Monday, September 30, 2013
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Saturday, September 28, 2013
Friday, September 27, 2013
Notable things this week:
Welcome to what may (or may not) be my last Friday Review.
I mentioned the criticism of the President's decision in Re J by Nushra Mansuri, professional officer at the British Association of Social Workers, in the Review two weeks ago. Then, she wrote on the Community Care Blog. This week she turned to the larger audience of The Guardian, where she suggests that social workers may be targeted online following Lord Justice Munby's decision. She says:
"The Munby ruling theoretically means that not only do social workers have to face threats in person, they may have to cope with 24-hour-a-day onslaughts in the form of social media."Whilst I have every sympathy for social workers subjected to such abuse, I'm not sure that this is entirely fair. As I believe has been said elsewhere (I'm afraid I can't recall by whom), it was not Munby's job to protect social workers - if they are subjected to threats, then that is surely a matter for the police. Otherwise, perhaps local authorities should be more protective, perhaps in the way that The Law Society has dealt with certain 'anti-solicitor' sites.
The Department for Work & Pensions has announced changes to the way in which appeals against benefit and child maintenance decisions are to be dealt with. In particular, 'mandatory reconsideration' will be introduced, so that the DWP will reconsider all decisions before an appeal. Sounds a good idea on the face of it (no doubt motivated by cost-cutting), although obviously if the DWP does not change the decision then the 'reconsideration' may only lead to a further delay before the appeal proceeds.
reports that, following the publication of the Daniel Pelka serious case review, children and families minister Edward Timpson has requested an analysis from the Coventry Safeguarding Children Board into the failing highlighted by the review. The minister said that "answers were needed not only to establish accountability but because they were "critical to improving child protection practice across the country"". All very good, just so long as this doesn't become (another) witch-hunt.
On the subject of child protection, may I highly recommend this post on Pink Tape by Sarah Phillimore, in which she asks:
"...with gritted teeth and growing sense of frustration, just how am I supposed to reconcile all the President’s clearly expressed views about the urgent need for a massive change in culture, for speed, for efficiency, for an entire case to be dissected in nine days and using no more than 300 pages of A4, with what the President goes on to endorse in the judgement of the Court of Appeal in Re B-S (Children)"Here is a taste::
"Just as the discussions in some quarters about reform to criminal legal aid appeared to be based on the assumption that all defendants were guilty ... so too does the debate around care proceedings often seem to carry a whiff of an assumption that any parent caught up in this must be hopeless so the aim is simply to process the case as quickly and cheaply as possible."As I say, highly recommended.
latest statistics for looked-after children in England, for the year ending 31 March 2013. The headline, picked up by the BBC, was that there was a record increase (15%) in the number of looked after children who were adopted. Children's Minister Edward Timpson (left), having a busy week, is quoted as saying that the rise was "hugely encouraging". For myself, I really don't like the idea of judging the success of policies concerning serious issues relating to children by statistics - the idea seems to me to give ammunition to the 'secret courts stealing our children' brigade.
And finally finally (perhaps), I shall finish with one of my pet news hates: law firms getting into the news by doing PR using surveys. The latest example of this august genre appears to be this 'story' in The Telegraph, in which Australian law firm Slater & Gordon, perhaps as part of their £1 million advertising campaign, commissioned a survey that came up with the thrilling finding that the third year of marriage is apparently the happiest. Like, wow. Slater & Gordon 'National Practice Group Leader' (whatever that is) Amanda McAlister, who "heads a team of 15 lawyers who are dedicated to providing clients with clear, straightforward advice and a professional pro-active service", does warn, however that: "People often get so overwhelmed by the first few years they forget that a successful marriage requires work." Who'd have thought?
Have a good weekend, and beyond.
Wednesday, September 25, 2013
Inheritances are assets that will be taken into account in any divorce settlement. There are no hard and fast rules as to how they should be dealt with, and certainly no rule that one party is entitled to a share of an inheritance received by the other party.
How the inheritance should be dealt with depends upon the circumstances of that particular case. For example, if the needs of the parties and any children can only be met by using the inheritance, then it is likely that it will simply go into the 'pot' for division between the parties (the 'pot' will be divided in accordance with the needs of each party).
If, however, those needs can be met from other assets, then the party who received the inheritance may be able to argue that they should keep it. Whether they are successful in arguing this would depend upon such things as when the inheritance was received (the more recent, the more likely the argument will succeed), whether it has been spent and, if so, what it was spent on (it may, for example, no longer be possible to identify the inheritance, as it has become 'mixed up' in other assets).
Obviously, the above is only a very brief overview of what can be a complex subject. If you would like more detailed or specific advice then, as always, you should consult a specialist family lawyer.
Tuesday, September 24, 2013
WELCOME to this week's Family Lore News Update.
MEPs call for equal property rights for registered partners and married couples
International couples in registered partnerships should have the same right as married ones to choose which member state's national law will govern their property rights if the relationship ends, the European Parliament has resolved. These rules will not apply to the UK, Denmark or Ireland. Full story: Family Law Week.
Court of Appeal gives important guidance on adoption applications
The Court of Appeal has given important guidance as to the proper approach to applications for adoption orders and for leave to oppose adoption orders. The Re B-S case - see below. Full story: Family Law Week.
Domestic violence increases during England World Cup football matches
Researchers from Lancaster University have found that domestic abuse increases during England World Cup football matches – especially if the team lose. Full story: Family Law Week.
Adultery falls behind bad behaviour as leading grounds for divorce
Major new study looks at trends in divorce over the past 40 years. Full story: The Guardian.
Top judge calls for more Court of Protection cases to be made public
Mr Justice Charles wants to increase public understanding of care cases. Full story: The Independent.
Social work leaders call for better use of SCRs as learning tools
Reports into child deaths should be changed to allow all child protection professionals to learn lessons from tragedies like the Daniel Pelka case, it has been claimed. Full story: Children & Young People Now.
Many councils still 'inadequate' on child protection
One-third of councils previously judged by inspectors to have child protection weaknesses are still failing to meet minimum requirements, figures show. Full story: BBC News.
Daniel Pelka: Ministers shun obligatory scheme for professionals to report abuse concerns
No new legislation needed as it was 'already clear that suspicions should be reported'. Full story: The Independent.
Lib Dem Conference calls for enforceable rights for cohabitants
The Liberal Democrat Conference has passed a motion which calls for "the implementation without delay of proposals giving cohabiting couples fair and reasonable redress upon relationship breakdown and upon intestacy, based upon the proposals made in the Law Commission's 2007 and 2011 reports." Full story: Family Law Week.
EA v AP  EWHC 2344 (Fam) (24 June 2013)
Jurisdiction dispute concerning wife's Schedule 1 application, where husband had first issued proceedings in Italy. Held, jurisdiction was not established. Full report: Bailii.
Tufail v Riaz  EWHC 1829 (Fam) (19 June 2013)
Judgment concerning divorce petition issued in England, where the parties may have already been divorced in Pakistan. Full report: Bailii.
Joyce v Joyce  EWHC 1353 (Fam) (16 May 2013)
Judgment dealing with the committal of a father to prison for contempt, for breach of a Collection Order requiring the Tipstaff to collect the children so that they could be returned to the mother in Ireland. Full report: Bailii.
M (Children)  EWCA Civ 1147 (20 September 2013)
Appeal by father against order refusing his application for contact with his three sons. Appeal allowed. Full report: Bailii. See also the blog post, below.
L-R (Children)  EWCA Civ 1129 (24 July 2013)
Appeal against 18 month sentence of imprisonment for contempt for refusing to give evidence in care proceedings. Appeal dismissed. Full report: Family Law Week. See also the blog post, below.
M (A Child)  EWCA Civ 1131 (17 September 2013)
Appeal by father against an order made in the course of Hague Convention proceedings, that the mother be permitted to carry out paternity testing by DNA of her daughter. Appeal allowed. Full report: Bailii.
J (A Child), Re  EWCA Civ 1100 (30 July 2013)
Application by grandmother for permission to appeal against care and placement orders. Application granted. Full report: Bailii.
ML (Use of Skype Technology), Re  EWHC 2091 (Fam) (18 July 2013)
Judgment recording the use made of Skype technology in two recent children cases. Full report: Bailii.
B-S (Children), Re  EWCA Civ 1146 (17 September 2013)
Appeal by mother against refusal of application for leave to oppose the making of adoption orders. Appeal dismissed. Full report: Bailii. See also the blog post, below.
Laying Down The Law On Freezing Orders
In UL v BK  EWHC 1735 (Fam), Mostyn J reiterated the mantra that the law to be applied in one court room must be the same as that applied in the next, whether in the High Court or a county court, the Family Division or the Chancery. Full article: Mondaq.
Court of Protection Update (September 2013)
Sally Bradley and Michael Edwards, barristers, 4 Paper Buildings, consider three important judgments of the Court of Protection. Full article: Family Law Week.
What Are Care Proceedings For?
Lady Hale's Munkman Lecture, 16th September 2013. Full article: Zenith Chambers (PDF).
In the matter of A (Children)  UKSC 60 – An Analysis
Alex Verdan QC, Jacqueline Renton and Michael Gration, all of 4 Paper Buildings, consider the significance and impact of the Supreme Court’s recent judgment in A (Children), in which they represented interveners Children and Families Across Borders. Full article: Family Law Week.
Re A (A Child)
For those of you who had been pondering about the applicability of Re B  UKSC 33 to private law cases – Re A (A Child)  EWCA Civ 1104 goes some distance towards providing an answer. Full post: Pink Tape.
M (Children): Refusing contact is draconian
A brief look at M (Children)  EWCA Civ 1147 [above], an appeal by a father against an order refusing his application for contact with his three sons. Full post: Family Lore.
Inconsistent statements and eating more porridge than Orinoco Womble
The decision of the Court of Appeal in Re L-R (Children) 2013 [above], which was an 18 month sentence for not giving evidence. With a title like that, who else could have written this post than suesspiciousminds?
The Daniel Pelka serious case review
Suesspiciousminds examines the Daniel Pelka serious case review, in this post.
Relocation Research - first paper now available
"In my last post, I published the Executive Summary from my new paper, "Relocation Disputes in England and Wales: First Findings from the 2012 Study". The full paper is now available to download free of charge from the Social Science Research Network." Says Legal Liberal.
“This is some serious B-S….”
The Court of Appeal decision in Re BS (Children) 2013 [above]. Full post: suesspiciousminds.
Monday, September 23, 2013
Divorce & Splitting Up
Advice from a top divorce lawyer
£5.99 (paperback) - Published by Stowe Family Law LLP
I realise that I am a little late with this review, as Divorce & Splitting Up has been available since January, at least in Kindle format, but I have only just obtained a copy of the more recent paperback version. Bear with me - I assure you it will be worth it.
Marilyn Stowe of course needs no introduction. She has been described by The Times as "one of the most formidable and sought-after divorce lawyers in the UK" and is the Senior Partner at Stowe Family Law, the UK’s largest specialist family law firm. What, then, is her motivation for writing what is described on the back cover as "the essential how-to book for anyone who is getting divorced or splitting up from a partner"?
She explains this in the Preface where she says that she was motivated by the reduction in access to a lawyer caused by the Government's virtual destruction of legal aid for family matters, and the desire to do something to help.
What do you want to know?
The book is divided into eight parts, covering an enormous amount of ground in its 328 (printed) pages:
I - Let's Stick Together - Unusually (uniquely?) for a book by a divorce lawyer, an examination as to whether the marriage has, indeed, broken down, and the alternatives to divorce.
II - Getting Divorced - Practical advice not just upon the steps involved in the divorce process, but also such matters as alternative dispute resolution, choosing a good solicitor and helping your solicitor to get the best for you.
III - Cohabitation and Civil Partnerships - What you need to know if you are cohabiting or in a civil partnership.
IV - International, Expat and Cross-Border Divorce - Advice for anyone involved in a divorce with an international dimension.
V It's The Money, Honey - An explanation of how the courts approach and deal with financial issues on divorce, together with advice regarding such matters as prenups and tracking down hidden assets.
VI - How To Do Your Best For Your Children - Including sections dealing with the law upon resolving children disputes, child support and helping your children through the divorce.
VII - What Could Go Wrong? - Including dirty tricks by the other party (I rather liked the example of a wife who sawed off the legs of a Chippendale cabinet, before delivering it to her husband), how to behave in court and other pitfalls, such as illegal snooping (with particular reference to Imerman).
VIII - How To Move On - Covering both practical and emotional matters.
The book concludes with some closing remarks from Marilyn, a list of useful resources (including, I am honoured to say, a certain blog that you are presently reading), acknowledgements and a brief index.
The book is interspersed with summaries of cases from Marilyn's 30-year career, together with many letters to Marilyn requesting her advice upon legal or emotional aspects of relationship breakdown, to which Marilyn gives her expert reply.
These interludes add a real and practical dimension to the main text, both adding to the advice already given and clarifying how that already given applies in practice.
Divorce & Splitting Up is not, I think, intended to be a comprehensive DIY guide for litigants in person (although it would no doubt be of considerable benefit to them). Rather, it appears aimed at helping those going through relationship breakdown make informed choices and avoid common mistakes, both before and after instructing a solicitor. In this it is entirely successful - a treasure-trove of legal, practical and emotional advice from someone at the very top of their field. It sounds trite, but anyone in the unenviable position of facing a breakdown of their relationship cannot fail to benefit greatly from a read of this book.
How does this fit in with the goal of helping those who can no longer obtain full legal representation? Well, as I have said it will be of benefit to the litigant in person, but it will also help to reduce the costs of those who do not or cannot self-represent, at least for the entirety of their case, by helping them deal with those matters they can themselves, by avoiding expensive errors and by getting the most from their legal representation, thereby keeping their legal costs to a minimum.
Cheap at twice the price
Divorce & Splitting Up retails at £5.99 for the paperback edition, or just 99p for the Kindle edition (all proceeds going to The Children's Society). Quite where else you could get so much wisdom from such an expert in her field for such a low price, I do not know. Everyone can afford 99p, so there really isn't any reason why anyone going through relationship breakdown, whether represented or not, should not buy this book.
Divorce & Splitting Up sold 2,500 copies as at August. This is no surprise, and no doubt the final sales figure will be considerably higher than that.
(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)
Saturday, September 21, 2013
I have to admit that I didn't meet anyone like this during my all-too-brief but highly enjoyable trip to God's Own County this week:
Friday, September 20, 2013
|Lady Justice Macur DBE|
The mother had been the victim of significant domestic violence over a prolonged period. She 'escaped' the family home with the three boys in December 2011, taking up accommodation in a women's refuge. The father has not seen the boys since. He applied for contact in January 2012.
The application was eventually heard in April 2013, when the judge found that the mother was terrified of the father and stated that the father had failed to persuade her "that he was not going to destabilise the family by continuing his violent, threatening, minimising behaviours, upsetting the children and harming them emotionally". She therefore refused the application. The father appealed.
Giving the leading judgment on the appeal Lady Justice Macur DBE stated (at paragraph 13):
"Despite the judge's dire assessment of the father's character and vulnerability of the mother, which I accept as indicated, it nevertheless remains the case that there must be careful scrutiny of the outcome reached. The judge's order is draconian. The prospect of the children having any relationship with their father during their minority will diminish increasingly with the passage of time."She continued (at paragraph 14):
"The welfare of the child is paramount. A child's continuing relationship with a non residential parent is highly desirable and contact should not be denied unless the child's welfare demands it. Domestic violence is not, in itself, a bar to direct contact, but must be assessed in the circumstances as a whole."Notwithstanding the judge's conclusions about the parents, she concluded that the appeal should succeed on the ground that the judge had failed to adequately address why the children's safety and the management of the mother's anxieties could not be achieved under any circumstances of supervised contact.
As to the human rights aspect she stated (at paragraph 24):
"...the order ... can only be lawful within the meaning of Art 8(2) of the Convention if the order for no direct contact is necessary in a democratic society for the protection of the right of the mother, and consequently the minor children in her care, to grow up free from harm. In order to reach that conclusion the court must consider and discard all reasonable and available avenues which may otherwise promote the boys rights to respect for family life, including, if in the interests of promoting their welfare during minority, contact with their discredited father."She therefore allowed the appeal and remitted the case for re-hearing "with a view to an informed investigation of any supervised contact resources appropriate to the particular circumstances of this case".
Giving a concurring judgment Lord Justice Underhill summarised the appeal:
"I also agree that [the judge's findings about the parents] would not justify the drastic order which she made unless she was satisfied that any form of contact – however carefully controlled and supervised – would cause serious damage to the children, whether directly or indirectly through its impact on the mother."Lord Justice Longmore agreed with both judgments.
Notable things this week:
extra legal rights to unmarried couples who separate" or, to use lawyer parlance, property rights for cohabitees. I and many other family lawyers have been calling for this for years, although whether the Lib Dems will have the political clout to push it through after the next general election (I assume there will not be time to do so before) is, of course, a matter for the electorate.
published the results of a survey that says that 69% of MPs "agree there is a mistaken belief in the existence of “common law marriage” among their constituents, and that 57% believe the law needs to be changed to provide greater protection for unmarried couples upon separation". Another example of a survey supporting the views of the organisation that commissioned it, but hopefully an indication that there may yet be change in this area in the not too distant future.
The serious case review in the Daniel Pelka case has been published. Its findings include that there were missed opportunities to protect Daniel and potentially uncover the abuse he was suffering, and that at times, he appeared to have been "invisible" as a needy child against the backdrop of his mother's controlling behaviour. Recommendations include: a review of information sharing and notification systems in respect of domestic abuse; ensuring a robust system for recording injuries or welfare concerns by school staff; and that health professionals should consider child abuse as a differential diagnosis "as part of an holistic assessment of the child".
On the same subject, a petition calling for a 'Daniel Pelka Law' requiring professionals to report child abuse has apparently been rejected by the Government, on the grounds that it is not required, as it is already clear that concerns should be reported. I have to say that I'm not sure what such a law would add, save for extra pressure on professionals. It would surely also increase the number of cases unnecessarily reported, thereby increasing the pressure on an already creaking system.
Re B-S (Children) he expressed the Court of Appeal's "real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments". Spelling out good practice, he said that two things were essential: proper evidence and adequately reasoned judgments. His judgment has been considered as a warning that Michael Gove’s drive to speed up adoptions should not be allowed to break up families unnecessarily.
There's nothing quite like telling us something we already know. The Guardian informs us today that "Co-operative Legal Services compared the grounds for divorce in the 70s, 80s, 90s and 2000s as well as the present day" and found that during that period unreasonable behaviour has overtaken adultery as the most popular 'grounds' [sic] for divorce. Really? I wasn't aware of that.
And finally, my tweet of the week:
Great sign outside the Old Stillage pub. Is someone havin aa larf? Hope not... pic.twitter.com/6trC4MLvVW
— Mark Stephens (@MarksLarks) September 18, 2013
Have a good weekend - please drink responsibly.
Thursday, September 19, 2013
I'm sorry that you cannot afford to have me there with you tonight. It would have been so good for you to see me. Still, I expect that your disappointment will wear off. Eventually.
Notwithstanding my absence, it is extremely gratifying that you are paying homage tonight to such a serious medium as Twitter, for what would we be but for those 140 characters? Imagine how empty our lives would be without all of those wonderful tweets from our fellow lawyers. Who could forget, for example, the tweets authoritatively repeating family law news for the 100th time, or the tweets extolling the virtues of our divorce services for clients, that only our lawyer followers ever read?
I would also like to congratulate you on seizing upon the business networking opportunities offered by Twitter. It is always satisfying to see new technologies appropriated by the professionals.
As for charging £30 to attend a tweetup, I shall say no more than that I can remember the days when mad fools arranged free tweetups - can you believe that?
Anyway, I hope that you still have a reasonably enjoyable evening, despite the absence of the country's #topfamilylawyer - i.e., me.
Sir Edgar Venal,
Slaver's Plantation Villa,
Wednesday, September 18, 2013
I shall assume that the question refers to private law child matters, i.e where there is no involvement by the local authority, and that 'child matters' refers to disputes about arrangements for children, particularly residence and contact disputes.
The first thing to say is that legal aid is not now available for private law child matters unless domestic violence is involved, or there is a risk of child abuse.
The amount that a solicitor will charge for representing a client in connection with a private law child matter will depend upon how much work is involved. This can range from a few hundred pounds for a case that is settled quickly, to many thousands of pounds for a case that goes all the way to a contested hearing. Obviously, therefore, it is essential that every effort be made to settle the case by agreement, possibly with the help of a mediator.
Different solicitors charge different amounts, depending particularly upon their experience and location. When you instruct a solicitor you should be told of their charging rate, and be given an estimate for the likely total cost of the case (this estimate should be updated as the case progresses). You should also be informed in advance of any expenses involved, such as court fees and barristers' fees.
If you find that you cannot afford to continue to instruct your solicitor, then you can ask them to stop acting for you at any point, and proceed with the case representing yourself. You can also set a limit of the amount of costs that your solicitor should incur - they should tell you when that limit is being reached.
Before you instruct a solicitor to represent you, you should raise with them any queries you may have regarding their charges for acting for you.
Tuesday, September 17, 2013
WELCOME to this week's Family Lore News Update.
Daniel Pelka: Serious case review finds 'missed opportunities'
Chances were missed to help a child who was murdered by his mother and her partner after suffering "terrifying and dreadful" abuse, a report has found. Full story: BBC News.
“Common Law Marriage” myth needs addressing, say MPs
A survey of MPs has revealed that 69% of Parliamentarians agree there is a mistaken belief in the existence of “common law marriage” among their constituents, and that 57% believe the law needs to be changed to provide greater protection for unmarried couples upon separation. Full story: Resolution.
Michael Gove lambasts protection provided by children’s homes
The Secretary of State for Education, Michael Gove, has given a withering assessment of the protection afforded by children's homes in an article published by the Daily Telegraph. Full story: Family Law Week.
Daniel Pelka: Calls For Child Protection Law
Almost 50,000 people have signed a petition calling for new legislation to help protect children from abuse in the wake of Daniel Pelka's murder. Full story: Yahoo News UK.
Lib Dems: Unmarried couples who split should have right to sue
Partners who have lived together for two years to get extra legal rights under proposals backed by Clegg leadership. Full story: The Independent.
Vegetarian mother stopped father seeing son in case he fed him meat
A vegetarian mother who stopped her five year-old son from seeing his father because she feared he might feed him meat must let him see the child or lose custody, a judge ruled. Full story: The Telegraph.
Pilot project reduces duration of care proceedings to 27 weeks
A pilot project to reduce unnecessary delay for children undergoing care proceedings has been largely successful. Full story: Family Law.
Minister acclaims more separated parents than ever paying towards their children
The progress being made in separated parents accepting financial responsibility for their children. Full story: Department for Work and Pensions.
New £19.3 million support fund for adoptive parents
The government announces new funding to support adoptive families. Full story: Department for Education.
Judges back independent social workers' key role in care cases
Oxford University study finds most family court judges believe independent social work reports are of good or excellent quality and prevent delays in care cases. Full story: Community Care.
Marriage 'no longer the foundation stone of family life'
Marriage is no longer the foundation stone of family life in Britain, a major study of public opinion suggests Full story: The Telegraph.
M (a child), Re  EWCC 3 (Fam) (19 August 2013)
Application by father to enforce contact order. Full report: Bailii.
N v K  EWHC 2774 (Fam) (11 September 2013)
Application by mother for residence order in case where the child, having previously lived in the USA, had lived in this country for the last six years. Residence order made. Full report: Dawson Cornwell (PDF).
K (Children)  EWCA Civ 1117 (30 July 2013)
A contact case in which the judge refused contact between the children and F because F would not accept the findings of abuse previously made by the judge and whether, and to what extent, he was motivated to change. The application to appeal was allowed because the judge had failed to appreciate that the F was giving limited evidence as he did not want to incriminate himself. This may have entirely coloured the approach to the F's evidence. Full report: Family Law Hub. See also the blog post, below.
Grocholewska-Mullins v Mullins  EWCA Civ 1121 (26 July 2013)
A financial provision case in which the ex-wife was seeking to achieve a clean break after 20 years of receiving periodical payments. Full report: Family Law Hub.
Re A (Perpetrator of Harm: Findings of Fact)  EWCA (4 September 2013)
Appeal by father against finding that he was the sole perpetrator of injuries to the child. Appeal allowed. Report: Family Law.
Finance and Divorce September 2013 Update
Jessica Craigs, senior solicitor and David Salter, Joint Head of Family Law at Mills & Reeve LLP analyse the financial remedies and divorce news and cases published in August. Full article: Family Law Week.
Jurisdiction and meaning of habitual residence
The Supreme Court on 9 September handed down judgment in what is undoubtedly a landmark decision in relation to issues of jurisdiction. Full article: Law Society Gazette.
Owusu goes to the Court of Appeal
David Hodson sets out information of an appeal to be heard by the Court of Appeal in early October on the Owusu issue, a matter of considerable importance to the English and international family law professions on divorce forum disputes with non-EU countries. Full article: Family Law.
Costs, a ‘clean sheet’, and a starting-point for costs orders
"In Solomon v Solomon  EWCA Civ 1095 Ryder LJ gives a welcome reminder of the Gojkovic costs decision of Butler-Sloss LJ - namely, that the award of costs in family proceedings may be linked to the civil proceedings general principle: that costs follow the event", says David Burrows in this article on Family Law.
View from the President's Chambers 6
The process of reform : latest developments. Full article: FLBA (PDF).
You have the right to remain silent (or do you?)
The decision to give permission to appeal in Re K (children) 2013 [above] might well become an important one, when the full appeal is heard. Full post: suesspiciousminds.
Social Work Leaders Mightily Naffed Off With Transparency Ruling
"As well they might be. It’s the instinct of self-preservation kicking in I guess. I can’t blame ‘em for that. But whilst sympathetic on a human level I do think they’re wrong." Says Lucy Reed in this post on Pink Tape, referring to the decision in Re J.
Historical amputations and lessons
Suesspiciousminds considers in this post, with reference to the 26 week timetable, whether speed is the best measure of something.
‘Munby ruling fuels idea that social workers are just child snatchers’
Nushra Mansuri, professional officer at the British Association of Social Workers, asks how the recent Munby judgement will lead to greater confidence in the family courts when some newspapers have a ‘malevolent agenda’ when reporting on social work. Full post: The Children's Services Blog.
Monday, September 16, 2013
(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)
Saturday, September 14, 2013
It was scary to be informed recently that twenty years have now passed since Nirvana released their final album, In Utero. Amazing how time flies when you're having fun. Or even when you're not. Here is the first single from the album, one of my favourite Nirvana tracks:
Friday, September 13, 2013
Notable things this week:
It has been such a busy week that the summer holiday now seems a distant memory...
Not exactly this week but mentioned here because it was published after last week's Review, last Friday Lord Justice McFarlane (right) gave the leading judgment in A (A Child), the appeal by a father against a residence order in favour of the mother and an order that he have no direct contact with the child. The case is notable for the way in which the Family Justice System has failed the father and, indeed, the whole family. Lord Justice McFarlane allowed the father's appeal and made much of the failings of the system in the course of his judgment. However, it was Lord Justice Aikens who gave a view as to the reason for those failings:
"Speaking as one who is not an insider to the Family Justice System, I suspect the root of the problem is that the system is overworked and short or resources with the result that there is insufficient opportunity for professionals and judges alike to stand back from time to time and take a fresh look at a case and reconsider it from basics."I have been saying this for years: you can do all you want to 'tart up' the system, but in the end any improvement is likely to be limited without the injection of proper resources. Or, to put it another way, you can't get a significant improvement on the cheap.
ordered a review by Her Majesty's Inspectorate of Constabulary (HMIC) into the way police in England and Wales deal with cases of domestic violence. HMIC will report back to the Home Office in April 2014. Let us hope that this results in better and more consistent responses by police forces across the country.
The number of people over 65 who are cohabiting has doubled in the last decade, according to an ONS study of census statistics. This major change in attitudes towards 'living in sin' may be seen as bad news by supporters of marriage, but the up-side is that it appears to have contributed towards a drop in the proportion of retired people living on their own.
We may at last be seeing the end of the post-Baby P surge in care applications. The latest Cafcass figures for August show a 17% decrease compared to August 2012. Welcome relief, I'm sure, for all involved in public law proceedings.
In the matter of A (Children) (AP). The issue in the case was whether the wardship jurisdiction (or inherent jurisdiction) of the Family Division of the High Court can ever be exercised in respect of an infant child who has never been physically present in England and Wales. The Supreme Court held that it could, but remitted the case back to the judge to consider as a matter of urgency whether it is appropriate to exercise this exceptional jurisdiction.
British Social Attitudes survey will no doubt add to the painful reading that the Marriage Foundation has had to endure of late (see, for example, previous Reviews, here and here, not to mention the story three paragraphs above). The 2013 Edition of the survey tells us that only 11% of respondents now think that pre-marital sex is wrong, down from 28% in 1983, and less than half (42%) think that couples should get married before having children, down from 70% in 1989.
Predictably, social workers have criticised the President's decision in Re J last week. Nushra Mansuri, professional officer at the British Association of Social Workers, makes a point similar to the one that I made in last week's Review:
"The effect of the Munby ruling is likely to defeat its original purpose; the negative spin that certain journalists have given the story merely serves to lessen public confidence in social workers and the child protection system."Has a can of worms been opened, with the anti-family justice brigade being given carte blanche to say virtually whatever they want? [Since I wrote this paragraph Lucy Reed of Pink Tape has expressed the view that the social workers are wrong.]
announced (via Work and Pensions Minister Steve Webb, right) that "more separated parents than ever [are] paying towards their children". Note the word towards - as I have mentioned here previously, the DWP considers even partial payments as 'positive outcomes', so I for one will take Mr Webb's acclamation with a large pinch of salt.
Lastly, our esteemed President has been looking out of his window again. The latest View from the President's Chambers, numero six, has been published. I'll say nothing about its contents, but would repeat a point I've made before: no disrespect to the FLBA, but why is the View made available to them, even before it is published on the Judiciary website?
I hope you get through Friday the 13th unscathed, and thereafter have a good weekend - you could do with a break.
Wednesday, September 11, 2013
It is common for parties to a divorce to think that they do not need to get a consent court order setting out an agreed financial/property settlement on divorce (especially in cases where the parties simply agree to make no (further) claim against each other). Everything is agreed, it's all straightforward, so why do I need to go to the trouble and expense of getting a court order?
The answer is quite simple: to make sure that everything is final, i.e. that the other party cannot make any further financial/property claim against you. Without a consent order, it is quite possible for a further claim to be made after the agreement has been put into effect (i.e. here where the house transfer had been completed), for example if the questioner's husband thought he had paid too much, or that he should have had a share of some other asset.
The consent order will set out the terms of the agreement, confirm that it is intended to be a full and final agreement, and dismiss all further financial/property claims by either party against the other. Only when such an order has been made (and the divorce has been finalised) is the settlement final.
I suppose for the sake of accuracy I should say this: the questioner asked whether she had to get a consent order. The answer to that is that she does not have to, but it is highly recommended that she does.
As usual, if you require any further or more specific advice regarding this matter, then you should consult a specialist family lawyer.
Tuesday, September 10, 2013
WELCOME to this week's Family Lore News Update.
Supreme Court decides that High Court has inherent jurisdiction concerning child who has never lived in England and Wales
Case remitted for urgent consideration as to whether the jurisdiction should be exercised. The A (Children) case - see below. Full story: Family Law Week.
Social work leaders criticise landmark child protection ruling
The British Association of Social Workers has spoken out against a landmark legal ruling allowing a father to post a video of police and social workers removing his baby under an emergency protection order. The Re J case - see below. Full story: Children & Young People Now.
Care applications in August 2013
In August 2013, Cafcass received a total of 822 applications. This is a 17% decrease compared to those received in August 2012. Full story: Cafcass.
Cafcass private law demand
In August 2013, Cafcass received a total of 4,053 new private law cases. This is a 2% increase on August 2012 levels. Full story: Cafcass.
Foster care myths threaten crisis, claims charity
Myths about foster care are threatening a crisis in the service in the UK, a charity claims. Full story: BBC News.
‘Unrepentant’ judge grants permission to appeal despite contrary view as to test
Mr Justice Mostyn has granted permission to appeal in a case involving s 13 of the Matrimonial and Family Proceedings Act 1984 despite misgivings as to the likelihood of the appeal succeeding. The BAJ v RRA case - see below. Full story: Family Law Week.
Judge orders abusive mother and autistic son, 25, to live apart
Local council told to put son in a home after mother kept him in squalid conditions with little food. The A Local Authority v WMA & Ors case. Full story: The Guardian.
Judge refuses to allow husband and wife to rekindle their marriage
A judge has refused to allow husband and wife to rekindle their marriage despite them both pleading for a restraining order to be lifted, saying they must first prove they can get on over the phone. Full story: The Telegraph.
Elderly opt to live together outside marriage
A major shift in attitudes toward the idea of “living in sin” among older people has led to a sharp rise in the number of pensioners cohabiting outside of marriage, an official study of census figures suggests. Full story: The Telegraph.
Domestic violence: May orders review of police response
A review is to be carried out into the way police in England and Wales deal with cases of domestic violence, Home Secretary Theresa May has said. Full story: BBC News.
Grayling presses on with civil legal aid cuts
Justice secretary Chris Grayling is forging ahead with cuts to civil legal aid. Full story: Solicitors Journal.
Judge calls for more transparency in family courts
The most senior family judge in England and Wales has demanded more transparency in the courts after rejecting social workers’ attempts to silence a father whose baby was taken into care against his will. The Re J case - see below. Full story: The Telegraph.
Reviewing the Independent Reviewing Officers
The National Children's Bureau is carrying out research funded by the Nuffield Foundation into the role of Independent Reviewing Officers in care cases in England. Full story: Family Law.
Police referrals of domestic violence cases drop 13%
Fall in number of cases being sent to Crown Prosecution Service to be considered for charge coincides with police staff cuts. Full story: The Guardian.
Judges 'favour badly behaved wives', says spurned husband
A property developer whose wife left him for the footballer Cesc Fabregas has accused British judges of favouring “badly behaved” wives as he expressed exasperation over his divorce settlement. Full story: The Telegraph.
C (A Child), Re  EWCA Civ 1369 (11 October 2012)
Application for permission to appeal out of time against care and placement orders. Application granted. Full report: Bailii.
In the matter of A (Children)  UKSC 60 (9 September 2013)
Appeal against decision that child who had never been physically present in England and Wales could not be made a ward of court. Appeal allowed. Full report: Supreme Court (PDF). HTML version: Bailii. See also the news story, above.
R (A Child)  EWCA Civ 1115 (06 September 2013)
Appeal against the discharge of a prohibited steps order that prevented the mother from taking the child to Kenya on holiday. Appeal allowed. Full report: Bailii.
A (A Child)  EWCA Civ 1104 (06 September 2013)
Appeal by father against a residence order and an order for no direct contact. Appeal allowed. Full report: Bailii. See also the blog post below.
Jones (No 2), Re  EWHC 2730 (Fam) (21 August 2013)
Order requiring mother to return children to Spain, despite objections of children. Full report: Bailii.
London Borough of Barnet v X & Anor  EWCC 1 (Fam) (18 April 2006)
Judgment considering local authority care plan for a teen-aged girl. Full report: Bailii.
BAJ v RRA  EWHC 4070 (Fam) (13 December 2011)
Application for leave to apply for financial relief following a foreign divorce pursuant to s.13 Matrimonial and Family Proceedings Act 1984. Application granted. Full report: Bailii. See also the news story, above.
Solomon v Solomon & Ors (Rev 1)  EWCA Civ 1095 (30 July 2013)
Application for permission to appeal against an order striking out an application under s.37 Matrimonial Causes Act 1973. Application refused. Full report: Bailii.
London Borough of Islington v Williams & Anor  EWHC 2692 (Fam) (12 April 2013)
Application by local authority to commit mother to prison for breach of collection order relating to son who had absconded from care. Full report: Bailii.
London Borough of Islington v Williams & Anor  EWHC 2693 (Fam) (18 April 2013)
Judgment dealing with sentencing of mother found to have been in breach of collection order relating to son who had absconded from care. Full report: Bailii.
London Borough of Islington v Ramsey  EWHC 2718 (Fam) (11 April 2013)
Application for committal of father for breach of order to locate and collect his son, who was subject to a care order. Full report: Bailii.
J (A Child), Re  EWHC 2694 (Fam) (05 September 2013)
Application by local authority for reporting restriction order in connection with care proceedings. Full report: Bailii. See also the news stories above and the blog posts below.
C (A Child)  EWCA Civ 1100 (30 July 2013)
Application by grandmother for permission to appeal against care and placement orders. Application granted. Full report: Family Law Week.
S (A Child)  EWCA Civ 1089 (30 July 2013)
Father's application for permission to appeal against care and placement orders. Application granted. Full report: Family Law Week.
K (A Child: Wardship: Publicity), Re  EWHC 2684 (Fam) (25 July 2013)
Judgment dealing with issue of whether parents of a ward should be able to discuss the case with the media. Full report: Bailii.
Conrad v Bignell  EWCC 2 (Fam) (03 June 2013)
Mother committed to 28 days imprisonment for failure to comply with order to make son available for contact. Full report: Bailii.
S (Children)  EWCA Civ 1091 (16 July 2013)
Father's application to appeal judge's findings in respect of domestic violence in a contact case. Application refused. Full report: Family Law Hub.
Divorce lawyers: proving our worth
Solicitors must demonstrate the value of a qualified family lawyer in divorce cases. Full article: Law Society Gazette.
David Hodson on International Family Law: Which countries are in the EU?
David Hodson in his opinion piece on international family law, and perhaps prompted by too many rum punches in the Caribbean, looks at the many countries, territories, islands, and other geographical entities which are either part of the EU or linked with the EU in some way and needing family law consideration. Full article: Family Law.
Changes to Child Maintenance
Anna Heenan, Solicitor at Gregg Latchams LLP explains the latest changes to the child support regime. Full article: Family Law Week.
Impact of Universal Credit on spousal maintenance
Nigel Shepherd of Mills & Reeve assesses the impact of Universal Credit on spousal maintenance. Full article: Family Law Hub.
Clarity in committal orders – legal aid for defence of committal
David Burrows looks at Re Jones (Alleged Contempt of Court)  EWHC 2579 (Fam), in this article on Family Law.
Court of Appeal laments systemic failures in family justice
Re A (a child)  EWCA Civ 1104 [above] – Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8. Full post: UK Human Rights Blog.
Re. J (A Child): the family justice system meets the “realities of the internet”
A new judgment [above] handed down by Lord Justice Munby examines, in his words, “important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system.” Full post: Marilyn Stowe Blog.
Transparency and vampire-ish creatures
Where we are following the President’s decision in Re J (A Child) 2013 [above]. Full post: suesspiciousminds.
Double Whammy Granny
"I was recently gossiping with a solicitor who insisted that a county court local-ish to me had been insisting on charging not one but two issue fees for grandparents private law applications – one on issue and one on permission being granted, i.e. for the substantive s8 application." Says Lucy Reed in this post on Pink Tape.
“Implacably hostile” mothers are a small minority, claims study
"As I noted on this blog back in July, a new study has concluded that although “implacably hostile mothers” exist, they represent a relatively small minority of enforcement cases." Says Marilyn Stowe in this post.
Monday, September 09, 2013
|The Supreme Court|
Whether the wardship jurisdiction (or inherent jurisdiction) of the Family Division of the High Court can ever be exercised in respect of an infant child who has never been physically present in England and Wales.
Until October 2006 the appellant (the mother) lived in England with the first respondent (the husband) and their three children. All are British citizens. The marriage got into difficulty and the couple were separated between 2006 and 2008 when the husband spent time in Pakistan. The three children continued to live with their mother during this period. The husband returned to England in 2008. Not long after this the mother moved out of the family home. At first she lived in a refuge before moving to separate accommodation where she lived with the three children. On 13 October 2009 the mother and all three children went on holiday to Pakistan. They had booked to return to the UK on 3 November 2009. However, when in Pakistan the mother alleges that she was pressurised by the father and other family members into remaining in Pakistan against her will. Her passport and those of her children were removed from her such that she could not return to England. In February 2010 the mother discovered that she was pregnant by the first respondent with their fourth child. The child was born in Pakistan on 20 October 2010. This child is also a UK citizen. In May 2012 the appellant was able to recover her passport and returned to England. All four children remain in Pakistan. On 12 June 2012 the mother made a wardship application without notice in respect of all four children. The High Court declared that all four children were habitually resident in England, made them Wards of the court and required the first respondent to return them to England. The CA upheld the decision of the High Court with respect to the three older children. However, the CA allowed the appeal (Thorpe LJ dissenting) in respect of the youngest child on the basis that that child had never been physically present in England.
The Supreme Court unanimously allowed the appeal and held that the court had inherent jurisdiction to make the orders in this case on the basis of the child’s British nationality. The case was however remitted to the judge to consider as a matter of urgency whether it is appropriate to exercise this exceptional jurisdiction.
A press summary of the judgment is available here, and the full judgment here.
The latest issue of the Internet Newsletter for Lawyers is now published.
In this issue
- Justice - Nick Holmes explains how and when information and services will be moving from the Justice site to GOV.UK
- Websites - Mindy Gofton of I-COM looks at how and why websites should be adapted for mobile devices
- Press regulation - Carl Gardner describes how press regulation will affect web publishers and bloggers
- Social media - Mike Scutt of Excello law reviews instances before tribunals of misuse of social media by employees
- Cloud computing - In the last of a series David Flint suggests issues to consider when implementing cloud computing
- Publishers - In the second in a series, more independent publishers describe their law update services (including yours truly)
- In an online extra Charles Christian asks why document drafting and knowledge management have not been enthusiastically embraced
- In a sponsored feature Darren Gower describes Eclipse's new TouchPoint solution which provides clients and stakeholders with self-service control
Access the Newsletter online at http://www.infolaw.co.uk/
The RSS feed of latest articles is at http://www.infolaw.co.uk/
(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)
Saturday, September 07, 2013
For no reason other than that I heard it on the car radio recently, and found myself singing along to an anthem of my teens (not that I liked it then!).
Friday, September 06, 2013
Notable things this week:
The Mail on Sunday reported that figures released under a Freedom of Information request show that more than 4,000 child protection plans were initiated last year in England for unborn babies, a 13 per cent increase over two years. Given what we already know about the increase in care applications since Baby P, this cannot be surprising. No doubt the usual arguments will follow over whether this is another example of the state snatching children or simply being more vigilant.
reported that experts have warned that online trolling against women is linked to domestic violence and abuse, and that abuse of women on sites such as Twitter should not be dismissed as harmless. I'm sure all family lawyers have come across violent men who then go online to continue the abuse of their former partners, but the suggestion here seems to be that the reverse is also true: men who use the internet to abuse women are likely to become domestic abusers (the article makes no mention of violence/abuse against men).
complained that the courts are biased in favour of wives, or in this case "badly behaved" wives. This would probably not be news but for the fact that the case involves not just a lot of money, but also a well-known footballer. Given the shenanigans in the football transfer market this week, particularly the Gareth Bale transfer saga, the case is also interesting for the fact that said footballer was apparently "not as wealthy as people believed". Perhaps he should have gone to Real Madrid, rather than Barcelona...
called for more transparency in the family courts. This was the Re J (A Child) case, in which Sir James set out his views on the issue, in particular that there should be "more speech, not enforced silence", so that public confidence in the system is restored. As for those with an anti-family justice system agenda, he said tellingly:
"The publicist ... may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving."Interesting stuff, but if the people believe the 'unprincipled charlatan' (I will mention no names) then how will that restore public confidence?
And finally, I do not have a tweet of the week this week, partly because I have been away for a couple of days and took a break from Twitter (in fact, from the internet completely). It has done wonders for my sanity - I highly recommend it.
Have a good weekend.
Wednesday, September 04, 2013
A divorce involves the making of two decrees by the court: the decree nisi, whereby the court declares that the person who has applied for it (usually the petitioner) is entitled to a divorce, and the decree absolute, which finalises the divorce.
The person who obtained the decree nisi may normally apply for the decree absolute after six weeks have elapsed from the date of the decree nisi, and the court will normally make the decree absolute as a formality.
Is there anything that the other party (who I shall call 'the respondent') can do to prevent the decree absolute?
Leaving aside the unlikely event that there is some sort of procedural irregularity enabling the respondent to apply to have the decree nisi cancelled, all they can do is try to delay the decree absolute, and only then in limited circumstances.
If the divorce is on the basis of two years' separation and consent or the basis of five years' separation, the respondent can apply to the court for consideration of their financial position. Once such an application has been made, the court may delay the decree absolute until such time as reasonable financial provision has been made for the respondent.
In certain religious marriages, the respondent could apply to delay the divorce until a religious divorce has been obtained.
Otherwise, the respondent could simply apply to the court for the decree absolute to be postponed, on the basis that they will suffer some serious prejudice (usually financial) if it is not delayed. However, the court will very rarely agree to such applications.
As usual, if you require any further advice regarding this issue, you should consult a specialist family lawyer.