Monday, December 31, 2012
Following the success of my predictions for 2012 (with a remarkably similar graphic), here are my predictions for 2013:
January - Sir Paul Coleridge announces the launch of the Foundation of Small-Minded People. In an attempt to keep a lower profile, he makes the announcement whilst wearing a paper-bag on his head.
February - Mr Justice Ryder publishes the second 'Implementation Update' for the Family Justice Modernisation Programme. He says that he will "set up a new pathway which will enable better patterning of judges to give clear deployment instructions to their unified family administrations, to provide a multi-layered alternative to judicial decision-making with regard to the expectation documents and deployment guidance which will be applied to the itineraries and sitting patterns of mixed ticket judges". So, that's all clear then.
March - Fathers' rights group The Real Families Need Fathers 4 Justice launch a new advertising campaign: "Say it with flowers laced with arsenic this Mother's Day".
April - The new Lord Chancellor, the Right Honourable Mick 'Hang-em High' Maddog MP announces that legal aid will not, after all, be abolished for all private-law matters on the 1st - it was all just an elaborate April fool joke by his predecessor, Kenneth 'Laughing-Boy' Clarke.
May - In a cost-cutting exercise, the Government announces that the new family courts will be located in old public toilets that have been shut in recent years. Commenting on the announcement new Justice Minister Jonathan Damugly said: "We think this is an excellent idea, re-using old resources. The only downside we can see is that all court users will need one old penny to gain entrance."
June - New child support fees are introduced, whereby for every pound of child maintenance received, the parent with care must pay the CSA a £2 fee.
July - The Government announces a new 'shared parenting time presumption'. The presumption will mean that children must spend a precisely equal time with each parent, measured to the second.
August - The Government announces that in future all family law policy will be determined by what the Daily Mail says.
September - The Law Commission publishes its report on the Matrimonial Property, Needs and Agreements consultation. As expected, it recommends a formula for calculating the amount of a financial award on divorce. The formula is: Award = (Total assets ÷ 2). After working that out, the Commissioners award themselves a holiday.
October - After much criticism of its 'Sorting out separation' web app, the Government launches a new app for anyone needing help and support after separation. The new app is much smaller than the last one, but much more useful. It comprises just one page, with the advice: See a solicitor.
November - Sir Paul Coleridge has been cleared of judicial misconduct over his involvement with the Foundation of Small-Minded People, but said he would take an “even lower profile” position.
December - The Institute of Family Law Arbitrators announces that in 2013 it completed a record one-and-a-half arbitrations.
Happy New Year!
Saturday, December 29, 2012
OK, it may be a couple of days to go before New Year, but it's never too early to enjoy Pat Metheny. This is a track by his new Unity Band:
Wednesday, December 26, 2012
|Agricultural calendar from a manuscript of Pietro Crescenzi, written c. 1306. Image: Marcel Douwe Dekker|
1. Sir Paul climbs back on his hobby-horse
2. Government Response to the Family Justice Review
Response to the Family Justice Review. The majority of the Review's recommendations were accepted, in full. One notable exception was the recommendation that no legislation should be introduced that 'creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents', more of which later in this post. A recommendation that the Government should establish a separate review of financial orders to include examination of the law was rejected, on the basis that the Law Commission's project looking at matrimonial agreements would be extended to look at the issues of matrimonial property and needs. More also on that later.
3. Debating Family Law Arbitration
Institute of Family Law Arbitrators. The launch provoked a debate about the enforceability of arbitration awards. As I said at the time, my view is that the award would only be binding once approved by the court and incorporated into a consent order. All of this may, however, be fairly academic if people don't use arbitration - in September I was informed that uptake was 'very sluggish', and in an attempt to kick-start the use of the process, virtually all IFLA accredited arbitrators offered to take on 'appropriate cases' for a maximum fee of £1,500 plus disbursements, provided the arbitration was commenced before the end of October.
4. Adoption Action Plan published
Action Plan for Adoption', which set out "to overhaul the system for prospective adopters and strengthen the performance regime for local authorities". We would hear much more of the Government's plans for adoption through the year, culminating in the announcement on Christmas Eve (!) of "a new package of support for people who want to adopt to ensure more children get a stable, loving home without delays". The package appears to have been generally well received.
5. S (a Child): Supreme Court unanimously allows mother's appeal
S (a Child). The issue was the approach that the court ought to take to summary applications under the Hague Convention when Article 13(b) is engaged. The High Court refused to order the child's return to Australia, finding that the exception provided for by Article 13(b) was engaged and satisfied. The Court of Appeal reversed that decision and ordered the child's return. The Supreme Court unanimously reversed the decision of the Court of Appeal, and restored the order of Mr Justice Charles in the High Court. The judgment was welcomed by the child abduction charity Reunite, which was permitted to intervene in the proceedings.
6. Fancy a 'Gateway conversation'?
policy document launching a consultation upon the draft regulations for the new child maintenance system. The policy document set out 'key improvements' to the child maintenance system, but the headline-grabbing aspect of the new plans was the penalty charges for failure to pay. As for the above heading, if you want to use the new 'Child Maintenance Service', then you will have to go through a 'Gateway'. However, it will not be satisfactory to describe the help that you will then get from the Service as 'advice'. Instead, we are to be saddled with the particularly absurd expression 'Gateway conversation' to describe the process whereby they explain your options to you.
7. Re W (Children): The responsibilities of parents
Re W (Children)  EWCA Civ 999, decided on the 24th of July, involved a father's successful appeal against the dismissal of his application for direct contact with his daughters. However, it was the postscript to the judgment of Lord Justice McFarlane (left) which caught the eye. In it, he reminded us that: "statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency". As I said at the time, this should be compulsory reading for all parents involved in disputes over the arrangements for their children.
8. Re S (A Child): Residence and the controlling father
Re S (A Child)  EWCA Civ 1031, also decided on the 24th of July, demonstrated aspects of children disputes with which all family law professionals will be familiar. The case involved a father's appeal against a residence order in favour of the mother on the grounds, inter alia, that the judge had been biased against him. The Court of Appeal dismissed his appeal. Giving the leading judgment, Sir Mark Potter (right) found that the judge's finding "that the father's motivations were not simply his devotion to [the child] but a determination to dominate and control the mother" was not open to review by the Court of Appeal.
9. Mr Justice Ryder’s report on Modernisation of Family Justice published
final report on the Family Justice Modernisation Programme was published. Key points related to the single family court, good practice materials, case management and assisting self-represented litigants, the last point taking on particular urgency, with the impending removal of legal aid in most private law cases. The implementation of the modernisation programme has since begun, with the first 'Implementation Update' being published in December, and will continue under the overall direction of the new President of the Family Division, Lord Justice Munby.
10. Re K (Children): How not to conduct yourself when faced with care proceedings
Re K (Children)  EWCA Civ 1169 concerned an application by the mother and stepfather for permission to appeal against an interim care order removing the child from their care and placing him with the maternal grandparents, and a special guardianship order made in favour of the maternal grandparents. The application was granted, but neither the mother nor the stepfather helped themselves by the way they behaved, both with regard to the investigation by social services and the court proceedings, taking it upon themselves to choose when they should cooperate with social services, and when they should attend court, withdrawing from engagement in the process when they considered that it was going against them. Another judgment that should be compulsory reading, this time for anyone facing the possibility of having their children taken into care.
11. Draft legislation on Family Justice published for Pre-Legislative Scrutiny
draft legislation on Family Justice, introducing changes to the operation of the family justice system, as recommended by the Family Justice Review and accepted by the Government in its response published in February (see paragraph 2 above). The main provisions included putting in place a maximum 26 week time limit for the completion of care and supervision proceedings, the replacement of residence and contact orders by a 'child arrangements order' and the repeal of section 41 of the Matrimonial Causes Act. (As to the 'shared parenting' provision, see paragraph 15 below.)
12. Matrimonial Property, Needs and Agreements consultation opens
Matrimonial Property, Needs and Agreements consultation opened in September. The consultation is supplementary to the Marital Property Agreements consultation and considers two aspects of the law relating to the financial consequences of divorce and of the dissolution of civil partnership:
(1) the law relating to financial needs on divorce and dissolution; and
(2) the legal status of “non-matrimonial property”.It has been suggested that the Commission will recommend the adoption of formulaic guidelines for spousal maintenance, similar to those used in Canada. We shall see.
13. M (Children): Use of a conditional residence order where contact obstructed
M (Children)  EWHC 1948 (Fam), involved the making of a conditional residence order in favour of the father, in circumstances where the mother had been obstructing contact. The case concerned the father's application for residence in respect of two boys, aged 10 and 8. Hearing the case, Mr Justice Jackson (right) did not accept the mother's contention that she had done everything she could to comply with contact orders. He considered that the father's application for a residence order should succeed, but decided to allow the mother one final opportunity. He therefore directed that the order would not come into effect if staying contact was resumed (as defined).
14. Prest: A "cheat's charter"?
Petrodel Resources Ltd & Ors v Prest & Ors  EWCA Civ 1395 was handed down by the Court of Appeal in October. Briefly, the background was that in October last year Mr Justice Moylan awarded the wife £17.5 million in settlement of her financial remedy claim. In view of the husband's appalling litigation misconduct, he ordered that companies owned and controlled by him (which Moylan J found the husband had used to try to defeat the wife's claims) transfer certain assets to the wife, in part payment. The companies appealed, and the Court of Appeal allowed the appeal, by a majority. Lord Justice Rimer (pictured) made it clear that section 24(1)(a) MCA did not enable the court to treat a company's property as belonging to its 100% owner. The ruling has been called a "cheat's charter" by divorce lawyers, who fear that it will be used by wealthy husbands to avoid their liabilities to their families. The case is to be heard by the Supreme Court.
15. New shared parenting provision published, but will it make any difference?
In November the Government published a draft clause to be inserted into section 1 of the Children Act, to give effect to the 'shared parenting' presumption that the welfare of the child will be furthered by involvement in the child's upbringing of each parent. The Government also published an explanatory note which included a 'process map' explaining how the presumption is expected to fit with the decision making process. All very interesting, although whether the presumption will make any difference to outcomes is not so clear (it is, however, likely to increase the amount of argument).
16. Help for separating parents at their fingertips as new web app launches
The government's big new idea, which will at a stroke solve all the problems caused by lack of funding, in particular for legal aid. The 'Sorting out separation' hub, launched in November, is "an easy-to-use web app, ... featuring an innovative and interactive tool, which offers parents personalised advice and shows where they can access further support". As to how useful the 'hub' will be, see this review by Lucy Reed over on Pink Tape.
17. In the matter of A (A Child): Appeal dismissed
In the matter of A (A Child). The issue was whether disclosure of the identity of the accuser and substance of allegations of serious sexual abuse made by a third party ('X') should be disclosed to parties involved in contact proceedings relating to a child. In this case, the Supreme Court unanimously held that it should, Lady Hale (pictured) saying that: "The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X."
[Please note that this is a personal selection of some of the more interesting things that happened in family law this year based, obviously, on posts I wrote/published. It is not intended as a definitive list of the most important news items/cases - I'm sure others may consider that other items should have been included in any such list.]
Tuesday, December 25, 2012
Saturday, December 22, 2012
Friday, December 21, 2012
AT THE OFFICES of Messrs. Venal & Grabbit, Solicitors, Edgar Venal has just arrived back from Mustique.
He was still relieved that the whole McCheap/Molotov thing had been just a dream, and was determined to show his thanks by doing something for those less fortunate than him, i.e. his staff.
Accordingly, he called an immediate meeting of all staff, in the firm's boardroom.
* * *
Edgar sat at the head of the boardroom table. His partner, Ebenezer Grabbit, sat next to him, wondering what this was all about, as Edgar had said nothing to him.
When the staff had all gathered, Edgar stood up.
"In the spirit of Christmas," he announced with a smile, "I have decided to give you all a £10 voucher off of our fees when... er, I mean if, you instruct the firm to deal with your divorce."
Ebenezer Grabbit looked aghast at Edgar's generosity.
The staff, however, looked strangely underwhelmed, and Edgar wondered if perhaps it wasn't enough. He decided to give them something more.
"In addition," he said, "I've decided to close the office half an hour early on Boxing Day!"
Ebenezer Grabbit looked even more aghast.
The staff simply exchanged bemused glances with one another.
Edgar wondered whether this "joy of giving" thing wasn't all that it was cracked up to be.
After a few moments silence, however, someone at the back of the room murmured: "Thank you, Mr Venal" followed, somewhat grudgingly, by the rest of the staff.
"Excellent!" Said Edgar, looking at the clock. "Now, this will never do - back to your desks... oh - and Merry Christmas!"
Thursday, December 20, 2012
A new survey questioning people about divorce has come up with a shock finding.
The survey, conducted by ICBM, asked ten people what they thought divorce was for, and a majority of respondents said that it was to terminate marriage.
The survey was commissioned by leading divorce firm Venal & Grabbit. Commenting on its findings, Senior Partner Edgar Venal said: "This unexpected result has come as a shock to us all. Who would have thought that most people thought that the purpose of divorce was to terminate marriage?"
If you are thinking of terminating your marriage, then we at Venal & Grabbit can help. We have experts who can deal with all aspects of marriage termination - just call us for a quote.
Wednesday, December 19, 2012
Yes it does, provided either:
(a) the order includes a provision that interest is payable; or
(b) the order does not include a provision for interest, but the lump sum is at least £5000.
In each case, interest will be payable from the date by when the lump sum must be paid (the order will state this date). If the order includes a provision that interest is payable, it will also specify the rate of interest. If the order does not include a provision for interest, the rate will be the current 'prescribed rate', which is presently 8% per annum.
(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.)
Tuesday, December 18, 2012
WELCOME to (very probably) the last Family Lore News Update of the year. (Warning: It's another big one.)
Thousands of the most damaged children in care being failed
Report criticises treatment of children in care outside their home areas and under supervision of youth offending teams. Full story: The Guardian.
Gay marriage: divorces over adultery face legal challenge
Unfaithful husbands could attempt to stop their wives divorcing them for adultery if gay marriage is legalised, according to senior lawyers. Full story: The Telegraph.
Even divorcees think divorce is too easy, poll finds
Getting divorced is too easy – even in the opinion of the majority of divorcees, a survey suggests. Full story: The Telegraph.
Attainment gap between looked after and non-looked after children narrows slightly
For the third year an annual statistical release has been published showing reported outcomes for looked after children with comparative figures for non-looked after children. Full story: Family Law Week.
The Justice Committee publishes report on the pre-legislative scrutiny of the Children and Families Bill
Proposed changes to family justice have been broadly welcomed by the Justice Committee in its report scrutinising the draft Children and Families Bill, but the Committee maintains significant concerns about the draft clause on shared parenting. Full story: UK Parliament.
2011 Census figures highlight risks to cohabiting couples
New figures from the UK Census have revealed that more and more couples are living together without being married. These figures once again highlight the urgent need to give legal rights to millions of couples in England and Wales. Full story: Resolution.
Family judges backing court welfare reports
Family judges follow the recommendation of court welfare reports in nine out of 10 cases, research has revealed. Full story: Law Society Gazette.
Supreme Court decides in favour of disclosure of allegations in contact case
The Supreme Court has unanimously upheld the decision of the Court of Appeal in In the Matter of A (A Child)  UKSC 60 [below]. Full story: Family Law Week.
Parental child abductions 'rise by 88% in a decade'
The number of children abducted and taken abroad by an estranged parent has risen by 88% in just under a decade, according to new government figures. Full story: BBC News.
Hotel boss obsessed with family business loses divorce appeal
A multi-millionaire hotelier who was so in love with his business that a judge described it as the third party in his marriage has lost an Appeal Court bid to reduce his wife’s £2.7 million divorce payout. Full story: The Telegraph. The Davies case - see below.
Gay marriage: Religious 'opt-in' offered, but not to CofE
The Church of England and Church in Wales will be banned in law from offering same-sex marriages, the government has announced. Full story: BBC News.
The Family Procedure (Amendment) (No.5) Rules 2012
These rules amend Parts 1, 12 and 25 of the Family Procedure Rules 2010.
Bhura v Bhura  EWHC 3633 (Fam) (17 December 2012)
Committal application to enforce US lump sum order. Suspended committal order made. Full report: Family Law Week.
G (A Child)  EWCA Civ 1690 (30 October 2012)
Application by father for permission to appeal contact order and various findings by judge. Appeal allowed in part. Full report: Family Law Hub.
M (A Child)  EWCA Civ 1687 (23 October 2012)
Application by father for permission to appeal against dismissal of application for interim contact and committal order for breach of undertaking to remove references to the case from his Facebook account. Permission granted in respect of the latter only. Full report: Family Law Hub.
R (a Child), Re  EWHC 2956 (Fam) (24 October 2012)
Application for recognition of Indian adoption. Held that the adoption should be recognised in this jurisdiction. Full report: Bailii.
An NHS Trust v DJ & Ors  EWHC 3524 (COP) (06 December 2012)
Application by NHS Trust for permission to withdraw medical treatment from 68 year-old man lacking capacity. Application refused. Full report: Bailii.
In the matter of A (A Child)  UKSC 60  UKSC (12 December 2012)
Appeal against order requiring local authority to disclose details relating to allegations of sexual abuse against the father. Appeal dismissed. Full report: Supreme Court. See also the news story above, and the article in Family Law and Marilyn Stowe's blog post, both below.
Suffolk County Council v Nottinghamshire County Council  EWCA Civ 1640 (11 December 2012)
Special guardianship. Case involving the determination of which authority owes duties under Sections 14A-F and the extent to which local authorities are free to make arrangements amongst themselves in respect of these duties. Full report: Bailii.
Davies v Davies  EWCA Civ 1641 (11 December 2012)
Application by husband for permission to appeal against lump sum award, where the principal issue was the wife's contribution to the husband's business. Permission granted but appeal dismissed. Full report: Bailii. See also my blog post, below.
J Council v GU & Ors  EWHC 3531 (COP) (11 December 2012)
Judgment on application made by Council for declarations and orders pursuant to sections 15 and 16 Mental Capacity Act 2005 in relation to 57 year old man suffering from mental disorders. Full report: Bailii.
Re O (Residence)  EWCA (5 December 2012)
Judge refused to alter relocation order after father offered to pay maintenance and arrears, thereby making mother's position in England more viable. Father appealed. Appeal dismissed. Report: Family Law.
Are we missing a trick?
Julie Stather examines the advantages to child, parents and local authority of using the under-utilised section 34 of the Children Act. Full article: Local Government Lawyer.
Finance and Divorce December Update
Anna Heenan, solicitor and David Salter, Joint Head of Family Law at Mills & Reeve LLP analyse November’s financial remedies and divorce news and cases. Full article: Family Law Week.
Unvisited: Looked after children and the role of the Independent Visitor
Noel Arnold, Head of Legal Practice at the Coram Children’s Legal Centre, considers the importance of Independent Visitors for looked after children and clarifies confusions in the current arrangements. Full article: Family Law Week.
X’s Appeal Rejected - Disclosure Still Stands
In Re A (A Child)  UKSC 60 [above] the issue before the Supreme Court was whether disclosure of the identity of a father's accuser (‘X') and the substance of her allegations against him should be given to the parties in contact proceedings relating to their child; and whether X should be required to give evidence in those proceedings. Full article: Family Law.
The Court of Protection: how journalists and lawyers can open the closed doors of justice
The Independent's senior lawyer explains what the Court of Protection is and how it ought to change. Full article: The Independent.
Don’t Panic! The HUB is HERE!!!
Lucy Reed casts her eye over the Sorting Out Separation hub, and is not impressed by what she sees. Full post: Pink Tape.
A Little Local Practice
In a busy week for the Pink Tape blog (just kidding), Lucy Reed examines the proliferation of local guidance documents and practice directions.
Redacting for anonymisation: Article 8 v Article 10 in child protection context
"Getting redaction right can be difficult: too much redaction undermines transparency, too much undermines privacy. The Court of Appeal’s recent judgment In the matter of X and Y (Children)  EWCA Civ 1500 is a case in point." Says Robin Hopkins on the Panopticon Blog.
Case Preview: Re J (Children)
"This case concerns care proceedings, and the difficulties faced by the courts and child protection professionals where there has been a past finding of serious non-accidental injuries to a child, but it has not been possible to make a finding of fact as to which individual was responsible for these injuries, but only to say which two (or more) people make up the pool of potential perpetrators." Says Eloise Le Santo on the UKSC blog.
Supreme Court rules in favour of disclosure
"A fascinating judgement has been handed down today by the Supreme Court in the case of In the Matter of Re A (A Child) 2012" [above], says Marilyn Stowe.
Davies v Davies: Contribution and inherited assets
A summary of Davies v Davies  EWCA Civ 1641 [above]. Full post: Family Lore.
Monday, December 17, 2012
(If you can't see the audio player above, you can listen to the podcast here.)
Saturday, December 15, 2012
My earlier post was perhaps a little frivolous. Here, to compensate, is a fabulous recording of the great Lynyrd Skynyrd at their height, before tragedy struck. Their best known song, demonstrating of course their famous three-guitar attack:
This started off being a serious post, lamenting the fact that all of my heroes seem to have passed away. Naturally, I thought of this song, that I saw the band play live at the Reading Top Rank way back in 1977 (yes, I pogoed). However, as I looked through various videos of them playing it I came across this one, in which they are not taking things entirely seriously. Possibly. Well, it amused me, anyway:
Friday, December 14, 2012
The other day, that well-known family law journal the London Evening Standard ran a piece suggesting that, when it reports on the Matrimonial Property, Needs and Agreements Consultation, the Law Commission will recommend the adoption of formulaic guidelines for spousal maintenance, similar to the Canadian Spousal Support Advisory Guidelines.
The Commission did, of course, explore the Guidelines in its Supplementary Consultation Paper. There are two points of particular note about the Guidelines:
- Firstly, they offer a range of figures, rather than a set amount, thus leaving it open to the parties to argue what figure within that range would be appropriate in their particular case.
- Secondly, the use of the Guidelines is purely voluntary, although they have apparently become 'thoroughly embedded' within the Canadian system since their introduction in 2008 (they are intended to generate appropriate outcomes in the majority of cases). I understand that the courts have stated that if a judge awards an amount of spousal support that is significantly different from the Spousal Support Guidelines, the judge must give reasons why this is the case. There are also a wide range of exceptions which do justify departure from the formula, such as the existence of marital debts, prior support obligations, disability, unequal division of property, etc..
The stated aim of the Commission is to make the law relating to financial provision "clearer and simpler". I'm not convinced that a system along the Canadian lines would achieve this. Where there are children, the formula is so complicated that it "needs a computer", bringing back unpleasant memories of our original child support formula, and all the difficulties it entailed. There also appears to be plenty of scope for argument, both as to whether the formula should be used, and as to where in the range the figure should be, so any hope that the formula will reduce conflict may be dashed. Of course, the Law Commission may come up with a revised formula that will lessen these issues, but that will be quite some task.
The Canadian Guidelines only, of course, deal with maintenance, whereas the Law Commission has said that its definition of 'spousal support' specifically includes capital, which surely doesn't lend itself so easily to a formulaic solution. We will have to wait and see what the Commission has in mind so far as that is concerned.
Edgar woke with a start. He was sweating profusely, and not because of the Caribbean sun, now slipping towards the horizon. He looked up and saw his faithful negro manservant Old Toby gazing down at him.
"Master Venal, yous dinner's ready!" Exclaimed Old Toby.
Edgar looked around. He was beside the swimming pool at his villa Slaver's Plantation on Mustique, not in Venal & Grabbit's underground car park.
Slowly it dawned on him that it had all been a bad dream: there was no Mike McCheap, no Ronnie or Reggie Molotov, and the only Firm was Venal & Grabbit.
Furthermore, Venal & Grabbit do not have a 'Head of Security' (although Edgar wondered whether it might not be a bad idea...).
A wave of relief flowed over him.
He wiped the sweat from his brow, poured himself another mint julep and took a long swig.
It had all seemed so real. He shuddered as he remembered the sight of Ronnie Molotov blocking his escape from the underground car park.
It was only a nightmare. He kept telling himself.
He wondered where in his subconscious such an awful story could have come from (although, upon reflection, it was only the end of the story that was awful...).
Perhaps his conscience was trying to tell him something? He had never previously thought he had a conscience.
He took another sip of mint julep and watched the sun go down. As he did so, his thoughts guiltily turned to the staff in the office back in cold, grey, December London. Damned conscience, he thought.
His conscience ignored that. After all, it continued, without the staff you wouldn't have made your fortune.
At that moment, he determined to cut his vacation short and return to London. If he hurried, he could get back before the office closed for Christmas Day (it opened again on Boxing Day). He would call his secretary Brunhilde, and get her to book a ticket for him on the next plane.
But first, he would finish this mint julep.
Thursday, December 13, 2012
Many financial orders on divorce use the term 'full-time education', usually to express a cut-off date ("until the youngest child shall cease full-time education"), either to indicate the duration of maintenance payments, or the date upon which the former matrimonial home should be sold. Sometimes the order is a little clearer, by stating whether it is full-time secondary or tertiary education that is intended.
Assuming that the order does not specify secondary education, the simple answer is that university would normally be considered full-time education. Of course, there may be university courses that are part-time, but an undergraduate course would usually be full-time.
As far as I am aware, 'full-time education' is not defined in a family law context, but HM Revenue and Customs does have a definition, which it uses for the purposes of child benefit and tax credits, and which a family court is likely to follow, if there were a dispute. The definition says that: Full-time education is education undertaken in pursuit of a course, where an average of more than 12 hours per week is spent during term time:
- receiving tuition;
- engaging in practical work;
- receiving supervised study; or
- taking examinations.
Obviously, most university courses would fit within this definition.
(As usual, if you require more details or specific advice, you should consult a specialist family lawyer.)
Wednesday, December 12, 2012
|Lady Hale hands down the judgment|
Whether disclosure of the identity of the accuser and substance of allegations of serious sexual abuse made by a third party should be disclosed to parties involved in contact proceedings relating to a child.
A, who is now 10 years old is the daughter of Ms G (‘mother’) and Mr J (‘father’). Her parents married in 2000 but separated in 2002, when A was 6 months old. The father applied for a contact order in the county court in 2003. A number of orders were made culminating in a final order in 2009 providing for A to stay with her father for two weeks every February from 2010 onwards and for four weeks every summer. X (a young person) made allegations of serious and sustained sexual abuse by the father that allegedly took place when she was a child. X did so in confidence but did not wish to take her allegations any further and initially refused to have her identity or the details of her allegations disclosed even to her own family. Social Services contacted the mother and told her that allegations of sexual abuse had been made against the father by an unnamed person and she should take steps to protect A. As a result, the mother applied to vary the contact order based on this information. The father and A’s appointed Guardian applied for disclosure of X’s identity, the substance of the allegations and her medical records. X suffers from significant mental and physical health problems which at times have been life threatening. The psychiatric report prepared on her behalf said that forcing her to disclose her identity and give evidence in the proceedings would have a seriously detrimental effect on her health. Prior to the matter being transferred to the High Court, social services had inadvertently disclosed the identity of X to the mother only. The mother went and saw X who merely confirmed to her the allegations were true with nothing further said. Mr Justice Jackson having had sight of all the confidential material refused to order disclosure on the basis the effect on X’s health would be too detrimental. The Court of Appeal reversed that decision and ordered disclosure.
The appeal by X against the decision of the Court of Appeal was unanimously dismissed by the Supreme Court. Giving the only judgment, Lady Hale said that: "The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X."
You can read a press summary of the judgment here, the full judgment here and the Court of Appeal judgment here.
Tuesday, December 11, 2012
|Lord Justice Thorpe, again|
The case deals with the issues of contribution and inherited assets, although I'm not sure it takes the jurisprudence on either very much further.
Briefly, the case concerned the husband's application for permission to appeal against a lump sum order. In addition to the matrimonial home, the wife had been awarded £2.2 million. The husband contended that she should have received £1.5 million.
The husband is the owner of a successful hotel, which he inherited from his father in 1997/98. At the time the three houses in which the hotel business traded were jointly owned between the husband and his two sisters, but he subsequently bought them out. The husband's principal case was that the wife was no more than a receptionist who had been employed intermittently in his business during the years of co-habitation and marriage. His alternative case was that the assets available to satisfy the wife's needs hardly extended to the hotel business which came to him from earlier generations and was not the product of any shared endeavour. The wife's case was that the status of the hotel had risen almost dramatically as a result of her energy, enterprise and marketing skills.
At trial, the judge preferred the wife's evidence, and found that she made a very high contribution to the success of the business, at least as much if not greater than the husband's. He also found that at the commencement of the relationship the value of the business (excluding the properties) was effectively nil - the husband contended that the business had a substantial value when it was transferred to him.
The wife conceded at trial that one third of all the assets, including the matrimonial assets, should be excluded from the pot available for distribution. The husband contended that the judge should have identified the value of the "inherited" assets, ring fenced them and removed them from the tally of assets properly available for division.
Giving the leading judgment in the Court of Appeal, Lord Justice Thorpe concluded that the judge did fall into error in accepting that the business itself was of no value at the date the husband's acquisition. However, he was not persuaded that the result ultimately ordered by the judge was 'infected' by that error.
On the contrary, he was impressed by the argument on behalf of the wife that had the judge not acted upon her concession, his award might well have exceeded £2.2 million. He continued:
"Cross checking for fairness, the effect of the order was to give the wife approximately one third and the husband approximately two thirds of the total available assets. Such a percentage fairly reflected the derivation of the hotel and its trade. Given the resounding nature of the judge's findings in the wife's favour anything less than a third would have been plainly unfair."In the circumstances, he granted permission but dismissed the resulting appeal.
Lord Justice Elias ("the wife's concession secured the husband a greater portion of the matrimonial assets than he ought to have received on the sharing principle, and in rough and ready terms this secured a fair and equitable outcome") and Lord Justice Rimer gave consenting judgments.
WELCOME to this week's Family Lore News Update. It's another long one...
Hackney social services condemned over failures after mother kills children
Coroner criticises staff who allowed woman suffering from paranoid schizophrenia unsupervised overnight visits. Full story: The Guardian.
Child maintenance changes in force
Changes to the way child maintenance is assessed, collected and paid to recipients come into force today (10 December 2012) under the powers of the Child Maintenance and Other Payments Act 2008 (see Statutory Instrument, below). Full story: Family Law Hub.
Councils refer record numbers of children into care in 2012
Family courts body Cafcass has released its latest care statistics, revealing record referrals show no signs of stopping. Full story: Community Care.
Supreme Court refuses permission to appeal in Lawrence v Gallagher
Civil partnership financial remedy appeal fails. Full story: Family Law Week.
Divorce judges welcome ‘cookie cutter’ share-out plan
A new system of Canadian style “cookie cutter” justice could be introduced in England to cut the cost of divorce cases under reforms being drawn up by government law advisers. Full story: London Evening Standard.
MP inquiry hears how adoption targets will lead to rushed assessments and increased risks to children
The imposition of six month targets for placing children in care for adoption will lead to rushed and inadequate assessments, potentially making the process too fast for would-be adopters and open to abuse by predatory child abusers. This was the message to MPs at the second evidence gathering session of an inquiry by the All Party Parliamentary Committee on Social Work into the state of the profession. Full story: BASW News.
Judge delays ruling on brain tumour boy
New developments in case lead judge to schedule return to court for later in the month. Full story: The Independent. Following on from the earlier story, below.
Gay marriage: Boris Johnson and Michael Gove give backing
A campaign group backing same-sex marriage has been launched by senior Conservative MPs and peers. Full story: BBC News.
Bank employee who accessed partner’s ex-wife’s account fined for data protection offences
A bank employee has been fined after a court heard she unlawfully accessed bank statements of her partner's ex-wife. Full story: Family Law Week.
Joint Committee on Human Rights calls for enhancement of Children’s Commissioner’s role
The Joint Committee on Human Rights has welcomed the proposed change in the Children's Commissioner's primary function, from one of 'promoting awareness of the views and interests of children in England' to one of 'promoting and protecting the rights of children in England'. Full story: Family Law Week.
Important Pension Changes – what family lawyers need to know
Clive Weir, a director with Albert Goodman Chartered Financial Planners, summarises the changes to pension provision made in the Chancellor’s Autumn Statement. Full story: Family Law Week.
Fathers to be hit by rise in maintenance for their children following sweeping new reforms
Nearly 800,000 separated fathers face increases in their bills for maintaining their children which will run up to thousands of pounds a year, it was revealed Thursday. Full story: Daily Mail.
Whitehall cuts ‘threaten children's services’
Frontline services for children will suffer as a result of cuts to central government spending announced in the autumn statement, a think-tank has warned. Full story: Children & Young People Now.
Mother and seven-year-old son found after she ran away to prevent cancer treatment
A mother and her seven-year-old son have been found by police after she ran away to prevent him receiving life-saving cancer treatment. Full story: The Telegraph. See also the later story, above.
Family fight to keep father alive in court battle
A woman has accused a hospital of secretly placing her father on the Liverpool Care Pathway as it launched a legal bid to withdraw “aggressive treatment”. Full story: The Telegraph.
Custody battle over British girl goes to US Supreme Court
A five-year-old British girl is at the centre of a bitter transatlantic custody battle that has arrived in front of America's most senior judges, as her parents fought the landmark case at the US Supreme Court. Full story: The Telegraph.
Divorce battle lands pair with £1.3m legal bill
A husband ran up a £500,000 legal bill in a bitter divorce dispute he could not afford, the High Court ruled. Full story: The Telegraph.
The Family Justice Modernisation Programme: Implementation Update Number One
The first Implementation Update has been published for the Family Justice Modernisation Programme. Full story: Judiciary of England and Wales. See also my post, here.
Family mediation scheme extended
Membership of the Law Society’s family mediation scheme will be extended to all qualified family mediators from April. Full story: Law Society Gazette.
The Child Maintenance and Other Payments Act 2008 (Commencement No. 10 and Transitional Provisions) Order 2012
This Order brings into force provisions of the Child Maintenance and Other Payments Act 2008 for the purpose of applying new rules for calculating child support maintenance to certain types of cases. It also brings into force a number of other provisions in the 2008 Act for the purposes of all cases. See the news story, above.
The Civil Partnership Act 2004 (Overseas Relationships) Order 2012
This Order amends Schedule 20 to the Civil Partnership Act 2004. Schedule 20 specifies overseas relationships that may be treated as civil partnerships for the purposes of the Act, provided certain other conditions in the Act are satisfied.
The Child Support Management of Payments and Arrears (Amendment) Regulations 2012
These Regulations amend the Child Support (Management of Payments and Arrears) Regulations 2009 and come into force on the day on which sections 32 and 33 of the Child Maintenance and Other Payments Act 2008 (c. 6) come into force.
B v A  EWHC 3127 (Fam) (10 December 2012)
Application by father for return of child to the United States, where the child was actually in Pakistan. The application was withdrawn, leaving the court to deal with the issue of costs. Full report: Bailii. See also my post, below.
M (A Child)  EWCA Civ 1580 (22 October 2012)
Care proceedings. Appeal against finding that the child had suffered non-accidental injuries and that the parents were both possible perpetrators. Appeal allowed. Full report: Family Law Week.
VK v Croatia (Application No 38380/08) (27 November 2012)
Husband claimed breach of right to fair trial after divorce and paternity proceedings took over 5 years to conclude. The court found the husband's rights under Arts 6, 12 and 13 had been violated. Report: Family Law. Full report: ECHR.
Bridgend County Borough Council v W and Another  EWHC 3118 (Fam) (3 October 2012)
Care proceedings involving issue of jurisdiction after parents fled to Spain to avoid child being taken into care at birth. Report: Family Law.
Zuk v Zuk  EWCA (29 November 2012)
Appeal by husband against 9 month prison sentence for failure to comply with lump sum order. Appeal allowed. Report: Family Law.
J (Children)  EWCA Civ 1511 (7 November 2012)
Application by mother for permission to appeal against order for return of children to Spain. Application refused. Full report: Family Law Hub.
O (A Child)  EWCA Civ 1576 (1 November 2012)
Directions hearing relating to method of ascertaining wishes and feelings of a child in connection with relocation appeal. Full report: Family Law Hub.
Cattin v Cattin  EWCA Civ 1562 (6 November 2012)
Application by wife for permission to appeal against refusal to stay English divorce petition, where she had issued proceedings in Brazil. Application refused. Full report: Family Law Hub.
J (Habitual Residence), Re  EWHC 3364 (Fam) (03 December 2012)
Applications made in respect of a child, in which the issue of jurisdiction arose, depending upon whether the child was habitually resident in England and Wales when the proceedings were issued. Held that she was. Full report: Bailii. See also my post, below.
I (Habitual Residence), Re  EWHC 3363 (Fam) (03 December 2012)
Applications made in respect of a child, in which the issue of jurisdiction arose, depending upon whether the child was habitually resident in England and Wales when the proceedings were issued. Held that he was. Full report: Bailii. See also my post, below.
Prest v Prest overturns 30 years of family case law, says Craig Rose. Full article: New Law Journal.
Taking a global view
Geraldine Morris considers the changes to international maintenance. Full article: New Law Journal.
Court of Protection Update (December 2012)
Sally Bradley and Michael Edwards, Barristers, both of 4 Paper Buildings consider recent developments in the Court of Protection. Full article: Family Law Week.
B v A: Complying with the principles and procedures governing the making of a without notice application
A salutary tale for any lawyer dealing with such applications. See case report, above. Full post: Family Lore.
The Mail Reveals THE TRUTH…Well one version of it anyways
Lucy Reed gives her own views on “shocking revelations” in the Mail concerning the UKIP foster care row. Full post: Pink Tape.
I still haven’t found, what I’m looking for – or, going off-menu
A quick discussion of the Court of Appeal decision in RE J-L (Findings of Fact : Schedule of Allegations) 2012, by suesspiciousminds.
Re I & Re J: Habitual residence cases are like London buses...
A summary of Re I (Habitual Residence)  EWHC 3363 (Fam) and Re J (Habitual Residence)  EWHC 3364 (Fam) [both above]. Full post: Family Lore.
Monday, December 10, 2012
B v A: Complying with the principles and procedures governing the making of a without notice application
|Mr Justice Charles|
B v A  EWHC 3127 (Fam) involved a father in the United States seeking an order in this country for the return of his child, when the child was actually in Pakistan. The evidence that the child was in this country was extremely thin. The mother had been living with the child in Pakistan since 2009, but in October 2011 the father received information that the mother had been seen in a restaurant in Coventry. Accordingly, he issued proceedings here. Various orders were made, but the mother could not be located and was not therefore served. In December 2011 the court made an open-ended location order.
As a consequence of that order, the mother's passport was taken from her when she visited this country in June 2012, without the child. The mother raised the issue of jurisdiction. Accepting that neither the mother nor the child were in England in 2011, the father indicated that he would be prepared to withdraw the proceedings, on the basis that there be no order as to costs. The mother did not agree - she wanted her costs.
Hearing the case, Mr Justice Charles found that there had been a number of "serious and inexcusable failures" by the father and his legal advisers to comply with the principles and procedures relating to the making and granting of without notice relief. For example, the evidence for the asserted belief that the mother and child were in England was not sufficiently detailed and there was no argument on jurisdiction. This had the overall consequence that:
"...the court was not presented with as candid or fair account of the position from time to time, or of the strengths and weaknesses of the father's case, as was reasonably and proportionately practicable in accordance with the principles and practices relating to making without notice applications."Mr Justice Charles concluded that the application for costs against the father should be refused. However, there was also an application for a wasted costs order against his solicitors. There were several arguments in favour of such an order, but the crucial one so far as Mr Justice Charles was concerned was the failures to comply with the principles and procedures governing the making of a without notice application. As stated above, he had already found that the father's solicitors had been guilty of such failures, and the fact that such failures accorded "with an endemic and seriously flawed approach of practitioners and judges in the Family Division to the making and granting of without notice applications" did not excuse them.
Accordingly, a wasted costs order was made against the father's solicitors, in the sum of £18,000.
(If you can't see the audio player above, you can listen to the podcast here.)
Sunday, December 09, 2012
|Sir Patrick with his beloved cat Ptolemy|
Saturday, December 08, 2012
Friday, December 07, 2012
As most of the serious items in this blog are essentially just news, I thought I would start a new series of posts in which I pass some comment upon those things that are happening in the world of family law. I have decided to call the series 'Friday View', on the basis that the posts will be written on Fridays and that the thing or things I will comment upon are from the previous week, although whether I shall write a post every Friday, we shall see...
To kick the series off, I am actually going to discuss something that has already attracted comment or, perhaps more accurately, I am going to comment upon the comment.
As I reported here, last week the Government launched a web app aimed at helping separating parents. To explain the need for such an app (and perhaps to justify the £300,000 cost), the launch was accompanied by the results of a YouGov poll commissioned by the Department for Work and Pensions, which revealed "that more than half of parents (52%) find it hard to access help and support they need when they separate".
The poll was picked up yesterday by Catherine Baksi, in a blog post she wrote for the Law Society Gazette. She pointed out that:
"Of the 2,505 participants, 39% said they did not access any professional support after the split. Of those, 25% said it was because they couldn't find the right help or felt embarrassed."Ms Baksi suggests that this "indicates a large unmet need among the public, which lawyers are [sic] could be capitalising on". She goes on to back up her suggestion that family lawyers are losing business by referring to the Financial Benchmarking Survey of the Law Society’s Law Management Section, which she says indicates that the volume of family law work done by the profession has not been increasing, "in sharp contrast to other areas of work like conveyancing and corporate".
Now, I remember being somewhat surprised when I read last week that the YouGov poll had found that an apparently large number of participants (in fact, only about 10%) did not access any professional support "because they couldn't find the right help or felt embarrassed". I suppose I can understand the embarrassment part, but it seemed extraordinary to me that some 'couldn't find the right help'. Surely, virtually everyone knows that solicitors deal with family matters, and are quite capable of going to Yell.com to find one that does? What more can family lawyers do?
Anyhow, turning to the survey (the direction of our lives these days seems to be governed by polls and surveys), this actually relates to fee income, rather than volume of work. My reading is that it indicates a small decline in family fee income this quarter (April - June 2012) as against the previous quarter, and about the same fee income this quarter as against the same quarter last year. Given the economic climate, I think a small decrease is entirely to be expected, and not necessarily indicative of a failure to capture business. As for suggesting that the performance of family lawyers compares unfavourably with conveyancers, their increase in fee income could simply be due to a small upturn in the housing market, something quite beyond their control.
Now, I'm not for one moment being complacent, but I'm also sure that neither are most family lawyers. They will be working as hard as ever to capture new business, despite the constraint of diminishing advertising budgets. Many of them will also soon have to face the challenge of losing most of their legal aid work, although that perhaps will also bring some new opportunities.
Notwithstanding all of the above, I'm not saying that Ms Baksi's post is without merit. Times are undoubtedly tough for many family lawyers. Ms Baksi suggests that the way forward is to be big, either as part of a national organisation such as Co-operative Legal Services, or to be part of a referral and support network such as Connect2Law. She may be right.
THE SHARD, Ronnie and Reggie Molotov's luxury apartment.
Naturally, Ronnie and Reggie took a rather dim view of what Mike McCheap had just told them about how Venal & Grabbit had been overcharging them.
"Nobody messes with Ronnie Molotov." Said Ronnie Molotov.
"I think we should pay Edgar Venal a visit." Said Reggie Molotov. He scanned the view out of the window, straining to pick out Venal & Grabbit's office.
"Shall I bring my Peter Andre tapes with me?" Said Ronnie, with a wicked grin.
"I don't think we'll need to resort to torture." Replied Reggie. "Just a little violent retribution..."
* * *
At the offices of Messrs. Venal & Grabbit, Solicitors, Edgar Venal has just arrived back from Mustique.
No sooner than he sits down at his desk, his telephone rings. He sees that it is an internal call from Bill Devastator, Head of Security at Venal & Grabbit. He picks up the receiver.
"Bill?" He says. "Mission accomplished?"
"Bill?" Edgar asks again, sensing trouble.
"I'm sorry, Mr Venal." Replies Devastator. "He got away."
"What?" Says Edgar, his voice rising. "You mean - he got to The Firm?"
"I'm afraid so, Mr Venal." Says Devastator.
"Bloody hell!" Exclaims Edgar. "They're going to be after me - I've got to get out of here!"
Edgar slams the phone down. He realises he is starting to sweat.
He grabs his briefcase and some keys from his desk, and heads to Venal & Grabbit's strong room. Once there, he makes his way past the shelves of deeds and dusty old wills to his private safe, at the back of the room.
He opens the safe and fills his briefcase with as much client money as he can cram in. He then forces the briefcase shut, wipes the sweat from his forehead and heads downstairs to Venal & Grabbit's underground car park, where he left his Bentley only minutes earlier.
As he enters the car park, Edgar senses there might be someone else there, hiding in the shadows. He calls out: "Who's there?"
"Hello Edgar." Says a voice. The unmistakeable figure of Reggie Molotov emerges from the shadows.
Edgar tries to make a run for it. He drops his briefcase and rushes towards the exit.
What he does not know, but quickly finds out, is that Ronnie Molotov is blocking the exit.
Edgar stops in his tracks, frozen with fear...
Wednesday, December 05, 2012
The first Implementation Update has been published for the Family Justice Modernisation Programme. The update covers developments in respect of the following:
The Single Family Court ('SFC')
The primary legislation to create the SFC is currently proceeding through Parliament (the Crime and Courts Bill). It is hoped that the Bill will receive Royal Assent in April 2013, coming into force in April 2014. Detailed consideration of secondary materials, including Statutory Instruments, will begin this month.
The Children and Families Bill
Pre-legislative scrutiny of what will become the Children and Families Bill is presently taking place in Parliament.
This will begin this month.
Family Justice Board
This has been established, with David Norgrove as Chairman. At a local level Local Family Justice Boards (LFJBs) have been set up to bring together the functions previously carried out by Local Family Justice Councils and Local Performance Improvement Groups.
Experts in the family courts
Part 25 of the Family Procedure Rules is to be changed in January so that expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings, rather than to that which is reasonably required to resolve the proceedings.
The Family Court Guide
"This will be a framework of good practice which will sign post published and peer reviewed research and good practice by reference to the rules and practice directions". The materials have been commissioned from a number of sources with the intention that they are published before April 2013. We are told that 'expectations documents', setting out what the court expects of agencies and other participants in the proceedings, are being drafted by those responsible for their content.
Removal of legal aid in private law children cases
I.e. by LASPO. We are told that: "The MoJ is working with the Family Justice Council on guidance for SRLs [self-represented litigants] in both children and financial remedy cases" and that: "The Law Society and Resolution have published detailed materials for lawyers working with SRLs". Highly commendable I'm sure, but unlikely to make up for the lack of proper legal representation for those currently eligible.
The update can be found here (PDF).