Thursday, July 30, 2015

Re D: Relieving the child from the maelstrom of his parents' destructive relationship

Lady Justice King
A brief note upon Re D (A Child) [2015] EWCA Civ 829, a father's appeal against an order refusing him contact with his six year old son ('OD').

The facts: The parents lived together between January 2007 and April 2009, separating when OD was only a few weeks old. His parents' animosity towards each other has meant that he has been at the centre of litigation since February 2010, culminating in  an order made by His Honour Judge Yelton on the 23 October 2014 whereby the judge dismissed the father's application for a child arrangements order and specifically an order for contact. The father appealed against this order.

The decision: Lady Justice King gave the leading judgment of the Court of Appeal, where neither party was represented. Essentially, the father had two grounds of appeal:
"...first that the court should not prevent contact "because the parents do not get on"; and secondly that this is a case of what the father calls "PAS" (which must be taken to be a reference to so called parental alienation syndrome). His case is that the mother must not be allowed to prevent contact by dint of having alienating OD from his father."
The father effectively asked the court to adopt the contents of the judgment of Christopher Clarke LJ, who had given the father permission to appeal, believing that contact was stopped by the judge "because of the negative influence of the mother's views on the child". However, as Lady Justice King pointed out, that belief was erroneous, as the father had failed to file documents which did not support his case, in particular reports of the Cafcass officer, who had found that OD's clear wish not to see his father had not been the result of coaching by the mother:
"The judgment [of Christopher Clarke LJ] is a paradigm example of the difficulties in which a judge is placed when a litigant in person, either through lack of understanding of the process as a whole, or a misplaced belief that it is acceptable only to file documents which they believe will support their case, fails to put before the appeal court relevant material, and in particular the reports of experts upon which the judge at first instance relied or was influenced."
As to the grounds of the appeal, Lady Justice King did find that it would have been preferable for HH Yelton to have set out his reasons in more detail, but "such an analysis would only have served to reinforce the conclusion he reached rather than undermining the order made". However, as to parental alienation the judge made a finding which accorded with that of the Cafcass officer, namely that the mother had not 'coached' OD although he had "picked up" on the mother's anxiety and negative perception of the father.

The real issue, in Lady Justice King's judgment, was whether the judge, as submitted by the father, refused contact "because the parent's couldn't get on". She said:
"It is undoubtedly the case that the inability of parents to behave in a civilised and co-operative manner towards each other for the sake of their children is not in itself a reason to refuse contact to an absent parent. Equally however there are cases, (fortunately for the children concerned, relatively few and far between), where the level of animosity between the parents and their consequent behaviour, either one towards the other, or to each other, is such that it has had a serious and deleterious effect on the child at the centre of the dispute. In the most extreme cases the harm caused to the child by the behaviour of their parents is such that the intervention of the local authority becomes necessary; in other cases a judge, with the child's welfare as his or her paramount consideration, may, no matter how reluctantly, feel obligated to call a halt to contact for a period of time in order to relieve the child from the maelstrom of his parent's destructive relationship.

The judge, having had the benefit of [the Cafcass officer's] reports and having seen for himself in court the continuing acrimony between the parents, reluctantly concluded that this was one such case and that contact cannot at the moment work for OD "largely because their relationship between the parents is so obviously acrimonious and so clearly permeates all their dealings with each other." His decision was made, not because the parents could not get on with each other, but because of the effect their war of attrition was having on their son."
The judge had made findings consistent with the evidence, and had provided sufficient explanation, supported by the evidence, that at the present time, OD's welfare demanded that there be no contact. Accordingly, the appeal was dismissed.

Lady Justice King added the following postscript to her judgment, which was endorsed by Lord Justice Elias:
"Inevitably in the 9 months it has taken for this appeal to come on, the parents have been able to focus only on the continuing litigation and as a consequence have been unable to reflect on their own individual responsibility for the situation in which OD now finds himself. OD has a further 11 years of childhood and there is still time for bridges to be built, I, for my part, hope that now that the litigation is over, the parents may take time to reflect and perhaps, in due course, have the determination and courage to find a way for OD to have a relationship with both sides of his family and in particular his father."
Such judicial exhortations for parental 'reasonableness' seem to be becoming a regular feature of judgments in private law children cases - one can only hope that they are heeded.

Wednesday, July 29, 2015

Actuaries - Buy One, Get One For Free

Expert pension sharing and offsetting reports are not inexpensive which makes choosing the expert an important part of the instruction process.

Lawyers, mediators and clients are sometimes surprised to learn that the provision of pension reports in divorce and dissolution matters is not in itself a regulated activity. Reports may be produced by individuals or firms who are regulated in respect of some or even all their activities, but in fact anyone can style themselves an expert and produce reports on matters such as pension sharing and offsetting.

Actuaries are the experts of choice when valuing pensions and complex pension sharing calculations are needed. They have a deep understanding of financial systems which along with their data analysis and mathematical skills they use to produce reliable professional reports. As a profession, actuaries are regulated in the UK by the Institute and Faculty of Actuaries. The IFoA maintains high professional standards in various ways, for example by setting mandatory CPD requirements. A robust disciplinary regime underpins the quality of actuarial work and promotes the integrity and competence of members.

Following a consultation process involving the actuarial profession and key stakeholders, the IFoA has introduced new professional guidance on the subject of Work Review. This now forms part of the professional standards that actuaries are required to meet. Although the guidance was published earlier this year it came into full effect from 1 July 2015.

While work review is not mandatory in all cases it is considered best practice where for example the outcome of an actuary’s work will be financially significant for the client. It would be difficult to argue that this does not apply to pension sharing and offsetting reports. As to timing, a work review must be carried out at a time when it is capable of influencing the conclusions and outputs of the work.

As a result of the IFoA guidance all actuarial expert witness reports should now be subject to scrutiny by another person, probably another actuary, before the resulting report is delivered to clients. At BDM, because our actuaries have followed this approach for a number of years nothing changes; neither our working practices nor our fee structure. Others are presumably reviewing their processes, or they should be.

Remember that these changes only relate to actuaries and particularly those who are members of the IFoA; reinforcing the confidence you can have in a pension sharing or offsetting report when it is signed by an actuary who is a Fellow of the Institute of Actuaries (F.I.A.) or Fellow of the Faculty of Actuaries (F.F.A .).

Friday, July 24, 2015

The future's bright?


My posts this week on Marilyn Stowe’s Family Law & Divorce Blog are mostly about the future, which may or may not be bright:

Taking advantage - Are some trying to take advantage of the profession's great tradition of doing pro bono work?

The end of local justice - As the MoJ proposes yet more court closures.

Almost unthinkable - The conclusion reached in the horrendous case A-S (Children).

Separating parents may or may not be going to court - Are parents giving up on courts post-LASPO? It all depends upon how you interpret the latest figures from Cafcass.

Have a good weekend.

Thursday, July 23, 2015

The norm, not the exception, for children to shape post-divorce futures

Jane Robey
Welcoming comments by Family Justice Minister Caroline Dinenage, about making the role of children more prominent in shaping post-divorce settlements, Jane Robey, CEO of National Family Mediation (NFM), the largest provider of family mediation in England & Wales, said:

“Children should be at the heart of decisions made in any family, and this shouldn’t change simply because parents decide they can no longer live with each other.

“The Minister is moving everyone closer to realising NFM’s long-standing vision that it becomes the norm, not the exception, for children to be able to participate in shaping their futures when the family separates.

“Our experience shows that involving children in mediation can help shift parents’ attention away from the bitterness they feel towards each other, to focus on the child’s future instead.
“We look forward to working with the Minister to ensure our child-inclusive Mediation practice standards are shared and adopted.”

The Minister was speaking to the Family Justice Young People’s Board ‘Voice of the Child’ conference in London on 23 July 2015.

Friday, July 17, 2015

A funny old week


It's been a funny old week for me on Marilyn Stowe’s Family Law & Divorce Blog, and hence I am only able to mention three posts that I have written there. Still, never mind the width, feel the quality. Or something.

Parental truce - Sometimes warring parents can put their differences aside, as in Y (A Child) (Private Law).

Finality of litigation - The principle, as demonstrated in the recently published judgment in Stocker v Stocker.

Perpetual parental conflict - Sometimes parents can't put their differences aside, as in the case T (A Child) (Suspension of Contact).

Have a good weekend.

Coram Voice response to National Audit Office report on care leavers


Linda Briheim-Crookall Senior Policy and Service Development Manager for Coram Voice, contributor to the report, said:

“Today’s report by the National Audit Office (NAO) Care leavers’ transition to adulthood highlights that the safety net in place for care leavers, whereby local authorities are legally required to offer support in education and accommodation, is failing to catch countless young people as they journey into independent living.

Through Coram Voice’s advocacy work with looked after children, we are acutely aware of the consequences of young people not receiving such critical support. Every day we encounter care leavers who do not have enough money to survive, a safe and suitable home or the help they need to access education and training to achieve their aspirations.

A significant number of the young people we support with advocacy have emotional difficulties which can be exacerbated by their precarious situation of leaving care unsupported. As NAO’s report highlights, government data currently collected on care leavers includes education, training and employment, and accommodation, yet no data collected includes important information on wellbeing. We believe this is serious omission and call on Government to include data on these outcomes as a matter of urgency.

As the report finds, the lack of a single repository for good practice in supporting care leavers is a further challenge which all those working with young care leavers face. Coram Voice’s response, our current Bright Spots project, aims to help local authorities improve the care journey for children. Included is a survey, ‘Your Life, Your Care’, which was informed by young people and which will measure the quality of their care experience and their sense of wellbeing.

We have run a successful pilot of the survey and now want to get more local authorities on board to be able to demonstrate its potential. Young people in care and leaving care rely on government to parent them as they are without the family support networks so many of us take for granted. We must do all we can to help ensure that they are not let down.”

Tuesday, July 14, 2015

Resolution ‘disappointed’ at unapologetic MOJ response on legal aid cuts


Family law organisation Resolution expressed disappointment at the “bullish and unapologetic” response from Government to the critical report from the Justice Select Committee on the legal aid cuts.

Resolution has consistently worked to raise awareness of the impact of the legal aid cuts on the people who use the family justice system, from increased numbers of litigants in person through to many domestic violence victims being unable to access legal support due to restrictive evidence requirements.

Resolution chair Jo Edwards comments:

“We’re disappointed to see the bullish and unapologetic response from Government to the criticism rightly levelled at the Ministry of Justice by the Justice Select Committee report on LASPO. The response fails to acknowledge at all the seriousness of the problems caused by the legal aid cuts and the very significant impact on families struggling with separation.”

“As practitioners, we see daily the problems caused by the legal aid cuts, and fully agree with the Justice Select Committee’s assessment that an urgent and comprehensive review needs to be undertaken. While there have been some welcome concessions recently, such as widening the domestic violence evidence requirements, much more needs to be done, quickly, to protect access to justice for the vulnerable.”

“Suggesting that the exceptional case funding scheme is operating as parliament intended ignores the many cases in which funding has been refused, despite judges’ strong protestations to the contrary. The government cannot continue to resist suggestions that there should be a full and immediate impact assessment of the reforms. We strongly advocate, at the very least, that the Government take heed of the Committee’s recommendation that legislation be drafted to protect vulnerable people from being cross-examined by the person who abused them, which is tantamount to a perpetuation of the abuse. That this situation, long legislated against in the criminal courts, should continue to exist in our family justice system is a travesty.”

Guerroudj v Rymarczyk: Order made under liberty to apply provision upheld

Lord Justice Underhill
A short note on the Court of Appeal decision Guerroudj v Rymarczyk [2015] EWCA Civ 743, handed down today.

This was a dispute between two former cohabitees over a secure tenancy. The outcome revolved around the circumstances of the parties. The man, Mr Guerroudj ('Mr G'), had a back condition which made him unable to work. The woman, Ms Rymarczyk ('Ms R'), was in work, but on a low income.

The tenancy was provided to the couple by the local authority because, or at least in part because, of Mr G's back condition - it was not adapted in any way, but was on the ground floor, which was important because he had difficulty climbing stairs.

The relationship broke down and both parties sought a transfer of the tenancy under Part IV of the Family Law Act 1996. The judge  made an order in Mr G's favour, partly because he found that Mr G's back condition was a very significant factor in the grant of the tenancy. He ordered Mr G to pay 'compensation' of £1,500 to Ms R. He included in the order a liberty to apply provision. The reason for doing so was that:
"He was evidently unhappy about whether he had been given enough information about the prospects of either party obtaining alternative accommodation if they had to quit, which was potentially a decisive consideration, and he wanted to leave open the possibility of considering it further."
Shortly after the order was made Ms R informed the court that she had been advised by Shelter that because Mr G was physically disabled he would be able to establish a priority need for housing and would be owed a duty under Part 7 of the Housing Act 1996 to be accommodated by the local authority. She, on the other hand, was not owed any such housing duty or assistance as she was not classed as having a priority need.

The matter went back before the court and the judge set aside his previous decision, ordering a transfer of the tenancy to Ms R, who he found could not afford a 1 bedroom flat within a reasonable distance of her place of work. Mr G appealed.

In the Court of Appeal the central issue was whether the judge should have undertaken a further hearing under the liberty to apply provision. Giving the leading judgment, Lord Justice Underhill  felt that on balance he was entitled to do so under the liberty to apply provision:
"...the whole point about the liberty to apply was that the Judge felt that at the first hearing insufficient attention had been paid to the parties' prospects of obtaining other accommodation. As to that, he did now have some further material."
On the basis of that further material, the judge was entitled to come to the decision that he did. Accordingly, the appeal was dismissed. Lord Justice Underhill did, however, have a suggestion as to how the judge should have proceeded at the original hearing:
"The one criticism that I would, with respect, make is that it would have been better – if, as he evidently did, he felt that justice required a fuller exploration of the possibilities of alternative accommodation – if he had simply adjourned the hearing and kept his counsel as to any provisional conclusion that he might have reached."
Mr Justice Hildyard and Lord Justice Munby gave concurring judgments.

Monday, July 13, 2015

Internet Newsletter for Lawyers July/August 2015


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

In this issue

  • Search engines – Susan Hallam of Hallam Internet reviews Google's recent mobile-friendly updates and explains what you can do
  • Social media – Bill Braithwaite QC of Exchange Chambers tells us about his new social media site for lawyers
  • Legislation – John Sheridan of The National Archives brings us up to date on developments at legislation.gov.uk
  • Resources – Delia Venables describes some of the most important free library resources available in the UK
  • Sharing economy – Nick Holmes looks at alternative perspectives on the sharing economy and how it affects lawyers
  • Drones – Alex Heshmaty of Legal Words introduces us to drones and the accompanying legal issues
  • Digital marketing – Catherine Bailey on 5 of the best free digital marketing tools
  • CPD – Nick Holmes on changes to CPD requirements for both professions

Access the Newsletter online

Friday, July 10, 2015

Four cases


My posts this week on Marilyn Stowe’s Family Law & Divorce Blog are primarily about four cases:

Judicial disapproval - "I don’t recall ever coming across a judgment like that in K v D (Parental Conflict), which was so full of judicial disapproval for the conduct of the parties (not to mention one of the lawyers)."

Damages for deceit - The interesting and unusual case X v Y.

AVCs reduce child support liability - The case JM v Secretary of State for Work and Pensions & Another (Child support : calculation of income).

Judgment summons upheld - The latest instalment of the Prest saga.

Have a good weekend.

Thursday, July 09, 2015

School summer holiday tensions: the value of a Parenting Plan

Jane Robey
As the long school summer holiday beckons, promising rising tensions in homes up and down the country, separated families are being urged to agree a Parenting Plan as part of an ‘ABC’ approach to post-separation.

“The school summer holidays often lead to separated parents reaching breaking point, as arguments and differences boil over,” says Jane Robey, Chief Executive of the National Family Mediation charity.

“Families find that parenting arrangements that were imposed on them by divorce courts are actually in nobody’s interests. Pick-up, drop-offs and living arrangements that have been tolerable in term-time can be exposed as wholly inadequate when the long holiday comes, fuelling resentments and hostilities, with the child caught helplessly in the middle.”

The charity says a positive Parenting Plan, agreed by the couple with flexibility built in, is easier to achieve than many people think.

“A Parenting Plan is an agreement made by separated parents, covering how the children will be supported and cared for in the years after separation,” adds Jane Robey. “Its value is that you both tailor it to suit your own circumstances. Over time, as the lives of separated families change, the Plan will need to be revisited. Most important to recognise is that it’s not just the parents whose needs change; the children’s do too.

“The starting point this summer is an open mind; an acceptance that while the parents’ own relationship can’t be salvaged, the vital bonds between child and each parent can – and must – go from strength to strength.”

National Family Mediation urges parents to adopt an ‘ABC’ approach:

- Accept that, while your own relationship is over, the child’s interests come first
- Believe in your own abilities to both be good parents even though you live apart
- Chart the way ahead, using mediation to negotiate through differences

“The last thing separated parents want is to sit down together and look for common ground, but it’s vital for the child’s benefit that agreements are made,” says Jane Robey.

“Family mediation is a process that enables parents to reach agreements without the stress of a courtroom drama. An expert mediator works with a couple, in separate rooms if necessary, helping them find ways to stay in touch with their children and enabling them to find ways of communicating with each other more effectively.

“None of this means parents have to get on with each other after they separate. But it does mean they can find different ways of co-parenting for the benefit of the child. After all is said and done, the child isn’t at fault and deserves the very best from both parents.”

Parents who want to know more can use the online ‘find a local mediator’ facility at www.nfm.org.uk/local or call 0300 4000 636.

Tuesday, July 07, 2015

"This is not acceptable"

I have been pondering about posting this video, which has been making headlines today. I have decided to post it without comment, so that you can decide for yourself what to make of it.

Friday, July 03, 2015

A hot week


Well, the weather was hot. I'll leave it to you to decide whether my posts on Marilyn Stowe’s Family Law & Divorce Blog were:

Special treatment - Why are lawyers being singled out for special treatment by the Government?

Rocket science - The complexities faced by family lawyers.

When a loan is income for child support - The Upper Tribunal decision in DR v SSWP and NR.

The truth about Magna Carta and legal aid cuts - Sir Nicholas Mostyn tells it straight, in his speech at the National Access to Justice and Pro Bono Conference in Sydney.

Have a good weekend.