Friday, May 31, 2013

...AND JUSTICE FOR NONE: Chapter 5 - A Near Miss

AT THE ESTATE of Sir Marmaduke D'Ranged QC, Arthur Conscience and Jolyon Potty have been invited to a day's shooting. Arthur doesn't like guns, but he could hardly refuse the offer from Sir Marmaduke, who was Head of Chambers at 14 Little Graymatter Square, and Arthur's Pupil Master, prior to being appointed to the judiciary.

Sir Marmaduke thrusts a gun into Arthur's hands. "Do you know how to use this thing?" He asks.

Arthur shakes his head.

"Don't they teach you anything at school these days?" Asks Sir Marmaduke. He gives Arthur a quick lesson in loading and shooting the gun.

"Pull!" Shouts Jolyon.

A clay pidgeon flies into the air.

"This is for you, Larry!" Screams Jolyon, shooting the clay pidgeon from the sky.

"What did you say?" Asks Arthur.

"That was for Larry Larceny." Explains Jolyon, with a manic expression on his face.

Arthur starts to wonder whether Jolyon is losing it.

"Your turn." Says Sir Marmaduke.

Reluctantly, Arthur shouts: "Pull!"

Another clay pidgeon flies into the air. Arthur shoots, but doesn't disturb the pidgeon's serene trajectory across the sky. In fact, he doesn't even get close.

"Oh, bad luck." Says Sir Marmaduke sympathetically.

"I'm afraid I'll never get the hang of this." says Arthur.

"You will." Says Sir Marmaduke. "Watch me - I'll show you how easy it is. Pull!"

Another clay pidgeon flies into the air, but before it can ascend far Sir Marmaduke points his gun just over Arthur's head and blasts it from the sky.

"Bloody hell!" Exclaims Arthur, jumping about angrily. "You nearly killed me!"

Sir Marmaduke and Jolyon are in fits of laughter at Arthur's reaction.

They're both quite mad. Thinks Arthur.

Wednesday, May 29, 2013

Family Lore Clinic: How easy is it to overturn a residence order?

A residence order is an order settling the arrangements to be made as to with whom a child is to live, i.e. usually with one or other of the child's parents. Courts can make shared residence orders, setting out how the child should share their time with each parent, but the poser of this question obviously refers to an order made in favour of someone else, presumably the other parent.

The answer to the question is that it depends entirely upon the facts.

If you apply to have the residence order overturned, the court will decide the application having regard to the 'welfare checklist', as described in this previous post. One of the factors in the checklist is the likely effect on the child of any change in their circumstances, and obviously this may work against a change of residence. However, it may be considered that there is unlikely to be any adverse effect, and even if there is, there may be other factors that out-weigh it.

Perhaps one of the most common reasons for changing residence is where an older child expresses a wish to live with the other parent.

On the other hand, if there have been no significant changes relating to the factors in the welfare checklist since the order was made, then it is highly unlikely that the court will overturn the order.

Applying to overturn a residence order is a serious step. Before taking it, you should seek detailed advice from a specialist family lawyer.

Tuesday, May 28, 2013

News Update: 28th of May 2013

WELCOME to this week's Family Lore News Update.

International child abduction cases up 81%
Child abduction is a “growing problem” with the number of reported cases up by 81 per cent over the last nine years, ministers warned today. Full story: The Independent.

Widower loses court fight to annul divorce from late wife
A husband attempting to have his divorce annulled even though his wife has been dead for more than two years has had his legal bid dashed. Full story: Evening Standard.

Domestic violence victim seeks bedroom tax judicial review
Woman who lives with son in three-bedroom house with fortified loft has been told she will lose some of her benefits. Full story: The Guardian.

Benefits cap will have catastrophic effect on families, court will hear
Vulnerable families challenging £500-a-week cap say it may force victims of domestic violence to return to their abusers. Full story: The Guardian.

Some government efforts on domestic violence 'are virtually meaningless'
Women's organisations say positive action in some areas of government is undermined by Department for Education. Full story: The Guardian.

Japanese Parliament paves way for ratification of Hague Convention on Child Abduction
Japan is assured of ratifying the Hague Convention on Child Abduction by March 2014 after the Lower House of the Japanese Parliament approved the necessary bill on 22nd May. Full story: Family Law Week.

EU-wide protection for victims of domestic violence to become law
Draft regulation should be adopted by Council of Ministers in June. Full story: Family Law Week.

Associations criticise care placement decision making
Independent foster care and children’s home bodies have come together to call on local authorities to use third sector providers to reduce inappropriate care placements. Full story: Children & Young People Now.

Nine in 10 children born to cohabiting couples this year will 'see parents split by the time they are 16'
Nearly nine out of ten babies born to co-habiting parents this year will have seen their family break up by the time they reach the age of 16, says a study. Full story: Daily Mail.

Ministers write to local authorities about housing benefit changes and foster carers
Lord Freud, Minister for Welfare Reform in the Department for Work & Pensions, and Edward Timpson, Children and Families Minister in the Department for Education, have written a joint letter to local authorities about the housing benefit under-occupancy rules and their impact on foster carers. Full story: Family Law Week.

Councils rise to minister's challenge on care leaver support
Nearly two thirds of local authorities are providing care leavers with grants of at least £2,000 to help them set up home after children’s minister Edward Timpson called on them to boost levels of support. Full story: Children & Young People Now.

Rotherham council apologises over way it handled removal of children from Ukip foster parents
A council has apologised over the way it handled a decision to remove three Eastern European children from foster parents who were members of Ukip. Full story: The Independent.

O (A Child) [2012] EWCA Civ 1955 (5 December 2012)
Appeal by father against order allowing mother and child to relocate to Ireland. Appeal dismissed. Full report: Family Law Hub.

AB v CD [2013] EWHC 1418 (Fam) (24 May 2013)
Judgment concerning issue of whether a woman was a parent of children born to another woman by artificial insemination, where the requirements under the HFEA had not been complied with. Full report: Bailii.

SB (A Patient; Capacity To Consent To Termination), Re [2013] EWHC 1417 (COP) (21 May 2013)
Judgment concerning issue of whether the had capacity to consent to a termination. Full report: Bailii. See also the blog post, below.

Mohan v Mohan [2013] EWCA Civ 586 (22 May 2013)
Appeal by wife in relation to the exclusion of documents and statements made by the husband during the course of proceedings to enforce a financial remedy order in the wife's favour. Full report: Bailii.

A (Interim Contact: Observations On Parents), Re [2012] EW Misc 29 (CC)(13 November 2012)
Contact application by father. Judgment dealing with various issues, including the conduct of the mother and whether the father should submit to a psychological assessment. Full report: Bailii.

Y County Council v ZZ [2012] EWHC B34 (Ch) (25 July 2012)
Application by local authority for declarations that a man lacked capacity and that it was lawful to deprive him of his liberty. Declarations made as sought. Full report: Bailii.

International endorsement for family arbitration
"Family arbitration has been successfully launched in several countries recently and is having a kick-start in those countries where it is presently available but underused." Says David Hodson, in this article on Family Law.

Maintenance Pending Suit Revisited
Alexander Chandler of 1 King’s Bench Walk, Temple, London revisits and updates an article originally published in February 2010 in light of changes brought about by the Family Procedure Rules 2010. Full article: Family Law Week.

Samantha Bangham’s Week in Cases 24 May 2013
Samantha Bangham looks at the week's case highlights. Full article: Family Law.

Legal aid expert evidence authority and Legal Aid Agency
David Burrows discusses the cases of Re JG (a child by her guardian) v Legal Services Commission and ors (incl Law Society and Secretary of State for Justice) [2013] EWHC 804 (Admin) and R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin). Full article: Family Law.

Conclusion of the matrimonial financial tie: show cause, strike out and materiality
"The last month or so has seen a variety of decisions which have amounted to the family courts, in different ways, saying to couples they must live with their agreements; that there must be an end to matrimonial financial litigation. All are based on judicial common sense of the highest order; but where does substantive law fit in with all this?" Asks David Burrows, in this article on Family Law.

A bit thin this week:

Bipolar patient has capacity to decide to terminate pregnancy
A discussion of Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) 21 May 2013 [above]. Full post: UK Human Rights Blog.

View from the President 2 : Into Darkness ?
"The President of the Family Division has published his second bulletin/speech/rallying cry/let’s get ready to rumble." Says suesspiciousminds, in this post.

Saturday, May 25, 2013

Something for the Weekend: The Doors - Love Me Two Times

A small tribute to Ray Manzarek, who passed away this week. Here he is taking on the singing duties, post-Jim Morrison:

Friday, May 24, 2013

...AND JUSTICE FOR NONE: Chapter 4 - A Proposal

IN CHAMBERS, 14 Little Graymatter Square. Jolyon Potty comes rushing into Arthur's room.

"Have you heard the news?" He exclaims.

"What news?" Asks Arthur.

"Judge Dodgy has been arrested and charged with accepting bribes!" Exclaims Jolyon.

"Wow!" Says Arthur.

At that very moment Arthur's phone rings. To his amazement, it is Judge Dodgy on the other end.

"Judge... Dodgy...," says Arthur hesitantly, "w-what can I do for you?" Jolyon looks at Arthur with an expression of incredulity.

"Well," says Judge Dodgy, "have you heard my news?"

"Ah," replies Arthur, "about your arrest? Yes, I have. How can I help?"

"I want you to represent me." Says Judge Dodgy.

Arthur is too stunned to reply.

"Did you hear me?" Asks Judge Dodgy.

"Y-Yes." Replies Arthur. "But why me? I don't understand."

"It's obvious." Says Judge Dodgy. "It's well known that you dislike me, and that you think I accept bribes. Who better to represent me on a bribery charge? Nobody will believe I'm guilty with you representing me."

Well, at least he's honest about that. Thinks Arthur.

"What do you say?" Asks Judge Dodgy, insistently.

Arthur doesn't know what to say. "Let me think about it." He replies.

Wednesday, May 22, 2013

Family Lore Clinic: What is the difference between a consent order and decree absolute?

Not the sort of question a family lawyer might expect, but perhaps indicative of our slightly confusing system where, unlike in some other jurisdictions, all matters relating to a divorce are not dealt with together.

[Once again I am taking the term 'consent order' to mean the order setting out an agreed financial/property settlement on divorce, although for the purposes of this post it would make no difference if the settlement was not agreed, but instead imposed by the court.]

A consent order and the decree absolute are two quite separate things, but they are both to do with the end of the divorce process, and they are often made at or about the same time. I suppose one way of putting it is that the consent order finalises the financial/property settlement and the decree absolute finalises the divorce itself.

There is, however, one proviso: if the consent order is made before the decree absolute, it will not take effect until the decree absolute. For further details, see this post.

Often, it is important that the consent order is made before the decree absolute. If you are unsure about this, or if you would like more detailed advice, you should consult a specialist family lawyer.

Tuesday, May 21, 2013

News Update: 21st of May 2013

WELCOME to this week's Family Lore News Update.

Gay marriage: Final reading in Commons
The government's same-sex marriage bill is to receive a third and final Commons reading after surviving resistance from Tory opponents on Monday night. Full story: BBC News.

Maria Stubbings murder: IPCC report prompts inquiry call
The family of a woman murdered by her ex-partner are calling for a public inquiry into how complaints of domestic violence are handled. Full story: BBC News.

Huge rise in fixed fees for family and probate
There has been a dramatic rise in the number of solicitors offering fixed fees for probate and family work, a report for the legal services consumer panel has found. Full story: Solicitors Journal.

Top family judge urges earlier involvement of local authority lawyers
Local authority lawyers need to get involved earlier – advising and assisting their social work clients – than is often the case, the President of the Family Division has argued. Full story: Local Government Lawyer. See also the PLO story, below.

A fairer child maintenance system for a country where paying for your children is 'now the norm'
New official statistics on the proportion of separated parents who are paying for their children through the Child Support Agency. This press release also mentions the Government's announcement that it will be reducing the ongoing collection charge for receiving parents who choose to use the new Child Maintenance Service, although Gingerbread believes the cut doesn't go far enough. Full story: GOV.UK.

Revised Public Law Outline comes into effect on 1 July 2013
In the second edition of Sir James Munby's 'View from the President's Chambers', he has confirmed that an interim version of the revised Public Law Outline will be published at the end of May 2013 and will come into effect on 1 July 2013. Full story: Family Law Week. See also the article, below.

Elena Ambrosiadou wins legal battle with ex-husband Martin Coward over software
High Court judge says hedge fund tycoons gave ‘tainted’ evidence in fight for spoils of marriage. Full story: The Independent.

Divorcee keeps overpayment of pension made as part of divorce settlement
The Pensions Ombudsman has determined that a divorcee need not repay to Scottish Widows an overpayment secured in her divorce settlement as a result of an incorrect transfer value provided by the pension scheme administrator. Full story: Family Law Week.

First ever chief social worker for children and fast-track training to lead social work reform
Education Secretary Michael Gove today announced the appointment of a children's chief social worker and a new fast-track training programme for top graduates. Full story: GOV.UK.

Funding for foster care recruitment boost unveiled
The government has today unveiled a new package of support to help local authorities attract and retain more foster carers from a wider range of backgrounds. Full story: GOV.UK.

Stopping poor quality and time-wasting expert evidence in family courts
New national standards to raise the quality of experts used in family courts were announced by the Government today. Full story: GOV.UK.

DWP’s child maintenance data is ‘misleading’
Gingerbread has today criticised the government’s reports of its own success in collecting child maintenance as ‘misleading’, after the DWP launched a consultation on new reporting standards. Full story: Gingerbread.

Social work evidence to carry greater weight with Court of Protection
Court expected to revise guidance to make it clear it will accept mental capacity assessments from social workers, and not just from doctors, psychologists or therapists. Full story: Community Care.

Councils to be allowed to delegate looked-after children work
The Department for Education proposes changes to the law to allow local authorities to delegate work for looked-after children to external organisations. Full story: Family Law Week.

College sounds warning on fostering-for-adoption plans
Government plans to speed up the adoption process could undermine efforts to place looked-after children with family members and potentially harm child welfare, The College of Social Work has said. Full story: Children & Young People Now.

Re J (A Child) (Learning Disabled Parent) [2012] EWHC (12 October 2012)
Care proceedings involving learning disabled mother. There was insufficient evidence available about the child's chances of being successfully brought up by his mother and, therefore, a further assessment was directed. Report: Family Law.

Re J (A Child) (Learning Disabled Parent) (No 2) [2013] EWHC (13 March 2013)
Care proceedings involving learning disabled mother. She had done well in two assessments and therefore the local authority conceded that a supervision order would be sufficient. Report: Family Law.

R (C) v Chief Constable of Lincolnshire Police [2013] EWHC 1174 (Admin) (20 March 2013)
Application by mother for permission to bring judicial review proceedings in respect of police failure to charge the father with child abduction. Permission refused. Report: Family Law.

S (A Child), Re [2013] EW Misc 2 (CC) (20 March 2013)
Care proceedings. Judgment relating to a fact finding hearing concerned with the causation of a number of bone fractures sustained by the child. Full report: Bailii.

G-H (Children) , Re [2013] EWCA Civ 535 (16 April 2013)
Application for permission to appeal against care and placement orders. Application refused. Full report: Bailii.

Bandak v Howell [2013] EWCA Civ 531 (11 April 2013)
Application for permission to appeal against an order for sale in favour of a third party creditor in financial remedy proceedings. Application granted. Full report: Bailii.

MR v Habboo for Kent County Council [2012] EWHC 4258 (Fam) (16 November 2012)
Care proceedings. Fact-finding hearing concerning what part, if any, the parents played in the child's injuries. Full report: Bailii.

MR (A Child) [2013] EWHC 1156 (Fam) (07 May 2013)
Care proceedings. Hearing as to whether the court should make care and placement orders or instead evaluate whether rehabilitation between the child and his mother was a viable option. Full report: Bailii.

A (a child), Re (a child) [2013] EWCA Civ 543 (16 May 2013)
Appeal by mother against interim contact order in favour of father. Appeal allowed. Full report: Bailii.

CR v SR [2013] EWHC 1155 (Fam) (22 January 2013)
Application by husband for permission to appeal financial remedy order. Application granted. Full report: Bailii.

R v R [2011] EWHC 1535 (Fam) (15 June 2011)
Proceedings relating to a child born to a Thai mother, who had falsely persuaded her husband that he was the child's father. Full report: Bailii.

SM v HM [2011] EWHC B30 (COP) (04 November 2011)
Judgment dealing with issue of whether it is ever appropriate for the Court to authorise the creation of a trust – in particular a personal injury trust - of the assets of a person lacking capacity as the means of administering those assets for him, rather than appointing a deputy for him under s 16 of the Mental Capacity Act. Full report: Bailii.

IH (A Child) (Permission to Apply for Adoption) [2013] EWHC 1235 (Fam) (14 May 2013)
Application for leave to make an adoption application pursuant to s.42(6) of the Adoption and Children Act 2002, where the child had not lived with the applicants for three years during the five years preceding the application. Application refused. Full report: Bailii.

Committal Applications in financial remedy proceedings: when, how and why to make one
Marisa Allman explains (as you might guess) when, how and why to make a committal application in financial remedy proceedings. Full article: Zenith Chambers (PDF).

What Place does Wardship have in Modern Family Proceedings?
Leanne Buckley-Thomson, barrister at 12 College Place, provides an overview of wardship and considers its usefulness in modern family proceedings. Full article: Family Law Week.

Good Intentions are Not Enough: Thompson v Hurst
Sheila Hamilton Macdonald, barrister, examines the implications of the Court of Appeal judgment in Thompson v Hurst; a cohabitee property dispute in which the property had been registered in the name of only one of the cohabitees. Full article: Family Law Week.

Samantha Bangham’s Week in Cases 17 May 2013
Samantha Bangham looks at the week's case highlights. Full article: Family Law.

Summary of the latest ‘View From The President’s Chambers’
Amy sanders looks at the main outlines of the revised PLO. Full article: Family Law.

Family law: a “time-consuming and morally shadowy activity”?
"Recently an article in the Guardian described family law as a “time-consuming and morally shadowy activity” and suggested that family lawyers “sleep in a bed that has been paid for by the unhappiness of others”." Geraldine Morris looks at how family lawyers are fighting back against bad PR, in this article on Halsbury's Law Exchange.

I have been modernised…
"This week I attended a lecture by our new Designated Family Judge here in Bristol, His Honour Judge Wildblood QC, to inform the legal community about modernisation, the new PLO and how things will be in the new world order." Says Lucy Reed, in this post on Pink Tape.

“Friendly McKenzie, writing the words of a sermon that no one will hear”
Suesspiciousminds, once again abusing the words of a great song for the sake of a post title, looks at the (as yet) unreported Court of Appeal case Re F (Children) [2013]. Full post: suesspiciousminds.

Doom and Gloom and very black Coffee
Lucy Reed contemplates the future. And drinking coffee. Full post: Pink Tape.

“As a drunkard uses a lamppost…”
A discussion of the new CAFCASS figures on care proceedings issued by Local Authority area. Full post: suesspiciousminds.

Child maintenance proposals 'grossly unfair'

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

Family separation charity, the Centre for Separated Families, has called for the government to rethink plans to increase flat rate child maintenance payments for parents on benefits, which it calls 'grossly unfair'.

Under current rules, parents on benefits are required to pay £5 per week in child maintenance. But this week, the Department for Work and Pensions has announced that the payment is set to rise to £7 per week. This is despite the fact that paying parents who are in receipt of benefits are classed as being single.

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

'Although paying parents in receipt of income related benefits have to pay the flat rate charge, no recognition of this responsibility is made in the benefits they receive.'

'Essentially, a financial responsibility is built into the child maintenance system but not into the benefits system. This anomaly not only disregards the parenting commitment of the paying parent but increases the risk of children experiencing poverty when they are in their care and the likelihood that the commitment will become unsustainable.'

'We have lobbied the government to recognise the financial responsibility of paying parents in the tax and benefits system. But, rather than tackle the problem, they have actually chosen to make it worse.'

'The government claims that the child maintenance system is getting fairer. But, for these parents, it is becoming even more unfair.'

'Of course, parents on benefits want to support their children financially just as much as everyone else, but the rules discriminate against them and it leaves them having to make some pretty tough choices about what to cut back on.'

'We call on the government to abandon this increase until it has resolved the issue of parents being classed as single when they are on benefits, even though most are providing hands on care for their children.'

Monday, May 20, 2013

News Podcast: For the week to the 20th of May 2013

A summary of the most important family law news stories from the last week, in the usual short, easy-to-listen, format.

(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)

Saturday, May 18, 2013

Something for the Weekend: Peter Cook - The Miner

Rather like another Peter Cook video I posted recently, I know this has been posted elsewhere previously but I make no excuse, as it is always worth another watch. Cook at his best, explaining why he never became a judge:

Friday, May 17, 2013

...AND JUSTICE FOR NONE: Chapter 3 - Ethics

NEEDLESS TO SAY, Arthur's courtroom antics did not escape the attention of the Bar Council.

Bringing the profession into disrepute. The last thing Arthur had intended when he entered the profession with such high expectations.

The hearing before the Bar Council had been short, with a mortified Arthur not contesting the charge. Instead, he was treated to a lecture upon ethics, and the high standards expected of members of the Bar. Arthur had left with his tail between his legs.

As he trudged out of the building, Arthur bumped into one of the panel members he had just been before, Baroness Leech.

As Arthur got talking to Baroness Leech, it quickly became clear to him that she was sympathetic towards him.

"You know," she said, "I admire you for saying what you did to Judge Dodgy."

Arthur was taken aback. "Really?" He said.

"Yes," continued Baroness Leech, "it's about time someone said something about him."

"You - you mean all the rumours about him taking bribes are true?" Asked Arthur.

"Oh yes," replied Baroness Leech, "it's just that nobody has been prepared to confront him about it."

"But if the Bar Council know what he's been up to, why don't they confront him?" Asked Arthur.

"Ah," replied Baroness Leech, "old boy network. One doesn't go against one's own."

Arthur was stunned.

"Still," continued the Baroness, "I don't think it will be long before Judge Dodgy gets his come-uppance."

With that, the Baroness swiftly hailed a taxi and was gone, leaving a bemused Arthur standing by the kerb.

Thursday, May 16, 2013

"There are two kinds of statistics, the kind you look up and the kind you make up." - Rex Stout

"The DWP has announced it intends to continue to automatically count as paid in full all cases where CSA-calculated maintenance is paid between parents (instead of via the CSA collection service), even though the DWP admits it has no way of measuring whether this is true or not" - Gingerbread, 16th May 2013.

Gingerbread chief executive Fiona Weir said: “This comes at a time when the government is planning to start charging both parents to collect child maintenance, in an effort to make them use a ‘maintenance direct’ arrangement. Yet the DWP itself has estimated that only around 28% of these ‘maintenance direct’ arrangements are likely to be fully paid. This will create a wholly misleading picture of the amount of money going to children.”

Wednesday, May 15, 2013

Family Lore Clinic: At what age can I stop child maintenance payments?

Child maintenance can be paid under an agreement, pursuant to a court order or via the Child Support Agency ('CSA').

If the maintenance is paid under an agreement, then when you can stop paying depends upon the terms of the agreement. Of course, if the agreement is not in writing, then there is no record of its terms. However, bear in mind that if you stop paying then the person looking after the child may be able to seek child maintenance through the CSA or the court, for example if the child is still in full-time education.

If the maintenance is paid pursuant to a court order, then the order will specify the duration of the maintenance. A common wording will be that the maintenance should be paid until the child attains the age of seventeen years or ceases full-time secondary/tertiary education, whichever shall be the later. For details of what constitutes 'full-time education', see this post.

If the maintenance is paid via the CSA, it essentially lasts until the child finishes full-time education or reaches nineteen, whichever occurs first. Note that if the child is still in education beyond the age of nineteen, then an application could be made to a court for a maintenance order to last until the child finishes education.

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

Tuesday, May 14, 2013

News Update: 14th of May 2013

WELCOME to this week's Family Lore News Update.

How foster care separates siblings
More than half of children are split up from their brothers and sisters as demand for carers rises. Full story: The Independent.

Pre-proceedings process does not shorten care proceedings, research shows
A major new research report on the pre-proceedings process shows how local authorities, lawyers and the courts have operated this part of the 2008 PLO reforms. Full story: Family Law Week. See also the post by suesspiciousminds, below.

Japan announces abduction pilot scheme
Reunite reports that Japan has recently announced a pilot scheme to provide legal advice to those involved in parental child abduction cases who reside outside of Japan. Full story: Family Law Week.

Family email advice line tries to fill gap left by cuts
Clients will be referred to University of Law LPC students by CAB. Full story: Solicitors Journal.

Breakdown of care applications by local authority shows wide variations across the country
Next step is to find the causes of variations, says ADCS. Full story: Family Law Week.

G4S will run Child Maintenance Options service
Company granted five year contract to run advice and help service . Full story: Family Law Week.

Care applications in April 2013 show continued rise
In April 2013, Cafcass received a total of 908 applications. This is a 20% increase on April 2012, and the highest ever recorded by Cafcass for the month of April. Full story: Family Law Week.

Cafcass reports private law demand up 28% on a year ago
In April 2013, Cafcass received a total of 4,400 new private law cases, a 28% increase on April 2012 levels. This is the highest ever recorded by Cafcass for the month of April and also the joint highest month (with October 2012) on record. Full story: Family Law Week.

Barnardo's calls for Government not to abandon children looked after by the state
Barnardo's is calling for more to be done to help children in care move to adulthood. Full story: Barnardo's.

Criminalisation of forced marriage included in Queen’s Speech
Under the Crime and Policing Bill, announced in the Queen's Speech, forced marriage will become a criminal offence, as will a breach of a forced-marriage protection order. Full story: Family Law Week.

Home Office policy on discretionary leave for children to remain is unlawful
New High Court judgment upholds the rights of children affected by immigration decisions. Full story: Family Law Week.

Court of Appeal strikes out claim brought against wealthy ex-husband 18 years after divorce
The Court of Appeal has allowed an appeal by a husband against the dismissal of his application to strike out his former wife's claim for a financial remedy, which she issued some 18 years after the parties were divorced. The Vince v Wyatt case - see below. Full story: Family Law Week.

Doncaster's new mayor 'prioritises' child protection
Doncaster's newly-elected mayor Ros Jones has pledged to make children's services her "absolute priority". Full story: BBC News.

Court refuses to vary unsealed consent order in “big money” case
Sir Hugh Bennett, sitting in the Family Division, has dismissed a wife's application to reopen financial remedy proceedings in a "big money" case in which heads of agreement and a consent order were approved by the court but the order was not yet sealed. Full story: Family Law Week.

The Adoption Agencies (Miscellaneous Amendments) Regulations 2013
These Regulations amend the Adoption Agencies Regulations 2005 which make provision relating to the exercise by adoption agencies (local authorities and registered adoption societies) of their functions in relation to adoption under the Adoption and Children Act 2002.

The Care Planning, Placement and Case Review and Fostering Services (Miscellaneous Amendments) Regulations 2013
These Regulations amend the Care Planning, Placement and Case Review (England) Regulations 2010, which make provision about care planning for looked after children.

DR v GR and Others (Financial Remedy: Variation of Overseas Trust) [2013] 1196 (Fam) (10 May 2013)
Judgment in application by wife for variation of post-nuptial settlement comprising a discretionary Jersey trust. Full report: Family Law Week.

D (A Child) [2012] EWHC 4231 (Fam) (14 December 2012)
Care proceedings involving child brought to this country from Nigeria after bogus fertility treatment there, and the extent to which the 'parents' knew the child was not their own. Full report: Bailii.

Vince v Wyatt [2013] EWCA Civ 495 (08 May 2013)
Appeal by husband against the dismissal of his application to strike out the wife's claim for a financial remedy, which she issued some 18 years after the parties were divorced. Appeal allowed. Full report: Bailii. See also the news story above and the blog post, below.

SC v London Borough Of Hackney [2010] EWHC B29 (COP) (05 August 2010)
Appeal against order for costs in Court of Protection proceedings. Appeal allowed. Full report: Bailii.

Finance and Divorce May 2013 update
Anna Heenan, solicitor and David Salter, Joint Head of Family Law at Mills & Reeve LLP analyse the April financial remedies and divorce news and cases. Full article: Family Law Week.

The existential crisis of set aside transactions under section 37 MCA 1973
Byron James, barrister, 14 Grays Inn Square considers the questions arising in relation to transactions set aside by s.37 MCA 1973 orders, in this article on Family Law Week.

Samantha Bangham’s Week in Cases 10 May 2013
Samantha Bangham looks at the week's case highlights. Full article: Family Law.

The Jackson Five
Amy Royce-Greensill considers the main practical points for family lawyers arising from the Jackson reforms, in this article on Family Law.

Non-recognition of Bulgarian divorce under Brussels II
David Hodson discusses the case of Yordanova v Iordanov (2013) EWCA 464, in this article on Family Law.

s.7 and s.37 reports in children proceedings
"This practice note looks at the way in which the court obtains objective evidence in children proceedings – by directing agencies to provide reports on the child and family at the centre of the dispute." Full article: Family Law Hub.

Marriage from the Eighteenth Century to the Twenty-First Century: Some reflections on Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130
The Incorporated Council of Law Reporting Annual Lecture for 2013 given by Sir James Munby, President of the Family Division, on 25 April 2013 at the Law Society. Full article: Family Law.

“I’m on the edge, the edge, the edge, the edge…”
Suesspiciousminds looks at the research by Judith Masson (et al) on families on the edge of care proceedings [see news story, above]. Full post: suesspiciousminds.

“Is the test for capacity to cohabit the same as the test for capacity to marry?”
A discussion of PC (by her litigation friend the Official Solicitor)[1] and NC [2] v City of York Council [2013] EWCA Civ 478. Full post: UK Human Rights Blog.

Vince v Wyatt: Striking out a statement of case
A summary of Vince v Wyatt [2013] EWCA Civ 495 [above], which concerned a husband's application to strike out a financial remedies claim made by the wife some eighteen years after the parties were divorced. Full post: Family Lore.

“On the twelfth day of proceedings, my true love sent to me…”
"A purposeful and robust CMC. Or that is the plan in the imminent revised Public Law Outline anyway. Let’s have a look, day by day, at what that might mean for the beleaguered parents solicitor." Full post: suesspiciousminds.

Monday, May 13, 2013

News Podcast: For the two weeks to the 13th of May 2013

A summary of the most important family law news stories and cases from the last two weeks, in the usual short, easy-to-listen, format.

(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)

Saturday, May 11, 2013

Something for the Weekend: Laurel and Hardy - Below Zero

I've been looking for this for a while - I always loved the joke at the end of the clip. Apologies for the small size of the video - I couldn't get it any bigger, and for the advert before it. You may also have to turn up the volume.

Friday, May 10, 2013

...AND JUSTICE FOR NONE: Chapter 2 - Idiot

JOLYON POTTY, a fellow member of Arthur Conscience's chambers 14 Little Graymatter Square, is happily walking out of the Crown Court, after a particularly tricky but successful trial. He has managed to get notorious criminal Larry Larceny off of a burglary charge, despite having the evidence stacked against him.

"Fank Gawd for the legal profeshun!" Exclaims Larry, walking alongside Jolyon. "I fought I was going inside for anuvver stretch, but you got me orf!"

"Oh, it was nothing." Replies Jolyon modestly.

"Nuffink!" Exclaims Larry. "I should cocoa! You woz brilliant!"

"Well," says Jolyon, "I suppose I was rather good."

"You woz so good I want to get you a fank-you present!" Exclaims Larry.

"Oh, that won't be necessary" Says Jolyon.

"I insist!" Exclaims Larry. "Wot's yer address? I'll get the present sent there!"

Jolyon gives Larry his address.

*            *            *

14 Little Graymatter Square, one month later.

"Bloody hell!" Exclaims Jolyon, slamming down the phone.

"What's the matter?" Asks Arthur.

"You remember my Mayfair flat was burgled last month, while I was in court on that all-day trial?" Replies Jolyon. "That was the police on the phone - they've just caught the burglar!" He exclaims.

"That's good." Says Arthur. "So what's the problem?"

"The burglar was only Larry Larceny!" Exclaims Jolyon. "He must have known I was in court!"

"Ah." Says Arthur. "But how did he know where you lived? What idiot gave him your address?"

"This idiot!" Exclaims Jolyon.

"Ah." Says Arthur. He thinks for a moment. "I don't suppose the police recovered any of your property?" He asks.

"Not a groat!" Exclaims Jolyon. "That ungrateful little bastard sold the lot and got drunk on the proceeds!"

"Ah." Says Arthur.

Wednesday, May 08, 2013

Vince v Wyatt: Striking out a statement of case

Lord Justice Thorpe
A summary of Vince v Wyatt [2013] EWCA Civ 495, which concerned a husband's application to strike out a financial remedies claim made by the wife some eighteen years after the parties were divorced.

As Lord Justice Thorpe said in his leading judgment, the history of this case is somewhat extraordinary.

The parties met when they were students, married in 1981 when the husband was 20 and the wife was 22 and lived a 'New Age or Traveller' lifestyle. They separated in about 1984 and were divorced in 1992. Apart from the decree absolute, none of the divorce papers survive, and it is not known whether the wife pursued a claim for ancillary relief, or indeed whether her claims were dismissed.

In about 1995 the husband set up his own business. He had made a small wind turbine to generate electricity for his caravan out of retrieved and recycled materials, and that "small seed" grew into a hugely successful business in the wind industry. His company, Ecotricity, is now worth many millions.

In December 2010 the wife instructed solicitors, and in May 2011 they issued a financial remedy claim on her behalf. The husband applied to have the claim struck out, under rule 4.4 of the Family Procedure Rules 2010. The husband's application was dismissed, and an application by the wife for an A v A order to finance the claim in the sum of £125,000 was granted. The husband appealed against both orders.

Lord Justice Thorpe concluded that the judge had fallen into error in his construction of rule 4.4 and approached his essential task too narrowly:
"It was not apt simply to ask was the delay inordinate and, if yes was prejudice to the husband greater than the prejudice to the wife. He had to have regard to all relevant considerations within the history [including the fact that at the time when the wife should have brought her claim neither party had any money and both were in relationships with new partners] and exercise his case management powers not just to protect against the greater prejudice but also to husband the resources of the court ... Part of the case management function is to eradicate hopeless claims ... in my judgment [the husband] is not to be compelled to boost the wife's income by the exercise of the jurisdiction under the Matrimonial Clauses Act 1973 the existence of which cannot now be plainly established and can only be presumed. He is not her insurer against life's eventualities."
As to the appeal against the A v A order, that obviously now fell away but Lord Justice Thorpe indicated that if it had not, he would have allowed the appeal.

In his concurring judgment, Lord Justice Jackson discussed the inter-relationship between the striking out provisions of the FPR and the Civil Procedure Rules. He concluded:
"In the family context, there is no statutory bar to bringing a claim for financial relief ten, twenty or even thirty years after the divorce. Nevertheless, in my view the court should not allow either party to a former marriage to be harassed by claims for financial relief which (a) are issued many years after the divorce and (b) have no real prospect of success. It must be an abuse of the court's process to bring such proceedings.

The present case is a classic example of such abuse. Even assuming that the wife's evidence is accepted on all disputed issues of fact, for the reasons stated by Thorpe LJ there is no real prospect that the wife will succeed on her claim. I say this not only because of the long delay, but also because of all the other circumstances which doom the wife's application to failure. Thus, if the deputy judge's order stands, the ultimate result will be that (a) the wife recovers nothing, (b) the husband pays all the costs of both sides and (c) the husband has no prospect of recovering any of the costs which he has paid out. This is not an outcome which the court can contemplate with equanimity, however wealthy the husband may be."
He finished, however, with a warning:
"I should add that an application to strike out under FPR rule 4.4 (1) (b) will only succeed in rare and exceptional cases. The case before this court falls into that category. Under no circumstances should parties start making applications to strike out, merely on the grounds that the other side's case is weak or unlikely to succeed. The court will take a very dim view of any such conduct and may well order the applicant to pay the costs of the application on an indemnity basis."

Family Law Clinic: Does a Scottish contact order apply in England?

Scotland has a separate legal system to England and Wales: would a child contact order made by a Scottish court be recognised by a court in England and Wales?

The answer is that the order will be recognised, just as if it had been made by the court in England and Wales. The same would apply to pretty well any children order made anywhere in the UK - it would be recognised by the courts in any other part of the UK.

It should be noted, however, that the court 'recognising' the order cannot take steps to enforce the order unless the order has been registered in that part of the UK - so the Scottish contact order could not be enforced by the English courts unless it had been registered in England.

It should also be noted that, as with any contact order, the English court may prefer not to take enforcement action - see this post.

The above is, of course, only a brief summary of what can be a complex area. If you require further information or detailed advice, you should consult a specialist family lawyer.

Tuesday, May 07, 2013

News Update: 7th of May 2013

WELCOME to this week's Family Lore News Update.

Family court 'delays' on care decisions cut
The time it takes for the family courts to make decisions about whether children should be taken in to care or adopted has been cut. Full story: BBC News.

BLP wins as CoA looks to Russian law in key matrimonial case
Berwin Leighton Paisner (BLP) has successfully fought off a attempt by a Russian businessman and former politician to use English law in a dispute over the ownership of a London property with his ex-wife. The Slutsker case - see below. Full story: The Lawyer.

No one should be jailed in secret, says top judge
Lord chief justice issues urgent guidance [see below] to judges following court of protection's imprisonment of Wanda Maddocks. Full story: The Guardian.

DfE backs domestic abuse projects
Children and young people affected by domestic abuse are to be given support through new projects backed by the Department for Education. Full story: Children & Young People Now.

New 'Passport to support' for adopters
From today, adopters will be able to see exactly what support is available for them and their child with the new ‘Adoption Passport: a support guide for adopters’. Full story: GOV.UK. See also this post.

Post adoption support: a rapid response survey of local authorities in England
Study published looking at how post adoption support teams and services are structured and to identify barriers to effective provision. Full story: GOV.UK.

Council failed to safeguard children, finds Ombudsman
Compensation of £10,000 recommended for failings in handling complex neglect case. Full story: Family Law Week.

Court of Protection openness call by justice secretary
The justice secretary has asked a senior judge to consider whether the court dealing with the affairs of mentally incapable people in England and Wales can become more open. Full story: BBC News.

Society endorses ‘a la carte’ advice – but warns of risks
"Family lawyers offering ‘pay as you go’ legal services are warned of the risks they carry and how to avoid them in a practice note [see below] published today by the Law Society." Full story: Law Society Gazette.

Increase in cross-border cases, according to Lord Justice Thorpe
The number of cross-border family legal disputes have grown by tenfold in a decade and more than doubled in two years, according to the annual report of the Office of the Head of International Family Justice. Full story: Family Law.

England's failing care system needs urgent reform, finds inquiry
Leading charities recommend fresh approach to care reform, backed by children’s services directors. Full story: Community Care. See also the BASW blog post, below.

Why an ex in the city gets a better divorce settlement than wives in the provinces
Wives living in small towns and villages get worse divorce settlements than those who split in big cities, according to new research. Full story: Daily Mail.

President gives guidance on urgent appeals in adoption cases
In C (A Child) [2013] EWCA Civ 431, the President of the Family Division has given guidance to the profession concerning urgent appeals in adoption cases. Full story: Family Law Week.

Council pays five-figure sum to settle 'failure to remove' case
A local authority has settled a case where the claimant alleged that it had repeatedly failed to take her into care when she was young. Full story: Local Government Lawyer.

Committal for Contempt of Court Practice Guidance
Guidance issued by Lord Judge, Lord Chief Justice of England and Wales and Sir James Munby, President of the Family Division and President of the Court of Protection. Practice Guidance: Bailii. See also the news story above.

Unbundling family legal services
Practice note for family practitioners who want to offer unbundled (ie partial retainer) legal services to their clients. Practice Note: The Law Society. See also the news story above.

L (A Child) [2013] EWCA Civ 489 (03 May 2013)
Appeal against interim care order. Appeal allowed and interim supervision order substituted. Full report: Bailii.

Slutsker v Haron [2013] EWCA Civ 430 (1 May 2013)
Dispute between a Russian husband and wife, where the husband argued that a half share of the beneficial interest in a multi-million pound London property was held on trust for him absolutely, whilst the wife argued that the whole of the beneficial interest was held by the first respondent on trust for the second respondent. Full report: Family Law Hub. See also the news story above.

T, R (on the application of) v Legal Aid Agency & Ors [2013] EWHC 960 (Admin) (26 April 2013)
Application for judicial review of decision of Legal Aid Agency in respect of funding for an expert report. Full report: Bailii. See also the article and two blog posts, below.

SCC v LM & Ors [2013] EWHC 1137 (COP) (12 April 2012)
Judgment regarding the care of a 79 year-old man suffering from Alzheimer's disease and vascular dementia. Full report: Bailii.

Yordanova v Iordanov [2013] EWCA Civ 464 (10 April 2013)
Application by husband for permission to appeal against dismissal of application to strike out divorce petition, on the basis that the parties were already divorced in Bulgaria. Application dismissed. Full report: Bailii.

PC & Anor v City of York Council [2013] EWCA Civ 478 (01 May 2013)
Appeal against decision that married woman lacked capacity to decide to cohabit with her husband. Appeal allowed. Full report: Bailii.

LB v London Borough of Merton & Anor [2013] EWCA Civ 476 (01 May 2013)
Appeal against dismissal of mother's appeal against placement order. Appeal dismissed. Full report: Bailii.

S v S [2013] EWHC 991 (Fam) (29 April 2013)
Application by wife for order that financial remedies hearing where Heads of Agreement had been entered into should be resumed on the grounds of material non-disclosure by the husband. Held that the husband had been guilty of non-disclosure, but that it was not material. Full report: Bailii.

PS v LP [2013] EWHC 1106 (COP) (06 February 2013)
Judgment concerning issue of whether the best interests of a disabled woman might be served by a reintroduction of familial relationships. Full report: Bailii. See also the post by suesspiciousminds, below.

“To Decide or not to Decide, that is the Question…” – the impact of R (H) v Kingston upon Hull City Council
Dave Phillips and Naomi Madderson, members of the child care team at 37 Park Square Chambers, consider the impact of a case in which a local authority which removed two children subject to an interim care order was judicially reviewed and in which the authors acted. Full article: Family Law Week.

Stare decisis does not apply where statute overrides
David Burrows looks at the cases of Re JG (a child by her guardian) v Legal Services Commission and ors (incl Law Society and Secretary of State for Justice) [2013] EWHC 804 (Admin) and R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin) [above]. Full article: Family Law.

Samantha Bangham’s Week in Cases 3 May 2013
Samantha Bangham looks at the week's case highlights. Full article: Family Law.

Lucy Reed is "struggling to absorb the vast amounts of new guidance, update and direction". Full post: Pink Tape.

LAA LAA land (or judicially reviewing the legal aid bods and winning)
A discussion of T, R and Legal Aid Agency 2013 [above]. Full post: suesspiciousminds.

“Cutting edge forensic linguistics”
A discussion of the Court of Protection case of PS v LP 2013 [above]. Full post: suesspiciousminds.

LAA must give reasons about funding expert assessments in care proceedings
R (on the application of T) v Legal Aid Agency (formerly Legal Services Commission) [2013] EWHC 960 (Admin) Collins J, 26 April 2013 [above]. This successful challenge to a decision by the Legal Aid Agency (LAA) arose from an expert assessor in family proceedings – not unnaturally – refusing to begin work unless funding was in place. Full post: UK Human Rights Blog.

Care inquiry – We need a cultural change in how we perceive children in care
As the Care Inquiry publishes its findings of an eight-month inquiry into the care system by eight leading children’s charities, including the Fostering Network, TACT and the British Association for Adoption and Fostering, BASW professional officer Sue Kent examines the issues. Full post: BASW. See also the news story, above.

Friday, May 03, 2013

...AND JUSTICE FOR NONE: Chapter 1 - Contempt

LOCKED UP in prison. Not the place you would expect to find an up-and-coming young barrister like Arthur Conscience.

As he looked around at the winos and other assorted undesirables accompanying him in the cells, Arthur reflected upon how he, supposedly one of the most talented barristers in his generation, had ended up in such a hideous place.

It had started as any other day in court. Arthur was representing a wife who was applying for an order requiring her husband to disclose assets that he was clearly hiding from the court, in a blatant attempt to defeat her financial claims on divorce.

The evidence that the husband was hiding assets had been overwhelming, and Arthur had expected getting the order would be a formality.

What Arthur hadn't taken into account, however, was that the application was being heard by Judge Dodgy, and that the husband was being represented by Edgar Venal. Like most of the legal profession, Arthur had heard the rumours that Judge Dodgy accepted bribes to find cases in favour of the payer of the bribe, but he was still sufficiently inexperienced to believe that such a thing could really happen in his beloved profession.

However, today it soon became clear to Arthur that Judge Dodgy was interested in something other than the overwhelming evidence in favour of Arthur's client. Much to Arthur's astonishment, he summarily rejected each point in Arthur's carefully-prepared skelton argument, and dismissed the application, without even hearing what Edgar Venal had to say.

Arthur was fuming. Before he could stop himself, he leapt to his feet.

"So the rumours about you are true!" He shouted at Judge Dodgy.

Judge Dodgy peered over his glasses at Arthur, a look of utter disdain on his face. "Rumours?" He said calmly. "Explain yourself, Mr Conscience. What do you mean?"

"He paid you to find against my client!" Shrieked Arthur, pointing across at Edgar Venal.

Needless to say, the accusation didn't go down well with Judge Dodgy, who promptly sent Arthur down for contempt.

Adoption... again

As their press release proudly announces, the Department for Education has today published 'The Adoption Passport', a new guide to the support services adopters can expect from local authorities.

The Passport is available on the First4Adoption website, although at present at least you have to do a little digging to find it - I couldn't see a link to it on the front page of the site. When you do find it, it's not all that impressive, comprising just one page in its PDF version. Somehow, I think most adopters will want a little more detail than that.

Coinciding with the publication of the Passport, the Department for Education has also today published 'Post adoption support: a rapid response survey of local authorities in England', a study looking at how post adoption support teams and services are structured and to identify barriers to effective provision. Carried out by the Childhood Wellbeing Research Centre, the "aims of the study were to look at how post adoption support teams and services are structured and to identify barriers and facilitators to effective provision".

Not content with the above, the government's response to the ‘Adoption and fostering: tackling delay’ consultation is also being published today.

The government's plans for adoption have not been met with universal approval. Barnardo's has today issued a press release describing them as 'nonsensical'.

Thursday, May 02, 2013

Everything you need to keep up to date with family law - delivered to your mailbox each week

Just a quick post for those who are not already aware of my Family Lore Focus Newsletter, or haven't yet subscribed.

The Newsletter is a free weekly email sent to subscribers, containing links to all the top family law news stories, cases, legislation, articles and blog posts that were reported on Family Lore Focus that week. The links come from across the web (unlike other similar emails, that only contain links to one site), and are all free to view.

So, why not keep up to date with developments in family law by subscribing to the Newsletter, here?

Wednesday, May 01, 2013

Office of the Head of International Family Justice for England and Wales Annual Report published

The Office of the Head of International Family Justice for England and Wales has today published its Annual Report, for 2012.

As with last year's report, the main headline is the rise in the number of international family disputes, with a 40.5% increase in the caseload of the Office compared to 2011.

The report comprises four main chapters, covering developments during the year, a summary of the framework of international family law, an outline of the role and activities of the Office and, the 'meat' of the report, a statistical analysis of the cases dealt with by the Office.

The report can be read here.

Family Lore Clinic: Why do you have to say to use your best endeavours within a consent order?

The term 'consent order' is usually used to refer to the court order setting out an agreeed financial/property settlement on divorce, and that is the meaning intended by the questioner.

Consent orders can contain many different types of clauses. Often, the clauses will require one of the parties to take a certain action. Normally, that action will be in the power of that party to do, such as pay a lump sum of money to the other party. Such clauses will simply state that that party must take that action.

However, sometimes a party will agree to something that is out of their control. Perhaps the most common example of this is getting the other party released from the mortgage on the former matrimonial home (where the released party is to transfer their share in the property to the first party).

Obviously, it is not within the power of one party to release the other from a mortgage - that is up to the mortgage company. Accordingly, the best that can be done is for the first party to 'use their best endeavours' to get the other party released (i.e. by applying to the mortgage company for the release and supplying the mortgage company with whatever they require).

In short, the term simply requires that party to try their best to achieve the desired outcome. Of course, if the other party does not consider that the first party is trying their best, they can refer the matter back to the court.

As usual, this is a brief summary of the subject. If you require more detailed advice, you should consult a specialist family lawyer.