Friday, November 29, 2013

What I've been writing about this week on the Marilyn Stowe Blog


My posts on the Marilyn Stowe Blog from the last seven days:

What are family lawyers talking about this week? - A review of last week's top family law news stories.

Divorce and dignity - Sometimes it's about much more than just the money.

The ingenuity of the child support avoider - How a Scottish father attempted to avoid a liability order.

New advice for separation and divorce - Resolution's Separating together: Your options for separation and divorce guide.

Ensuring abducted children are returned as soon as possible - Looking at the X v Latvia case.

Marilyn Stowe is the founder and senior partner at Stowe Family Law and is also the founder of Stowe Family Law Settlements, a specialist ADR practice. 

Where's Munby?

I've been getting a little concerned that we've not received any missives from our esteemed leader for the last few days...

Wednesday, November 27, 2013

Dispute Resolution Week

(With apologies to the late, great, Douglas Adams.)

Family Lore Clinic: Cafcass recommends indirect contact - how do I overturn that?


The first thing to say here is that persuading a court not to follow the recommendation of a Cafcass officer is not a trivial matter, and you should really seek specific advice from a specialist family lawyer.

Having said that, there are a couple of points that I would make here.

Firstly, the Cafcass officer should have explained in their report the reasons why they are recommending indirect contact (i.e. no direct contact between the parent and the child, e.g. telephone contact, contact via letter or email, etc.). You will need to show to the court that the Cafcass officer was wrong. Exactly how you do this depends upon the reasons given, but will almost certainly involve cross-examining the Cafcass officer at court, which is obviously something that should ideally be done by a lawyer.

The other point to make is that the indirect contact may only be temporary. For example, in a case where there has been no contact at all for a while indirect contact may be seen as a way to reintroduce the parent to the child(ren). If the indirect contact goes well, it may then be varied to include direct contact. Obviously, in this case it may be better to be patient, rather than to try to challenge the welfare officer, which would involve everyone having to go through a contested court hearing.

As I said at the beginning though, this is really a matter upon which you should seek specific advice.

Tuesday, November 26, 2013

News Update: 26th of November 2013


WELCOME to this week's Family Lore News Update. Hold on, it's a long one...

NEWS
Family courts ‘are not a talking shop’, Ryder LJ says
He gives guidance on 'more inquisitorial process' for litigants in person [in Re C (A Child), below]. Full story: Solicitors Journal.

New Child Maintenance Service opens to all new applicants
The new Child Maintenance Service for separated parents to support their children has opened to all new applicants. Full story: Department for Work and Pensions.

2012 statutory child maintenance scheme: Aug 2013 to Sept 2013: experimental statistics
Experimental statistics on the 2012 child maintenance scheme administered by the Child Maintenance Service for Aug 2013 and Sept 2013. Full story: Department for Work and Pensions.

“Worrying lack of awareness” about divorce process risks increasing cost & stress of break-ups
Couples risk increasing the stress and cost of divorce settlements because of a “worrying lack of awareness” about a wide variety of non-court based solutions according to relationship experts, following the publication of new polling published today (25 Nov). Full story: Resolution.

'Clare's Law' to cover all of England and Wales after pilot scheme
"Clare's Law", which enables women to check the police record of a new boyfriend, will be expanded to cover all of England and Wales. Full story: BBC News.

Businessman Scot Young hid £40m from estranged wife, judge rules
Mr Justice Moor says £20m should go to Michelle Young in divorce after she claimed husband had fortune of 'a few billion'. Full story: The Guardian. See also below for the law report, articles and blog post.

Divorcee begs judge to save her from financial ruin after ex husband stole £700,000 from friends and family
Husband used bank and Betfair accounts in his ex wife's name to run a "Ponzi" scheme. Full story: The Telegraph.

Russian court rules 'abducted' children to return to UK
A north London mother has won a landmark ruling to get her children back from Russia after they were abducted by their father. Full story: BBC News.

New draft standard Financial Remedy Orders out for consultation
Latest draft standard orders for family cases released for consultation, including a comprehensive financial remedies 'omnibus' consent order. Full story: Family Law Hub.

Child Support Agency quarterly summary statistics: September 2013
A statistical report providing figures on caseloads, enforcement, appeals, collections and outstanding arrears. Full story: Department for Work and Pensions.

Hundreds of thousands of children could lose over £70 of child maintenance per year in collection charges, show latest statistics
As the government prepares to open the new Child Maintenance Service (CMS) for all new applicants, and starts the countdown to the introduction of fees to use the new CMS and the phased shut-down of all existing Child Support Agency cases, new government statistics published today show just how many children – who currently depend on the CSA to collect child maintenance – could lose out. Full story: Gingerbread.

Social workers under 'phenomenal pressure'
Child protection services in England are under more pressure than ever, the Association of Directors of Children's Services is warning. Full story: BBC News.

Britain's 130,000 estranged fathers
Study reveals one in eight divorced fathers has lost all contact with their children. Full story: The Telegraph. [The study also found that "the overall picture of contact between fathers and non-resident children is a positive one."]

STATUTORY INSTRUMENT
The Child Maintenance and Other Payments Act 2008 (Commencement No. 12 and Savings Provisions) and the Welfare Reform Act 2012 (Commencement No. 15) Order 2013
This Order brings into force provisions of the Child Maintenance and Other Payments Act 2008 for the purpose of applying new rules for calculating child support maintenance to all cases other than existing cases.

CASES
M v M [2013] EWHC 3372 (Fam) (1 November 2013)
Application by wife for indemnity costs followings findings amounting to serious litigation misconduct by the husband and respondent companies in proceedings under Part III of the Matrimonial and Family Proceedings Act 1984. Applications granted. Full report: Family Law Week.

Tchenquiz -Imerman v Imerman [2013] EWHC 3627 (Fam) (22 November 2013)
Judgment explaining reasons for disclosure order requiring beneficiaries of offshore discretionary trusts to disclose copies of documents which had been provided to them for the purposes of an application which had been made to the Royal Court of Jersey by the trustee of some of those trusts. Full report: Bailii.

Young v Young [2013] EWHC 3637 (Fam)
Judgment in high-profile financial remedies application. Full report: Judiciary of England and Wales (PDF). HTML version: Bailii. See also the news story above and the articles and blog post, below.

C v D [2013] EWHC 2989 (Fam) (30 September 2013)
Hague Convention proceedings brought by father seeking return of child to Spain. Return order made. Full report: Family Law Week.

L, Re (Leave To Oppose Making of Adoption Order) [2013] EWCA Civ 1481 (21 November 2013)
Appeal by mother against refusal to grant her permission under section 47(5) of the Adoption and Children Act 2002 to oppose the making of an adoption order. Appeal allowed. Full report: Bailii.

D, Re (Leave To Oppose Making of Adoption Order) [2013] EWCA Civ 1480 (21 November 2013)
Appeal by mother against refusal to grant her permission under section 47(5) of the Adoption and Children Act 2002 to oppose the making of an adoption order. Appeal dismissed. Full report: Bailii.

C (A Child), Re [2013] EWCA Civ 1412 (21 November 2013)
Appeal by father against order refusing direct contact, where there had been an assumption of alleged facts against father when the court had not conducted a finding of fact hearing. Appeal allowed. Full report: Bailii. See also the news story above and the blog post, below.

AT & Ors v London Borough Of Islington [2013] EWCA Civ 1505 (14 June 2013)
Application for permission to appeal against dismissal of claim for judicial review of decisions of local authority, including failure to assess the needs of two children as "children in need". Application refused. Full report: Bailii.

A & B (Children), Re [2013] EWHC B22 (Fam) (29 January 2013)
Care proceedings in which one child had died and another had sustained injuries. Full report: Bailii.

BB (A Minor), Re [2013] EWHC 2747 (Fam) (26 April 2013)
Care proceedings involving a Ghanaian boy who was not the child of the people who purported to be his parents. Full report: Bailii. See also the blog post, below.

W, Re [2013] EWHC 3570 (Fam) (09 October 2013)
Application for parental orders by the biological parents of children, who were carried by a surrogate mother. Full report: Bailii.

G v B [2013] EWHC 3414 (Fam) (07 November 2013)
Judgment following hearing of wife's financial remedies application, in which she claimed that the husband had failed to disclose assets. Full report: Bailii.

C (A Child) [2013] EWCA Civ 1491 (28 June 2013)
Application for permission to appeal a Schedule 1 order in which the M was the non-resident parent. The judge had refused her application for regular maintenance payments, provision for her to remain in the house she had shared with the child for 11 years and a lump sum to refurbish the property. The application for permission to appeal was refused. Full report: Family Law Hub.

W (Children) [2013] EWCA Civ 1488 (20 August 2013)
Mother's appeal against an order that the child's name be changed so that his middle name was that of his father. The appeal was allowed to the limited extent that the decision should be made again, on the basis that the judge had not applied the right test. Full report: Family Law Hub.

Surrey County Council v Al-Hilli & Ors [2013] EWHC 3404 (Fam) (04 November 2013)
Special guardianship orders made in favour of aunt and uncle of two girls whose parents were killed. Full report: Bailii.

Assoun v Assoun [2013] EWCA Civ 1457 (16 October 2013)
Financial provision case where the H was arguing against a ruling that he was in a prosperous position and therefore could afford to pay for his W's legal costs as well as his own. H complained that the judge had failed to look into the means of the W, because H said that she did have available money to obtain legal services for the purposes of the proceedings, whilst he did not. The H's application for permission to appeal was refused but the judge said 'woe betide his wife if it turns out that the basis on which she obtained this substantial order turns out to be false'. Full report: Family Law Hub.

P (Children) [2013] EWCA Civ 1475 (22 October 2013)
Application by M's partner for permission to appeal a finding that it was more likely than not that M's daughter had suffered a non-accidental injury and that the perpetrator was her partner. This finding was made even though the judge said that the medical evidence was equivocal. The application was granted because the judge considered not only that there was an argument with a real prospect of success but also that the seriousness of the consequences for the partner provided a compelling reason to grant permission. Full report: Family Law Hub.

ARTICLES
Family: applications for freezing orders
"The comprehensive judgment of Mr Justice Mostyn in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam) is absolutely essential reading for any practitioner specialising in financial remedy applications." Full article: Law Society Gazette.

Thoughts on Case Management and Control of Evidence after Young and on the Threshold of the New Family Court
"Can the court's criticism of Mrs Young's costs be placed at its door, rather than hers?" Asks David Burrows in this article on Family Law.

Samantha Bangham’s Week in Cases 22 November 2013
Samantha Bangham looks at the week's case highlights. Full article: Family Law.

Young v Young: The Outcome
Philip Cayford QC and Anthony Geadah, both of 29 Bedford Row, consider the outcome of the Young saga [above] and identify some of the legal issues highlighted by Mr Justice Moor in his judgment. Full article: Family Law Hub.

Are the Alarms Bell Ringing? Identifying a potential Hague Convention case and responding appropriately
Mandeep Gill, associate solicitor with The International Family Law Group LLP, considers the recent cautionary reminder given by Mr Justice Bodey that all practitioners must be able to identify whether there are potential Hague Convention implications in any children case with an international element. Full article: Family Law Week.

Inheritance Act Claims – Delay at your Peril
“Nicola Phillipson, Zenith Chambers, examines the case of Berger v Berger where the Court of Appeal refused permission to the appellant to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 almost six years out of time.” Full article: Zenith Chambers (PDF).

BLOG POSTS
Rearrange these three letters – F, W, T
"This is the private law case of Re C (A child) 2013 [above], and frankly, the Court of Appeal missed a trick in not naming it Re (WTF?) 2013." Full post: suesspiciousminds.

Islamic “marriage” ceremony at home declared invalid by Court of Protection
A look at A Local Authority v SY [2013] EWHC 3485 COP. Full post: UK Human Rights Blog.

When parents aren’t parents
The unusual features of Re BB (A Minor) 2013 [above]. Full post: suesspiciousminds.

The leave to oppose Tsunami
As anticipated, since Re B-S showed practitioners that the historically high (perhaps even insurmountable) test for leave to oppose adoption applications had been too high, and too heavily weighted in relation to the factor of potential disruption to the child in placement, the appeals have started to come in. Full post: suesspiciousminds.

Young v Young – a cautionary tale
Most practitioners will be familiar with the long running case of Young v Young [above] and the wife’s efforts to prove that the husband was not insolvent but rather that he had hidden substantial assets in order to defeat her claims. Full post: Family Law Blog.

The use of ISWs in care proceedings
Dr Julia Brophy's paper "Neither Fear Nor Favour: The views and practices of senior judges regarding the use and value of independent social work expertise in care proceedings". Full post: Family Law Week blog.

Monday, November 25, 2013

News Podcast: For the week to the 25th of November 2013

This week's summary of the top family law news stories.



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(If you can't see or use either of the audio players above, try refreshing your browser. Alternatively, you can listen to the podcast here.)

"Worrying lack of awareness" about divorce process risks, increasing cost & stress of break-ups

I have received the following press release from Resolution:


“WORRYING LACK OF AWARENESS” ABOUT DIVORCE PROCESS RISKS INCREASING COST & STRESS OF BREAK-UPS

Couples risk increasing the stress and cost of divorce settlements because of a “worrying lack of awareness” about a wide variety of non-court based solutions according to relationship experts, following the publication of new polling published today (25 Nov).

There is “patchy understanding” and “ill-founded scepticism” about alternatives to going to court during break-ups according to a new poll commissioned by Resolution – the body representing 6,500 family law professionals in England and Wales. The problem is “exacerbated” by recent cuts to legal aid, meaning that “fewer couples have access to free legal advice, and so fewer people are being directed by solicitors towards solutions other than court.”

This is despite the fact that for many couples, avoiding a lengthy courtroom battle can reduce stress and can result in significant financial savings. In fact it is estimated that over 115,000 people each year could save money and stress during relationship break ups if they are made fully aware of all their options.

Today’s findings:

Scepticism about the benefits of avoiding court:

The ComRes poll of over 4,000 British adults found that:
- Only half of people surveyed (51%) say they would consider trying a non-court-based solution instead of going court if they were to divorce in the future.
- There is ill-founded scepticism about the legality of non-court solutions - just 23% of British adults believe that non-court based methods of divorce and separation “make the terms of the separation clear to both parties”.

- Just one quarter of British adults (24%) think that non-court based methods of divorce “protect the rights of both parties”.

- Just 52% of British adults say they think that non-court based methods of divorce and separation “are better for the wellbeing of couples”.

- Only 50% of British adults say that “non-court based methods of divorce and separation are better for the wellbeing of children”.
Liz Edwards, Chair of Resolution, said: “Today’s findings uncover a worrying lack of awareness about the options available to couples who are going through break-ups. There is at best a patchy understanding about non-court based solutions that often prove less stressful and less expensive than a lengthy courtroom battle. There is also ill-founded scepticism about the legality of non-court solutions – a myth that we need to urgently bust.”

“This is understandable to a certain extent. People don’t think about these issues or where to go for advice until they are faced with the prospect of break-up. But everyone – Government, the profession and individuals - has to do their bit to ensure the right information is out there and people going through a break-up are aware of their options.

“For some couples, court is the only option; but for the vast majority there are other, more suitable solutions which make the difficult process of break-up that much less stressful. This year’s Family Dispute Resolution Week is designed to address this lack of understanding."

Reduced Availability of Legal Aid exacerbating the problem:

Statistics compiled by the Ministry of Justice (MoJ) published in September 2013 show that the number of couples attending out-of-court sessions to resolve family disputes since cuts to legal aid were introduced in April 2013 have already fallen by nearly 40%. Between May and September 2012, there were 5,983 publicly-funded mediation cases started – in the equivalent period in 2013, after the cuts, there were 3,651 – a drop of 39%.

Liz Edwards, Chair of Resolution said: “As a result of legal aid cuts fewer people have access to free legal advice, and so fewer couples are being directed by solicitors towards solutions other than court.”

“The government’s aim to have separating couples avoid the courts where possible is admirable and one that we share. But without legal aid, people are less likely to see a family law professional who will – if they are a member of Resolution - talk them through all their options. This lack of awareness is borne out by the poll, which found that more than a third of British adults (36%) do not know what family mediation is.”

Impact on children:

Despite scepticism about non-court based solutions the polling found that half (50%) of respondents agreed that these methods of divorce and separation are better for the wellbeing of children. Of those British adults who say that they have ever been separated or divorced, the polling finds that more than two-fifths (44%) say they there were children in the household when the break-up occurred.

The polling was commissioned as part of Family Dispute Resolution Week (25th-29th November 2013) during which Resolution is launching a new advice guide, providing more information about the options available for couples going through separation or divorce. This guide can be downloaded at: www.resolution.org.uk/separatingtogether

As part of the survey respondents were also asked about a series of ‘Christmas Stress Factors’. It found that more than 40% of people find the Christmas season “very stressful” while one in three (33%) say they “just want the Christmas season to be over as soon as possible”. The findings also show that festive stress increases “significantly” for couples who have ever been divorced or separated:
- 45% of British adults who have been separated or divorced in the past and are not currently in a relationship or marriage say that they “just want the Christmas season to be over as soon as possible”.
- This compares to just 30% of people who have not been separated or divorced.

- This rises to a staggering 50% of pensioners (over 65s) who have been separated or divorced, compared to just 32% of those aged between 35 and 44 who have ever been separated or divorced.

Saturday, November 23, 2013

Something for the Weekend: The Who - Baba O'Riley

Thirty-nine years ago this week The Who were playing at the Cow Palace in Daly City California. As was his wont, drummer Keith Moon had been ingesting various things that he shouldn't have including, for reasons best known to himself, horse tranquillisers washed down with brandy(!). Moon is reported to have mumbled something to the effect of: "I can take it, I am Keith "Effing" Moon".

He couldn't. He passed out on stage.

After playing on for several songs without him, Townshend asked whether there was anyone in the crowd who could play the drums. A nineteen year old by the name of Scott Halpin was volunteered by his friends and the rest, as they say, is history.

You can see what happened here, but I prefer to remember Moon at his best. Here he is in what I think was his last performance with the band:

Friday, November 22, 2013

Young v Young: "About as bad an example of how not to litigate as any I have ever encountered"

Well, here it is. The long-anticipated judgment in Young v Young.

As the judgment will be dissected by others far more learned than what I am, I shall not go into any detail here. The basics are that Mr Justice Moor found that Mr Young's net assets are £40 million, and he therefore awarded Mrs Young half of that, i.e. £20 million, payable within 28 days

Obviously, we are all wondering how Mrs Young is to get her money. Mr Justice Moor had this to say on the subject:
"I realise that the Wife will have difficulties in enforcing my order. I only have two things to say. First, this debt will exist for all time. The Husband will never be free of it. It is very much in his interests to discharge it so he can move on. Second, I have rejected all the more fanciful allegations made against him. I cannot see how he would have complied with an order for a lump sum of £300 million let alone £400 million. I hope that he will take the view that he is better off paying the lower sum of £20 million so that he can then concentrate on rebuilding his life."
He was also highly critical of the way in which both parties conducted the case, as per the quote in the title to this post.

What I've been writing about this week on the Marilyn Stowe Blog


My posts on the Marilyn Stowe Blog from the last seven days:

What are family lawyers talking about this week? - a review of last week's top family law news stories.

The case of the missing jewellery - when valuable assets mysteriously disappear.

Assoun: Legal services orders in operation - you guessed it, a look at the Assoun case.

W (Children): Welfare is the test on change of name - looking at W (Children).

Applying basic principles to a financial remedies claim - in the G v B case.

Marilyn Stowe is the founder and senior partner at Stowe Family Law and is also the founder of Stowe Family Law Settlements, a specialist ADR practice. 

Camelot and the end of a dream



"Everyone remembers where they were when Kennedy was assassinated." Well, I don't - I was only five years old.

I am also not particularly interested in politics.

Why, then, have I always been fascinated by Kennedy and his death? I have read numerous books and watched countless videos and documentaries (until a few years ago they appeared on our TV screens every November the 22nd).

I suppose that it is just that, despite all of the man's flaws I, like countless others, have been caught up in the whole 'Camelot' ideal, together with the tragedy and mystery of his demise.

There are other things, too. The drama of the Cuban missile crisis, the inspiration of his speeches such as the 'we choose to go to the Moon' speech above (particularly meaningful to one who subsequently followed the Apollo space prgramme so avidly) and more than anything the way he seemed to represent real hope for the future. Unfortunately, that hope was largely dashed.

Nevertheless, fifty years on from those awful events in Dallas, today I will still raise a glass to what might have been.

Thursday, November 21, 2013

Re C (A Child): A catalogue of errors

Lord Justice Ryder
Just a quick heads-up for an important decision today.

Re C (A Child) EWCA Civ 1412 was a catalogue of errors in a private law children case, in which a father was refused direct contact with his son after there had been an assumption of alleged facts against him when the court had not conducted a fact-finding hearing "and accordingly the judge's welfare evaluation was based on what is said to be a false premise".

In his judgment Lord Justice Ryder sets out guidance (approved by the President) aimed at avoiding some of the procedural irregularities that arose, not helped by the lack of legal representation - see paragraphs 11 to 17 inclusive and paragraphs 20, 26, 40, 47 and 48.

Wednesday, November 20, 2013

Family Lore Clinic: What difference does it make to a consent order if you intend to remarry?


The person who asked this question was clearly referring to the Statement of information for a consent order form. The form is required by the court whenever a divorcing couple wish to apply to the court for a consent order, giving effect to an agreed financial/property settlement. Each party must complete the form, setting out basic details of their circumstances.

The reason that the court requires the form is that it needs to know the basic circumstances of the parties so that it can decide whether the order that it is being asked to make is reasonable (the court will not make the order if if doesn't consider it reasonable, despite the fact that both parties agree to it). One of those circumstances is whether either party has remarried or has any intention to remarry.

So the questioner is really asking: Will the fact that I intend to remarry stop the court from making the consent order?

The answer to this depends upon the terms of the agreed settlement, and all the other circumstances of the case. Obviously, remarriage will have a bearing upon that party's future needs, both in terms of income and capital (particularly housing needs), as they will normally be able to pool their income and capital with that of their new spouse. Accordingly, they may not need as much from the old marriage as they would have done if they were not remarrying.

So, for example, a settlement that gives one party the lion's share of the assets may not be appropriate if that party intends to remarry. On the other hand, if the settlement was a simple equal division, then the fact that one party intends to remarry may have no bearing.

Obviously, the above is a brief simplified outline of what can be a complex topic, and there are an infinite number of different sets of circumstances. If you require detailed advice regarding your case then you should consult a specialist family lawyer.

Tuesday, November 19, 2013

News Update: 19th of November 2013


WELCOME to this week's Family Lore News Update.

NEWS
Women’s Aid tells Michael Gove: domestic violence is not a ‘life choice’
Women's Aid is challenging statements made by Michael Gove in a speech on reforms to social care which, it says, imply that domestic violence is a 'life choice' that women should take responsibility for. Full story: Family Law Week.

Domestic violence survivors are being abandoned after spending cuts
Survivors and experts campaign for new approach to law as support services face huge budget cuts. Full story: The Observer.

Judge issues £10,000 warning to London man in divorce row
A judge has given a man a £10,000 incentive to help his ex-wife find four pieces of missing jewellery. Full story: BBC News.

Mrs Justice Pauffley appointed as the Senior Family Liaison Judge
Mrs Justice Pauffley DBE has been appointed as the Senior Family Liaison Judge, with immediate effect, for a 3 year term. Full story: Family Law Week.

Family Drug and Alcohol Court to expand into Buckinghamshire and northern England
London’s Family Drug and Alcohol Court is being operations in Buckinghamshire and Milton Keynes from next April. Full story: Community Care.

Wealthy family 'tearing itself apart' over divorce as £50m fortune hangs in balance
A divorce between millionaire engineering tycoon, Richard Shield and his wife of 43 years, Susan, has rung up a £700,000 legal bill before the case has even gone to court. The Shield v Shield case - see below. Full story: The Telegraph.

Birmingham children's services under takeover threat
The children's services department at Birmingham City Council could be taken over by the Department for Education, the BBC has learned. Full story: BBC News.

Hamzah Khan: Starved boy's death 'could not be predicted'
The death of four year-old Hamzah Khan, who starved to death in Bradford, could not have been predicted, a report has said. Full story: BBC News.

Serious case review for Hamzah Khan: government response
Children and Families Minister Edward Timpson writes to the Chair of Bradford Safeguarding Children Board. Full story: Department for Education.

'Feckless fathers should be put in chains and made to work,' says Conservative MP
David TC Davies, a Conservative MP, has said fathers who abandon their children should be made to work to pay back the costs of their care. Full story: The Telegraph.

Private Law Working Group report published
The Private Law Working Group, which was set up by the President of the Family Division in August 2013 under the chairmanship of Mr Justice Cobb, has now reported. Full story: Judiciary of England and Wales. See also the blog posts, below.

Care leavers get 'raw deal', says MPs' report
Young people leaving care are given a "raw deal", according to research for an all party group of MPs. Full story: BBC News.

CASES
A v A [2013] EWHC 3554 (Fam) (07 November 2013)
Interim care order made after return of children from Pakistan, in accordance with earlier order. Full report: Bailii.

K (A Child: Therapy), Re [2013 EWHC B20 (Fam) (19 February 2013)
Wardship proceedings relating to a sixteen year old girl. Judgment relating to the provision of therapy for her. Full report: Bailii.

K (A Child: Wardship: Publicity), Re (No 2) [2013 EWHC B21 (Fam) (08 November 2013)
Wardship proceedings relating to a sixteen year old girl. Judgment relating to issue of publicity. Full report: Bailii.

H (A Child) [2013] EWCA Civ 1440 (30 October 2013)
Grandmother's application for permission to appeal an order for indirect contact between her and her granddaughter after a previous order for direct contact had failed because the child refused to see her. Application for permission to appeal was granted. Full report: Family Law Hub.

N (Children) [2013] EWCA Civ 1381 (3 October 2013)
Appeal by F against an order which altered the existing requirement for provision of staying contact on the basis that the judge considered it was simply impossible for him to sanction any form of order that went beyond a concession by the M (that of daytime contact). The appeal was dismissed but the M was then urged, as a matter of priority, to file her statement explaining what had happened in relation to contact so that the case could be concluded. Full report: Family Law Hub.

B (A Child) [2013] EWCA Civ 1434 (13 November 2013)
Care proceedings. Appeal by mother against decision that the court had jurisdiction notwithstanding that the child was habitually resident in Sweden. Appeal allowed. Full report: Bailii.

Shield v Shield [2013] EWHC 3525 (Fam) (01 November 2013)
Divorce and financial remedy proceedings. Judgment regarding dispute as to appointment of litigation friend for the husband. Full report: Bailii. See also the news story, above.

Brown v Davies [2013] EWHC 3523 (Fam) (30 October 2013)
Sentencing judgment in relation to contempt proceedings in respect of three members of mother's family who refused to divulge her whereabouts after location order made. Full report: Bailii.

London Borough of Ealing v Connors [2013] EWHC 3493 (Fam) (11 October 2013)
Care proceedings. Application by local authority for committal of the mother for breach of a collection order. Full report: Bailii.

A Local Authority v SY [2013] EWHC 3485 (COP) (12 November 2013)
Application by a local authority in the Court of Protection in respect of the capacity of the Respondent to litigate and to make decisions in relation to her life. Full report: Bailii.

Wakefield City Council v Rogers [2013] EWCC 8 (Fam) (09 October 2013)
Application by local authority for committal of the defendant for breach of an order prohibiting him from having contact with a young person in its care. Full report: Bailii.

ARTICLES
W v Neath Port Talbot – Courts, Local Authorities and a Mexican Stand-off
Andrew Pack, care lawyer with Brighton and Hove City Council, considers the options for local authorities in the wake of the Court of Appeal’s landmark judgment in W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227. Full article: Family Law Week.

Minors subject to immigration control
A series of articles for family lawyers about how to get the best for clients who are minors subject to immigration control. Full articles: Family Law.

Children need contact centres
Child contact centres are a lifeline for families and must be put on a statutory footing, says Emma Hopkins, in this article in the Law Society Gazette.

BLOG POSTS
Private Law Thoughts
Lucy Reed has been reviewing the Children & Families Bill in light of the Child Arrangements Programme proposed by the working group on private law proceedings, in this post on Pink Tape.

The new CAP for private law work – will it fit and do we want to wear it?
"Following the flood of recent information and directives in relation to the public law outline, it was only a matter of time before the President turned his attentions to the system of private law children work." Full post: Family Law Blog.

Pure and Simple – the Court of Appeal attack hearsay
Suesspiciousminds looks at the case Re W (Fact Finding : Hearsay) 2013, in this post.

Opening up the family courts: can the “doubters” ever be satisfied?
A look at the speech of our ubiquitous President to the Society of Editors. Full post: Marilyn Stowe Blog.

DOWN: Private Law Programme. UP: Child Arrangements Programme?
A look at the Private Law Working Group report regarding the resolution of private law disputes in and out of court. Full post: Marilyn Stowe Blog.

Monday, November 18, 2013

News Podcast: For the week to the 18th of November 2013

This week's summary of the top family law news stories.



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

Saturday, November 16, 2013

Something for the Weekend: The Rolling Stones - Start Me Up

I probably should stop posting Stones videos, but this gave me the most musical pleasure of anything I've watched or listened to this week. Sad but true.

Friday, November 15, 2013

What I've been writing about this week on the Marilyn Stowe Blog


My posts on the Marilyn Stowe Blog from the last seven days:

What are family lawyers talking about this week? - a review of last week's top family law news stories.

Form E: what happens if you refuse to file it? - a look, in particular, at the Ball v Shepstone case.

Opening up the family courts: can the “doubters” ever be satisfied? - the speech of our ubiquitous President to the Society of Editors.

DOWN: Private Law Programme. UP: Child Arrangements Programme? - a look at the Private Law Working Group report regarding the resolution of private law disputes in and out of court.

How the courts deal with intractable contact disputes: two examples - a look at the cases N (Children) and H (A Child).

Marilyn Stowe is the founder and senior partner at Stowe Family Law and is also the founder of Stowe Family Law Settlements, a specialist ADR practice.

Wednesday, November 13, 2013

Munby!

(With apologies to Monty Python.)

Family Lore Clinic: How will the courts order my ex to pay me a settlement when he has depleted all his assets?


If it considers it appropriate, a court can order one party to pay a lump sum to the other, even if the paying party currently has no assets. So, if that party has purposely depleted their assets the court can still proceed on the basis that the original value of the assets are still part of the 'pot' available for distribution between the parties.

Having said that, when ordering a party to pay a lump sum the court will of course consider that party's ability to raise the sum. The court will not require immediate payment of a sum that that party cannot afford to borrow. However, the court could increase the amount they pay by ordering them to pay by instalments over a period of time.

In the end, though, the sums that the paying party has got rid of may be more than they could raise within any reasonable period, in which case the other party may lose out.

Accordingly, it is important that you take swift action if you are concerned that the other party to a divorce settlement is likely to deplete their assets in an attempt to reduce or defeat your claim against them.

It appears to be too late here, but if you are so concerned then you can ask the court to make an order preventing the other party from doing transferring assets, or even overturning any such transactions they have already made.

As usual, if the above applies to you, then you should seek the advice of a specialist family lawyer.

Tuesday, November 12, 2013

He IS everywhere!

News Update: 12th of November 2013


WELCOME to this week's Family Lore News Update.

NEWS
Gove urges 'systematic' child protection reform
Michael Gove is calling for "systematic" and "radical" reform of England's child protection system so it can meet the challenge it faces. Full story: BBC News.

Judge vows to open up family courts to the public
One of the country’s most senior judges has vowed to “open to the world” the workings of the family courts and the shadowy Court of Protection. See his speech under 'Articles', below. Full story: The Independent.

Government not doing enough to support family mediation
The government is failing to support divorcing couples, a leading mediator has said as he urged the Ministry of Justice to deliver on its flagship family mediation policy. Full story: Solicitors Journal.

Bill amendment prompts social work competition fears
A late amendment to the Children and Families Bill could open up children’s social work to much greater competition, the National Children’s Bureau has warned. Full story: Children & Young People Now.

Relationship breakdown costs UK £50bn a year
A new group of politicians and charities call on the Government to create a national relationship strategy. Full story: The Telegraph.

Court refuses declaration of non-recognition of forced marriage of 14 year old girl
Mr Justice Holman has dismissed an application, brought by a local authority in the course of care proceedings, for a declaration of non-recognition of the marriage of a British girl, then 14, conducted in Pakistan under circumstances of extreme duress. The A Local Authority v X & Anor (Children) case. Full story: Family Law Week.

Care applications in October 2013
In October 2013, Cafcass received a total of 972 applications. This is the second highest month this year and a 2% increase compared to those received in October 2012. Full story: Cafcass.

Cafcass private law demand
In October 2013, Cafcass received a total of 3,975 new private law cases. This is a 8% decrease on October 2012 levels. Full story: Cafcass.

New standards aim to promote quality expert evidence
Vulnerable children will be helped by new national standards which will raise the quality of expert evidence in family courts and end unnecessary delays, Justice Minister Lord McNally has announced. The publication of the joint Ministry of Justice and Family Justice Council response to the consultation on standards for expert witnesses in children’s proceedings in the family courts. Full story: Ministry of Justice.

Ofsted's single inspection of children’s services takes effect
Ofsted's single inspection framework is now in effect on a universal, three-year cycle. It brings together into one inspection: child protection; services for looked after children and care leavers; and local authority fostering and adoption services. Full story: Family Law Week.

Children set to lose out as government confirms child maintenance charges
The government has confirmed [in its response to the consultation on regulations  governing the new child support scheme Supporting separated families;securing children’s futures] that it intends to deduct a proportion of child maintenance from families who need to use the new child maintenance collection service. Full story: Gingerbread.

Cafcass transfer to the Ministry of Justice
The Children and Family Court Advisory and Support Service (Cafcass) will transfer to the Ministry of Justice in April 2014. Full story: Ministry of Justice.

Pioneering family court on the edge
A trailblazing family judge has described as ‘tyranny’ the government’s demand for rigid adherence to a 26-week time limit for care cases. Full story: Law Society Gazette.

Triennial Review of the Civil Justice Council and Family Justice Council
The Judicial Office is carrying out a review of the Civil and Family Justice Councils as a part of a new Triennial Review for non-departmental public bodies. Full story: Family Law.

CASES
A v A [2013] EWHC 3298 (Fam) (07 October 2013)
Judgment following order of the Supreme Court that the youngest child of the family should be brought to this country, notwithstanding that he had never lived here. Full report: Bailii.

A-Z v Birmingham City Council [2013] EWHC 3462 (Fam) (16 October 2013)
Application by father for discharge of care orders. Application dismissed. Full report: Bailii.

Ball v Shepstone [2013] EWCC 7 (Fam) (03 October 2013)
Order for committal of husband for failure to comply with order to file Form E. Full report: Bailii.

Duncan v Duncan [2013] EWCA Civ 1407 (09 October 2013)
Appeal by wife against an order setting aside a financial order on the basis of a conflict of interest. Appeal allowed and original order restored. Full report: Bailii. see also my blog post.

M, Re (Best Interests: Deprivation of Liberty) [2013] EWHC 3456 (COP) (23 October 2013)
Proceedings under Section 21A of the Mental Capacity Act 2005 challenging a Deprivation of Liberty Standard Authorisation. Full report: Bailii.

Y (A Child) [2013] EWCA Civ 1337 (3 October 2013)
Mother's appeal against care and placement orders. Appeal dismissed and application remitted for re-hearing. Full report: Family Law Week.

W (Fact Finding: Hearsay Evidence) [2013] EWCA Civ 1374 (06 November 2013)
Appeal by parents against findings of fact in care proceedings, principally concerning the way in which the judge approached hearsay evidence adduced by the local authority. Appeal allowed. Full report: Bailii.

ARTICLES
Opening up the Family courts: Transparency in the Family court and the Court of Protection
Speech by the President of the Family Division and President of the Court of Protection at the Annual Conference of the Society of Editors 'Freedom to Inform', London 11th November 2013. Full speech: Judiciary of England and Wales (PDF).

Finance and Divorce November 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 October. Full article: Family Law Week.

F v. F: latest developments in children and consent to medical treatment
This was the father’s application for a declaration and a specific issue order for his daughters to have the MMR vaccine. Full article: The Barristers’ Hub.

BLOG POSTS
All change for children law
An analysis of the Children and Families Bill. Full post: Family Law Blog.

“A fast car and an open road” – non-disclosers and adverse inferences
Guest blogger Margaret Heathcote looks at cases involving the failure of (at least) one party to make full and frank disclosure of their financial assets and affairs, with a view to undermining the financial claims of the other. Full post: Family Matters.

Re J (A Child), Limiting the scope of injunctions in family cases – Hugh Tomlinson QC
In the case of Re J (A Child) ([2013] EWHC 2694 (Fam), the President of the Family Division, Sir James Munby, considered an application for a contra mundum injunction by Staffordshire County Council. Full post: Inforrm's Blog.

Monday, November 11, 2013

News Podcast: For the week to the 11th of November 2013

Slightly later than usual due to system maintenance by my web host, here is a summary of the top family law news stories from the last week.



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

Saturday, November 09, 2013

Something for the Weekend: Does your dog bite?

A very small tribute to actor Graham Stark, who died last week (for any who don't know, the clip is from the film The Pink Panther Strikes Again):

Friday, November 08, 2013

What I've been writing about this week on the Marilyn Stowe Blog


My posts on the Marilyn Stowe Blog from the last seven days:

What are family lawyers talking about this week? - a review of last week's top family law news stories.

Is she really a ‘homewrecker’? - is it really a good idea to name and shame the other woman, as done by the American site She's A Homewrecker?

A penny for the guy - of rockets, Guy Fawkes and legal aid.

The thorny problem of cohabitation - a look at the county court decision X v Y (maintenance arrears – cohabitation).

The importance of judicial independence - why government and the courts should remain separate.

Marilyn Stowe is the founder and senior partner at Stowe Family Law and is also the founder of Stowe Family Law Settlements, a specialist ADR practice.

Thursday, November 07, 2013

Duncan v Duncan: No conflict of interest

Lady Justice Macur
Duncan v Duncan [2013] EWCA Civ 1407, just reported on Bailii, is an interesting little case.

The situation: the day before the financial dispute resolution hearing the wife's counsel is alerted to the fact that, five years previously, he represented the husband in financial proceedings arising from his first marriage. Both parties are notified and the husband, who was represented by counsel, consents to the wife's counsel continuing to act for her.

The matter proceeds and the judge makes an order. We are not given the details of the order, but the husband is aggrieved and lodges an appeal, on the basis of a conflict of interest. He claims that his consent had not been fully informed, as he did not fully appreciate the issues to which he was going to be challenged and cross-examined by the wife's counsel. His appeal is allowed, and the order is set aside.

The wife then appeals against that decision.

Giving the leading judgment in the wife's appeal, Lady Justice Macur notes that the husband's counsel, being asked repeatedly to point out that information which appears to have been misused from the earlier case, was unable to identify the same and again and again merely maintained that the wife's counsel should have disclosed the information that he had.

Lady Justice Macur is not impressed. In her view, the husband's appeal was 'patently opportunistic'. Accordingly, she allows the wife's appeal, and restores the original order.

Lords Justices Ryder and Sullivan give concurring judgments.

Internet Newsletter for Lawyers November/December 2013


The latest issue of the Internet Newsletter for Lawyers is now published.

In this issue
  • Websites – Angela Huck describes how Burnetts developed and launched their e-commerce site to sell legal documents online
  • RSS – Nick Holmes explains why RSS matters and offers some tips on discovering useful feeds
  • Search Engines – Alex Heshmaty describes the importance of algorithms and the intent of Google's Hummingbird
  • Marketing – Catherine Bailey of Bar Marketing offers advice on event planning for both real and virtual events
  • Social Media – Amanda Millmore of Legal Training looks at developments in cases regarding use of social media
  • Blogging – Profiles of blogs that are legal resources providing a high level of commentary and analysis of developments in the law

Online extras
  • Social Media – Simon Bowers of Bancmedia provides a guide to how the more popular networks can work for law firms.
  • Legal research – Mark Debenham of Justis Publishing asks whether the current system of law reporting is adequate (to follow).
  • Content Management – Charles Christian on why law firms need to start using tools to curate their content better (to follow).

Access the Newsletter online at http://www.infolaw.co.uk/newsletter/.

The RSS feed of latest articles is at http://www.infolaw.co.uk/newsletter/feed/.

Wednesday, November 06, 2013

Family Lore Clinic: Am I divorced if I have not received a decree absolute?


The decree absolute is the final step in the divorce process. It can be made by the court after six weeks have elapsed from the pronouncement of the decree nisi. It is made when one party, usually the petitioner, applies for it. Upon receipt of the application the court will, if there are no problems, make the decree absolute and send sealed copies out to both parties.

You are divorced when the court makes the decree absolute, not when you receive it. Accordingly, you could be divorced even if you have not received the decree absolute. Obviously, you should normally receive the decree absolute within a couple of days of the court sending it out, unless there are problems with the post.

Note that the court will send the decree absolute to the last known address it has for you. You should therefore notify the court if you change address.

If you are unsure whether or not the court has made the decree absolute, you can check this with the court.

Tuesday, November 05, 2013

News Update: 5th of November 2013


WELCOME to this week's Family Lore News Update.

NEWS
Scot Young and the $4.5 billion Post-It note: Court hears of bankrupt tycoon's Facebook 'profit' in high-profile divorce case
A hand-written note seized from the home of the bankrupt tycoon at the centre of Britain’s most high-profile divorce suggested he made “$4.5 billion profit” in Facebook, the High Court heard on Monday. The saga continues... Full story: The Independent.

Not reporting child abuse 'should be criminal offence'
Failing to report allegations of child abuse should be made a criminal offence, according to the former director of public prosecutions. Full story: BBC News.

Pre-care proceedings protocol deserves urgent consideration
Bridget Lindley, Deputy Chief Executive and Principal Legal Adviser of the Family Rights Group, has called for urgent consideration to be given to the publication of a pre-proceedings protocol in conjunction with the revised Public Law Outline. Full story: Family Law Week.

Separating couples are rejecting mediation
The number of separated couples undergoing publicly-funded mediation has dropped by almost a third, compared to the same period last year, since the removal of legal aid from divorce lawyers in April 2013. Full story: Family Law Week.

Young domestic abusers need better support, say experts
A new approach is needed to stop teens committing domestic violence, according to a group of experts. Full story: BBC Newsbeat.

Missing girl's family jailed for not revealing her location
The grandparents and aunt of a five-year-old girl at the centre of a custody battle have been sentenced to 12 days jail for contempt of court. The Re Davies case - see below. Full story: BBC News.

Businessman's estranged wife will 'settle for £300m' in epic divorce battle
Michelle Young claims her former partner owns assets worth a few billion, but Scot Young has told judges he is bankrupt. Full story: The Guardian.

Two more Hague Convention appeals to be heard by the Supreme Court
Appeals from LC (Children) [2013] EWCA Civ 1058 and DL v EL [2013] EWCA Civ 865 to be heard in November. Full story: Family Law Week.

Number of cohabiting families continues to rise
There are now 2.9 million families in the UK where opposite sex couples are unmarried, according to the latest Families and Households Bulletin published by the ONS. Full story: Family Law Hub.

New evidence requirements prevent half of domestic violence victims from accessing legal aid entitlement
The Association of Lawyers for Children has reported the results of research which confirms initial fears that many domestic violence victims would not meet the new evidence criteria introduced by LASPO and accompanying regulations. Full story: Family Law.

Italian couples accused of divorce ‘fraud’ in UK
Hundreds of Italian couples face having their divorces overturned after being accused of running a scam to obtain a quick marriage splits through the British courts. Full story: The Telegraph.

The courts are secular, says top family judge
The law has a neutral view of religious belief, the president of the Family Division said today, stressing the secular nature of the judges’ job. Full story: Law Society Gazette. See below under Articles for the speech.

New cross-government support strategy for care leavers
The government launches its strategy to support young people leaving care. Full story: Department for Education.

MoJ consults on legal aid remuneration in advance of Single Family Court
The Ministry of Justice is consulting on legal aid remuneration as it prepares for the Single Family Court, which swings into operation in April next year. Full story: Family Law Hub.

CASES
Re E (Adoption Order: Proportionality of Outcome to Circumstances) [2013] EWCA (29 October 2013)
Appeal by mother against care and placement orders. Appeal allowed. Placement order set aside and care order replaced with an interim care order. Report: Family Law.

A Local Authority v X & Anor (Children) [2013] EWHC 3274 (Fam) (22 October 2013)
Care proceedings. Application by local authority for a declaration of non-recognition of the marriage of the mother.Application refused. Full report: Bailii.

London Borough of Barnet v M1 (aka M2) [2012] EWCC 5 (Fam) (08 March 2012)
Application for care and placement orders where the mother claimed a different identity and that therefore she was not subject to the proceedings. Care order made. Full report: Bailii. See also the blog post, below.

Davies, Re [2013] EWHC 3294 (Fam) (25 October 2013)
Mother apparently removed child from jurisdiction without consent. Contempt proceedings in respect of three members of mother's family who refused to divulge her whereabouts after location order made. Full report: Bailii. See also the blog post, below.

Pakhomova v Russia (Application no 22935/11) (24 October 2013)
Russian authorities held to be in breach of Art 8 for failing to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce a custody judgment. Report: Family Law. Full report: ECHR. See also my post on the Marilyn Stowe Blog, here.

Berger v Berger [2013] EWCA Civ 1305 (29 October 2013)
The appellant's husband had died in 2005 and probate was granted in 2006. This was an appeal against the refusal to give permission for the appellant to make an application for an order under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 where the appellant contended that the disposition effected by the deceased’s will shortly before he died was not such as to make reasonable financial provision for her. Full report: Family Law Hub.

ARTICLES
Samantha Bangham’s Week in Cases 1 November 2013
Samantha Bangham looks at the week's case highlights. Full article: Family Law.

Therapeutic Provision for Parents in Care Proceedings – who should be footing the bill?
Matthew Burman, barrister of St Albans Chambers explores the respective legal duties of the NHS and local authorities in securing the provision of psychotherapy for parents in care proceedings. Full article: Family Law Week.

Law, morality and religion in the family courts
Keynote address given by Sir James Munby, President of the Family Division at the Law Society’s Family Law Annual Conference ‘The sacred and the secular: religion, culture and the family courts’. Full article: Judiciary of England and Wales (PDF). see also the news story above.

BLOG POSTS
Null and void (or not)
A Local Authority v X and Another 2013. This was a set of care proceedings, within which the Local Authority applied under the Inherent Jurisdiction for a declaration that the marriage the child had entered into should not be recognised in English law. Full post: suesspiciousminds.

The B-S hall of fame
"What follows is a short summary of the main principles from Re B & the subsequent cases including B-S on the court's approach to performing the balancing exercise in evaluating care plans involving placement away from the family." Full post: Family Law Week blog.

It ain’t me babe, it ain’t me you’re looking for
The perplexing circumstances of London Borough of Barnet and M1 (aka M2) 2013 [above]. Full post: suesspiciousminds.

The Supreme Court ~ J (Children) [2013] UKSC 9 and Re B (A Child) [2013] UKSC 33
A difficult area of family law is that relating to Public Law proceedings where the courts are empowered to make orders which could have the result that a child is removed from the natural family. Various recent cases demonstrate all too well some of the profound difficulties involved. Full post: Law and Lawyers.

Re Davies: Family found in contempt for failure to comply with location order
A look at the case Re Davies [2013] EWHC 3294 (Fam) [above]. Full post: Family Lore. Now, if I was suesspiciousminds I would have come up with a Kinks pun for that case name. 'You really got me' perhaps? Or perhaps not...