Tuesday, December 31, 2013

Old John's Almanac 2014


Following the uncanny accuracy of my predictions for 2013, here are my predictions for 2014:

January - Disgruntled litigant Michelle Young launches an appeal against the decision of Mr Justice Moor, who only awarded her £20 million. She claims that ex-husband Scot Young is now worth at least £1 trillion.

February - New Justice Minister Simon Hughes recommends that family litigants resolve their disputes via mediation, rather than through the courts.

March - As part of a protest by fathers' rights group The Real Families Need Fathers 4 Justice, campaigner Fred Dibblethwaite throws a can of paint over a Jackson Pollock painting. Unfortunately for Dibblethwaite the protest goes unnoticed, as no one can spot the difference.

April - New Justice Minister Simon Hughes recommends that family litigants resolve their disputes via mediation, rather than through the courts.

May - President of the Family Division Sir James Munby issues guidance recommending that the windows of all the new Family Courts be cleaned every week. He says this will "aid transparency".

June - New Justice Minister Simon Hughes recommends that family litigants resolve their disputes via mediation, rather than through the courts.

July - President of the Family Division Sir James Munby issues guidance to all of the other guidance he has issued.

August - New Justice Minister Simon Hughes recommends that family litigants resolve their disputes via mediation, rather than through the courts.

September - As the appeal in Young v Young approaches court, Prime Minister David Cameron declares that he is on '#TeamMichelle'.

October - Not-so new Justice Minister Simon Hughes recommends that family litigants resolve their disputes via mediation, rather than through the courts.

November - Sir Paul Coleridge calls for divorce laws to be reformed so that it will only be possible to get a divorce by Act of Parliament. Sir Paul says that "hundreds" of other former judges support the move, but were too afraid to say so.

December - The Institute of Family Law Arbitrators announces that in 2014 it completed a record one-and-a-half arbitrations. Again.

Happy New Year!

Wednesday, December 25, 2013

Happy Isaac Newton Day!

'NEWTON' after William Blake by Eduardo Paolozzi 1995 - Image: grytr
Time once again to celebrate the greatest person ever to be born on the 25th of December!

Tuesday, December 24, 2013

Review of the Year

News Update: 24th of December 2013


WELCOME to this week's Family Lore News Update.

NEWS
Adoption: £50 million funding boost and new interactive maps
Children’s Minister Edward Timpson announces new resources to help would-be adopters find a child to adopt - plus more cash for councils. Full story: Department for Education.

High Court judge says warring parents cause 'untold damage' to children
Mrs Justice Parker reverses living arrangements of three brothers after hearing of 'parental manipulation'. Full story: The Telegraph.

Transfer of Mr Justice Charles from the Family Division to the Queen’s Bench Division of the High Court and appointment as the Vice-President of the Court of Protection
The Lord Chief Justice, following consultation with the Lord Chancellor, will transfer Mr Justice Charles from the Family Division of the High Court to the Queen’s Bench Division of the High Court with effect from 13 January 2014, and appoint him as Vice-President of the Court of Protection, for a three-year term, from the same date. Full story: Judiciary of England and Wales.

Domestic abuse: half a million victims 'too terrified to come forward'
Study uncovers hidden casualties of violence, many of them too scared to report the crime. Full story: The Observer.

BAAF rated ‘outstanding’ in recent Ofsted inspection
The British Association for Adoption and Fostering has been rated as 'outstanding' once again by Ofsted in its recent inspection. Full story: Family Law Week.

Court statistics (quarterly) July to September 2013
This bulletin presents National Statistics on activity in the county, family, magistrates’ and Crown courts of England and Wales. Full story: Ministry of Justice. See also this story on Family Law Week.

Child protection head leaves Devon County Council
The head of children and adult protection at Devon County Council has left his £95,000 job. Full story: BBC News.

Divorced wife 'cheated out of millions after husband failed to reveal assets’
A divorced wife claims her ex-husband misled her about the value of his computer software business to cheat her out of a multi-million-pound settlement. Full story: The Telegraph.

Child abuse investigations have risen by 42% over past three years
In 2012/13 there were 127,000 investigations launched across the country into children thought to be at risk of child abuse or neglect. This is a 42% increase in investigations since 2009/10, according to figures revealed by Sky News. Full story: Family Law.

C-section case shows need for radical changes on transparency: Munby
The high-profile case involving an enforced Caesarean section stands as a “final, stark and irrefutable demonstration” of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach transparency, the President of the Family Division has said. the P (A Child) case - see below. Full story: Local Government Lawyer.

Judge Sir Paul Coleridge disciplined for stating views on traditional marriage
Official body with responsibility for judicial conduct hands outspoken High Court judge a formal warning. Full story: The Telegraph.

Domestic violence victims' personal details should stay secret, says Labour
Adoption of 'Eve's law' would exempt victims of domestic abuse from disclosing their personal details in public. Full story: The Guardian.

STATUTORY INSTRUMENT
The Family Procedure (Amendment No.3) Rules 2013
These Rules amend the Family Procedure Rules 2010. The majority of the amendments made to the FPR 2010 by these Rules are made to reflect the creation of the family court.

CASES
Llewelyn v Rickard [2013] EWCA Civ 1677 (5 November 2013)
Application for permission to appeal against a ruling that the appellant had no beneficial interest in the family home. Application granted. Full report: Family Law Hub.

A Local Authority v C [2013] EWHC 4036 (Fam) (16 September 2013)
Application by local authority for a without notice order enabling them to remove child from mother immediately after birth. Full report: Bailii. See also the blog post below.

M (Children), Re [2013] EWHC 3758 (Fam) (07 November 2013)
Care proceedings concerning four children of two fathers, in which the mother passed the children into the care of her parents. Full report: Bailii. See also the blog post below.

Kinderis v Kineriene [2013] EWHC 4139 (Fam) (18 December 2013)
Hague Convention proceedings in which the father sought the return of the child to Lithuania and the mother raised an Article 13 defence. Full report: Bailii.

Button v Salama [2013] EWHC 4152 (Fam) (19 December 2013)
Further application by a mother to commit the father of their child to prison for contempt of court in relation to the breach of an order requiring him to return the child to England and Wales. Full report: Bailii.

D (A Child) [2013] EWHC 4078 (Fam) (18 December 2013)
Care proceedings in which the mother sought a transfer of the proceedings to the courts of the Czech Republic for disposal there. Full report: Bailii.

Whiting, Re [2013] EWHC B27 (Fam) (13 December 2013)
Application brought by the director of Adult Services to commit person in a relationship with a vulnerable adult for breach of an injunction made by a district judge in the Court of Protection. Full report: Bailii. See also the blog post below.

E (A Child), Re [2011] EWHC 3453 (Fam) (19 December 2011)
Care proceedings involving a Nigerian child where the parties claiming to be her parents were found not to be. Full report: Bailii.

L County Council v MD & Anor [2013] EWHC B25 (Fam) (06 December 2013)
Application by local authority to commit parents for failure to comply with orders requiring them to identify the children's whereabouts. Full report: Bailii.

NHS v VT & Anor [2013] EWHC B26 (Fam) (13 November 2013)
Application by NHS Trust for a declaration, both in respect of capacity and in relation to medical treatment, of a patient in their care. Full report: Bailii.

TAQ v AA [2013] EWCA Civ 1661 (19 December 2013)
Application for permission to appeal against dismissal of application challenging the lawfulness of a Standard Authorisation made under Schedule A1 of the MCA authorizing the deprivation of appellant's son's liberty. Application dismissed. Full report: Bailii.

TM, Re [2013] EWHC 4103 (Fam) (17 December 2013)
Application by NHS Trust for the consent of the court to certain medical treatment of a seven-year-old child. Full report: Bailii.

J & R (Children), Re [2013] EWHC 4100 (Fam) (15 July 2013)
Care proceedings. Application by parents for adjournment for further assessment by consultant regarding injuries to child. Full report: Bailii.

Hertfordshire County Council v H [2013] EWHC 4049 (Fam) (05 July 2013)
Application by a local authority to withdraw care proceedings. Application granted. Full report: Bailii.

Torrington v Torrington [2013] EWCA Civ 1631 (21 November 2013)
W's application for permission to appeal from a judgment and order that a separation agreement made 20 years earlier, but never made an order of the court, should become an order of the court. Application refused. Full report: Family Law Hub.

J (Child) [2013] EWCA Civ 1685 (18 December 2013)
Appeal by mother against care order. Appeal dismissed. Full report: Bailii.

TM, Re [2013] EWHC 4043 (Fam) (12 December 2013)
Judgment concerning injunction on reporting in proceedings concerning application by NHS Trust for the consent of the court to certain medical treatment of a seven-year-old child. Full report: Bailii. See also the blog post below.

A Local Authority v DB (Mother) & Ors [2013] EWHC 4066 (Fam) (06 December 2013)
Care proceedings. Fact-finding hearing concerning issue of whether injuries to child were non-accidental. Full report: Bailii.

Z v Y [2013] EWHC 3381 (Fam) (05 November 2013)
Application by father for return of child under Hague Convention. Application granted. Full report: Bailii.

P (A Child) [2013] EWHC 4048 (Fam) (17 December 2013)
Judgment on application for reporting restriction in 'forced caesarean' case. Full report: Bailii. See also the news story above and the blog posts, below.

P, Re [2013] EWHC 4037 (Fam) (13 December 2013)
Application for reporting restriction in 'forced caesarean' case. Full report: Bailii.

ARTICLES
The Court of Protection and declarations of capacity
When should the Court of Protection decline to make a declaration as to capacity? The CoP team at 39 Essex Street report on an important ruling. Full article: Local Government Lawyer.

Relief from Sanctions after Mitchell and Durrant
"The issue of relief from sanctions goes wider than that of costs budgeting (Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537)." Says David Burrows. in this article on Family Law.

Children: Private Law Update (December 2013)
Alex Verdan QC of 4 Paper Buildings considers a wide range of children private law issues which have recently come before the courts. Full article: Family Law Week.

BLOG POSTS
“Will you walk a little faster, said a whiting to a snail”
An application (unsuccessful) to commit Mr Whiting for alleged breaches of an injunction made in the Court of Protection. Re Whiting 2013 [above]. Full post: suesspiciousminds.

Section 37 reports are not a vehicle into which to pour professional angst
The High Court decision in Re M (Children) 2013 [above], and the strong judicial comments about the need for section 7 and s37 reports to properly analyse the issues, AND a warning for Local Authorities who try to avoid responsibility for children in designated authority disputes. Full post: suesspiciousminds.

Secret decision to remove
Suesspiciousminds examines A Local Authority v C 2013 [above], in this post.

Reporting restriction order
There is a new Reporting Restriction Order case up – Re TM [2013] EWHC 4043 [above], decided by Holman J. Full post: suesspiciousminds.

Now you found the secret code I use
Suesspiciousminds gives us the low-down on the 'Freedom of the Land' movement. Full post: suesspiciousminds.

Anonymity in the courts: Part 1, the “forced Caeserean”
Rosalind English looks at AA, Re (Including: note by Mr Justice Mostyn) 4 December 2013 [2013] EWHC B24 (COP) and In the matter of P (a child) 13 December 2013 [2013] EWHC 4048 (Fam). Full post: UK Human Rights Blog.

Blogosphere in the Judgosphere
"Today, “blogosphere” entered the judicial lexicon and I appeared in my first reported judgment." Says Lucy Reed, referring to the judgment in P (A Child) [above]. Full post: Pink Tape.

conditions on placement order, what does the Fox say ? (By fox, i mean Court of Appeal)
"The Court of Appeal in Re A (Children) 2013 grappled with an interesting issue." Says suesspiciousminds. Full post: suesspiciousminds.

It’s clobbering time ! Or not, as it turns out – Italian C-section case, the President’s judgment
The prolific suesspiciousminds examines the reporting restriction judgment in P (A Child) [above], in this post.

Monday, December 23, 2013

News Podcast: For the week to the 23rd of December 2013

A brief summary of the top family law news stories from the last week.



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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.)

Saturday, December 21, 2013

Something for the Weekend: Mel and Kim - Rockin' Around The Christmas Tree

As a general rule, I dislike Xmas songs almost as much as I dislike Xmas itself. However, as a tribute to the late and lamented Mel Smith I thought I would post this:



Right, that's quite enough of that. I promise not to mention Xmas again.

Friday, December 20, 2013

Friday Review: A hello and a good riddance bye


Notable things this week:

Well, the most notable thing is of course the return of my Friday Review!

In other news:

Mr Justice Coleridge got his knuckles rapped by the JCIO. Some lawyers seemed to think this was a bit over the top. I disagree. Obviously every judge is entitled to his views just like anyone else, but for a family judge to lay his cards so clearly on the table doesn't seem right to me, particularly after he had received 'advice' from the JCIO last year. As regular readers of this blog (if there are any) will know, I disagree with Sir Paul's views on marriage, and hopefully he won't get so much 'free' publicity for them once he has vacated the bench.

What else has happened this week? Well, there was P (A Child), upon which I have commented already and the surprise appointment of Simon Hughes as Justice Minister, upon which I didn't really say anything constructive in this post.

As for Twitter, I rather liked the series of legislation that Jack of Kent drafted, all (amazingly) fitting into 140 characters. Here are a couple of samples (I couldn't decide upon my favourite):

and:
I'm particularly looking forward to these being implemented.

Back to family law, the Family Court came a step closer with the publication of The Family Procedure (Amendment No.3) Rules 2013. Everything will change when the new court is established. Well, actually, it won't. For the most part, you will still go to the same building to issue your application, and the faces on the other side of the counter will be strangely familiar. Still, at least the heading of the forms you use will have changed.

And that was about it. OK, a bit thin, but it is the week before Xmas.

On which subject, have a good one.

Wednesday, December 18, 2013

Through a glass darkly


"This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published."

So said Sir James Munby yesterday in P (A Child). A considerable amount has already been written  about the judgment, and far more eloquently than I could manage - see, for example, this post by Lucy Reed on Pink Tape and this post by Andrew Pack on Suesspiciousminds. I just really wanted to make one point.

It seems to me that the only way to (try to) avoid what happened in this case vis-à-vis the media is to publish all judgments (suitably anonymised, of course). Only then will the media have something authoritative to refer to in all cases, before they start to go off at half-cock. Of course, whether they choose to read the judgment and if they do whether they choose to believe it is another matter. There is also the problem of non-lawyers understanding judgments, which may mean a greater drive for the use of plain language.

If all judgments are not published, then there will always be cases that the media pick up without anything accurate available to (hopefully) guide them in the right direction.

The practical problem with this (and possibly with what Sir James has in mind - I don't know how many judgments he envisages being published) is, as Lucy Reed points out in her post, the resources required to publish so many judgments, particularly in times of cut-backs.

Then there will always be those with an agenda against the system who will write the story that fits that agenda, irrespective of what any existing judgment may say. It is no good judges and lawyers pointing to the judgment after the event. By then, the damage has been done, and anyway all too many people prefer to believe what they read in the Daily Fail, rather than anything those corrupt lawyers may say.

I'm not convinced that the effort involved in publishing all judgments, or even just many more judgments, is likely to be justified. Even if they are read and properly understood, will they really fully enlighten the unenlightened as to the arcane goings-on of the (hitherto) 'secret family courts'?

Oh, and before I go congratulations to Lucy Reed for being (it is believed) the first legal blogger to be quoted in a judgment!

Family Lore Clinic: What do I do if a solicitor has signed a consent order without my permission?


Once again, I will assume that the term 'consent order' refers to an order setting out an agreed financial/property settlement on divorce.

I will also assume that by 'a solicitor' you mean your solicitor. Only a solicitor instructed by you may sign a consent order on your behalf, and only then if they have confirmed with you that you agree with the contents of the order.

It is also usual that consent orders are signed both by solicitors and their clients.

Leaving that aside, there are three things you can do.

Firstly, contact your solicitor, who should be able to resolve the matter for you. If the order has not yet been made then they can stop it being made, and if it has been made they can advise you regarding the possibility of having it set aside.

Secondly, if you can't for any reason sort the matter out with your solicitor, then you can instruct another one to sort it out for you.

Thirdly, if that is not possible then you should get in touch with the court and explain the position.

The other thing to say is that you may have a claim against your solicitor if you should suffer any loss as a result of their failure to act in accordance with your instructions.

Tuesday, December 17, 2013

News Update: 17th of December 2013


WELCOME to this week's Family Lore News Update.

NEWS
MASH having a positive impact on child protection in London
The turnaround time for child protection cases judged as high or complex needs has almost halved in some areas since the London multi-agency safeguarding hub (MASH) programme began in 2011, according to a new academic report from the University of Greenwich. Full story: London Councils.

English courts still top the league for generous divorce payouts
English courts have more flexibility in granting settlements than courts in most other countries, leading to higher awards. Full story: The Telegraph.

Serious case reviews ‘politically abused’ since death of Baby P, claims expert
Safeguarding expert claims serious case review authors face ministerial disapproval if they don't criticise the local authority. Full story: Community Care.

No less than 'good' for children's homes demands Ofsted
Ofsted has published proposals for a new framework to improve standards in children's homes and drive up quality for the country's most vulnerable children. Full story: Family Law Week.

Women behaving badly: cuckolded and downtrodden husbands filling divorce courts
A new analysis of official divorce figures, dating back 40 years, shows a dramatic rise in the number of separations in which “unreasonable behaviour” by women has been recognised by the courts as the main cause. Full story: The Telegraph.

Divorcing couples regret the impact on children but don’t tend to seek help, survey finds
Divorced couples significantly regret the impact that their split had on their children but tend not to seek help with their relationship, according to a survey conducted by Seddons in conjunction with The Marriage Foundation. Full story: Family Law Week.

Birmingham reforms children's services after damning reports
Council damned over Keanu Williams case will invest extra £9m as part of 'radical' strategy, but admits service for vulnerable children still not consistent. Full story: The Guardian.

Ofsted publishes new framework for inspecting Cafcass
Unannounced inspections will treat Cafcass as one organisation, according to a new framework document. Full story: Family Law Week.

Attainment gap between looked after children and others narrows slightly but remains large
Statistics on outcomes for children looked after by local authorities in England, released by the Department for Education, show that the attainment gap between such children and their peer group is diminishing but is still great. Full story: Family Law Week.

New FCO figures show parental child abduction cases on the rise
The number of parental child abduction and custody cases has more than doubled over the last decade, with almost two children being abducted abroad each day, according to new figures released today by the Foreign & Commonwealth Office and charity, Reunite. Full story: Foreign & Commonwealth Office.

Pregnant woman with 'very severe' mental health problems could be forced to have Caesarean
A pregnant woman with “very severe” mental health problems could be forcibly sedated and have her baby delivered via Caesarean section against her will if the need arose, a High Court Judge has ruled. Full story: The Independent.

Marriages can be performed at Scientologists’ churches, decides Supreme Court
The Supreme Court has decided that Scientology is a religion and since the church of the Church of Scientology was a "place of meeting for religious worship", then it could be registered for the solemnisation of marriages under the Marriage Act 1949. The Hodkin case - see below. Full story: Family Law Week.

Cafcass private law demand
In November 2013, Cafcass received a total of 3,524 new private law cases. This is a 15% decrease on November 2012 levels. Full story: Cafcass.

Care applications in November 2013
In November 2013, Cafcass received a total of 816 applications. This figure represents a 15% decrease compared to those received in November 2012. Full story: Cafcass.

Government u-turn on plans to remove councils from adoption recruitment process
'Common sense' amendment to the children and families bill has been hailed a triumph by local authorities. Full story: Community Care.

New cuts to experts’ fees compromises care cases
New cuts to the civil legal aid remuneration rates that came into force on 2 December 2013 are deterring a significant number of professionals from acting as expert witnesses in the family courts. Full story: Family Law.

Same-sex weddings to begin in March
The first same-sex weddings can take place from 29 March 2014, equalities minister Maria Miller says. Full story: BBC News.

Top reasons high cost family cases are rejected
The Ministry of Justice has analysed the top reasons why high cost family case plans are being rejected. Full story: Family Law.

CASES
A (A Child), Re [2013] EWHC 3502 (Fam) (01 July 2013)
Care proceedings. Fact-finding hearing to ascertain cause of injuries to the child. Full report: Bailii.

HA (A Child) , Re [2013] EWHC 3634 (Fam) (28 November 2013)
Care proceedings in respect of 7 month old child. Care and placement orders made. Full report: Bailii.

P (A Child), Re [2012] EWCC 6 (Fam) (15 November 2012)
Care proceedings. Appeal by grandparents against refusal of permission to apply for a residence order. Full report: Bailii.

JO v GO & Ors [2013] EWHC 3932 (COP) (13 December 2013)
Court of Protection judgment concerning application by daughter of 88 year old woman lacking capacity for order that she be returned to England from Scotland. Full report: Bailii.

A (Children), Re [2013] EWCA Civ 1611 (13 December 2013)
Appeal by local authority against placement order with conditions attached and cross-appeal by mother seeking the discharge of the placement order if the local authority's appeal is successful. Both appeals allowed and placement order set aside. Full report: Bailii.

An NHS Trust v R (a child) and Mr & Mrs R (Parents) [2013] EWHC 2340 (Fam) (19 September 2013)
Judgment in dispute regarding medical treatment for a child, in particular as to whether ventilation should be withdrawn. Full report: Judiciary of England and Wales (PDF). HTML version: Bailii.

LRP (A Child) (Care Proceedings: Placement Order) [2013] EWHC 3974 (Fam) (12 December 2013)
Final hearing of local authority's application for care and placement orders in relation to a 10 week old infant. Full report: Bailii.

Muema v Muema [2013] EWHC 3864 (Fam) (10 June 2013)
Application by husband for an order under section 37(2)(b) MCA to set aside a notice to quit that was signed by his estranged wife. Application dismissed. Full report: Family Law Week.

Re H, R and E (Children) [2013] EWHC 3857 (Fam) (2 September 2013)
Application under the Hague Convention for the summary return of three children from this country to the Netherlands. Return ordered. Full report: Family Law Week.

Walker v Walker [2013] EWHC 3973 (Fam) (28 October 2013)
Application by a husband for permission to appeal financial remedies order. Permission granted. Full report: Bailii.

R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 (11 December 2013)
Appeal concerning the question whether a church of the Church of Scientology was recordable as a "place of meeting for religious worship", with the effect that a valid ceremony of marriage could be performed there. Full report: Supreme Court (PDF). See also the news story above.

Re P [2013] EWHC (4 December 2013)
Application for reporting restriction in 'forced caesarean' case. Full report: Judiciary of England and Wales (PDF).

ARTICLES
No conflicts please; we are English and we are regulated
"Recent guidance from the English solicitors' regulatory authority has caused a review of practice on issues of conflicts of interest which may be particularly pertinent in international cases." Says David Hodson in this article on Family Law.

Local Authority Focus - December 2013
Sally Gore, barrister of 14 Gray’s Inn Square, in the first of a series of updates for children lawyers and professionals, considers recent developments affecting the decision-making and procedures of local authority children’s services. Full article: Family Law Week.

BLOG POSTS
Young v Young: can “eye-watering” divorce costs be justified?
"In the aftermath of Young v Young, what should be done by the judiciary and practitioners to make fees in family proceedings proportionate?" Asks Pamela Collis in this post on Halsbury's Law Exchange.

When will the court exercise its inherent jurisdiction?
The Supreme Court’s use of its inherent jurisdiction to order the return of a child to another country is analysed [in Re KL] by David Williams QC, of 4 Paper Buildings in this post on the Family Law Blog.

Now its a trilogy…
"I felt that in the interests of completeness I ought to update my two previous posts on the C-section case, which I can now refer to as the case involving Italian mother Alessandra Pacchieri." Full post: Pink Tape.

Children in small ads
Another day, another scandal. The Telegraph reports this case where an Adoption Agency, “Adoptionplus” placed adverts in local newspapers saying that two children needed an adoptive placement and seeking adopters to care for them. Full post: suesspiciousminds.

Monday, December 16, 2013

News Podcast: For the week to the 16th of December 2013

A summary of the top family law news stories from the last week, (almost) 3 minutes flat.



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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.)

Saturday, December 14, 2013

Something for the Weekend: Abdullah Ibrahim (Dollar Brand) - Soweto

Without wishing to jump onto the bandwagon that so many others seem to be jumping on, I thought it would be appropriate this weekend to reprise a video I posted last year:

Friday, December 13, 2013

Some of the things I've been writing about this week for the Marilyn Stowe Blog


Some of what I've written for the Marilyn Stowe Blog over the last seven days:

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

Review of the year, Part 3 - Quite probably the third part of my review of the year.

Review of the year, Part 4 - And this is probably the fourth part of my review of the year.

Human Rights Day - A look at human rights and family law.

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, December 12, 2013

Caught in the middle

"According to new figures released by the Foreign & Commonwealth Office and the charity, Reunite, the number of parental child abduction and custody cases has more than doubled over the last decade. This film, 'Caught in the middle', tells the story of Rebecca, a fictional case study of a child involved in a parental abduction case. It aims to highlight the issues and encourage parents to think of the consequences before doing something that could do lasting damage to the children and families involved."



See also this press release by the FCO.

Wednesday, December 11, 2013

Family Lore Clinic: Do I have to apply to the court for consideration of [my] financial position?


When I first saw this question, I assumed that it was asking whether an application to the court for a financial/property settlement had to be made in all divorce cases. The answer to that question is simple: no - you only have to make an application if you cannot agree a financial settlement with the other party, for example through solicitors or via mediation. (Although technically, if you reach an agreement where claims are to be dismissed in a consent order, then you will have to make those claims so that the court can dismiss them.)

However, on closer inspection I realised that the wording of the question matched section 10(2) of the Matrimonial Causes Act 1973. Section 10(2) enables a respondent to a divorce petition based upon two years' separation and consent or five years' separation to apply to the court for consideration of their financial position after the divorce. The idea of such applications is to prevent respondents in such cases from suffering financial hardship as a result of the divorce. Accordingly, once the application has been made the court will not allow the divorce to be finalised unless it is satisfied either that the petitioner should not make any financial provision for the respondent, or that the financial provision that they have made is reasonable and fair, or the best that can be made in the circumstances.

The answer to this question is also no - you do not have to make the application. However, depending upon the circumstances of your case, it may be appropriate for you to make the application - you should therefore take specific advice from an expert family lawyer before deciding whether or not to make the application.

Tuesday, December 10, 2013

News Update: 10th of December 2013


WELCOME to this week's Family Lore News Update.

NEWS
Care proceedings run 14 weeks beyond target
The average length of care proceedings is still 14 weeks over a new target due to be introduced in April, latest figures show. Full story: Children & Young People Now.

Adoption agency advertises children in local newspapers
Some have criticised the Adoptionplus campaign saying youngsters should not be advertised like an unwanted animal or second hand sofa. Full story: The Telegraph.

Father refused access to daughter despite 82 court orders
A father, described as "unimpeachable" by judges has told of his 12 year battle to see his teenage daughter, where he has been refused access despite 82 court orders allowing him to see her. Full story: The Telegraph.

MoJ to tackle fall in mediation referrals
The Ministry of Justice has sought to bolster its mediation strategy in the face of a dramatic fall in referrals in the past six months. Full story: Law Society Gazette.

Couples should not have children until they are ready to marry, says High Court judge
A senior High Court judge has argued that couples should not have children until they are ready to wed. Full story: The Independent.

Ten new projects help thousands of separated couples co-operate on parenting
Projects to help separated couples resolve grievances and agree financial and parenting arrangements in their children's best interests. Full story: Department for Work & Pensions.

Children and young people’s mental health neglected by local authorities
‘Overlooked and Forgotten’ report reveals failure to address mental health needs of under-18s. Full story: Family Law Week.

Non-means tested legal aid restored for patients detained under Mental Capacity Act 2005
In the Court of Protection cases of UF v A Local Authority & Ors, the Ministry of Justice and Legal Aid Agency have effectively restored non-means tested legal aid in s21A MCA cases. Full story: Family Law Week.

Children face three-year wait for care case decisions
Dozens of care proceedings cases initiated more than three years ago remain unresolved leaving vulnerable children with uncertain futures. Full story: Children & Young People Now.

Teach married couples about monogamy for sake of the children, says High Court judge
Married couples should be sent to classes promoting monogamy to help spare children lifelong scars from family breakdown, according to the High Court Judge Sir Paul Coleridge. Full story: The Telegraph.

Autumn Statement 2013: Marriage tax break 'will help poorest families’
More than four million married couples will be given tax breaks worth up to £200 a year. Full story: The Telegraph.

High Court judge orders life-saving bone marrow transplant to go ahead for three-year-old boy against father's will
A three-year-old boy whose father tried to prevent him receiving life-saving hospital treatment will have a bone marrow transplant on Thursday following an emergency ruling by a High Court judge. Full story: The Independent.

Judge rules that man in vegetative state should not be resuscitated if his condition deteriorates
The 78-year-old man's son said his family were 'trying to hang on to him' while giving evidence via video link. Full story: The Independent.

Civil courts to turn a profit under fee reforms
Wealthy litigants will have to stump up higher fees under government proposals to help put the civil courts on a ‘solid financial footing’. Full story: Law Society Gazette.

Supreme Court orders return of son to Texas in KL (A Child)
Court exercises inherent jurisdiction to return child with UK habitual residence. Full story: Family Law Week. See also the law report, below.

First national picture of foster carer recruitment published
A new report by the Fostering Network has, for the first time, provided a picture of foster carer recruitment across English local authorities. Full story: Family Law Week.

Foster children may stay with carers until age 21
Children in care in England will be able to stay with their foster families until their 21st birthday, rather than having to leave at 18, ministers say. Full story: BBC News.

Support for vulnerable women and taxpayers in court fees changes
People taking high value cases through civil courts in England and Wales will be expected to pay much more towards their running costs, Courts Minister Shailesh Vara has announced - while the fees for domestic violence injunctions will be scrapped. Full story: Ministry of Justice.

Essex County Council responds to C-section care case
Essex County Council has responded to the media reports concerning the delivery, without the mother's consent, of a baby by caesarean section and the child's removal into care of the local authority. Full story: Family Law Week. See also the law reports (marked *) and blog posts, below.

Only half of public express confidence in the family courts on children matters
A survey examining public attitudes to the courts and, principally, court fees suggests that only half of those asked have confidence in certain aspects of the family courts. Full story: Family Law Week.

Doncaster fears delay in children's trust timeframe
Plans to create an independent trust to run child protection services in Doncaster are at risk of delay, the authority has warned. Full story: Children & Young People Now.

CASES
YLA v PM & MZ [2013] EWHC 3622 (Fam) (20 November 2013)
Court of Protection proceedings concerning a vulnerable adult, and care proceedings concerning her child. Full report: Family Law Week.

Re A and B (Withdrawal of Fact-Finding Hearing) (29 January 2013)
Judgment in care proceedings where the local authority was granted permission to withdraw the fact-finding hearing. Report: Family Law.

ACCG & Anor v MN & Ors [2013] EWHC 3859 (COP) (20 November 2013)
Application for a final order pursuant to s16(2)(a) of the Mental Capacity Act 2005 in relation to, inter alia, the accommodation of a 20 year old man who suffers from profound disabilities. Full report: Bailii.

Asaad v Kurter [2013] EWHC 3852 (Fam) (05 December 2013)
Judgment concerning the validity of a marriage and whether the petitioner was entitled to a decree of divorce, a decree of nullity or no remedy at all. Full report: Bailii.

AH v PH [2013] EWHC 3873 (Fam) (12 June 2013)
Financial remedies application involving marriage settlement. Full report: Bailii.

Akhtar v Ayoub [2013] EWHC 3840 (Fam) (08 November 2013)
Wardship proceedings in which the children live with the father in England and the mother is unable to travel to England from Pakistan. Full report: Bailii.

Re AA [2012] EWHC 4378 (COP) (23 August 2012)*
Judgment declaring that it was in the medical best interests of a seriously mentally ill and incapacitated patient to give birth by caesarean section. Full report: Judiciary of England and Wales (PDF). HTML version: Bailii. See also the news story above, and blog posts, below.

B v IB [2013] EWHC 3755 (Fam) (29 November 2013)
Judgment concerned with issue of whether an application by the wife under s423 Insolvency Act 1986 should be dismissed, where the husband had died and the wife intended to commence proceedings under the Inheritance Act. Full report: Family Law Week.

EG v JG [2013] EW Misc 21 (CC) (01 December 2013)
Mother's application for a specific issue order about the choice of secondary schools for the 4 youngest children of a Jewish family. Full report: Bailii.

In the Matter of KL (A Child) [2013] UKSC 75 (4 December 2013)
Judgment dealing with issue of the correct approach to be taken to the situation where a child is removed from his/her country of residence pursuant to a return order under the Hague Convention, which order is made erroneously and overturned on appeal. Full report: Supreme Court (PDF). HTML version: Bailii.

F v Y [2013] EWHC (17 July 2013)
Mother removed child to Russia without father's consent, but father acquiesced and therefore his application to English court was dismissed. Report: Family Law.

P (A Child) [2013] EW Misc 20 (CC) (01 February 2013)*
Care and placement proceedings in respect of child of Italian mother suffering from bipolar affective disorder. Full report: Bailii. See also the news story above, and blog posts, below.

RGB v Cwm Taf Health Board & Ors [2013] EWHC B23 (COP) (10 October 2013)
Application by husband of woman with Alzheimer's disease for declarations that Health Board acted unlawfully in depriving him and/or his wife of a right to family life. Full report: Bailii. See also my post here.

ARTICLES
Or should that read 'Article'?

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

BLOG POSTS
Pension wrongs
Judith Middleton considers some of the complexities of sorting out pensions on divorce. Full post: Judith's Divorce Blog.

Make them mediate! Is there a case for compulsion?
Marc Lopatin asks whether compulsion really going to restore mediation levels, let alone increase them, in this post on the Family Law Blog.

Return of the Tzar
"Narey’s back on his adoption drum" says Lucy Reed. Full post: Pink Tape.

What IS the Court of Protection?
This is intended to be a beginner’s guide to the Court of Protection, not exclusively intended for lawyers. Full post: suesspiciousminds.

Update on the Essex C-Section case
Lucy Reed brings us up to date with developments since her earlier post. Full post: Pink Tape. See also the law reports (marked *) and news story, above.

Booker, Hemming and the “forced caesarian” case: a masterclass in Flat Earth news
Carl Gardner examines the truth behind the headlines. Full post: Head of Legal. Again, see also the law reports (marked *) and news story, above.

The Children and Families Bill 2013 – all change, but is it for the better?
"The Children and Families Bill 2013 represents one of the biggest shake-ups of the law relating to family life in years." Says Lorna Borthwick in this post on Halsbury's Law Exchange.

Monday, December 09, 2013

What a relief

Chancellor confirms tax break for married couples - Family Law, 9th December 2013.

News Podcast: For the week to the 9th of December 2013

A summary of the top family law news stories from the last week.



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Saturday, December 07, 2013

Something for the Weekend: Cream - SWLABR

I confess I didn't know of him, but I certainly knew of his work. Last Sunday artist Martin Sharp passed away. Amongst other things, he created the cover art for Cream's album Disraeli Gears. I can still remember when my older sister brought the album home - its art and its sound were disturbingly yet excitingly different from almost anything I had previously experienced. This video shows off the artwork and one of my favourite tracks from the album:

Friday, December 06, 2013

Teacher knows best

Teach married couples about monogamy for sake of the children, says High Court judge - The Telegraph, 5th December 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 family lawyers were talking about this week - A review of last week's top family law news stories.

Review of the year, Part 1 - You guessed it - the first part of my review of the family law year.

RGB v Cwm Taf Health Board: another day in the Court of Protection - Looking at the Court of Protection case RGB v Cwm Taf Health Board & Others.

Review of the year, Part 2 - Yep, the second part of my review of the family law year.

Another difficult decision for the family court - Should a woman be allowed to keep her dead husband's sperm?

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, December 04, 2013

Supreme Court hands down judgment in In the Matter of KL (A Child)

Image: UK Supreme Court
The Supreme Court has today handed down judgment in In the Matter of KL (A Child).

The Issue
The correct approach to be taken to the situation where a child is removed from his/her country of residence pursuant to a return order under the Hague Convention, which order is made erroneously and overturned on appeal. Whether, in those circumstances, the parent from the care of whom the child was removed has a remedy to recover the child.

The Facts
The Father is a male US national of Ghanaian origin, the Mother a female Ghanaian national currently based in the UK. The Father and the Mother married in Texas in December 2005, where their child K was born in August 2006. The Father and the Mother lived together in Texas until their divorce in 2008. In July 2008 the mother and child went to England where they remained until February 2010. In 2010, the Father was granted custody of K and the right to designate his place of residence by the Texas courts. In 2011, however, the Mother instituted abduction proceedings in the Texas Federal Court on the basis that K was being wrongly retained in Texas by the Father. She obtained an order requiring K and his passport immediately to be delivered to her. The Father complied with the order, and K and the Mother travelled to England in August 2011. The Father then appealed against the order, which was overturned in July 2012. The Mother appealed this, but her appeal was rejected: On the 29th August the Texan court made an order requiring the Mother to return K to the Father. She remains in breach of that order. The Father issued an application for the return of K in the UK under the Hague Convention on 9 August 2012 and then a further application in September 2012. The High Court and Court of Appeal have rejected the Father’s claim.

The Decision
The Supreme Court unanimously allowed the father's appeal and ordered the return of K to the United States under the inherent jurisdiction, on the basis of undertakings offered by the father to enable the mother to live in Texas, independently of the father and sharing the care of K between them, pending any application she might make to the Texas court to modify the order relating to K’s residence. Handing down the judgment, Lady Hale said that the crucial factor was that K was a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. Despite the passage of time there was no reason to consider that K would suffer any significant harm by returning to Texas.

You can read a press summary of the judgment here, the full judgment here (PDF - HTML version here) and the Court of Appeal judgment here.

Family Lore Clinic: What wording is used for a clean break in a mutual consent order?


As usual, the term 'consent order' is taken to mean the court order setting out an agreed financial/property settlement on divorce.

A 'clean break' basically says that the financial settlement agreed by the parties is intended to be final. Accordingly, it must make sure that neither party can make any further financial/property claims against the other. The wording of the 'clean break' clause in a consent order therefore simply dismisses all financial/property claims by either party against the other (those claims must be made prior to the consent order) and states that neither party shall be entitled to make any further claim in relation to the marriage, including any claim against the estate of the other party.

The exact wording of the clause may vary from case to case, for example where the clean break is conditional upon something else happening first, such as the sale of the former matrimonial home.

Obviously, drafting any court order is not a trivial matter and the advice of a specialist family lawyer should always be sought.

Tuesday, December 03, 2013

News Update: 3rd of December 2013


WELCOME to this week's Family Lore News Update.

NEWS
Domestic violence services 'at breaking point'
Services to help female victims of domestic violence are at "breaking point" because of "shocking gaps" in funding, Women's Aid has warned. Full story: BBC News.

Child protection system is 'beyond breaking point'
The child protection system is "beyond breaking point" and social workers are facing increasing pressure, a report by MPs said. Full story: ITV News.

Doncaster review team to assess future of Birmingham’s troubled children’s services
The government has ended speculation about the immediate future of Birmingham council’s children’s services, announcing a review of the troubled department. Full story: Community Care.

Safeguarding board defends Hamzah Khan review
Bradford Safeguarding Children Board has defended its serious case review into the death of four-year-old Hamzah Khan. Full story: Community Care.

Expert witness fee cut could 'hinder' family court judges
Children’s lawyers and social work bodies have raised concerns that it will be harder to find expert witnesses to give evidence in care cases due to a cut in fees paid to them through the legal aid system. Full story: Children & Young People Now.

Autumn Statement 2013: Married couples 'no better off' after tax break
The Institute of Chartered Accountants in England and Wales is raising doubts about the effectiveness of David Cameron's £700 million plan to cut taxes for married couples. Full story: The Telegraph.

Beneficiaries of offshore trusts ordered to disclose documents
In Tchenguiz-Imerman v Imerman [2013] EWHC 3627 (Fam) Mr Justice Moylan has given a judgment explaining his order in financial remedy proceedings for disclosure by beneficiaries of offshore discretionary trusts who had been joined as parties. Full story: Family Law Week.

Judge Sir Paul Coleridge quit because of lack of ‘support’ over marriage stance
Sir Paul Coleridge, the High Court judge who set up the Marriage Foundation, discloses he decided to step down from the bench because of opposition to his stance on marriage. Full story: The Telegraph.

Holman J calls for maintenance enforcement rules to be simplified
In Constantinides v Constantinides [2013] EWHC 3688 (Fam) [below], Mr Justice Holman has said that the law concerning enforcement of maintenance by imprisonment are 'in dire need of modernisation, simplification and reform'. Full story: Family Law Week.

Research shows how children’s guardians are fulfilling their role
New research by the Children and Family Court Advisory and Support Service, The Work of Cafcass Guardians in Care Cases, sheds light on how children's guardians fulfil their role of being the 'voice of the child' in care proceedings. Full story: Family Law Week.

Family 'foster carers' losing out, says watchdog
People who look after young relatives or friends' children are being treated unfairly by some councils, a local government watchdog says. Full story: BBC News.

Numbers on Welsh child protection registers increase slightly
There were 2,950 children (including unborn children) on local authority child protection registers in Wales at 31 March 2013. Full story: Family Law Week.

Supreme Court to hand down judgment in Hague Convention appeal on 4th December
The Supreme Court will hand down judgment in Re KL (A Child) on Wednesday, 4th December. Full story: Family Law Week.

New figures show smaller rise in adoptions
The rise in the number of children adopted last year was not as high as previously thought, new data analysis suggests. Full story: Children & Young People Now.

Police receive new orders to tackle domestic abuse
Tough powers to tackle domestic violence are to be introduced across England and Wales, Home Secretary Theresa May has announced. Full story: Children & Young People Now.

ECtHR rules on duty to carry out ‘in-depth examination’ in Hague Convention child abduction cases
The European Court of Human Rights has delivered a Grand Chamber judgment in the case of X v Latvia [below] in which reunite International Child Abduction Centre intervened. Full story: Family Law Week.

Mediation – the best option for children
Children can be spared the trauma of stressful court battles if their parents use mediation Family Justice Minister Lord McNally said today. Full story: Ministry of Justice.

CASES
LJ v JD [2013] EWHC 3632 (Fam) (20 May 2013)
Committal application for breach of domestic violence undertaking. Full report: Bailii.

Shagroon v Sharbatly [2013] EWHC 3756 (Fam)
Judgment in proceedings to enforce undertakings given in the course of proceedings under Part III of the Matrimonial and Family Proceedings Act 1984. Full report: Family Law Week.

X v Latvia (Application no. 27853/09) (26 November 2013)
Referral to Grand Chamber of decision that Latvian courts had breached mother's Article 8 rights when ordering return of child to Australia. Held that there had been a violation of Article 8, the Latvian court having failed to carry out an effective examination of the mother's allegations under Article 13 (b). Full report: ECHR. See also the news story, above.

Constantinides v Constantinides [2013] EWHC 3688 (Fam) (06 November 2013)
Appeal by husband against committal for non-payment of maintenance order. Appeal allowed. Full report: Bailii. See also the news story, above.

ARTICLES
Appeal against Refusal of a Consent Order
Can a consent order applicant (or indeed one or both parties) appeal against a district judge's refusal to seal a consent order? Asks David Burrows in this article on Family Law.

Financial Agreements: a ‘Concluded Agreement’ Test?
David Burrows looks at autonomy after Radmacher. Full article: Family Law.

Young v Young - An Analysis of the Judgment
Thomas Dudley, barrister, of 1 Garden Court Chambers provides a detailed guide to 'as complicated a financial remedies case as has been dealt with by the courts'. Full article: Family Law Week.

Legal adventures in New Zealand: litigation lessons from the Kiwis
Byron James, barrister, 14 Grays Inn Square recounts some of his experiences of the New Zealand legal system. Full article: Family Law Week.

Samantha Bangham’s Week in Cases 29 November 2013
Samantha Bangham looks at the week's case highlights. Full article: Family Law.

BLOG POSTS
Never let the facts get in the way of a good story eh?
Lucy Reed looks behind the headlines that suggest a woman was forced to have a caesarean so that social services could put her child into care. Full post: Pink Tape.

Clare’s Law (Again)
Lucy Reed has another look at the Domestic Violence Disclosure Scheme. Full post: Pink Tape.

Monday, December 02, 2013

DWP issues guidance on child maintenance


The Department for Work & Pensions has today issued two pieces of guidance relating to the new child maintenance scheme.

Firstly, there is guidance regarding how and when they will end liabilities under the 1993 and 2003 schemes. This guidance can be found here.

Secondly, there is guidance explaining how they will decide if a victim of domestic violence or abuse is exempt from the proposed Child Maintenance Service application fee. This guidance can be found here.

News Podcast: For the week to the 2nd of December 2013

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



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