Munby puts the boot in...

Government ‘washing its hands’ of legal aid problem for vulnerable parents - The Guardian, 31st October 2014

Of ornithology and omnibuses

This week on Marilyn Stowe’s Family Law & Divorce Blog I spotted a bird and some buses, but I couldn't find any sign of a plan:

It's called planning - Or rather lack of it - the government's shambolic handling of the legal aid debacle.

An unusual and surprising case - AA v TT, as described by Mr Justice Holman.

Sacrificing fairness (and a parrot) on the altar of certainty - Considering the recent speech by Sir Nicholas Mostyn to Jordan's family law conference.

Definitely not a dull day... - Especially if you fancy a bus trip. Or, a day in the life of a family law reporter.

Have a good weekend.

Justice Minister visits largest mediation provider as new ‘free mediation’ scheme is set to begin

Simon Hughes and Jane Robey prepare NFM information leaflets for despatch

Justice Minister Simon Hughes met mediators and helpline staff during a visit to the head office of National Family Mediation (NFM), England and Wales’ largest provider of family mediation.

With a new government scheme to fund more free mediation sessions set to begin on 3 November, the Minister heard how NFM expects a further rise in demand for its family services.

Mr Hughes helped Chief Executive Jane Robey prepare some of the charity’s information leaflets for despatch to families to help them learn more about what family mediation can offer (see picture above).

The new government scheme will fund a free mediation session for both people involved in a separation even if just one qualifies for legal aid.

“We expect demand for mediation services to further increase during November,” said Jane Robey. “This new scheme can help thousands of people across England and Wales take a vital first step to unlock an understanding of what family mediation can achieve. Mediation puts families in control of their post-separation future instead of handing it over to clogged family courts. It’s a much quicker, less confrontational and a more cost effective way of settling family breakdown.”

Family Justice Minister Simon Hughes said: "We know mediation works and we are committed to making sure more people use it rather than go through the confrontational and stressful experience of court. That is why we are funding single mediation sessions for both parties if one of them is already legally aided.

"I was extremely pleased to visit NFM in Exeter and see and hear about the great work they do in helping separating couples resolve disputes about children or money. I was also delighted to hear that the number of people contacting their helpline has soared since we introduced compulsory mediation in April."

Child-inclusive mediation

The Minister also outlined plans to ensure children themselves are given a far greater role in shaping arrangements that affect their own future following a family breakdown.

“Too often post-divorce family arrangements pay scant attention to the needs of children themselves, especially where these arrangements are handed down by a court,” said Jane Robey. “This is one of the main reasons the first NFM mediators, over 30 years ago, developed the practice. We very much look forward to being involved in the Ministry of Justice’s future plans to promote child-inclusive mediation and having the opportunity to share our unique expertise in this area.”

During the afternoon visit (28 October) Mr Hughes met NFM mediators and staff who answer calls on the NFM telephone helpline, demand for which has soared during 2014. The 0300 4000 636 helpline has taken an average of 2,300 calls per month since April, when a change in the law made it compulsory for people who are seeking a post-separation court order to first attend a mediation awareness meeting.

Other issues covered during the meeting included:

• The challenges faced by mediators over the past 18 months following changes to legal aid entitlement
 
• the successful ‘in-court mediation’ pilot project being run by NFM in Herefordshire, Berkshire and West Yorkshire 
 
• NFM’s unique ‘Gold Standard’ training and accreditation programme

Commenting further on the new free mediation scheme, Jane Robey added: “Separating people are often reluctant to pay for family mediation, especially so when they know the other person – their ex – is getting it for free. They rarely understand exactly what they will be paying for and, since mediation is usually an unknown quantity, they are unsure it will work.

“Getting people into the mediation room with open minds can be amongst the biggest challenges. Confidence in a previously-unknown process usually blossoms as people begin to understand and accept the potential of family mediation to help them shape their family’s future in an affordable way and with agreements being reached in seven out of ten cases that is proof enough that mediation works.”

As a divorce lawyer, I could not possibly approve of this shampoo commercial

Well, that's not a headline I ever expected to write. In China, however, a commercial that ambitiously attempts to sell shampoo whilst simultaneously reducing the divorce rate there has reportedly been viewed more than 40 million times in the past month. Glad I never opened that Beijing branch office...

If you can bear four and a half minutes of sickly romance, here's the ad:

Jack Bruce

It was with great sadness that I just learned of the passing of the great Jack Bruce. As my small tribute, here he is playing one of my favourite Cream songs:

Bad ideas, and other things

No, I'm not referring to my post ideas this week on Marilyn Stowe’s Family Law & Divorce Blog, which included:

A couple of bad ideas - The parenting presumption and making recipients of child support account for how they spend the money.

There’s more than one way to settle a dispute - Mediation is far from the only way.

Momentous and difficult decisions - As made, for example, by Mr Justice Mostyn in D (A Child).

Imprisonment for a debt - Looking at the judgment summons decision in Prest v Prest.

Have a good weekend.

That'll do the trick...

Initiative promises legal advice for those without lawyers in courts - The Guardian, 23rd October 2014

Family Lore Clinic: My ex has informed me she intends to stop contact - can I apply to the family court before this happens?

Just to be clear for anyone who doesn't understand it, the question here is: do I have to wait until my former partner stops me from having contact with my child before I apply to the family court for an order that I have contact?

The answer to the question is, quite simply, no you do not have to wait until the contact is stopped.

There is a rule that essentially says that a court should not make an order relating to a child unless it is required, so the court may not be prepared to make an order if satisfactory contact is taking place and there was no 'threat' to stop it. However, once such a threat has been made, the court is likely to take the view that an order is required (provided, of course, that the court considers that there should be contact, which it will in the vast majority of cases).

I should also mention that contact orders no longer exist. They and residence orders were recently replaced with 'child arrangements orders', which deal with arrangements both relating to with whom the child is to live and with whom they are to have contact.

I would strongly recommend that, before you make an application to a family court for an order, you seek the advice of an expert family lawyer.

Would you let this man operate on you?

“No disadvantages” in being a non-lawyer Lord Chancellor, Grayling says - Legal Futures, 15th October 2014

An enjoyable week

I particularly enjoyed writing my posts for Marilyn Stowe’s Family Law & Divorce Blog this week. I hope you enjoy reading them:

A worrying trend in children cases - Looking a little more deeply at the latest private law demand figures from Cafcass.

A system based on a fallacy - The fallacy that underpins the government's family justice policy.

The future of family law - A look at the President's speech at the 2014 Legal Wales Conference, plus a few predictions of my own.

When is a judge biased? - A post that tries to answer that question.

Have a good weekend.

Family Lore Clinic: Can I refuse a clean break agreement?

A 'clean break' is a final financial/property settlement between husband and wife that brings to an end all on-going financial obligations between them. After a clean break order has been made neither party can make any further financial/property claims against the other.

In particular, after a clean break neither party can claim maintenance from the other. Accordingly, a settlement that includes a provision for one party to pay maintenance to the other is not a clean break.

An order containing a clean break provision may include other provisions - i.e. the order sets out various other terms of the settlement - or it may include no other provisions, essentially just saying that each party will keep what they have.

Obviously, if one party refuses to enter into an agreement then there is no agreement. However, I assume that the questioner was seeking a little more information than that. There are, I think, two possible issues that they had in mind:

Firstly, do they have to agree to the other party's terms for a clean break agreement (whether or not those terms include other provisions)? The answer to this is: definitely not! You cannot be forced to agree to the other party's terms, although obviously the court may later consider that they were reasonable and make an order in those terms.

Secondly, and this is the most likely point of the question, does a settlement have to include a clean break? Again, the answer is no. Whilst the majority of settlements do include a clean break, in some cases a maintenance order will be appropriate and therefore there should not be a clean break.

Whether or not a maintenance order is appropriate depends upon the facts of the case. For detailed advice as to whether it would be appropriate in your case, you should consult an expert family lawyer.

Pointless

s11 C&FA (parental involvement) due to come into force on 22/10 according to President's Office - FLBA, 13th October 2014

A bit of a Downer*

Mr Justice Mostyn

A very quick post about Bakir v Downe [2014] EWHC 3318 (Fam), which contains a warning for litigants in person. It concerned a husband, unrepresented by choice, who wrote to Mr Justice Mostyn's clerk on a number of occasions, including seeking an explanation of why an undertaking that he has given was included in an order, despite the fact that he had not signed the general form of undertaking.

Mr Justice Mostyn took a dim view of the husband's actions:

"The courts are now being visited with an increasing number of informal applications made by litigants in person ... I am taking the opportunity in this judgment ... to explain, both for the benefit of Mr. Downe and for any other litigants in person, that the court does not afford any indulgences or deviations to the litigants in person from the clear procedure that is prescribed for ... all applications that are made to the court. The court is not some kind of advice bureau for the benefit of litigants in person who do not understand how orders have been made. If a litigant in person wishes to make an application to the court, then he must do so in accordance with the procedure laid down by the law of the land."

Mr Justice Mostyn treated the husband's correspondence as an application, which he promptly dismissed, with costs.

*This pun is entirely the fault of @nickholmes - blame him.

The best and the worst

My writings this week on Marilyn Stowe’s Family Law & Divorce Blog have looked for (but not necessarily found) the best and the worst in family law. They include:

What exactly is a special guardianship order? - SGOs have been in the news lately, so I though a little explanation would be helpful.

The best family justice? - It's what Family Justice Minister Simon Hughes says he wants, but are we getting it?

A financial disaster - Looking at the disastrous facts of Mekarska v Ruiz & Another.

Important cases: Hildebrand and Imerman - Looking at the 'self-help' cases Hildebrand v Hildebrand and Tchenguiz & Others v Imerman.

Have a good weekend.

Simon Hughes promises support for litigants in person...

Simon Hughes: help promised for unrepresented litigants (but no lawyers and no more money) - Legal Voice, 8th October 2014

MoJ Family law guidance

I just came across these videos on the MoJ's YouTube channel. They were uploaded a year ago, but I don't recall noticing them previously. In any event, they don't seem to have been viewed much, so I thought they could do with a bit more publicity, especially in these days of 'do-it-yourself' family law. There are 7 videos in total, covering parental responsibility, separation, getting together (i.e. pre-nups etc.), financial issues, domestic abuse, divorce and dissolution and children and separation. You can either click the arrow and play them all, or click the drop-down playlist and watch only the ones you are interested in. Bear in mind that the videos are no longer quite up to date so, for example, video 7 refers to residence and contact orders, rather than child arrangements orders.

Time Lord

Munby decides that 2 years doesn't breach 6 month time limit - X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) (03 October 2014)

Who said it wouldn't last?

As Marilyn herself tweeted, who said it wouldn't last? This week has marked a year since I began writing for Marilyn Stowe’s Family Law & Divorce Blog.To celebrate the event, I wrote a post on Wednesday re-visiting some of the highlights of my year there.

My other efforts this week include:

Vilified for going to court - In which I suggest that the government, in its eagerness to save costs, appears to be encouraging a culture of vilification of those who go to court to resolve their family disputes.

Some common sense about transparency - Looking at the report Safeguarding, Privacy and Respect for Children and Young People & The Next Steps in Media Access to Family Courts.

Important cases: Haines v Hill & Another - A look at the bankruptcy case Haines v Hill.

After all of that I shall now award myself the next two days off. I suggest you do likewise.