Monday, April 24, 2017

News Essentials: 24th April 2017


A brief summary of the essential family law news and cases from the last two weeks:

NEWS
Prisons and Courts Bill dropped
The Prisons and Courts Bill was today dropped ahead of the dissolution of Parliament as MPs prepare for June’s general election. Full story: Legal Futures.

Paid McKenzie Friends “play on uncertainty and victimhood” of separating fathers
‘Professional’ paid McKenzie Friends associated with fathers’ rights groups play on their “uncertainty and sense of victimhood” to attract business, academic research has found, saying that there needed to be a code of conduct and a greater role for law school clinics in their place. Full story: Legal Futures.

Child abuse victims 'let down by system' children's commissioner claims
Children who are the victims of child abuse are being let down by the system, with professionals often failing to pick up signs of abuse, England's children's commissioner has said. Full story: Children & Young People Now.

High degree of variation in adoption decision-making across country
Number of approved adopters has almost halved in last three years. Full story: Family Law Week.

Care applications in March 2017
In March 2017, Cafcass received a total of 1288 care applications.  This figure represents a 4.3% increase compared with those received in March 2016. Full story: Cafcass.

Cafcass private law demand
In March 2017, Cafcass received a total of 3,907 new private law cases. This is a 16% increase on March 2016 levels. Full story: Cafcass.

Judges reject US banker's claim to be a genius in divorce case
Randy Work must pay ex-wife Mandy Gray half of their fortune after the appeal court backs initial ruling that his contribution to the marriage was not exceptional. Full story: The Guardian. See Work v Gray, below.

Charlie Gard case: Doctors can withdraw baby's life support
Doctors can withdraw life support from a sick baby with a rare genetic condition against his parents' wishes, a High Court judge has ruled. Full story: BBC News.

Samantha Baldwin 'gave children drugs'
A mother who fled with her two sons drugged them with sedatives and made allegations of abuse against their father, a judge has said. Full story: BBC News.

CASES
B (Child), Re [2017] EWCA Civ 264 (12 April 2017)
Appeal by mother against dismissal of application for leave to oppose adoption. Appeal dismissed. Full report: Bailii.

Work v Gray [2017] EWCA Civ 270 (11 April 2017)
Appeal by husband against decision that he and the wife were entitled to an equal share of the marital wealth, rejecting the husband's case that he had made a special financial contribution which justified an unequal division of that wealth in his favour. Appeal dismissed. Full report: Bailii.

Giggs v Giggs [2017] EWHC 822 (Fam) (17 February 2017)
Application within financial remedy proceedings for exclusion of media and reporting restriction order. Full report: Bailii.

Chai v Peng & Ors [2017] EWHC 792 (Fam) (06 April 2017)
Final hearing of wife's application for financial remedies, in case involving a 'kitty' of £205 million. Full report: Bailii.

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For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, April 21, 2017

A short but enjoyable week


I have thoroughly enjoyed writing my posts this week on Marilyn Stowe’s Family Law & Divorce Blog. I hope that those who read the posts also enjoy the experience. The posts included:

The great pro bono debate: is it a good or a bad thing? - Should lawyers stop doing pro bono work, to allow the system to descend into chaos, thereby forcing the Government to reinstate legal aid?

You can’t circumvent the system - Just because you are aggrieved by a decision of the family justice system does not entitle you to circumvent it.

Family law can be better - The Sensible Party's manifesto for Election 2017.

Have a good weekend.

Thursday, April 20, 2017

Parliamentary child maintenance inquiry kicked into long grass

National Family Mediation made a submission to the House of Commons Public Accounts Committee inquiry into Child Maintenance, that was scheduled to begin on 26 April 2017. Following the announcement there will be a general election on 8 June, the Committee cleared its programme on inquiries.

Jane Robey, CEO of NFM, said "On behalf of families up and down the country we are naturally disappointed that, following the decision to call a general election, a great deal of important government work in the field of family law is again being kicked into the long grass.

"It looks likely that, whatever the outcome of the election, there will be changes in Ministerial positions which tends to make it hard for new Ministers to speedily pick up the thread of work that’s been developed in the recent past, lengthening delays to change."


NFM's submission to the Committee's suspended inquiry is included below


National Family Mediation (NFM) is the largest provider of family mediation in England and Wales, with over 35 years’ experience helping separated families make settlements over parenting, finance and property issues.

Our work involves engaging with many of the same families profoundly and adversely affected by the years of central government mishandling of child maintenance issues.

NFM considers the scale of the proposed write-off of unpaid child maintenance payments, outlined in the National Audit Office report, to be alarming. Thousands of children up and down the country are deprived of a better quality of life as a result.

We are now in the third reinvention of child maintenance and all incarnations have involved writing off huge sums of money that should have been transferred to children, helping stave off poverty and taxpayer waste.

As family mediators we consider that family based arrangements are by far the best answer when a relationship ends. But government intervention, by the way of child maintenance arrangements, is far less necessary than many people including Ministers appear to believe.

Agreements can be made in family mediation, and we know they are much more likely to work for everyone involved, because parents themselves have had control of the vital finance decisions that shape so many aspects of their future lives. Parents who work together after separation focus their efforts on helping their children prosper despite their separation.

We have been talking with various incarnations of child maintenance service provision since 2005. All have agreed mediation would be a good thing but none have been able to do anything tangible about moving forward the agenda. We are of course hugely frustrated by the apparent lack of central understanding about how mediation can help families and taxpayers.

And are we really going to see another generation of children deprived of their entitlements because government departments can’t get it right?

Engaging better with the family mediation process could and should have an immediate impact on the numbers of children receiving child maintenance, resulting in better longer term prospects as a result. The benefits of this to government department finances and performance would be transformative.

We are aware that the Public Accounts Committee’s primary remit is to monitor the use of taxpayers’ money and in conclusion would add that we consider greater government engagement with and promotion of mediation processes would help save hundreds of thousands of pounds of precious taxpayers' as well as helping separated families up and down the land.

Jane Robey
CEO
National Family Mediation
April 2017

Thursday, April 13, 2017

Monday, April 10, 2017

Outdated divorce laws create bidding war of couples’ anger: charity

Jane Robey
Outdated divorce laws which mean someone has to be proved ‘at fault’ - even when a couple agrees on the need to separate – creates a ‘bidding war’ of resentment and anger, says a leading family charity.

As new research indicates courts can actually create conflict and encourage litigation, National Family Mediation (NFM) is renewing calls on Ministers to reform family law by introducing ‘no fault’ divorce.

“The current legal need to prove a spouse’s ‘unreasonable behaviour’ itself fuels bad feeling between a couple,” says Jane Robey, NFM’s CEO.

Referring to the new research from The Nuffield Foundation, she says “For anyone who’s worked in family law, or has been through a divorce, it’s a case of ‘tell us something we didn’t already know.’

“We know from experience that very often a couple that has decided to separate just wants to get on with it, so they can make a fresh start. Yet outdated laws that mean someone has to be proved at fault creates a bidding war which then often escalates to a full-blown courtroom battle.

“This is a huge issue. Over 100,000 couples divorce each year. For each and every adult involved, let alone the children, the stress, time and expense involved is staggering.”

Noting the Queen’s Speech is likely to take place next month, she points out previous failed attempts to reform divorce law because legislation has been introduced privately, without the weight of government backing that would see it reach the Statute Book.

“It doesn’t have to be this way. If the government took the opportunity to bring forward its own legislation for no-fault divorce, time would be allocated and the Bill would be passed.

“For Ministers it’s not a question of the volume of people affected, or the impact of legislative change. That’s undeniable. It’s one of will. It’s high time for Ministers to take long-awaited steps to divorce reform,” she concludes in a new article for Huffington Post.

You can read the article in full here.

News Essentials: 10th April 2017


A brief summary of the essential family law news and cases from the last week:

NEWS
Laura Ashley boss to pay ex-wife divorce settlement of £64m
Khoo Kay Peng and Pauline Chai were involved in long-running divorce row following split after 42 years of marriage. Full story: The Guardian.

Adoption order numbers drop for second successive year
Government figures show the number of final adoption orders made by judges has fallen by over 300 in the past year. Full story: Community Care.

Council wins Court of Appeal case on translation costs in public law proceedings
The cost of translating court documents served in family public law proceedings may fall on one or other party depending on the circumstances and cannot be decided in a blanket manner, the Court of Appeal has said. Full story: Local Government Lawyer.

New Family forms in use from 6 April 2017
New and amended forms include those covering declaration of parentage, enforcement and protective orders. Full story: Family Law Hub.

Court of Appeal endorses Mubarak test for Hadkinson applications
Husband’s appeal dismissed for ‘abject failure to abide by the principles’ of court’s procedural rules. Full story: Family Law Week.

CASES
Re M (Child) [2017] EWCA Civ 228 (06 April 2017)
Appeal against child arrangements order in respect of a child born as a result of a surrogacy arrangement. Full report: Bailii.

Mickovski v Liddell [2017] EWCA Civ 251 (05 April 2017)
Application by husband for permission to appeal against refusal of application to vary periodical payments order. Permission refused. Full report: Bailii.

AK (a child)(role of the IRO), Re [2017] EWFC B13 (14 January 2017)
Care proceedings concerning 5 year old girl of Lithuanian origin. LA sought approval of plan to leave her in the care of her foster carer under the auspices of a SGO. Plan not approved by IRO. Full report: Bailii.

N-A (Children), Re [2017] EWCA Civ 230 (05 April 2017)
Appeal by father against refusal of permission to take children to live permanently in Iran. Appeal dismissed. Full report: Bailii.

T (A Child : Hague Convention proceedings) [2016] EWHC 3554 (Fam) (16 December 2016)
Application by father for summary return of child to El Salvador. Application refused, on the basis of settlement and harm/intolerability. Full report: Bailii.

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For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, April 07, 2017

Government plans to reduce parental conflict are welcome, says charity

Commenting on the publication of Improving Lives: Helping workless families by the Department for Work and Pensions (DWP), Jane Robey (CEO of National Family Mediation) said:

“We welcome the commitments contained in this report to help reduce parental conflict, and are especially pleased by the plans to expand the role and improve the services to families provided by JobCentre Plus.

“As England and Wales’ largest provider of family mediation we look forward to further developing our relationship with the DWP in general, and with JobCentre Plus in particular.

“We have long known that divorce and separation creates many of the problems the DWP has identified in its new paper. Indeed worklessness is a frequent side effect of relationship breakdown and we feel that joining up the relevant services offers the DWP an opportunity to improve its own outcomes across a number of government departments including increasing the transfer of money through child maintenance so that it rightly reaches those who need it.”

The DWP report can be found here.

Everyone has their limit...


...and sometimes the system pushes them beyond it. This was one of the topics I explored in my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which included:

A sad tale of a father pushed to the limit - As the title says.

Hague case “a very real and humanly painful dilemma” - The case being T (A Child : Hague Convention proceedings).

Don’t expect much sympathy from the court if you don’t obey its orders - As in Assoun v Assoun [No 1].

Celebrating fifty years of freedom in relationships - When I'm sixty-four (and it ain't long now...).

Have a good weekend.

Monday, April 03, 2017

News Essentials: 3rd April 2017


A brief summary of the essential family law news and cases from the last week:

NEWS
Resolution says no fault divorce mustn't be shelved by Brexit
Warning comes as 600 people every day “running the gauntlet” of a divorce system that encourages conflict, says top family lawyer. Full story: Resolution.

MoJ publishes legal aid statistics for October to December 2016
MIAMs and mediations both down on a year ago. Full story: Family Law Week.

Average time for disposal of care cases in 2016 falls to 26.9 weeks
The Ministry of Justice has published statistics on activity in the family courts of England and Wales in 2016 and the fourth quarter of 2016 (October to December). Full story: Family Law Week.

Parents' court fight over taking son, 5, to country suffering terror attacks
A father insisted on taking his five-year-old son to a conflict-riven country to visit relatives in defiance of the child’s mother, who was terrified he would be placed at serious risk. Full story: The Telegraph. See W (A Child: Temporary Removal From the Jurisdiction), below.

Watchdog finds £3bn in child support arrears may never be collected
Results follow National Audit Office’s examination of winding up former Child Support Agency and its replacement by new Child Maintenance Service. Full story: The Guardian.

CASES
H-W (Child), Re [2017] EWCA Civ 154 (30 March 2017)
Appeal by father against order limiting his contact with child to indirect contact only. Appeal dismissed. Full report: Bailii.

MH (A Child), Re [2017] EWHC 691 (Fam) (13 March 2017)
Application by mother for permission to appeal against order regulating holiday trips with the child to her native Poland. Full report: Bailii.

Re D and Others (Children) [2017] EWHC 284 (Fam)
Judgment on the issue of costs arising from an application under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Full report: Family Law Week.

D (A Child) [2017] EWCA Civ 196 (29 March 2017)
Appeal by local authority against the dismissal of application for a care order, in which the central issue was whether the child had suffered a shaking/shaking impact injury whilst she had been in the sole care of her father. Appeal allowed. Full report: Bailii.

Z (A Child) [2017] EWCA Civ 157 (28 March 2017)
Appeal concerning issue of who should bear the costs of translating documents in public law proceedings. Full report: Bailii.

Assoun v Assoun [No 2] [2017] EWCA Civ 179 (28 March 2017)
Application by husband for permission to re-open appeal against Hadkinson Order, to amend his grounds of appeal and to rely upon further evidence. Application dismissed. Full report: Bailii.

Assoun v Assoun [No 1] [2017] EWCA Civ 21 (28 March 2017)
Appeal by husband against Hadkinson Order prohibiting him from proceeding with application to vary maintenance order whilst he was in breach of that order. Appeal dismissed. Full report: Bailii.

Hand and another v George and another [2017] EWHC 533 (Ch) (17 March 2017)
Inheritance – Adopted children – Will written in 1946 – Domestic law did not include adopted children within the term ‘children’ for the purposes of this will – Whether the Art 14 and Art 8 rights of the grandchildren could be upheld. Full report: Family Law.

W (A Child: Temporary Removal From the Jurisdiction) [2016] EWFC 45 (20 April 2016)
Judgment in proceedings concerning the temporary removal of a child to a country that is not a signatory to the Hague Convention on child abduction. Full report: Bailii.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Saturday, April 01, 2017

Aaron & Partners unveils AaronBot – the artificial intelligence partner for law firms


Innovative robot has been created to replace underperforming law firm partners and can replicate partner behaviours

UK law firm Aaron & Partners LLP today announces the launch of AaronBot – an innovative artificial intelligence (AI) robot designed to replace underperforming law firm partners.

Following on from the success of its ‘Expel Your Partner’ app – launched exactly two years ago today – AaronBot’s complex AI algorithm allows it to quickly recognise and replicate standard partner behaviours, such as shouting at trainees, never making tea or coffee in the office and taking credit for other people’s work.

AaronBot also features the latest in speech recognition software and has been programmed to respond positively to any questions or criticism, whilst common law partner traits such as impatience, cynicism and petulance have all been left out of the robot’s hardwiring.

“Non-performing law firm partners are a problem for many legal companies in the UK but up until we created our Expel Your Partner app there was no quick-fix solution,” said Mark Briegal, who heads up Aaron & Partners’ Partnership Law team. “Technology has moved on somewhat since then and that’s why we are continuing to lead the way in partnership automation with the creation of AaronBot.

“It gives exasperated law firm partners the opportunity to substitute an underperforming partner with a more reliable replacement. And when placed into performance management mode, the robot can operate in conjunction with the management team to inspire improved performance or, if that fails, can even suggest the need for intervention and the possibility of expulsion with a direct connection to our “Expel Your Partner” App."

The official launch date for AaronBot is still to be announced, but law firm partners wanting to be kept up to date with the latest news and updates from Aaron & Partners can sign up to the firm’s newsletter by emailing marketing@aaronandpartners.com.

“Being a robot, there’s also the added benefit that AaronBot has absolutely no rights whatsoever when it comes to the business,” added Mark.

“Under Robot Law, a machine isn’t currently entitled to any shares, profit or decision-making powers, so you can rest easy in the knowledge that the robot is there for all the right reasons. It also fits comfortably on a desk, won’t require its own parking space, has no holiday entitlement and won’t drink all the wine at the office Christmas party, so it really is the perfect partner.”

To find out more about the services that Aaron & Partners offers visit www.aaronandpartners.com.

Friday, March 31, 2017

600 people every day “running the gauntlet” of a divorce system that encourages conflict, says top family lawyer

Nigel Shepherd
Family lawyers have today demanded that Parliamentarians do not allow Brexit negotiations to stop the momentum that is building for no fault divorce.

At a major national gathering, members of the family justice organisation Resolution highlighted steps they are taking to ensure this and other family law issues do not get forgotten, as Britain prepares to leave the European Union.

Speaking in front of 600 family lawyers in Birmingham, Nigel Shepherd, the national chair of Resolution, highlighted that no fault divorce has received increasing levels of support from the public and leading members of the family law community.

Mr Shepherd pointed to the recent judgment in the Owens v Owens case –  which effectively forced a woman to remain in a marriage she does not want to continue – as a situation that underlines the need for no fault divorce. He said:

“It’s simply wrong in this day and age that someone should be forced to stay in a loveless marriage because the behaviour in the divorce petition wasn’t deemed ‘unreasonable’ enough”.

Nigel Shepherd said it is time to “end the blame game” and said the Government must not let Brexit get in the way of it acting quickly to ensure there are no more cases like Owens. Mr Shepherd said:

“In the face of this overwhelming support for a change in law to allow for no fault divorce, it does beg the question, what is the Government waiting for?

“There are more than 110,000 divorces each year – every day the government delays, more than 300 couples get a divorce. That’s 600 people, every day, running the gauntlet of a system that actively encourages conflict and blame”.

Nigel Shepherd said the issue of no fault divorce was made more critical in the context of Government reductions in funding for legal aid, which leave more people to deal with their legal issues “with minimal or often no support from professionals”.

Mr Shepherd also paid tribute to Resolution members and their commitment to reducing conflict and helping parents to put their children first. He said the recent lobby of Parliament, which saw 150 Resolution members travel to Parliament to talk to MPs about the need for no fault divorce, was “a testament to the true strength and collective power of our membership”.

The Resolution conference is an annual two-day event for its members to come together and discuss the latest developments in family law and identify practical ways to support people going through separation.

History, behaviour, a translation and temporary removal


My posts this week on Marilyn Stowe’s Family Law & Divorce Blog were on an assortment of topics, drawn from the mixed bag that is family law. They included:

If you’re going to complain about the family justice system, get your facts right - A short history lesson, on the subject of the 'natural guardian' of a child.

Is the act of refusing a divorce itself unreasonable behaviour? - A thought on the Owens case.

Father denied contact claims violation of his right to respect for family life - The ECHR case Endrizzi v Italy, as translated by Google.

Father allowed to take son to non-Convention country - Mr Justice Peter Jackson’s judgment in W (A Child: Temporary Removal From the Jurisdiction).

Have a good weekend.

Tuesday, March 28, 2017

Alarming write-off of £3 billion uncollected child maintenance arrears

Jane Robey
Commenting on a new National Audit Office report (28 March) indicating some £3 billion in child maintenance arrears is considered "uncollectable", National Family Mediation CEO, Jane Robey, said:

"The scale of proposed write-off of unpaid child maintenance payments is alarming.

"Thousands of children up and down the country are deprived of a better quality of life as a result.

"Family based arrangements are by far the best answer when a relationship ends. But government intervention, by the way of child maintenance arrangements, is far less necessary than many people - including government Ministers - believe.

"Agreements can be made in family mediation, and we know they are much more likely to work for everyone involved, because parents themselves have had control of the vital finance decisions that shape so many aspects of their future lives.

"Parents who work together after separation focus their efforts on helping their children prosper despite their separation.

"The government is again missing a trick by not promoting greater use of family mediation, which would help save hundreds of thousands of pounds of precious taxpayers' money."

The National Audit Office report, Child Maintenance: Closing cases and managing arrears, can be found here.

Monday, March 27, 2017

News Essentials: 27th March 2017


A brief summary of the essential family law news and cases from the last week:

NEWS
Interim research findings on divorce law published
Interim findings from research exploring how the current divorce law works in practice have been published today (24 March 2017). Full story: Family Law.

Expert representation essential in CoP – Bourns
Vulnerable people must always have expert representation in welfare cases, the Law Society has said, unveiling a mental capacity accreditation scheme for solicitors serving the Court of Protection. Full story: Law Society Gazette.

‘Desperately unhappy’ Mrs Owens refused divorce
Munby P laments ‘hypocrisy and lack of intellectual honesty’ of current law. Full story: Solicitors Journal. See report, below.

Family court transparency plans fall short: new research from Cardiff University
Judges struggle to find time to publish judgments safely. Full story: Family Law Week.

Impact of Brexit on legal services “a cause for concern”, justice committee says
The justice select committee has described the impact of Brexit on legal services as “a cause for concern, but not hyberbole”, in a report published today. Full story: Legal Futures.

CASES
Owens v Owens [2017] EWCA Civ 182 (24 March 2017)
Appeal by wife against refusal of judge to grant decree nisi of divorce, even though he had found as a fact that the marriage has broken down. Appeal dismissed. Full report: Bailii.

HB v A Local Authority & Anor (Wardship - Costs Funding Order) [2017] EWHC 524 (Fam) (21 March 2017)
Judgment considering issue of whether High Court has power, under its inherent jurisdiction, to make costs funding order against local authority requiring it to fund legal advice and representation for parent in wardship proceedings brought by the local authority, where that parent has lawfully been refused legal aid. Full report: Bailii.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, March 24, 2017

"Do your kids a favor – don’t have any."


It could have been a quote from a family lawyer, but it is actually by American Comedy writer Robert Orben. It seemed apt in relation to my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which were all about children, primarily the problems that their parents (in the widest sense) can cause them:

Convicted father precluded from having contact with his children - The case ZX, R (on the application of) v The Secretary of State for Justice.

Family law and the ‘non-conventional’ family - As in Re B.

Child benefit and the ending of child support liability - The case DJ v Secretary of State for Work and Pensions and TJ (CSM) (Child support - receipt of benefit).

Can a parent be forced to have contact? - I answer the oft-asked question.

Have a good weekend.

Thursday, March 23, 2017

Family court transparency plans fall short as judges struggle to find time to publish judgments safely

New research from Cardiff University’s School of Law and Politics suggests that guidance given to judges to routinely publish their judgments is not being consistently followed, leaving the public with a patchy understanding of the family justice system in England and Wales. 

Issued in 2014, the guidance was intended to address perceptions, especially in the media, of ‘secrecy’ and ‘justice behind closed doors’ when important decisions are made about children in family courts. These claims arise from the way that court rules ensure most family cases are held in private, to protect children and other vulnerable parties, and are subject to reporting restrictions preventing such parties being identified.

The guidance requires judges to send fully anonymised versions of their judgments in certain types of case to BAILII, a freely accessible legal research website. The intention was to enable both the press and the public to have a better understanding of the family justice system, by making it more transparent.

However, following concerns expressed about poor anonymisation and some risks of jigsaw identification, and also observations that relatively few cases seemed to be appearing on BAILII, an evaluation of the effects of the guidance was undertaken by Cardiff University’s School of Law and Politics, funded by the Nuffield Foundation.

Analysing 837 judgments that were published in the first two years following the guidance, the research found that only 27 judges and 12 courts sent in more than ten cases each to BAILII during this period, revealing significant local variations in following the guidance. As a result, the media and the public are able to read more about judicial and social work decision making in certain parts of England and Wales than others.

Dr Julie Doughty, Cardiff University’s School of Law and Politics, who led the research said: “The judgments now published provide more information about the role of the family courts than was available prior to the guidance, but there are inconsistences in the way courts have responded which can present a confusing and not necessarily representative picture of the system as a whole.”

The research team also gathered views from some judges, journalists, organisations and representative groups with an interest in family justice, about the operation of the guidance and the effect it has had on them and on public understanding of family courts.

Dr Doughty added: “The overwhelming message we received in this study was that judges’ workloads, and lack of administrative support, did not allow them the time they needed to write clear, useful and safely anonymised judgments for publication that they could feel confident had minimised any risk of identifying the children and families involved.”    

The publication of this report is timely, in the context of a senior family court judge recently emphasising the importance of public legal education and making family court processes more transparent, thereby reducing complexity and time spent on cases at later stages, as well as improving access to justice.

The report, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people, by Julie Doughty, Alice Twaite and Paul Magrath, is available to read in full here.

Wednesday, March 22, 2017

Resolution welcomes Justice Select Committee report on the implications of Brexit for the justice system


Daniel Eames, Chair of Resolution’s International Committee, gave oral evidence to the Justice Select Committee and welcomed the recommendations made in the report. He said:

“Resolution is pleased to see the Justice Select Committee have taken on board many of the points we made during their inquiry. MPs have listened to the legal profession and recognised that the vision put forward in the Government’s white paper won’t work for British families.

“Incorporating EU law into domestic legislation on its own won’t work as we need to have reciprocity and cross border recognition. Without reciprocal rules, there can be no legal certainty in outcomes with all the ensuing complications, delays and potential costs for families and children. There must also be suitable transitional provisions in case not all negotiations are concluded before the UK has formally left the EU.

“We accept that family law will not be the highest priority for this Government during the Brexit negotiations. However, for the thousands of UK citizens that are married and living overseas, and EU citizens that are married and living in the UK, issues concerning cross-border family law will be of critical importance should their relationship come to an end.

“We therefore urge the Government to take the Justice Select Committee recommendations on board and provide much needed confidence and certainty for families and children as Britain leaves the European Union”.

Monday, March 20, 2017

Families need government to shake off policy paralysis, says national family charity

Another ‘Groundhog Day’ family policy report

A national charity is urging Ministers to address the ‘Groundhog Day’ of government inaction that greets the publication of family policy research. But National Family Mediation (NFM) fears the dominance of Brexit in government thinking could simply lead to further stalling.

The charity says a recent Social Mobility Commission report, ‘Helping parents to parent’ is just the latest in a string of reports and research over recent years which reach similar conclusions about the need to reform family policy - to bring better outcomes for families and to save taxpayers’ money.

NFM’s Chief Executive Jane Robey says action on report findings are hardly ever acted upon and fears that in light of Brexit, a ‘policy paralysis’ has gripped the government.

“Brexit understandably dictates government thinking. But the divorce we face from the EU mustn’t blind Ministers to the wide-ranging benefits of well-managed family divorces in achieving better outcomes for families,” she says in a new article for Huffington Post.

“They shouldn’t forget that the sums that stand to be saved in the long-term for the public purse from shrewd investment in the conclusions that keep on coming are eye-watering.”

Since taking up her role 13 years ago, she says “there have been several White Papers, backed by expensive research findings and recommendations.  These covered topics as widespread as parental separation, children’s rights, and parents’ responsibilities. Then there was Breakdown Britain and the sequel, Breakthrough Britain. Most recently we had Early Intervention Foundation research funded by the Department for Work and Pensions.”

Commenting on The Social Mobility Commission report she adds: “Amongst its 80 pages are some conclusions which, were I not such an old-hand, I might feasibly consider the starting gun to reforming policy-making.

“But we knew these things already, so this is another report that has looked at various government research on similar themes, and brought us the usual conclusions.

“For me and my fellow relationship professionals, the key question is ‘does this latest report move us forward?’ I fear not. It really is time for Ministers to join up the dots of the various research findings, to see the pattern and act on it.”

To read the article in full use this link: http://huff.to/2nswUNF

The Social Mobility Commission report, ‘Helping parents to parent’ can be found here: 

News Essentials: 20th March 2017


A brief summary of the essential family law news and cases from the last week:

NEWS
Lords warn leaving EU legal framework poses risks for cross-border cases
Justice sub-committee says alternatives should be in place before walking away from reciprocal regulations. Full story: The Guardian. Justice Committee report here.

Local authority alert sees family barrister fined over data security failings
A senior family law and Court of Protection barrister has been fined £1,000 by the Information Commissioner's Office for failing to keep clients’ sensitive personal information secure. Full story: Local Government Lawyer.

The Family Procedure (Amendment) Rules 2017
These Rules amend the Family Procedure Rules 2010, to ensure that applicants for certain orders do not, in person, hand over papers to respondents. Statutory Instrument.

Supreme Court emphasises the limited circumstances in which courts may interfere with testator’s wishes
The Supreme Court has allowed the charities' appeal in Ilott v The Blue Cross and others [2017] UKSC 17. The judgment emphasises the limited circumstances in which the court will interfere with an individual's wishes when making a will. Full story: Family Law Week. See report, below.

People with dementia and learning difficulties detained in care without checks due to 'failing' law, says Law Commission
Capacity and Deprivation of Liberty report published by Law Commission recommends replacing DoLS with a new scheme, called the Liberty Protection Safeguards. Full story: Family Law.

CASES
B (A Child by her Guardian), Re [2017] EWHC 488 (Fam) (15 March 2017)
Application by non-biological mother for child arrangements order in respect of a child now living with the mother in Pakistan. Full report: Bailii.

SU & SA (Children) [2017] EWHC 441 (Fam) (06 March 2017)
Judgment concerning the renewal of British passports for children who were made wards of court under orders made some years ago following their abduction from this country by their father. Full report: Bailii.

Ilott v The Blue Cross & Ors [2017] UKSC 17 (15 March 2017)
Appeal against decision of Court of Appeal setting aside earlier award on Inheritance Act claim, and re-evaluating the award. Appeal allowed. Full report: Bailii.

Martin v Williams [2017] EWHC 491 (Ch) (13 March 2017)
Appeal by wife of deceased against Inheritance Act award in favour of deceased's new partner. Full report: Bailii.

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For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

BREXIT UNCERTAINTY: FAMILIES AND BUSINESSES COULD LOSE ACCESS TO JUSTICE ACROSS THE EU, LORDS REPORT SAYS


The House of Lords EU Justice Sub-Committee today publishes its report Brexit: justice for families, individuals and businesses?

This House of Lords report finds that:
  • The current system for civil justice cooperation across the EU member states - in the development of which UK expertise has been prominent - works well.
     
  • Disputes that cross borders, whether family or commercial, are currently settled by judgments that are enforceable across the EU. 
     
  • This gives families, businesses (particularly SMEs) and individuals the legal consistency and predictability on which they depend.
However the Committee found that as Brexit takes effect:
  • Unless the current system of ‘mutual recognition’ of judgments across the EU is duplicated, not only will the advantages be lost, but there will be real hardship for families and businesses, who could be left subject to national rules across 27 other member states.
     
  • The Government has emphasised the importance of separating the UK from the jurisdiction of the Court of Justice of the EU. But the key finding of this report is that alternatives to the existing framework of civil justice cooperation must be in place before the UK’s withdrawal is completed.
     
  • The Committee concluded that falling back on common law and earlier international agreements that are less clear, simple or effective, would leave UK citizens with uncertainty and diminished access to justice.
Chairman of the Committee, Baroness Kennedy of The Shaws said:
"Unless the Government can agree a replacement of the existing rules on mutual recognition of judgments, there will be great uncertainty over access to justice for families, businesses and individuals.

“The Committee heard clear and conclusive evidence that there is no means by which the reciprocal rules currently in place can be replicated in the Great Repeal Bill. Domestic legislation can’t bind the other 27 member states.

“We therefore call on the Government to secure adequate alternative arrangements, whether as part of a withdrawal agreement or a transitional deal."

Friday, March 17, 2017

Wednesday, March 15, 2017

Internet Newsletter for Lawyers March/April 2017


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

In this issue
  • Access to justice – Judith Townend of the University of Sussex considers the human impact of the online court proposals
  • Bar marketing – Catherine Bailey of Bar Marketing provides guidance on completing legal directory submissions
  • Legal practice – David Gilroy of Conscious Solutions asks who (or what) should law firms be afraid of in 2017?
  • Court technology – David Chapman of Zylpha describes how the courts are being digitised and the resulting benefits
  • Litigation – Alex Heshmaty of Legal Words explains predictive coding and its impact on lawyers and paralegals
  • Online legal services – Delia Venables looks at the pros and cons of providing legal services online and the firms doing it

Access the Newsletter online

Ilott v The Blue Cross & Ors: Appeal allowed


Lord Hughes gives the judgment of the Supreme Court

BACKGROUND TO THE APPEAL

The appeal arises out of a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act (“the Act”), brought against the estate of Mrs Jackson by her daughter, Mrs Ilott. Mrs Ilott and her mother had been estranged for the majority of the 26 years preceding Mrs Jackson’s death in 2004. The estrangement began when Mrs Ilott left home at 17 to live with her now husband, with whom she has five children. Since that time Mrs Ilott has lived independently of her mother but in straitened financial circumstances. Mrs Ilott and her family received a number of benefits, with a net annual income of around £20,000.

In her last will of 2002, Mrs Jackson left the majority of her estate to a number of charities, and made no provision for her daughter. This was a decision Mrs Jackson had made as early as 1984, reflected in her will of that year. Mrs Ilott had been aware for many years of this decision and had lived without any expectation of benefit from the estate.

The District Judge found that Mrs Jackson’s will did not make reasonable financial provision for Mrs Ilott and awarded her £50,000. The charitable beneficiaries under the will initially challenged the finding that there was any lack of reasonable provision, but that challenge failed and the dispute has since proceeded only on the issue of the quantum of the award, which Mrs Ilott appealed as too low. The Court of Appeal held the District Judge had made two errors of principle in his approach. Firstly, he held the award should be limited in light of the long estrangement and lack of expectation of benefit, but did not identify what the award would have been without these factors and the reduction attributable to them. Secondly, he made his award without knowing what the effect of it would be on the benefits which Mrs Ilott and her family presently received, some of which were subject to a means test and which would not payable if Mrs Ilott had savings in excess of £16,000. The Court of Appeal re-evaluated the claim for itself, and awarded Mrs Ilott £143,000 to buy the home she lived in, and an option to receive £20,000 in one or more instalments. The award was designed to avoid affecting Mrs Ilott’s benefits entitlement.

JUDGMENT

The Supreme Court unanimously allows the charities’ appeals. Lord Hughes gives the judgment, with which the rest of the Court agrees. Lady Hale gives a supplementary judgment, with which Lord Kerr and Lord Wilson agree.

REASONS FOR THE JUDGMENT

The District Judge did not make either of the two errors on which the Court of Appeal relied to revisit his award, and so the Court of Appeal’s order must be set aside and the District Judge’s order restored.

The matters to which the court must have regard in exercising its power to award reasonable financial provision are listed under s.3 of the Act. For an applicant other than a spouse or partner, reasonable financial provision is limited to what it would be reasonable for her to receive for maintenance only. This is an objective standard, to be determined by the court. The limitation to maintenance provision represents a deliberate legislative choice and demonstrates the significance attached by English law to testamentary freedom. Maintenance cannot extend to any or everything which it would be desirable for the claimant to have, but is not limited to subsistence level. The level at which maintenance may be provided is clearly flexible and falls to be assessed on the facts of each case, as at the date of hearing. Although maintenance is by definition the provision of income rather than capital, it may be provided by way of a lump sum. [12-25]

As to the first suggested error, the process suggested by the Court of Appeal is not warranted by the Act. The Act does not require the judge to fix some hypothetical standard of reasonable provision and then increase or discount it with reference to variable factors. All of the s.3 factors, so far as they are relevant, must be considered, and in light of them a single assessment of reasonable financial provision should be made. The District Judge worked through each of the s.3 factors, and was entitled to take into account the nature of the relationship between Mrs Jackson and Mrs Ilott in reaching his conclusion. As to the second suggested error, the District Judge specifically addressed the impact on benefits twice. The Court of Appeal’s criticism that his award was of little or no value to Mrs Ilott was unjustified. A substantial part of the award could be spent on replacing old and worn out household equipment which the family had previously been unable to afford. This fell within the provision of maintenance of daily living, and would avoid Mrs Ilott retaining capital for long above the £16,000 threshold. [29-41]

Reasonable financial provision can in principle include the provision of housing, but ordinarily by creating a life interest rather than a capital and inheritable sum, which possibility appeared not to have been considered by the Court of Appeal. To the extent that the benefits means test was relevant, it was likely to apply also to the additional sum of £20,000 apparently awarded with a view to avoiding that test. The statement in the Court of Appeal that a claimant in receipt of benefits should be treated in the same way as a disabled claimant was problematic; what must have been meant was that receipt of means tested benefits is likely to be a relevant indication of a claimant’s financial position. Finally, the Court of Appeal’s order gave little weight to Mrs Jackson’s very clear wishes and the long period of estrangement. The Court of Appeal’s justification for this approach was that the charities had little expectation of benefit either. This approach should be treated with caution, given the importance of testamentary bequests for charities, and because the testator’s chosen beneficiaries, whether relatives, charities or otherwise, do not need to justify their claim either by need or by expectation. [44-47]

Lady Hale in her judgment reviews the history of the Act and preceding legislation. She comments on the unsatisfactory state of the law, giving as it does no guidance as to the weight of the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance. The approach under the Act invariably involves a value judgment, which may be problematic as there is a wide range of opinion among the public and the judiciary about the circumstances in which adult descendants ought or ought not to be able to make a claim on an estate which would otherwise go elsewhere. [49-66]

References in square brackets are to paragraphs in the judgment, which can be found here.

Monday, March 13, 2017

News Essentials: 13th March 2017


A brief summary of the essential family law news and cases from the last week:

NEWS
Munby: ‘judges should not have to justify themselves’
The most senior family judge has stepped into the controversy over press attacks on the judiciary, telling solicitors that judges should not have to justify their rulings – while conjuring a dystopian vision of judges being hauled on to Newsnight to defend themselves. Full story: Law Society Gazette.

Care applications in January 2017
In February 2017, Cafcass received a total of 1,134 care applications.  This figure represents an 8% decrease compared with those received in February 2016. Full story: Cafcass.

Cafcass private law demand
In February 2017, Cafcass received a total of 3,414 new private law cases. This is a 3% increase on February 2016 levels. Full story: Cafcass.

Trenchant comments from Cobb J in two decisions about Human Rights Act claims in care proceedings
Need for practitioners to review new or pending human rights claims attached to care proceedings. Full story: Family Law Week.

Teenager removed from foster parents without notice
Council criticised for failing to follow statutory children’s complaints process and for delay. Full story: Family Law Week.

Extra £20m pledged in budget for battle against domestic violence
Government marks International Women’s Day with measures including greater help for parents returning to work. Full story: The Guardian.

Police pensions: transfer values and pension sharing on divorce
HM Government Actuary's Department has published documents covering non-club transfer values and pension sharing on divorce in the 1987, 2006 and 2015 police pension schemes. Full story: Family Law Week.

CASES
C (A Child), Re [2016] EWHC 3473 (Fam) (08 March 2017)
Application by local authority under the inherent jurisdiction, to seek permission pursuant to section 100 CA 1989 to obtain the court's authorisation of what the local authority contended is child's deprivation of liberty in his current residential unit. Full report: Bailii.

U v J [2017] EWHC 449 (Fam) (08 March 2017)
Application by respondent to strike out petition for want of jurisdiction. Full report: Bailii.

SW & TW (Human Rights Claim: Procedure) (No.1) [2017] EWHC 450 (Fam) (08 March 2017)
Case concerning 2 children, involved in private law proceedings, public law proceedings and a claim for damages under the Human Rights Act, which suffered from a fundamental procedural defect. Full report: Bailii.

Cheshire East Borough Council v PN & Ors (Finding of fact) [2016] EWFC 61 (20 December 2016)
Care proceedings concerning a 9 month old child. Fact-finding hearing regarding cause of head injuries to the child. Full report: Bailii.

Cheshire East Borough Council v PN & Ors (Flawed Local Authority Assessments) [2017] EWFC 20 (03 March 2017)
Final hearing of care proceedings concerning 11 month old child. Hearing adjourned to allow further assessment of possible carers, following flawed assessments by local authority. Full report: Bailii.

B v G [2017] EWHC 223 (Fam) (17 January 2017)
Application by a former husband to vary an order for spousal and child periodical payments. Full report: Bailii.

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For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, March 10, 2017

Monday, March 06, 2017

News Essentials: 6th March 2017


A brief summary of the essential family law news and cases from the last week:

NEWS
Using the EU Maintenance Regulation to overcome pension sharing problem
Article 7 employed to overcome jurisdictional difficulty. Full story: Family Law Week.

SRA publishes family law research
The Solicitors Regulation Authority (SRA) has published independent research exploring the experiences of potentially vulnerable people using family law services. Full story: Solicitors Regulation Authority.

Children in UK's poorest areas 10 times more likely to go into care
Study finds one in 60 children taken into care in most deprived areas compared with one in 660 in the wealthiest. Full story: The Guardian.

City trader who earned £10m in bonuses fights to slash her husband’s divorce payoff by £1.5m
A former City trader who made millions in bonuses working in the energy market is fighting to have her divorce settlement to her ex-husband cut by £1.5 million to £1.2 million. Full story: Evening Standard.

Removal of harsh evidence tests will help domestic violence victims
The removal of a 5-year time limit on evidence of abuse which prevents vulnerable victims of domestic violence from obtaining legal aid for court hearings has been welcomed by the Law Society of England and Wales. Full story: Family Law.

CASES
Norman v Norman [2017] EWCA Civ 120 (03 March 2017)
Application for permission to appeal against order dismissing application to set aside a consent order made in financial remedy proceedings. Permission refused. Full report: Bailii.

Lachaux v Lachaux [2017] EWHC 385 (Fam) (02 March 2017)
Cross-applications by mother for contact and by father seeking recognition of Dubai divorce and dismissal of mother's application on ground of lack of jurisdiction. Full report: Bailii.

A v B [2017] EWFC B9 (3 February 2017)
Applications by husband under CA Sch 1 and to set aside financial remedies order on basis of change of circumstances, the children having subsequently moved from the mother to the father. Full report: Bailii.

A v R & Anor (Declaration of Parentage) [2017] EWHC 396 (Fam) (25 January 2017)
Application by couple for declaration of parentage in respect of child born as a result of fertility treatment, following clerical error by clinic. Full report: Bailii.

*      *      *
For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.