Tuesday, September 30, 2014

T v S: The court cannot micro-manage the relationship between the parents and their handling of the child

A quick look at T v S [2013] EWHC 2521 (Fam), which was decided by the President on the 25th of July last year, but has just appeared on Bailii. It doesn't make very pretty reading, especially for the parents concerned.

The case involved a six year old boy and the 'incessant litigation' relating to him between his mother and his father over the previous four and a half years. The President picked up the story in December 2012, when Mr Justice Hedley decided that, contrary to the father's wishes, there should not be a reversal of the existing arrangement that the boy spend the majority of his time with his mother.

The father gave Mr Justice Hedley's order just five months, before effectively asking the court to re-open the matter. His application went before the President, who said that the father sought:
"...to persuade me, or some other judge, to do that which Mr. Justice Hedley was not prepared to do as recently as 11 December 2012. He supports his application with a litany of complaints about the mother's alleged conduct, many of which are reminiscent in their substance, if in their detail they differ, from complaints which have been ventilated in the past. Fundamentally he attacks the division of time as between the parents and asserts that the proper division of time should be equal as between the mother and the father, referring in this context to proposals which are currently before Parliament."
and that:
"...the father seeks not merely a fundamental change to the arrangements set out by Mr. Justice Hedley but, moreover, implicitly on the basis that before deciding the way forward the court should investigate the allegations which he currently makes against the mother, which history would strongly suggest will be met, if not in equal measure, at least in measure, by counter-allegations from her."
Unsurprisingly, the President was not prepared to play ball. Instead, he gave a stark warning to the parents:
"There is an appalling spectre lying ahead for these parents and, more particularly, their son. There seems to be a complete inability to do anything by agreement. There has been a distressing volume of correspondence between the parties and their solicitors. It is a feature which I am readily able to accept that virtually nothing is achieved by agreement. It does not follow from this that the solution is for the court to embark upon the kind of further investigation that the father is suggesting. Unless the parents both recognise their responsibilities as parents, take account of the wise words of Mr. Justice Hedley, and adapt their behaviour accordingly, the consequences for the child caught in the middle of what a CAFCASS officer described as a "toxic relationship" hardly bear thinking about."
The court, he said, simply could not micro-manage the relationship between the parents and their handling of the child. The parents could not even agree the detail of the whereabouts on Clapham Junction railway station that the handover of the child should take place. Clearly exasperated, Mr Justice Hedley had said:
"This is their child, nobody else's, and if they want to inflict that on the child, they answer for it in due course. I suppose, if common sense were to have any part to play in this, one might draw attention to the fact that there is a Brighton-bound platform at Clapham Junction (which is 13, I think) which may even have a small café on it, and that might make an altogether admirable place at which to effect the handover, but if the parties have other ideas and want to hand over on some empty platform or disused siding, that is a matter for them."
Back to the President:
"The court simply cannot micro-manage this very difficult relationship. If it sought to do so it would simply disempower the parents and add to the stresses on the child. Despite the force and intensity of the father's complaints, he has said nothing in my judgment which, whether looked at individually or collectively, justifies the drastic step, so shortly after Mr. Justice Hedley refused, entirely appropriately as it seems to me, to vary the arrangements, to throw all that back into the melting pot and to embark upon the kind of investigation preparatory to the kind of fundamental change in the arrangements which it is the father's ambition to achieve."
In the circumstances, he declined to give the father permission to pursue his application.

Indicative of the inability of the parents to agree anything, the judgment then went on to consider a dispute between them regarding dental treatment for the child. Again, the President refused to get involved.

Monday, September 29, 2014

Human Rights: A short post to redress the balance

This post is not directly about family law (save, of course, for Article 8), but I thought I should still say something about the current attacks upon human rights from certain ill-informed quarters. I have three things to say on the subject, in an attempt to redress the balance:

Firstly, as explained here, there has been an astonishingly low standard of 'Human Rights Act bashing' by those critics who should really know better.

Secondly, contrary to ill-informed opinion, the European Court of Human Rights very rarely rules against the UK. In fact, the court only rules against the UK in 1.35% of cases.

Thirdly, and most importantly, I would urge anyone who is interested in the human rights debate (and particularly anyone who is tempted to support the naysayers) to read this speech by Lord Bingham in 2009, as recommended by @JackofKent. If you are 'anti human rights' then perhaps you would, as Lord Bingham suggests, explain which human rights you would wish to discard. The right to life, perhaps? Or maybe the right not to be tortured? No? How about the right not to be enslaved?

I thought not.

Friday, September 26, 2014

Join the debate

My small contribution this week to the liveliest place of family law debate around, i.e. Marilyn Stowe’s Family Law & Divorce Blog, includes:

T (Children): A different type of case - A look at the recently-reported case of T (Children).

LASPO and litigants in person - Looking in a little more detail at the Bar Council report assessing the impact of LASPO.

Important cases: D v D - A look at D v D, one of a series of cases that transformed the way the courts viewed shared residence.

New relationships and divorce settlements - In which I consider Mr Justice Mostyn's comments in AB v CB.

Have a good weekend.

Monday, September 22, 2014

Family Lore Clinic: Can I sell my house which is in my sole name without my ex-husband's consent?

Technically, you should not need your ex-husband's consent to sell your own property. However, this does not tell the whole story and the practical answer to the question depends upon whether your ex-husband has an interest in, or a possible claim against, the property.

We'll start with the easiest circumstance: if the divorce has been finalised and there is a consent order which does not give your ex-husband any interest in your property and dismisses all financial/property claims by either party against the other, then your husband has no interest or claim. You should therefore be able to sell the property without his consent or involvement in the sale, and have the entire net proceeds yourself.

If, on the other hand, there is a court order or agreement stating that your ex-husband should have a share in the property, then he will probably have a charge (or mortgage) against the property to protect that share. In this case you will need him to cooperate with the sale, to release his charge and enable the sale to proceed. You will also need to account to him for his share of the net proceeds of sale.

The third circumstance is that your ex-husband still has a (potential) claim against the property, because the financial/property settlement on divorce has not yet been finalised. If so, your ex-husband could have taken steps to protect that potential claim at the Land Registry. If he has, then you may need his cooperation to clear his claim at the Land Registry, to enable the sale to proceed. This may involve agreeing his share in the property (unless he accepts that he does not have a share). If no agreement can be reached, the net proceeds of sale may have to be held on deposit, pending agreement.

Obviously, this is only a brief introduction to what can be a complex topic. If you would like advice specific to your case, then you should consult a specialist family lawyer.

Friday, September 19, 2014

Post-referendum hangover cure

What better way to recover from a post-referendum hangover than read a bit of family law? OK, I can think of a few. Well, a lot, actually. Still, if you are so inclined, here are some of my efforts this week on Marilyn Stowe’s Family Law & Divorce Blog:

Has mediation turned the corner? - Last week National Family Mediation reported a significant rise in the take-up of its services in the first six months of 2014. Does this mean that mediation is at last going to reach the levels its adherents hope for?

Will 50,000 children benefit from the child maintenance reforms? - Looking behind the recent claim by the Department for Work and Pensions.

Important cases: Martin-Dye v Martin-Dye - A look at the pensions case Martin-Dye v Martin-Dye.

Re M (A Child) and the burden of proof - A look at the recently-reported case Re M (A Child) [2012] EWCA Civ 1580 and the issue of the burden of proof.

Have a (moderately) sober weekend.

Conference for legal and social care professionals launches reports to support safeguarding unaccompanied, migrant children

A conference held today (Friday 19 September) will call for co-operation between different actors in legal and judicial proceedings involving unaccompanied and trafficked migrant children.

‘Working together to ensure the protection and reception of unaccompanied children in Europe’ will recommend the development of children’s courts and highlight the need for multi-agency participation.

The conference launches a new tool for professionals, including social workers, police, immigration officers and lawyers in the form of a standards report which to help ensure that these children are fully able to participate in legal processes and that the right decisions made about their future.

The event is co-hosted by Garden Court Chambers and Coram Children’s Legal Centre (CCLC). Kamena Dorling, Policy and Programmes Manager at CCLC said:

“Migrant children who are without parents or guardians in the UK depend on legal and social care professionals recognising them as children first and foremost.

They are subject to a complicated series of legal procedures, courts and tribunals and a lack of communication between lawyers and other professionals can have devastating consequences for their welfare.

In addition to the immigration and asylum system, they may be wrongly charged with a criminal offence as a victim of trafficking or have to take legal action in order to dispute an assertion that they are over 18, or be a party to family proceedings because of child protection concerns.

As asylum applications from children have fallen (from around 6,000 in 2002 to just over 1,000 in 2014) many asylum seeking children teams have closed. Therefore the children who remain in the system are no longer likely to be assigned a social worker with the necessary specialist skills and knowledge to support them.

Without sufficient training and awareness of their rights, our concern is that these vulnerable children are at an increased risk of abuse or exploitation.”

The conference is organised as part of the EU funded CONNECT Project, looking at practice in the UK, the Netherlands, Italy, and Sweden.

The CONNECT project report, ‘Always migrants - sometimes children’, identifies good practice and areas for improvement in the UK.

‘Tool to Assist Actors in Legal and Judicial Proceedings’ aims to improve the support provided within the legal system.

Both reports were produced by Nadine Finch of Garden Court Chambers, acting for Coram Children’s Legal Centre.

Thursday, September 18, 2014

Bar Council report claims LASPO 2012 damages access to justice

Bar Council report claims LASPO 2012 damages access to justice - The Bar Council, 18th September 2014

(This is actually serious stuff, but I couldn't resist the Fawlty Towers reference, sorry.)

Monday, September 15, 2014

Book Review: Children and Families Act 2014

Children and Families Act 2014

Family Justice Under the New Law

£49.95 - Law Society Publishing: September 2014

I should begin this review with a confession. I have never particularly been a fan of books written about new statutes. They often seem to be hastily-written (for obvious reasons) and do little more than paraphrase the statute concerned. Accordingly, it was with a little trepidation that I went to open the cover of Children and Families Act 2014. Should I have been worried? Read on...

Before opening that cover, I checked the blurb on the back. This informed me that the book "offers you the full text of the parts of the Act dealing with family justice matters, including commentary on each of those parts. It also outlines the major changes, and offers insight into how these may impact the day-to-day practice of the busy family lawyer." All fairly standard stuff for these type of books (even down to the hackneyed reference to "busy" lawyers). My trepidation was not assuaged...

Opening the cover, the contents page tells us that the book includes chapters covering the changes in the areas of public family law, adoption law, children in care, private family law, the Family Court and the Children's Commissioner. There are also seven appendices, more of which in a moment. Each chapter in the book has sections devoted to the changes brought in by the Act under that chapter heading. Most of the sections are sub-divided in to three parts: explaining why the change was suggested, what has changed and how the change will work in practice.

Now, as someone who runs a family law news site, I like to think that I keep up to date with changes being introduced. However, until I read this book I didn't appreciate just how much change the Act has brought with it. I suspect that the same may apply to many practitioners, especially when it comes to areas that they only deal with infrequently, or that are peripheral to their practice. This is where the format of the book comes into its own. Setting out not just each change but also its context and how it will operate in practice, all in an extremely readable style, makes it very easy for that busy family lawyer to come up to speed.

I also agree with much of the practical advice given by the author. For example, when discussing the presumption of parental involvement to be brought in by section 11 this autumn (according to the MoJ/DfE) he says:
"The way in which solicitors advise their clients should not, in the author's view change as a result of the introduction of the presumption. Most family lawyers will be used to explaining to clients that the current child development thinking/discourse promotes the idea of it being best for children if they can enjoy a relationship with both parents (whatever form that relationship may take) and that this has been Government policy for several years."
Nice to see some common sense on that one.

As mentioned above, the book has seven appendices. They are as follows:

1 - Relevant extracts from the Act.
2 - The PLO.
3 - The CAP.
4 - The PLO flowchart and the CAP flowchart.
5 - A table setting out the stages of a public law application, as per the CAP.
6 - A template proposal for permission to instruct an expert, in accordance with FPR 2010, Part 25.
7 - Further reading, which does not just list items, but also gives the web address where they may be found - extremely useful.

There is not a lot that is new in the appendices, but it is useful to have all of the sources in one place, particularly as one is often checking them as one reads through the main text.

I am pleased to say that my original trepidation regarding this book was entirely misplaced. Yes, the book does everything that books of this type set out to do, as mentioned in the cover blurb, but the author goes further, producing something that really is genuinely helpful to practitioners. Children and Families Act 2014 is both a book to read from cover to cover (or at least the main text) to get an overview of the Act's family justice provisions, and a textbook to consult when necessary. I highly recommend it.

Children and Families Act 2014 can be purchased from the Law Society Bookshop, here.

Friday, September 12, 2014

A tale of four cases...

Not exactly Dickens, but my posts this week on Marilyn Stowe’s Family Law & Divorce Blog include:

K (Children): Judges have to give themselves time to make decisions - A look at the recent case K (Children) (notwithstanding that I said here previously that I wasn't going to do a full summary of this case!).

Sharland appeal going to Supreme Court - Something upon which Marilyn and I disagree.

A different type of family breakdown - Looking at the Court of Protection case DG & Others v Peter.

Important cases: Radmacher v Granatino - A look back at the Supreme Court's decision in Radmacher v Granatino.

Have a good weekend.

Thursday, September 11, 2014

Internet Newsletter for Lawyers September/October 2014

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

In this issue
  • Legal practice – Tessa Shepperson shares her experience of working on the web since 2001
  • SEO – Michael Scutt of Crane & Staples considers the remedies for SEO bad practice
  • SEO – Abra Millar of Hallam Internet describes how you can find out and analyse links to your site
  • Legal practice – Brian Inkster of Inksters Solicitors on the many steps you can take to improve and reinvent your firm
  • ODR – Christina Blacklaws of Cripps suggests that ODR technology should now be introduced for family law
  • Justice – As the old justice websites move to GOV.UK Nick Holmes looks at the features of Justice online
Online extras
  • Probate – Celia Fraser describes the benefits of Probate Plus probate administration software from Law Systems Ltd
  • Social networking – Joe Reevy of LegalRSS tells us not to let the pursuit of data get in the way of networking

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/.

Monday, September 08, 2014

Family Lore Clinic: When can an uncontested divorce be launched in the UK?

The first thing to say here is that the law is not the same in all parts of the UK. In particular, Scotland has its own divorce laws. I can only speak for the law in England and Wales.

The second thing to say is that no divorce proceedings may be issued before the expiration of the period of one year from the date of the marriage. This is so whether or not the divorce is contested.

Which brings me on to my third point. Whether or not a divorce is contested does not, strictly speaking, affect when it can be issued. I suspect, however, that the asker of the question may have been referring to a divorce by consent, after two years' separation. In that case, of course, the divorce petition cannot be issued until the two year period has expired (the two year period can begin during the initial year of the marriage).

Similarly, if the divorce is to be on the basis that the parties have been separated for at least five years, then the divorce cannot be issued until the expiration of the five year period, and when (very unusually) the divorce is to be on the basis of two years' desertion then it cannot be issued until the expiration of the two year period.

Otherwise, if the divorce is to be on the basis of the other party's adultery or unreasonable behaviour, then it can simply be issued at any time after the expiration of the period of one year from the date of the marriage.

If you would like any further information or advice about when to issue divorce proceedings, you should consult an expert family lawyer.

Friday, September 05, 2014

Forget transparency and bring back legal aid: My week on the Marilyn Stowe Blog

My scribblings this week on Marilyn Stowe’s Family Law & Divorce Blog include:

What exactly is ‘transparency’, and do we need it anyway? - In which I suggest that transparency is a beauty pageant that the family justice system shouldn't be in, and can't win anyway.

Important cases: Charman v Charman - A quick look at the case that involved the largest ever award in a contested application for financial remedies following divorce in this country.

Use a professional – so long as you don’t need legal aid - Commenting on the Law Society's latest ad campaign.

The continuing effect of the legal aid cuts - I unapologetically continue to bang on about the cuts that created an underclass of people who do not have proper access to justice.

Have a good weekend.

Tuesday, September 02, 2014

K (Children): "Suffused with anger and arrogant position taking"

Lord Justice Ryder
I'm not going to do a full summary of this one - I'm sure others more exalted than me are already sharpening their keyboards with a view to writing something far more learned than I could achieve. Instead, I just wanted to highlight some of what Lord Justice Ryder had to say about the difficulties involved in dealing with private law children disputes where the parents are more concerned with fighting each other than with the welfare of their children. I would like to think that those who are quick to criticise the family justice system would read Mr Justice Ryder's words before launching another attack on the system, but I hold out little hope of that.

The case concerned two boys, now aged 14 and 12. Their parents separated in 2004 and the boys remained with their mother. Their parents have been litigating over them ever since, predominantly regarding the father's contact with them. On the 3rd of June last the Family Court ordered that they be removed from their mother's care, with the older boy placed with foster carers and the younger boy placed with his father. The mother appealed, and the Court of Appeal allowed the appeal in part and set aside the Family Court's orders, Lord Justice Ryder giving the leading judgment.

In the course of that judgment Lord Justice Ryder had a number of things to say about the parents and the problems faced by the court. Firstly about the decision made on the 3rd of June:
"The decision taken by the judge was an exercise by her of the ultimate protective functions that are available to the family court when it is exercising its private law children jurisdiction. Those functions have rightly been the subject of anxious and rigorous scrutiny in this court but it should not be forgotten that this decision, like others that have to be taken every day in the family court, was made in the context of asserted urgency of the most immediate nature relating to the safety of the boys concerned, poor quality evidence and little or no time to reflect upon the judgment that was to be made. Although, as I shall describe, this court allowed the appeal in part and set aside the orders made, we did so without criticism of anyone."
The judge's difficulties were exacerbated by the father not having legal aid:
"The judge in this case was not well served by the evidence or the problems created in part by the history of the case and the supposed urgency of the situation. The circumstances that dominated the hearing were not those which were the most important in the case and she was left to make a decision with poor quality material. Although articulate and intelligent, the father was a litigant in person who would have been simply unable without legal assistance to pursue the legal issues that have been pursued before this court. I question whether in the absence of legal representation he is able properly to put forward a sustainable position to the court."
As to the conduct of the parents:
"Mother should not and must not continue to believe that she can override the repeated conclusions of the court. It is, as the court has repeatedly said, desirable that the boys should have a close parental relationship with their father. The mother's approach has contributed to the damage that has been caused to the boys' emotional welfare. This cannot continue. The father must understand that the court cannot achieve the impossible. He has been responsible for at least some of the conflict that exists and the boys have suffered because of that."
He continued:
"The problem in this case is the maintenance of a meaningful relationship between the boys and their father. As is too frequently the case, the problem was caused by the parents of the children who are locked into a damaging, deteriorating spiral of conflict which desperately needs to be resolved. Without that resolution, whatever the court orders and no matter what steps are taken to enforce the court's orders, harm will continue to be caused to the children. Cases of this kind are unhelpfully and generically referred to as 'implacable hostility' cases because of the parental conflict that exists. The label provides no insight into or assistance with the myriad of circumstances and features that such cases present."
He concluded powerfully:
"In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot - its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be 'allocated' to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court's decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies."

Just so long as you don't need legal aid...

Law Society advertising campaign highlights “regulated and insured” professionals - Legal Futures, 1st September 2014