Friday, November 28, 2014
My posts this week on Marilyn Stowe’s Family Law & Divorce Blog concentrated upon the work of family lawyers and judges:
The unsung heroes (and heroines!) of pro bono - Credit where credit's due.
Every week is dispute resolution week - Not just this week!
Getting to the truth - As demonstrated in Colborne v Colborne.
A tangled web - As in the case X v Y.
Have a good weekend.
Thursday, November 27, 2014
I'm not quite sure if this video, created in connection with Resolution's Family Dispute Resolution Week 2014, does the job: it tells the viewer that there is a better way to separate, but doesn't say what it is, simply ending with a link to Resolution's website. It would have been nice if the viewer did not have to go to the site to find out the alternatives to court: negotiation, mediation, collaborative process and arbitration. Still, the message of how damaging divorce can be for all concerned, particularly the children, is powerfully put forward:
Monday, November 24, 2014
Financial Remedies Practice, 2015 Edition
The @eGlance Guide
£99.95 - Published by Class Legal: November 2014
£99.95 - Published by Class Legal: November 2014
I'm afraid I don't have time at present to do a full review of this, the fourth edition of Financial Remedies Practice, so here instead is a quick 'mini review'.
For details of previous editions and what the book is about (the title is rather self-explanatory, even if one of the authors, Mr Justice Mostyn, insists (quite correctly) upon still referring in his judgments to 'financial remedies' as 'ancillary relief'), see my previous reviews here, here and here.
Key changes in the 2015 edition are listed on the back cover as follows:
- a "major overhaul to bring the book up to date with the momentous changes wrought by the implementation of the single Family Court and the continuing flow of important cases";
- the revised PD 27A relating to bundles and the restraints on pagination, extent and other matters now being vigorously enforced by the judiciary;
- the ‘Statement on the efficient conduct of financial remedy final hearings’ now in operation when the hearing is before a High Court judge;
- changing approaches to sanctions for breach of procedure in the wake of the CPR decisions in Mitchell & Denton;
- media reporting of financial remedy cases and the Judicial Proceedings (Regulation of Reports) Act 1926;
- ongoing changes to allow for family arbitration; and
- the Commentary has been thoroughly revised to explain and clarify all aspects of the new Family Court procedures such as gatekeeping, allocation and routes of appeal.
Contradicting what I said in my review of the last edition, the book has actually shrunk from 713 to 665 pages. I'm not entirely certain how this has been achieved, as the coverage of the subject appears to be as comprehensive as ever. I don't know whether this is a case of 'less is more', but personally I find it somewhat a relief that a textbook has reduced in size.
Another obvious change is that the book, along with the updates at www.familyprocedure.com now seeks to cover one calendar year rather than straddling two, which I think is less confusing.
As I said above, this is not intended as a full review. However, my short time with Financial Remedies Practice 2015 confirms what I said in my last review: "if you specialise in financial remedies ... then FRP certainly seems to be approaching the status of 'essential', as claimed on the back cover."
Financial Remedies Practice is available from Class Legal here. As with the last edition, a £20 discount is available if it is purchased along with Class Legal's @eGlance electronic toolkit and resource for money cases.
Friday, November 21, 2014
No doubt many of you will be disappointed at the by-election result. Still, I'm sure Hairy Knorm Davidson will get another chance. Meanwhile, why not take your mind off of things by reading my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which include:
Relentless litigation... again - As demonstrated by the case Lindner v Rawlins.
Completing the circle - Confirming the obvious: those who provide legal advice will have to be trained, regulated and insured.
Breaking the cycle of incessant litigation - A few ideas that might help.
The complexities of modern family relationships - As demonstrated by the case C v S.
Have a good weekend.
Thursday, November 20, 2014
Nothing whatsoever to do with family law, but for a child of the Apollo era who has long been disappointed by the subsequent loss of public interest in space, here is something that will hopefully re-invigorate the older generation and inspire the younger:
For more information about Lunar Mission One, go to the website, here. To make a pledge towards the project, go here.
For more information about Lunar Mission One, go to the website, here. To make a pledge towards the project, go here.
Wednesday, November 19, 2014
As usual, the term 'consent order' is taken here to mean the order setting out the agreed financial/property settlement on divorce. In fact, what follows applies equally if the settlement order is not made by agreement, but imposed upon the parties by the court.
So long as the divorce has been finalised, the death of either party will generally have no effect upon the terms of the order, and those terms can therefore still be enforced. The exception to this is any maintenance order, which will terminate upon the death of either party (although any unpaid arrears of maintenance prior to the death should still be recoverable). Other orders, such as orders requiring one party to pay a lump sum of money to the other, can still be enforced.
When a person dies their financial affairs will be handled by their personal representative, who will administer the estate and apply for probate. It will be their responsibility to discharge any liability of the deceased party under a consent order. Accordingly, if you want to enforce an order against a deceased party, you should contact their personal representative. The personal representative will usually be a close relative of the deceased, or their lawyer. If probate has been granted, you can find out who they are by searching for a will or probate record here, although you may need to act before probate is granted, as the deceased's estate can be distributed once probate has been granted.
If you require further information or advice regarding enforcing a consent order where the other party has died, you should consult a specialist family lawyer.
Monday, November 17, 2014
Mostyn J calls for fixed pricing in ancillary relief cases - Family Law Week, 17th November 2014
(I hasten to add that the above is not directed specifically at Mostyn J, whose views on costs caps prior to being appointed to the Bench are not known to me.)
Saturday, November 15, 2014
|John Hemming MP|
This was essentially a challenge to the decision of Theis J in London Borough of Ealing v Connors to commit Margaret Connors to prison for 28 days for contempt of court, for breach of a collection order. The challenge took the form of an application for a writ of habeas corpus. Collins J refused to issue the writ, describing the application as being "hopeless" and "entirely misconceived". The matter was then appealed, and the President, giving the leading judgment in the Court of Appeal, agreed that the application was devoid of merit.
The application for the writ was issued by campaign group Justice for Families Ltd, whose Chairman is John Hemming MP. Mr Hemming appeared before Mr Justice Collins, but did not fare well, as this extract from the transcript indicates:
"MR JUSTICE COLLINS: … there is no possible remedy through habeas corpus because habeas corpus only goes to whether there is a lawful sentence and there is a lawful sentence. And there is a right to appeal, an absolute right to appeal.
MR HEMMING: Yes.
MR JUSTICE COLLINS: For which legal aid is granted. She was represented by counsel and solicitors at the hearing before Mrs Justice [Theis]. You come along without any instructions, without having contacted her, without even knowing who she is --
MR HEMMING: Without the ability to contact her. That's right.
MR JUSTICE COLLINS: You know nothing about the background to the case. And I am afraid this is an interference which is totally unnecessary because her interests are protected by her representation. She may have purged her contempt for all I know.
MR HEMMING: Yes, we don't know, do we.
MR JUSTICE COLLINS: No, we don't
MR HEMMING: And that's the difficulty of the situation of people in prison in secret --
MR JUSTICE COLLINS: You could easily have got a copy of the committal order from the clerk of the rules.
MR HEMMING: So that's what you recommend, basically.
MR JUSTICE COLLINS: Well, you can get it but I am afraid habeas corpus is hopeless --"
|Sir James Munby P|
Moving on to the grounds of appeal (which can be found listed in paragraph 11), the President found that there were two very simple reasons why the appeal was quite hopeless:
Firstly, habeas corpus does not lie to challenge a sentence of imprisonment imposed by a court of competent jurisdiction. The proper remedy in such a case is appeal.
Secondly, the mother had been discharged from prison on the expiry of her sentence before the application for habeas corpus was made. Since the only issue on an application for habeas corpus is to determine the legality of the detention, habeas corpus will not lie if the detention has already been brought to an end.
In the circumstances, the appeal was dismissed.
That, however, was not the end of the matter. As the President pointed out, Mr Hemming's wider complaint related to the fact that, according to his own investigations, many committal judgments have not been published (on BAILII), as required by the practice guidance. "This, if true," said the President, "and every indication is that unhappily it is true, is a very concerning state of affairs." The President therefore reiterated the guidance, and gave further gudance regarding the listing of cases where there is no committal application before the court.
The President did, however, add one final observation:
"I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly [these were other arguments put forward by Mr Hemming] or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound."
Friday, November 14, 2014
Another mixed bag of topics pontificated upon by yours truly this week on Marilyn Stowe’s Family Law & Divorce Blog included:
The liability to support children - And the consequences for failure to do so.
Reaching a conclusion from the wrong direction - The issue of McKenzie Friends, particularly those who charge for their services.
Running up costs… and paying them - A look at the cases J v J and SB v MB.
Challenge to Scottish named person scheme - And my views on the scheme.
Have a good weekend.
*For those too young to understand the reference in the title, Jamboree bags were bags of mixed sweets and toys purchased by children in my youth - you never knew what you got until you opened them. Happy days.
Wednesday, November 12, 2014
|Mr Justice Mostyn|
Firstly, fixed pricing for cases. Sir Nicholas referred to two quotes from Lord Neuberger's 2012 lecture to the Association of Costs Lawyers:
"Hourly billing at best leads to inefficient practices, at worst it rewards and incentivises inefficiency. Moreover, it undermines effective competition in the provision of legal services, as it 'penalizes . . . well run legal business whose systems and processes enable it to conclude matters rapidly.' It also penalises the able, those with greater professional knowledge and skill, as they will tend to work at a more efficient rate. In other words, hourly billing fails to reward the diligent, the efficient and the able: its focus on the cost of time, a truly moveable feast, simply does not reflect the value of work."and:
"That no-one has suggested a viable alternative is something which needs to be remedied, and the sooner the better. An approach to litigation costs based on value-pricing rather than hourly-billing is one which urgently needs to be worked out and applied. Rather than treating time as the commodity which is being sold, we should be adopting an approach where skill and experience are the commodities which are sold."Sir Nicholas envisages fixed pricing for all types of cases, but so far as ancillary relief (he still uses the term) is concerned he suggests a fixed price for each of the three phases of an ancillary relief case namely (1) Form A to First Appointment, (2) First Appointment to FDR and (3) FDR to trial.
The second measure is "for the court in ancillary relief proceedings to be able to impose at the very beginning of the case a costs cap on what may be charged by the lawyers to their client for each of the three phases of the case." "Naturally", he says, "this cap would be variable if circumstances change but the change of circumstances would have to be a big one for a variation to be allowed."
"In my opinion only if these two steps are taken will the grotesque leaching of costs, such as has occurred in this case, be arrested. It might also have the beneficial consequence that the present volume of self-representation deriving from the wholesale withdrawal of legal aid from private family law cases is reduced. If a litigant on the cusp of self-representation knew at the start of the case how much it was going to cost for each phase then he may well opt for representation. The benefits of representation are too obvious to spell out extensively. Far more cases with the benefit of representation settle, with the resultant avoidance of the legacy of heartache that contested litigation engenders. Those cases that do fight will be on rational and properly pleaded justiciable issues. The lengthy delays in the court system caused by the explosion in self-representation may be reduced."Difficult to argue with that.
For those lawyers worried about these proposals, he returns to Lord Neuberger:
"The drive for lower legal costs should represent an opportunity for forward thinking lawyers. If litigation is cheaper, elementary economics suggests that there will be more of it. Rather than charging high in a few cases, and driving away those with valid claims from the courts, lawyers should be able to charge realistic fees, and encourage many more clients to instruct them to fight their case. So, significantly lower legal costs should not lead to less money for lawyers, but it should lead to better value for money, and should give to our citizens what so many are currently denied, namely access to justice."In an effort to prevent his words from simply adding to the dusty pile of "something must be done" rhetoric, Sir Nicholas stated that he would be bringing his judgment to the attention of the President, with a view to him raising 'this pressing matter' as a matter of urgency with the Family Procedure Rules Committee.
Monday, November 10, 2014
The latest issue of the Internet Newsletter for Lawyers is now published.
In this issue
- Marketing – Chris Davidson of Curated Media explains how to generate business through content marketing
- Document drafting – Ann Hemming of LexisNexis on how web technologies can improve document production processes
- Customer reviews – Daniel Kidd shows how to set up customer review services and incorporate them on your site
- Chambers websites – Natalie Hearn of Matrix Chambers describes the new Matrix International brand and website
- Privacy – Paul Bernal reviews where we are 6 months on from the Google Spain ruling
- Technology – Alex Heshmaty looks at wearable technology and how it can be used by lawyers
- Resources – Delia Venables on international legal resources
- A brief update on BAILII
Access the Newsletter online
Friday, November 07, 2014
This week my efforts on Marilyn Stowe’s Family Law & Divorce Blog included discussion of four cases:
Justice denied - As explained by the President in D (A Child).
Callous and cruel - Mrs Justice Hogg's description of a father's behaviour in H (A Child).
Arrangements following marriage breakdown should be handled like a family funeral - The excellent advice of Mr Justice Weir in the Northern Ireland High Court case O'H v O'H.
Staying the course for contact - Better than what the father did in F (Children; Contact, Name, Parental Responsibility).
Have a good weekend.
Wednesday, November 05, 2014
There should be no order for costs in children's proceedings absent unreasonable behaviour in the conduct of the litigation
|Lady Justice Gloster|
This was an application by the appellant mother for permission to appeal against three paragraphs of an order made in private law children proceedings. Two of those paragraphs related to the transfer to the father of two trust funds for the children, but it was conceded on behalf of the father that the mother's appeal should be allowed in respect of those paragraphs. I will only therefore consider here the mother's appeal against the third paragraph, which ordered her to pay the father's costs of the proceedings, amounting to some £25,000.
Briefly, the history of the matter was as follows. The parties married in 1997 and had two children, a daughter TL who was born in April 2000 and a son, BL, who was born in June 2003. The marriage ran into difficulties in 2007 and in December 2007 the mother and children moved to rented accommodation. After the breakdown of the marriage, there were years of litigation between the parties involving, amongst other things, Children Act applications. Lady Justice Gloster, giving the leading judgment in the Court of Appeal, takes up the story:
"Until February 2013, TL lived with the mother and had made it clear that she did not want any contact with her father. There was thus no contact between TL and the father from 2009 until 2013. Litigation between the mother and the father focused on the son, BL. A previous residence application relating to BL was concluded at a final hearing before DJ Willis on 15 May 2012. By an order of that date he ordered that BL was to reside with the father and to have contact with the mother. Whilst this proposal was supported by the then allocated CAFCASS officer, a Mr B, the decision was apparently contrary to the repeated and recorded wishes of BL, who stated he wanted to live with his mother and sister. In the light of the history of the case, DJ Willis prohibited both parties (pursuant to s91(14) of the Children Act 1989) from applying for an order under s8 in respect of BL without the leave of the court for a period of 5 years."Following this:
"The contact arrangements as ordered by DJ Willis broke down on a number of occasions when either BL refused to return to the father's care after contact with the mother and TL, or he refused to go to school on occasions when he was due to be collected from school by the father. This prompted the father to seek to make applications on 19 November 2012 to vary the contact order made by DJ Willis and prompted the mother to seek to apply for a residence order in relation to BL. At a hearing on 27 November 2012, DJ Willis gave leave for both parties to make applications in relation to BL and transferred the case to the Bournemouth County Court."There then followed a significant change of circumstances. Early in 2013 TL, having had various arguments with her mother, recommenced contact with the father, and within a week of doing so, expressed a wish to live with the father. Following this, the Guardian reported, proposing that both children should primarily live with the father.
In the light of this, the mother's solicitors wrote to the father's solicitors proposing that a consent order be drawn up withdrawing her application, granting residence of TL to the father, leaving her contact with the children undefined and vacating the final hearing listed for the 25th of March 2013. The father refused, saying that he wanted the question of contact to be resolved at the final hearing.
That hearing therefore went ahead. However, as she had conceded residence of both children and did not seek any order for contact in the light of her express wish that this should be done on informal basis, the mother did not attend and was not represented.
At the hearing residence orders were made in favour of the father in respect of both children although, significantly, no formal contact order was made. The father sought, and was granted, an order that the mother pay his costs since the order of the 15th of May 2012, on the basis that her conduct of the litigation since then was unreasonable.
The mother appealed, on two grounds: firstly, that she had been given insufficient notice of the father's application for costs and secondly submitting that the judge erred in failing to follow the presumption that there should be no order for costs in children's proceedings absent unreasonable behaviour in the conduct of the litigation justifying such an order.
The mother succeeded on both grounds.
There was no indication in the correspondence that the father would seek costs and there was no evidence before the judge that could have provided him with any confidence that the mother, by then an unrepresented litigant in person, anticipated that the issue of costs was going to be raised contentiously on the 25th of March 2013. At the very least, the judge should have afforded the mother an opportunity to make representations to the court, but he did not.
As to the second ground of appeal Lady Justice Gloster said:
"In my judgment there was no basis in the present case for the judge concluding that the conduct of the mother in the conduct of the litigation since May 2012 was in any way unreasonable or reprehensible. Certainly there was nothing in her conduct that justified an adverse order for costs against her contrary to the normal principles in child care proceedings."The mother had been granted specific leave by DJ Willis on the 27th of November 2012 to make an application for a residence order in relation to BL - DJ Willis had a detailed knowledge of the parties, the children, the case and the history of the proceedings and yet he considered it appropriate to permit the mother to file an application for residence in relation to the father's application for change in contact. Lady Justice Gloster:
"Although the judge was informed of the order dated 27 November 2012 allowing both parties leave to make their applications, the father's application for costs was argued on the basis that the mother's repeated application for a residence order in relation to BL was an unreasonable application from the start and for that reason she should pay the costs. But that simply was not the case. The judge appears to have given no weight to the fact that the mother's application had been assessed and determined as having sufficient merit to justify leave being granted by DJ Willis. Indeed the mother's cross-application was, at the time it was made in November 2012, clearly in accordance with BL's wishes and feelings..."Further:
"Until February 2013 the evidence clearly suggested that the correct place for BL's residence was a finely balanced issue notwithstanding that the issue had been litigated previously. The true position only really emerged clearly in February 2013 when TL stated that she no longer wished to live with her mother for various reasons. What only then became clear was that it was BL's wish to live with his sister that was the driving force behind his wish to live with either his father or his mother, as the case might be. I therefore accept ... that it was incorrect of [counsel for the father] to suggest ... that the most recent proceedings were "essentially re-litigating for the third time matters which had been resolved [in] two previous proceedings with no substantive change in circumstances." That was not the correct characterisation of the proceedings."She went on:
"...in reality, and in a difficult situation where the mother was clearly having problems with both TL and BL, she acted in accordance both with the conclusions of the professionals and the change of views held by her children. I agree she took all reasonable steps to avoid the need for a final hearing."She concluded:
"In my judgment there is nothing in the mother's conduct of the proceedings that could be characterised as unreasonable or reprehensible. She was faced with extremely difficult problems relating to the residence and schooling of her children; the fact that she may have had inadequacies as a mother in dealing with her children was no reason for visiting the costs of these proceedings on her. When it came to the point, she reacted proportionately and fairly and sought to save costs. The fact that she is not currently having contact with the children but hopes to do so in the future once emotions have settled, is in itself no reason for visiting the costs of these unfortunate proceedings on her. Accordingly I conclude that it was wrong in principle and on the facts for the judge to have made an order for costs against her."Lord Justice Kitchin and Lady Justice Black gave concurring judgments. Accordingly, the mother was granted permission, her appeal was allowed and the offending paragraph of the order was replaced with no order for costs.
Family Lore Clinic: Am I still able to claim half of my ex's pension if he remarries, as we don't have a clean break agreement?
OK, I will assume that by 'clean break agreement' the asker of this question means a court order including a clean break, i.e. dismissing all (further) financial/property claims by either party against the other. Obviously, once such an order has been made neither party can make any such claims against the other.
Before the clean break order is made, however, all financial claims, including pension claims, can still be made, irrespective of whether the other party has remarried. The answer to the question is therefore 'yes'.
To give a little more detail, the asker of the question was probably concerned about the so-called 'remarriage trap', whereby a party to a divorce cannot make a financial claim with reference to that divorce after they have remarried. This does not, however, affect the other party's right to make a claim, and nor does it prevent the party who has remarried from proceeding with a claim that they commenced before they remarried.
All of the above simply means that the asker of the question can claim half of their former spouse's pension. Whether that claim would be successful is, of course, another matter, and depends upon the facts of the case.
If you think that you may have a claim against your former spouse's pension (or, indeed, any of their property) then you should seek the advice of an expert family lawyer.
Monday, November 03, 2014
Separating couples get vital new tool to resolve post-separation futures - without a courtroom drama
A new initiative to provide free family mediation will give many couples in England and Wales a vital new tool to resolve their own problems after they separate, rather than relying on high-fee divorce solicitors, says the largest provider of family mediation.
A new government-funded scheme, effective today (Monday 3 November) will fund a free mediation session for both people involved in a separation even if just one qualifies for legal aid. Previously only the legally aided person was entitled to have the session for free, and the other person had to pay.
“We know from 30 years’ experience that family mediation works and provides lasting solutions, with full agreements being reached in seven out of ten cases – without the need for a courtroom drama,” says Jane Robey, Chief Executive of National Family Mediation (NFM).
“Getting people into the mediation room with open minds can be amongst the biggest challenges,” she adds. “Confidence in the process blossoms as people start to understand and accept that family mediation can help them shape their family’s future in an affordable way.
”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 family courts. It’s a much quicker, less confrontational and a more cost effective way of settling family breakdown.
“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, are quite apprehensive about coming since mediation is usually an unknown quantity, they are unsure it will work.”
Family Justice Minister Simon Hughes met NFM mediators during a visit to its head office last week and to hear how the new scheme means demand for the service is likely to increase.
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.
Demand for the NFM telephone helpline has soared during 2014, taking 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.