in some other jurisdiction."
In other words, you have to be married to get divorced!

Family Lore Clinic: If my husband has been out of work for years will a consent order be not in my favour?


Firstly, as I have done before, I will assume that the term 'consent order' is used in its most common sense as referring to the court order setting out the financial/property settlement on divorce/dissolution of civil partnership.

Secondly, this question suggests a misunderstanding which I have come across before. The term 'consent order' means an order made with the consent of both parties. It does not mean an order imposed upon the parties by the court. Accordingly, a consent order can only be made with your agreement. Clearly, the questioner is asking whether the court will impose a less favourable order.

OK, having got that out of the way, to the main question: will you get a less favourable divorce settlement if your husband has been out of work for years? The answer is that you will not automatically get a less favourable settlement - it will depend upon the facts.

When considering a financial settlement, the court will consider all of the relevant circumstances, including the income and earning capacity of the parties. However, in most cases the main deciding factor will be the needs of the parties and the children.

Clearly, if one party is unemployed and the other is not, then the unemployed party is likely to be less able to provide for their needs, especially their housing needs. The court may therefore give them a greater share of the matrimonial assets, in order to provide for those needs.

On the other hand, the employed party's needs may be greater, for example if they are the one looking after the children. In fact, the needs of any children will be the most important consideration for the court.

Obviously, there are many possible scenarios, and many other factors that could be relevant, including the nature and value of the matrimonial assets. To get advice upon your particular case, you should consult a specialist family lawyer.

Tuesday, November 20, 2012

News Update: 20th November 2012


WELCOME to this week's Family Lore News Update.

NEWS
Boy brings legal test case over decision to put him in care
A 15-year-old boy denied the chance to give evidence to a legal hearing about whether he should stay with his mother or be taken into care has launched a Court of Appeal test case. An interesting development, reported by The Telegraph.

Only 15% of divorced women say that pensions featured in their settlement
According to the eighth annual Scottish Widows Women and Pensions Report published earlier this month, out of the divorced women surveyed, just 15% said pensions were discussed as part of their settlement. Full story: Family Law Week.

Adoption process is being rushed by councils, say judges
Children face split from other family members as fears expressed about Michael Gove's 'unrealistic' plans [see story below]. Full story: The Guardian.

‘Troubled families are not lost causes,’ says BASW in response to Gove speech
The British Association of Social Workers, in response to Michael Gove's speech to the Institute of Public Policy Research [below], has called for 'careful assessment of the long-term needs of children, backed by better resources to do this vital work'. Full story: Family Law Week.

Judge warns against idolising celebrity marriages which are more prone to fail
A leading High Court judge has warned that it is “dangerously flawed” for young people to take seemingly glamorous celebrity relationships as a model for their own after research found the rate of divorce among stars is twice the national average. The latest pearl of wisdom from Sir Paul Coleridge and the Marriage Foundation. Full story: The Telegraph.

Michael Gove: children at risk of abuse should be put in care more quickly
Education secretary calls for 'assertive' approach from social workers after report into brutal Edlington attack, in this speech. Full story: The Guardian.

Risk of divorce pushes women to work longer hours, claims new research
New research conducted by Dr Berkay Özcan of the London School of Economics and Political Science claims that an increased risk of divorce pushes women to work longer hours outside the home. Full story: Family Law Week.

Collection of child maintenance rises to £305 million for the last quarter
The Department for Work and Pensions has released a summary for the three months ending 30 September 2012. Full story: Family Law Week.

Overview of current research evidence for family justice professionals published
The Department for Education has published an overview of current research evidence for family justice professionals concerning child development and the impact of maltreatment. Full story: Family Law Week.

British pilot thwarts wife's attempt to divorce him from Brazil
A pilot whose Brazilian wife refused to return to England with their children after a half-term holiday in her home country has won his battle to have a divorce settlement in British courts. Full story: The Telegraph.

Children of divorced parents could be classified as in poverty
Children whose parents are divorced could be classed as growing up in poverty under government plans to redefine disadvantage. Full story: The Telegraph.

CASES
Re C (Contact: Appeal) [2012] EWCA (14 November 2012)
Local authority granted a s 34(4) order permitting a cessation of contact between the father and children. Father appealed. Appeal dismissed. Report: Family Law.

R (ota of Kadri) v Birmingham City Council [2012] EWCA Civ 1432 (7 November 2012)
Three appeals (with permission applications) re. age assessments of unaccompanied minors. Approach to be taken in cases of conflict between the assessments of local authority and The Sec. of State for the Home Department. Full report: Family Law Week.

Re: A (A child) [2012] EWCA Civ 1477 (16 November 2012)
Care proceedings. Application by parents for permission to appeal against refusal to re-open fact-finding process, and the making of a placement order. Permission refused. Full report: Judiciary of England and Wales.

A Local Authority v A Mother & Ors [2012] EWHC 2969 (Fam) (26 October 2012)
Care proceedings involving a child who suffered uncontrolled asthma whilst in her parents' care. Full report: Bailii. See also the post by suesspiciousminds, below.

Pankhania v Chandegra [2012] EWCA Civ 1438 (09 November 2012)
Appeal against dismissal of claim for order for sale of jointly owned property and equal division of net proceeds, and declaration that the ownership of the property resided solely with the defendant. Appeal allowed. Full report: Bailii.

N (A Child) [2012] EWCA Civ 1449 (5 October 2012)
Application for permission to appeal against a return order under the Hague Convention. Application refused. Full Report: Family Law Hub.

B (A Child) [2012] EWCA Civ 1475 (14 November 2012)
Appeal against care order in a "highly complex case" based upon anticipated future harm. Appeal dismissed. Per Lord Justice Rix:
"I ... wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk."
Full report: Bailii.

X v Y & Ors [2012] EWHC 2838 (Fam) (16 October 2012)
Application by mother for summary return of children to Australia. Application dismissed, in view of objections of eldest child. Full report: Bailii.

G (A Child) [2012] EWCA Civ 1408 (31 August 2012)
Care proceedings. Applications for permission to appeal by local authority and mother against findings of fact in respect of injuries to the child. Applications refused. Full report: Bailii. See also my post, below.

R (ET) v Islington Borough Council [2012] EWHC (30 October 2012)
Application for judicial review of local authority risk assessment in respect of three children. Application dismissed. Report: Family Law.

ARTICLE
Another quiet week for articles:
Court of Protection update
Thirty Nine Essex Street Court of Protection Newsletter: August 2012 (PDF).

BLOGS
What judges expect from social workers in the family courts
Family court judge Penny Reeves explains what judges expect from social workers in the family courts, and how her two expert guides for Community Care Inform can help social workers meet those expectations. Full post: The Children's Services Blog.

If you’re thinking of placing my baby, it don’t matter if it’s black or white
The Government have published its draft proposals to amend the Adoption and Children Act 2002. Another great post with a bad taste title from suesspiciousminds.

On a Rydering to Nothing
Lucy Reed (who clearly also likes dubious post titles) discusses Mr Justice Ryder's speech to the ALC Conference. Full post: Pink Tape.

Take my breath away
A discussion of A Local Authority v A mother and others 2012 [above]. Another great post with an even worse taste title from suesspiciousminds.

G (A Child): Will the lawyers take some responsibility for the future conduct of this case?
I make a point of a point raised by Lord Justice Ward in G (A Child) [above], in this post, here on Family Lore.

Monday, November 19, 2012

News Podcast: For the week to the 19th of November 2012

This week's summary of the top family law news stories and cases. Once again, not quite as short as usual, but still not long to keep yourself up-to-date!



(If you can't see the audio player above, you can listen to the podcast here.)

Saturday, November 17, 2012

Something for the Weekend: Bruce Springsteen - Born In The USA

I was reminded of this this week by an article discussing how the song has been misunderstood by many to be the ultimate "All-American" song. Of course it is not. In fact, I've always thought the words to be quite powerful, especially in those parts of the song dealing directly with the Vietnam war:

Got in a little hometown jam
So they put a rifle in my hand
Sent me off to a foreign land
To go and kill the yellow man
*
I had a brother at Khe Sahn
Fighting off the Viet Cong
They're still there, he's all gone


Friday, November 16, 2012

Edgar Venal joins Twitter!


In a development that is likely to change the face of legal tweeting forever, Edgar Venal has today joined Twitter. If you want to see into the mind of this country's foremost divorce lawyer, connect with him here (he'll send you the bill later).

THE FIRM: Chapter 9 - A Little Persuasion


AT THE OFFICES of Messrs. Venal & Grabbit, Solicitors, Mike McCheap is working his way through his morning post basket, when he comes across a large unopened brown envelope marked simply "McCheap".

Intrigued, he slips a letter opener under the sealed flap, slits the envelope open and tips the contents onto his desk. They comprise a photograph, with a note attached.

McCheap examines the photograph. It is a picture of two people in a state of semi-undress. The image is slightly blurred, as if it was a still from a film, so it takes McCheap a moment to recognise the two people in it.

Then he feels his heart flutter as he realises that the two people are him and his secretary Brenda Buxom.

"Oh God." He moans.

He then looks at the handwritten note attached to the photograph. It is from Bill Devastator, Head of Security at Venal & Grabbit. It reads: "If you don't want this and the film it came from falling into the wrong hands, I suggest you speak to me."

"Oh God." He moans.

*            *            *

Bill Devastator's office is in the basement of the building. It is dominated by a bank of TV monitors, showing images from all of the security cameras in every room in the building (yes, that does mean EVERY room).

Devastator is happily scanning the monitors, when there is a knock on the door. It is Mike McCheap.

"Ah, I've been expecting you!" Says Devastator cheerily. "Take a seat."

McCheap sits down.

Devastator plays with a digital video recorder on a desk in front of the monitors, humming to himself as he does so. McCheap can see that Devastator is a man who enjoys his work.

After a few moments, Devastator pipes up. "Here we are!" He announces, in the same cheery voice. "Thought you might like to see this." He gestures at one of the monitors.

McCheap looks at the screen. It shows his secretary Brenda Buxom sitting at her desk, typing away. She gets up, walks across the room, falls over and screams. Moments later, McCheap enters the room.

"My stiletto." Says Brenda. "I caught it on the carpet. I think I've twisted my ankle."

McCheap knows what happens next.

"All right." He says. "I get the message. We don't need to watch all of it."

Devastator is slightly disappointed, but stops the film anyway. He turns towards McCheap. "The thing is," he says with a smile, "if you should go to the police then this film could come to the attention of your lovely wife."

"Oh God." Moans McCheap.

Thursday, November 15, 2012

Venal & Grabbit announce Get Partisan!

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

London, 15th November 2012: Venal & Grabbit are proud to announce their new initiative for divorce lawyers: Get Partisan!

By adopting a partisan mindset divorce lawyers can reinvigorate their practice and, above all, increase their fee income.

How? By identifying three deeply rooted partisan traits and applying them to their work:

We will explore bias, prejudice and plain bigotry, and explain how to apply them to your cases.

Your clients will love it and will come flocking in! (After all, all clients want you to be partisan!)

(And don't worry. If you don't think you can do bigotry, trust us, we'll make sure you can!)

So, sign up now for our next Get Partisan webinar and start making even more money!

The Get Partisan model is designed especially for divorce lawyers. It has not been used by mediators, collaborative practitioners, counsellors and other hangers-on.

We hope that you will join us.


===ENDS===

Family Lore Clinic: 'I signed on statement of information for a consent order that I would not cohabit'


Another query about the Statement of information form that must be filed with consent orders setting out agreed financial/property settlements on divorce/dissolution of civil partnerships (see this earlier Family Lore Clinic post). It is not clear whether the person raising the query is concerned that they lied on the form, or concerned that since signing it they have decided to cohabit. I will cover both possibilities.

The form requires both parties to state whether they are cohabiting with another person, or whether they have any intention at present to do so. Accordingly if, at the date they signed the form, they had no such intention then they obviously did not lie, even if they subsequently decided to cohabit. The form does not ask you to promise that you will not cohabit in the future, only whether you have any present intention to do so.

Of course, if you stated on the form that you were not cohabiting when you were, or that you had no intention to cohabit when you did, then that is a lie and can result in proceedings being brought against you for contempt of court.

What if you did not lie, but subsequently decided to cohabit - would that affect the financial/property settlement contained in the consent order? The answer, as so often, is: 'it depends'.

Firstly, it depends upon whether your cohabitation would have any bearing on the settlement. This, in turn, depends upon the circumstances, but it is certainly not automatic that it will have a bearing - often, it will not.

Secondly, it depends upon how long after the consent order was made that the cohabitation takes place. If it is very quickly (say, within a few months), then it could have a bearing and the consent order could be set aside. If, on the other hand, it is longer than that then it is unlikely to have a bearing.

(As usual, this is necessarily a simplification of the law. If you require more details or specific advice, you should consult a specialist family lawyer.)

Wednesday, November 14, 2012

G (A Child): Will the lawyers take some responsibility for the future conduct of this case?

Lord Justice Ward
In this post I intend to mention just one point arising from the judgment in G (A Child) [2012] EWCA Civ 1408 (31 August 2012), which has just appeared on Bailii. The point is made by Lord Justice Ward in what amounts to an addendum to his leading judgment and is quite topical, in the light of the current discussions regarding the duration of care proceedings.

The case before the Court of Appeal comprised applications for permission to appeal against findings of fact in respect of injuries to the child, by both the local authority and the mother. Permission to appeal was unanimously refused in both instances, Lord Justice Tomlinson pointedly saying: "Appeals against the findings made by a judge in a fact-finding exercise should in my view be rare and are not to be encouraged."

Lord Justice Ward, however, also had something to say about the management of the case. The injury to the child had occurred on the 14th of March 2011, and the fact-finding hearing did not start until February 2012, eleven months later. Nevertheless, the local authority, apparently even then still unclear what facts it was going to assert constituted significant harm attributable to the parents, had not invited the judge not only to find the facts, but to find whether or not the threshold of section 31 had been crossed. "That", said Lord Justice Ward, "is precisely the purpose of a fact-finding hearing, to divide this into two manageable halves -- the threshold is or is not crossed for these facts as I find them -- and then go on to part two of the exercise, the welfare disposition."

As a result, the case is going to have to go back for another five-day hearing, for another judge to decide whether the threshold has been crossed, a "complete duplication of effort". The fault, Lord Justice Ward considered, lay with the lawyers:
"The lawyers are there to advise as lawyers, not as social workers, and the lawyers have the responsibility of taking a decision whether the facts that are established or the facts that are likely to be established, stack up sufficiently to amount to significant harm. It is not a social worker question, it is a legal question, and that is a matter for lawyers to answer, and if this case does not stack up to significant harm, the sooner it is ended the better. Obviously welfare issues do or can arise, and even there it may require some input from the lawyers; but please, will the lawyers take some responsibility for the future conduct of this case?"

Powerful anti-domestic violence adverts


Advertising agency BETC Paris has created an extremely powerful series of advertisements for French women's rights organisation Ni Putes Ni Soumises ('Neither Whores Nor Submissives'), to raise awareness about domestic violence. "The visuals, which at first glance appear to be abstract fine art photographs, reveal an important message as each one of them tells a tragic individual story of deadly domestic violence." The visuals are, in fact, close-ups of bruises, each with a caption and woman's name attached.

The campaign was launched throughout France in advance of the International Day for the Elimination of Violence against Women on November 25th.

You can see all three of the adverts, here.

Tuesday, November 13, 2012

News Update: 13th November 2012


WELCOME to this week's Family Lore News Update.

NEWS
Standard Directions in Hague Convention Cases involving Cafcass High Court Team
The acting President of the Family Division, the Hon Mr Justice Holman, has issued guidance on standard directions in Hague Convention cases involving the Cafcass High Court Team. Full story: Family Law.

Wives who divorce wealthy husbands can't expect big payouts, judge warns
Wives who divorce wealthy husbands have been warned they cannot expect large payouts simply because they are used to an affluent lifestyle. Lord Justice Thorpe said payouts in "big money" divorces, where wives feel it is "reasonable" to ask for millions to maintain their lifestyle should be consigned to history, adding: "We only talk about 'needs' when there isn't a lot to go round. The bigger the family fortune, the less relevant needs become." Which sounds all very well, but doesn't seem to fit with this case, reported last week, in which Mrs Justice Baron said that a Saudi wife was entitled to an affluent lifestyle. Full story: The Telegraph.

Time limit for care cases ‘impractical’
Family law groups have warned that the government’s plan to impose a 26-week time limit for courts to conclude care cases is impractical in most cases and constitutes ‘potentially unlawful interference with judicial discretion’. Full story: Law Society Gazette.

Gove calls for more adopters to help find homes for more than 4200 children ready for adoption
Michael Gove has called on more people to adopt children. The call comes as it has emerged that more than 4200 children are ready for adoption but have not yet been able to move in with a family – a figure that has grown by 650 in each of the last two years. Full story: Department for Education.

Care applications continue to rise
In October 2012, Cafcass received a total of 937 applications. This is a 9% increase on October 2011 levels. Full story: Cafcass.

Written evidence on draft Children and Families Bill to Justice Select Committee
The Law Society's written evidence to the Justice Select Committee as part of its inquiry into the draft legislation on the Children and Families Bill.

Changes to LSC arrangements for family law cases with projected costs over £25,000
Changes to regulations and guidance affecting high cost family cases have taken place following consultations between the LSC and representative bodies. Full story: Family Law Week.

Case on disclosure of identity of accuser to parties in contact proceedings heads to Supreme Court
The Supreme Court has given permission for an appeal in a case over whether the identity of an individual who has made allegations of serious sexual abuse should be disclosed to parties in contact proceedings. The appeal, listed as In the matter of X (FC), will be heard on the 29th November. Full story: Local Government Lawyer.

Lesbian couple in ten year battle over custody of children
A judge has warned a mother to stop poisoning her children against her lesbian ex-partner after hearing how the couple have fought a bitter ten year custody battle costing hundreds of thousands of pounds. The G (Children) case - see below. Full story: The Telegraph.

Children suffer effects of parents' divorce into adult life - study
The children of divorced parents can suffer the effects of the break-up well into their adult life, a report has found. Full story: The Telegraph.

Child protection system is failing older children, warns Education Committee
The child protection system is not meeting the needs of older children and must be reviewed urgently according to a report from the Education Committee. Full story: UK Parliament.

Courts can make their own calculations of absent fathers’ earnings
Courts do not have to rely on the records of HMRC when calculating the earnings of absent fathers, appeal judges have ruled. The Gray v Secretary of State for Work and Pensions & Anor case - see below. Full story: Solicitors Journal.

Shared parenting provision to be inserted into Children Act section 1
The Department for Education has announced that it proposes to introduce amendments to the Children Act 1989 in order to provide for a presumption of shared parenting. Full story: Family Law Week. See also the article by David Hodson below, the post by Marilyn Stowe below, and my post, here.

STATUTORY INSTRUMENTS
The International Recovery of Maintenance (Hague Convention 2007 etc.) Regulations 2012
These Regulations make provision to facilitate the application of the Convention on the International Recovery of Child Support and other forms of Family Maintenance done at The Hague on 23rd November 2007 in England and Wales.

The Family Procedure (Amendment No. 4) Rules 2012
These Rules amend the Family Procedure Rules 2010 to take account of the application of the Convention on the International Recovery of Child Support and other forms of Family Maintenance done at The Hague on 23 November 2007 in England and Wales.

The Child Support (Meaning of Child and New Calculation Rules) (Consequential and Miscellaneous Amendment) Regulations 2012
These Regulations contain provisions consequential on, or connected with, the bringing into force of the changes to the meaning of “child” for the purposes of the Child Support Act 1991, provided for in section 42 of the Child Maintenance and Other Payments Act 2008, and the changes to the rules for the calculation of child support maintenance, provided for in Schedule 4 to the 2008 Act and the Child Support Maintenance Calculation Regulations 2012.

CASES
Gray v Secretary of State for Work and Pensions & Anor [2012] EWCA Civ 1412 (05 November 2012)
Appeal against child support assessment, involving issue of whether CMEC or a Tribunal have to rely on figures from HMRC for the absent parent's self-employed earnings. Held that they do not, and could make their own findings of fact as to the parent's actual income. Full report: Bailii. See also the news story, above.

Re L [2012] EWHC 3069 (Fam) (8 October 2012)
Cross-applications for sole residence and application by mother for leave to remove the child to the USA. Relocation application rejected and shared residence order made. Full report: Family Law Week.

Re N (Care Proceedings: Adoption) [2012] EWCA (31 October 2012)
During care proceedings the judge made an order that the children be placed for adoption without hearing submissions from the parents. Appeal allowed. Report: Family Law.

G (Children) [2012] EWCA Civ 1434 (07 November 2012)
Appeal against variation of shared residence order and termination of contact. Appeal allowed. In the course of his judgment Lord Justice Thorpe stated that in cases where neither party is represented (a situation the courts are obviously likely to face more frequently in the future), the children's guardian, as the only party with the benefit of legal advice and representation, "must also be vigilant to avoid procedural or other unfairness to one or other of the unrepresented parties." Full report: Bailii. For a summary see my post, below. See also the news story, above.

K (Children) [2012] EWCA Civ 1433 (07 November 2012)
Application for permission to appeal against care and placement orders. Permission refused. Full report: Bailii.

Re G (Contact: Variation) [2012] EWCA (30 October 2012)
Appeal by father against variation of contact. Appeal allowed. Report: Family Law.

ARTICLE
“The government has just introduced equal shared care”
"On Tuesday, 6 November, 2012 at 2:36 AM, according to timing on an e-mail from the Department of Education, the UK Government announced its response to the consultation regarding amendments to the Children Act 1989 on the question of parental involvement in the lives of children at a time of parental separation ... On Tuesday, 6 November, 2012 at 4:06 PM at the Principal Registry of the Family Division in a hearing between two litigants in person at which I was the deputy district judge, the father announced proudly and assertively that the government had just introduced equal shared care." A father gets the wrong end of the stick, as explained by David Hodson in Family Law.

BLOGS
Privacy and financial settlements
"A v A [2012] is the first reported case on the reporting of financial remedy proceedings in the family courts by the media." So says guest blogger Anna Ratcliffe on the Marilyn Stowe Blog.

G (Children): The difficulties that courts face when the parties are unrepresented
A summary of G (Children) [2012] EWCA Civ 1434 [above], which involved an appeal against the variation of a shared residence order and termination of contact. Full post: Family Lore.

Government opts for shared parenting presumptions
"In news which should be welcomed by family lawyers across the country, the government has announced that it plans to legislate for a legal presumption in favour of shared parenting." Marilyn Stowe gives her views on the shared parenting presumption in this post, found amongst all the news items now appearing on her blog.

Monday, November 12, 2012

News Podcast: For the week to the 12th of November 2012

A summary of the top family law news stories and cases from the past week in a not-quite-so-short-as-usual podcast. Still, five minutes twenty seconds is not long to keep yourself up-to-date!



(If you can't see the audio player above, you can listen to the podcast here.)

Saturday, November 10, 2012

Something for the Weekend: Romans Go Home

Time for a little Python (when isn't it?). This clip from Life of Brian always brought back hideous memories of studying Latin at school:

Friday, November 09, 2012

THE FIRM: Chapter 8 - The Informant


MIKE MCCHEAP is grateful for a day out of the office, to attend the annual Family Lawyers Conference and Shindig, at the M1 Services Conference Hall. He is particularly looking forward to the keynote speech by The Rt. Honourable Lady Justice Ardour, on how to maximise profits despite the changing face of family law.

He parks up his company Mercedes, grabs his briefcase and heads towards the conference hall. As he does so, he is accosted by a familiar man in a raincoat. It is Inspector Gormless.

"Can we have a word?" Asks Gormless, directing McCheap away from the conference hall and towards the adjacent Happy Bloater café.

A few minutes later they are sharing a table, each drinking a cup of tea. Or at least a liquid that was described as tea on the menu.

McCheap takes a sip of the beverage, winces at its flavour, and looks up at Inspector Gormless. "What do you want to tell me?" He asks, with some trepidation.

Inspector Gormless takes a sip of his tea, winces at its flavour, and looks up at McCheap. "Since our last meeting," he says, "I've put the word out amongst my underworld informants, to see what I could dig up about our friends at Venal & Grabbit."

"And?" Asks McCheap, with some more trepidation.

"And," continues Inspector Gormless, "it seems that Venal & Grabbit have some friends in very high - or perhaps I should say 'very low' places."

"Who?" Asks McCheap, with even more trepidation.

"It seems that Venal & Grabbit are owned by The Firm." Replies Inspector Gormless.

"The Firm?" Asks McCheap, with even yet more trepidation.

"The Firm. Ronnie & Reggie Molotov. You've heard of them?" Asks Inspector Gormless.

"Y-yes." Stammers McCheap unhappily. He takes another sip of tea, and immediately wishes he hadn't.

"You want to know the worst of it?" Asks Inspector Gormless.

"W-what's that?" Asks McCheap, with as much trepidation as anyone can have.

"The word is that The Firm don't like lawyers leaving Venal & Grabbit." Says Inspector Gormless. "In case they know too much. So, they ensure that any lawyer who tries to leave comes to a sticky end."

"Oh God." Moans McCheap.

"There is something we can do about it." Says Inspector Gormless.

"W-what's that?" Asks McCheap, with more trepidation than anyone can have.

"I want you to gather evidence against Venal & Grabbit and The Firm." Says Inspector Gormless. "Pass it to me, and maybe we can put them both out of business."

McCheap reluctantly agrees, and a satisfied Inspector Gormless gets up and leaves him poring over his half-finished cup of tea.

McCheap feels queasy. He does not know whether this is due to the tea, or to what he has just been told.

What he also does not know is that Venal & Grabbit Head of Security Bill Devastator has been listening to the whole conversation, via a microphone he fitted to McCheap's briefcase.

Wednesday, November 07, 2012

G (Children): The difficulties that courts face when the parties are unrepresented

Lord Justice Thorpe
A summary of G (Children) [2012] EWCA Civ 1434.

"The outcome of this appeal ... depends largely on the lamentable history of conflict between the appellant and the respondent both in their relationship and in the ensuing litigation." So begins Lord Justice Thorpe in his leading judgment. That litigation includes two previous hearings in the Court of Appeal and one in the House of Lords: see CG v CW & Anor (Children) [2006] EWCA Civ 372 and Re G [2006] UKHL 43.

The case involves a lesbian couple, CG and CW, who had two children (born to CG) by donor insemination: A, a girl born on the 2nd February 1999 and B,  a girl born on the 25th June 2001. The relationship broke down in 2003 and CW commenced proceedings seeking shared residence and contact. Without going into the details of the subsequent litigation, a shared residence order was made and CW was to have contact. However, the arrangement broke down and CG sought to terminate contact. In December 2008 CW issued an application for residence and contact. The application was eventually heard in April this year, when the judge rejected CW's application, made a sole residence order in favour of CG, thereby depriving CW of parental responsibility, and made no specific order as to contact, thereby effectively terminating contact. CW appealed.

Lord Justice Thorpe set aside the variation of the shared residence order on the basis of procedural unfairness alone: there was no application for variation, CG had indicated in a statement that not only did she not seek a variation, she sought only the continuation of the status quo, the idea of a variation had only been raised three days before the trial by the guardian, and neither the guardian nor the judge seemed to consider CW's need for advice and protection as a litigant in person. "It is safe to assume," said Lord Justice Thorpe, "that, had she been represented, her counsel would have opposed the variation not only on grounds of substance but also on grounds of procedural unfairness." (He stated that, in cases where the parties are unrepresented, the children's guardian, as the only party with the benefit of legal advice and representation, "must also be vigilant to avoid procedural or other unfairness to one or other of the unrepresented parties.")

As to contact, the judge relied upon the strongly stated views of the children. However, Lord Justice Thorpe stated (at paragraph 47 - my italics):
"Whilst the children's wishes were and remain a very important factor there is a danger in taking them too literally. First, their criticisms of CW have no objective foundations. She has always been a warm and loving parent who has never failed these children. Second, there is a clear mismatch between what the children say and how they behave. The guardian himself, observing without being observed, noted the warmth of the interaction between the children and CW which froze as soon as he made himself known ... Third, there is no doubt that the girls are well aware of their mother's antipathy to CW and to contact. A subtle but familiar strategy is for the primary carer to declare that it is for the children to decide, and they may go whenever they please, whilst at the same time projecting a clear message that she does not wish or expect them to go. In making any assessment the judge had to have regard to the assessment of all previously involved with the case, whether judges or social workers, that CG's determined intention was to ultimately estrange CW and her family from the children."
He concluded that the judge had reached the wrong decision - the exercise of his discretion in accepting the guardian's recommendation to terminate litigation without any enforceable contact order was flawed because it was premature.

Accordingly, Lord Justice Thorpe allowed the appeal and remitted the application for retrial.

Lord Justice Lloyd and Lady Justice Black gave consenting judgments.

Family Lore Clinic: What happens if you do not turn up to a family court hearing?


The answer is: it depends - upon a number of factors, including the type of proceedings, the purpose of the hearing and the party who does not attend.

If the party who does not attend is the one that made the application, then the court may refuse the application, or may proceed in their absence.

If the party who does not attend is the respondent to the application, then the court may proceed with the hearing, if it is satisfied that the respondent received reasonable notice of the hearing and if the circumstances of the case justify proceeding with the hearing.

If the court cannot proceed with a hearing because of the failure of a party to attend, then it may penalise that party by ordering them to pay the other party's costs of the hearing.

Where a party does not attend a hearing and the court makes an order against them, the party who failed to attend may apply for the order to be set aside. The court may set aside the order if that party acted promptly, had a good reason for not attending the hearing and has a reasonable prospect of success at the hearing.

Of course, if the court has ordered a party to attend a hearing, then failure to do so would be a contempt of court, which could be punishable with imprisonment.

The simple rule is, of course: you should attend any hearing, unless the court has stated that you do not need to do so.

As usual, if you require more details or specific advice, you should consult a specialist family lawyer.

Tuesday, November 06, 2012

New shared parenting provision published, but will it make any difference?

It seems slightly strange to me that this isn't (yet) a news item on the Department for Education website, but there have been considerable developments in the last 24 hours regarding the issue of shared parenting. As I mentioned in my News Update below, the Government's response to the consultation has been published, and the favoured option is a presumption that the welfare of the child will be furthered by involvement in the child's upbringing of each parent. In addition, the Government has published a draft clause to be inserted into section 1 of the Children Act, together with an explanatory note.

The explanatory note includes the following flow diagram (or, to use the jargon (because 'flow diagram' is clearly too easy), 'process map'), which explains how the presumption is expected to fit with the decision making process:

I have commented before that I am not sure how much difference, if any, a presumption will make to outcomes (although it may increase the amount of argument). The explanatory note also includes five fictitious examples of how the court might apply the presumption in practice. I have to say that I am finding it difficult to conclude that any of those example cases would have been decided differently under the old (i.e. current) law.

You can read more about the new provision on Family Law Week, here.

News Update: 6th November 2012


WELCOME to this week's Family Lore News Update.

NEWS
Social workers 'at rock bottom' over issue of race and adoption
Professional body to tell Lords committee that political stereotyping has hampered efforts to re-home vulnerable children. "Morale among social workers has been driven to rock bottom by cuts, targets and ministers making the issue of race and adoption a "political football", according to the biggest professional association." No surprise there, then - anyone from the Government listening? Full story: The Guardian.

Saudi wife entitled to affluent lifestyle, divorce judge rules as he awards her £4 million
A Saudi businessman has been ordered to pay his estranged wife £4 million and give her £150,000 a year for life after a judge ruled she was entitled to continue living an affluent lifestyle. Nice work if you can get it... Full story: The Telegraph.

Absent fathers to get legal right to spend time with their children
Absent fathers are to be given a legal right to spend time with their children, unless they are likely to cause them harm, under changes to access laws unveiled yesterday. The Government's response to the 'Co-operative parenting' consultation. As I noticed when I first looked at the response, and as has been noted elsewhere, what is striking about this is the extremely low number of responses to the consultation. There were only 214 responses, and just 93 respondents supported the favoured 'Option 1', all of which suggests to me that there is very little interest in any change to the law. Full story: The Telegraph.

Family courts 'ignoring needs of domestic violence victims'
Report finds women are frequently put in unsafe positions during proceedings, and government plans could make matters worse. Full story: The Guardian. The report is Picking up the pieces: domestic violence and child contact, prepared by the Rights of Women charity. Hmm, call me a cynic, but I am always a little suspicious of reports/research/studies whose conclusions support the views of those who prepared or commissioned them. As for family courts ignoring the needs of domestic violence victims, that was certainly not my experience - quite the opposite, in fact.

Fifth of adults believe 40 is too old to adopt
A fifth of adults in the UK believe they would be ruled out of adopting a child after the age of 40, a study has revealed. Full story: Children & Young People Now.

Dream holiday homes becoming ‘millstones’ for divorcees after Euro property plunge
For couples in the midst of divorce, tumbling property values in countries hit by the Euro crisis are rapidly turning former “dream” homes into a “toxic” legacy, lawyers have warned. Full story: The Telegraph.

Chancery judge declines bankrupt husband’s application for release from ancillary relief order
In McRoberts v McRoberts [2012] EWHC 2966 (Ch) [see below], Mr Justice Hildyard, sitting in the Chancery Division, has declined an application by a bankrupt husband under s 281(5) of the Insolvency Act 1986 to be released from the bankruptcy debts arising within ancillary relief proceedings. Full story: Family Law Week.

Children in need numbers fall slightly in last 12 months
The Office for National Statistics has published final figures on the numbers of children referred to and assessed by children's social services. Full story: Family Law Week.

Catholic Care loses gay adoption fight
A Roman Catholic adoption agency has been told [again] it cannot turn away gay couples if it wants to keep its charitable status. Full story: BBC News.

Children in care are usually not offered an independent visitor, says report
The Independent visitors report published by the Children's Rights Director documents children in care's views and experiences of having an independent visitor, as well as their views about not being offered one. Full story: Family Law Week.

Number of opposite sex cohabiting couples has doubled since 1996
The number of opposite sex cohabiting couple families has increased significantly, according to the latest statistical bulletin on families and households released by the Office for National Statistics. Full story: Family Law Week.

1996 Hague Convention comes into force on 1 November 2012
The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the "1996 Hague Convention") came into force on 1 November 2012. Full story: Family Law. For a summary of the Convention, see this Outline, prepared by the Hague Conference.

Child maintenance powers 'emasculated' after court ruling
Absent parents who fail to support their children may no longer be threatened with jail after a court ruling against a Government body set up to pursue them. The CMEC v Gibbons and CMEC v Karoonian cases, see below. Full story: The Telegraph.

Toyota system halves care proceedings time
Three London councils have halved the time it takes for care proceedings to go through the family court by implementing a time management system developed by the car manufacturer Toyota. Full story: Solicitors Journal.

CASES
Malialis v Malialis [2012] EWCA (24 October 2012)
The husband appealed financial orders made following divorce. The appeal was partly allowed. Report: Family Law.

McRoberts v McRoberts [2012] EWHC 2966 (Ch) (1 November 2012)
Application to release a bankrupt from bankruptcy debt arising under an order made in family proceedings. Application dismissed. Full report: Family Law Week. See also the news story, above.

KH v CMEC (CSM) [2012] UKUT 329 (AAC) (18 September 2012)
Appeal by absent parent against decision of First-tier Tribunal, after tribunal decided to proceed with hearing in his absence. Appeal allowed. Full report: Bailii.

Vogel v Lothschutz [2012] EWHC (19 October 2012)
Case concerning the enforcement of a German maintenance agreement. Report: Family Law.

Child Maintenance and Enforcement Commission v Gibbons; Same v Karoonian [2012] EWCA Civ 1379 (30 October 2012)
CHILD MAINTENANCE — Enforcement — Committal to prison — Non-resident parent not complying with order to pay maintenance — Statutory power, in case of wilful refusal or culpable neglect, to commit to prison and/or disqualify from holding or obtaining driving licence — Pre-condition that distress under statute should have been “sought” — True construction of word “sought” — Whether body seeking enforcement having sought distress — Child Support Act 1991, s 39A (as inserted by Child Support, Pensions & Security Act 2000, s 16(1)). Report: ICLR. Full report: Family Law Week. See also the news story, above.

G (A Child), Re [2012] EWCA Civ 1377 (31 October 2012)
Application by a maternal aunt for permission to appeal against a care order. Permission refused. Full report: Bailii. See also the post by suesspiciousminds, below.

Re C (Adoption: Assessment of Grandparents) [2012] EWCA (25 October 2012)
Appeal by grandparents against decision not to further assess them as potential carers of their grandchild prior to making a final order. Report: Family Law.

Hunt v Hunt [2012] EWHC (19 October 2012)
Parents agreed for the child to live in Mexico with mother. Father failed to return the child following contact and mother issued Hague proceedings in reliance on the agreement in establishing habitual residence in Mexico. Application dismissed. Report: Family Law.

ARTICLES
Beyond the Nuclear: The Face of Modern Adoption (Ulster Style)
"A Judge in Belfast's High Court decided last month that unmarried and same-sex couples in Northern Ireland should be allowed to adopt children. In so doing, Mr Justice Seamus Treacy ruled that an adoption law from 1987 that discriminated against both groups was unlawful and amounted to a breach of human rights." Says Duncan Ranton in Family Law.

Finance and Divorce November Update
Anna Heenan, solicitor and David Salter, Joint Head of Family Law at Mills & Reeve LLP analyse October’s financial remedies and divorce news and cases. Full article: Family Law Week.

Family Division 1 – Chancery Division 2: A consideration of Petrodel v Prest
Alison Burge, barrister, of Pump Court Chambers analyses the Court of Appeal's decision in the watershed case of Petrodel v Prest. Full article: Family Law Week.

Cohabitation Update
“The purpose of this seminar is to consider the law on constructive trusts following Jones v. Kernott and recent developments regarding cohabiting couples.” Full article: Zenith Chambers (PDF).

BLOGS
Delegation’s all you need
"I have heard a rumour of Local Authorities purporting to delegate their P.R. (obtained pursuant to interim care orders) to proposed carers (foster carers, extended family members etc) whom they support as long term carers for children in their care but who would otherwise not qualify for legal aid, as a device in order to trigger non means non merits tested legal aid – for example in order to secure funds for representation of proposed special guardians." Says Lucy Reed at Pink Tape, in a welcome return to substantial blogging (she claimed that work had got in the way of blogging, but that is no excuse).

Taking neglect seriously
Some interesting research about children’s timescales and the Court process, which has been conducted by the Childhood Wellbeing Research Council. Full post: suesspiciousminds.

it cannot be right for the Court of Appeal to be asked to case manage cases retrospectively.
A discussion of Re G (A child) 2012 EWCA Civ 1377 [above]. More chunks from a judgment, interspersed with comment from suesspiciousminds.

A new model for family court social work?
"Social workers who work regularly in the family courts must have: a strong grounding in child development, a good understanding of effective, evidence-based family interventions, the ability to produce high quality statements, chronologies and court reports and the skills to present evidence in court." So says Camilla Pemberton in The Children's Services Blog.