Tuesday, June 18, 2013
News Update: 18th of June 2013
WELCOME to this week's Family Lore News Update.
NEWS
Consultation outcome: The Child Support (Miscellaneous Amendments) Regulations 2013
Government response to the consultation on the draft Child Support (Miscellaneous Amendments) Regulations 2013, which invited views on a small number of proposed changes to the 2012 child maintenance scheme. Full story: GOV.UK.
Family lawyers divided over Prest decision
The Supreme Court’s decision [below] to order an oil tycoon to hand over assets held by his companies to his former wife has been hailed as a victory for fairness and justice by lawyers. Full story: Law Society Gazette.
Social work-bashing report challenged
Findings of a report by a right-wing thinktank describing the future for social workers as “bleak” was challenged by BASW’s Interim Chief Executive, Bridget Robb. Full story: BASW News. See also the story in The Independent, below.
Parliamentary Committee welcomes Government review of extension of civil partnerships to opposite sex couples
The Joint Committee on Human Rights has published its report scrutinising the provisions of the Marriage Bill. Full story: Family Law Week.
New ‘Fostering for Adoption’ guidance for social workers published by Coram and BAAF
New practical guidance has been published to help local authorities implement 'Fostering for Adoption' with the aim of ensuring more children can live with their potential permanent carers at the earliest possible stage of the adoption process. Full story: Family Law Week.
New video celebrates role of both parents in separated families
The positive role that both parents in a separated family can play in a child’s upbringing is being celebrated in a new video today. Full story: GOV.UK.
Ofsted unveils tougher child protection inspections
Child protection and looked-after children's services will be deemed ‘inadequate’ even if just part of their work is failing, under plans unveiled by Ofsted to toughen up inspections. Full story: Children & Young People Now.
Lack of social workers putting vulnerable children at risk
Vulnerable children are being put at risk by a chronic shortage of experienced social workers, according to research. The supply of social workers will not equal demand until 2022, according to a paper from the think-tank Policy Exchange, a situation it says could have “tragic implications”. Full story: The Independent. See also the BASW News story, above.
Legal advice on divorce prompts most legal complaints
Divorce cases have prompted the most complaints about lawyers in the last year with individuals being urged to shop around for legal advice. Full story: BBC News.
Courts will not give up on girl abducted by mother, judge warns
Judge issues warning two years after Humma Dar disappeared with daughter Aamina Khan after girl's father was given custody. Full story: The Guardian.
Family President clarifies when use of expert is 'necessary' in proceedings
The President of the Family Division has clarified when the use of an expert witness is ‘necessary’ under guidance he gave earlier this year. See Re H-L (A Child), below. Full story: Local Government Lawyer.
One in three children whose single parent works part-time now in poverty
Government figures published today show that the proportion of children from single parent families where the parent works part-time but who still live in poverty, has leapt from one in four (23 per cent) to almost one in three (31 per cent) in just one year. Full story: Gingerbread.
Essex police criticised over handling of domestic violence cases
A police force criticised over the murders of three women and a young girl in domestic violence cases needs to do more to target men who repeatedly abuse their victims, an inspector's report says today. Full story: The Independent.
Prest ruling likely to lead to more divorce planning
The Supreme Court ruling [below] allowing a wife to access assets held by her husband's companies will encourage the tying up of assets in business, family lawyers have said. Full story: Solicitors Journal.
Immigration control takes priority over children’s best interests, concludes Joint Committee on Human Rights
The Joint Committee on Human Rights has called for extensive reforms in the way that unaccompanied migrant children are treated on their arrival in the United Kingdom. Full story: Family Law Week.
Supreme Court dismisses parents' appeal against care order
The Supreme Court in Re B (A Child) UKSC 33 [below] has dismissed an appeal by parents against a care order made in respect of their daughter on the basis of a risk to her of future psychological or emotional harm under section 31 of the Children Act 1989. Full story: Family Law Week.
Supreme court chooses the 'third way' in Prest divorce case
Lord Sumption's ruling [below] resolves the dilemma of enforcing the law and doing judgment. Full story: The Guardian.
Supreme Court upholds wife’s appeal in Prest v Petrodel
The Supreme Court has unanimously allowed the appeal by Yasmine Prest [below] to treat assets held by companies and trusts within her former husband’s control as matrimonial assets that should be transferred to her as part of a £17.5m divorce settlement. Full story: Solicitors Journal.
LGA and Barnardo's warn of 'reckless' adoption changes
The entire adoption system could be significantly damaged unless proposed reforms are reconsidered, Barnardo’s and the Local Government Association (LGA) have warned. Full story: Children & Young People Now.
STATUTORY INSTRUMENTS
The Family Procedure (Amendment No. 2) Rules 2013
These rules amend the Family Procedure Rules 2010 by amending the definition of a “financial order” in rule 2.3(1) so that it includes an order for payment in respect of legal services under section 22ZA of the Matrimonial Causes Act 1973 or Part 8 of Schedule 5 to the Civil Partnership Act 2004, in consequence of the commencement of sections 49 to 54 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The Family Proceedings Fees (Amendment) Order 2013
This Order amends the Family Proceedings Fees Order 2008. It increases certain fees that are payable in family proceedings in England and Wales in the Senior Courts and county courts by the cumulative rate of inflation since those fees were last increased.
CASES
CM v The Executor of the Estate of EJ & Ors [2013] EWHC 1680 (Fam) (14 June 2013)
Application for declaration relating to the removal of blood and tissue samples from a deceased person, for the purpose of testing for blood-borne diseases. Full report: Bailii.
W (A Child) [2013] EWCA Civ 662 (8 May 2013)
Appeal by parents against findings of fact regarding injuries to child. appeal dismissed. Full report: Family Law Week.
LCG v RL [2013] EWHC 1383 (Fam) (23 May 2013)
Application by mother for return of children to Spain. Application granted. Full report: Bailii.
Re H-L (A Child) [2013] EWCA Civ 655 (13 June 2013)
Appeal by mother in care proceedings against refusal of application for permission to instruct three expert medical witnesses. Guidance given regarding the new test on the use of experts in family proceedings. Full report: Judiciary of England and Wales (PDF). HTML version: Bailii. See also the news story above and the blog post, below..
T v M [2013] EWHC 1585 (Fam) (23 April 2013)
Appeal by husband against striking out of application to vary a maintenance order. Appeal dismissed. Full report: Family Law Week.
Prest v Petrodel Resources Limited and others [2013] UKSC 34 (12 June 2013)
Appeal dealing with issue of Whether it is open to the court in ancillary relief proceedings to treat the assets of a company of which a spouse is the sole controller as being assets to which that spouse is ‘entitled’ for the purposes of s 24(1)(a) MCA. Full report: Supreme Court (PDF). HTML version: Bailii. See also the news stories and articles.
In the matter of B (a Child) [2013] UKSC 33 (12 June 2013)
Appeal dealing with issue of Whether a child of two years of age should be permanently removed from her parents and placed for adoption. In that regard, whether the child was likely to suffer significant harm within the meaning of s.31(2)(a) of the Children Act, and whether her permanent removal was a proportionate response to any such risk that she did face. Full report: Supreme Court (PDF). HTML version: Bailii. See also the news story, articles and blog posts.
Prizzia v Hungary (Application No 20255/12) (11 June 2013)
Application by father applied to ECHR claiming that the Hungarian authorities failed to ensure the enforcement of decisions concerning contact with his child in breach of Art 8. Held, the Hungarian authorities had acted in breach of the father's Art 8 European Convention rights. Report: Family Law. Full report: ECHR.
ARTICLES
Sir Mark Hedley: The judge who opened the doors to Britain’s most secretive court
Sir Mark Hedley decided that the public should know about the judiciary’s highly sensitive rulings. He tells Emily Dugan why. Full article: The Independent.
Re B (A Child) – Social Engineering or Proportionate Response to Risk of Future Harm?
Janet Bazley QC and Eleri Jones of 1 Garden Court consider the Supreme Court’s decision in Re B (A Child) [2013] UKSC 22 [above]. Full article: Family Law Week.
Changes to public law
The pressures on the public purse as much as those of the present Conservative government have brought about yet more radical changes to public law proceedings. Full article: Law Society Gazette.
Samantha Bangham’s Week in Cases 14 June 2013
Samantha Bangham looks at the week's case highlights (guess which two cases?). Full article: Family Law.
Stripping Away the Veil of Deceit: Prest v Petrodel
John Wilson QC of 1 Hare Court analyses the Supreme Court’s judgment in the landmark case of Prest v Petrodel [above] and considers its implications for family lawyers. Full article: Family Law Week.
Care Proceedings: the Operation and Effect of Pre-Proceedings – What do lawyers need to know?
Professor Judith Masson, School of Law University of Bristol, and Dr Jonathan Dickens, Centre for Research on Children and Families, University of East Anglia, explain the lessons learned for future practice from research conducted into the use of the pre-proceedings process in care cases. Full article: Family Law Week.
The Supreme Court deploys its Stinger, but does not piece the corporate veil
"Today's decision by the Supreme Court in Petrodel v Prest [above] puts reality back into an important area of family law." Says Jeremy Posnansky QC, in this article on Family Law.
BLOG POSTS
Eating cabin-boys and instructing experts
Suesspiciousminds turns his attention to Re H-L (A Child) [2013] [above]. Full post: suesspiciousminds.
Emotional wrecks
Suesspiciousminds gives further consideration to the Supreme Court decision in Re B (A Child) [above]. Full post: suesspiciousminds.
Empathy, anxiety and resilience: Lady Hale in the Supreme Court yesterday
Observations on Lady Hale's judgment in Re B (a Child) [above]. Full post: The Not So Big Society.
Supreme Court and emotional harm
Suesspiciousminds considers the supreme Court judgment in Re B (A Child) [above]. Full post: suesspiciousminds.
A case of oversharing
The Law Society has issued social media guidelines for solicitors, but it’s time we do the same for clients, says Marilyn Stowe, in this post on her blog.
Labels:
News Updates
Monday, June 17, 2013
5 Steps To Making Divorce Easier For Your Family
If your marriage or civil partnership has ended there will be a number of practical decisions and difficult choices to be made. You will already be dealing with the emotional aspects of a failed relationship and it is therefore important to keep stress to a minimum – because you are probably not in a very good position to deal with it right now.
Seeking legal advice about the breakdown of your marriage or civil partnership is a big step to take because it will feel very final: you are taking a formal step towards divorce or dissolution. There are ways in which you can make this process easier, as set out below, but it will take considerable courage and strength to get through these next few weeks rationally and reasonably and with minimal impact on the rest of your family, particularly your children.
1. Find a good family lawyer. Most family lawyers specialise in all aspects of family law including divorce and ancillary relief (dealing with the finances after the relationship breaks down), domestic violence and contact/residence issues.
There are many solicitors out there who deal with all sorts of work, from criminal cases to personal injury matters and handle family law cases as well. But specialist family lawyers are much more familiar with the system: they know what judge would be likely to say about a case and they know how to deal with the other person’s solicitors. A non-family lawyer might create problems and arguments where there do not need to be any, and might not secure the best possible outcome for you. There is a family law protocol that good family solicitors adhere to, ensuring that matters are dealt with in a calm, non-antagonistic way.
2. Remember that your children come first. You may be feeling very bitter towards your ex, especially if the breakdown of the relationship was triggered by their actions. You may feel resentful that you are having to make major changes to your life such as moving house or having less money than before. But one of the most difficult things to come to terms with is probably the idea of spending less time with your children and of your children spending time with people you might not know – such as new partners.
There is little you can do to change this, it is something that you will need to come to terms with. Be supportive of their time with their other parent, sending them off with a smile and warm words, no matter how difficult it is. Your ex will always be the parent of your children and they should be allowed to have that relationship with them. If you find this very difficult, good family solicitors can arrange for you and your ex to attend mediation to discuss any problems and to sort out arrangements that suit you both.
Your children do not need to know why you and your ex have separated, it is enough for them to know that you two, as adults, have chosen to separate. It is important, though, that you stress that both of you still love your children and always will.
3. Re-prioritise your spending. You might not have chosen a divorce, but if a divorce is imminent then you will need to deal with the fact that you will need to make changes to your finances. Your solicitor will be able to advise you on how the assets ought to be divided and family mediation can help in coming to an arrangement that both of you agree to – this is generally easier to accept than a court order that is imposed.
Make a list of your income and outgoings. Prioritise those outgoings that you must pay, such as your mortgage/rent, council tax and food bills. Change where you shop to reduce bills and cut out ‘luxuries’ like satellite television and expensive mobile bills – at least until you know just how much you will have to live on in the longer term.
If you can no longer realistically afford to live in your home (even after taking into account any benefits and child maintenance you might receive) then remember that it is just bricks and mortar and it is more important that your children have a home with a loving parent than to live somewhere unaffordable where there is always anxiety and worry about paying the bills.
4. Check out your benefits situation. When there were two of you living together you might not have been entitled to any benefits or tax credits. Be sure to contact the benefits agency to check what you are entitled to (the Citizen’s Advice Bureau is also a useful place to ask, and your solicitor may be able to help too) and if your ex is not paying maintenance then you can contact the Child Support Agency. Normally courts do not get involved in ordering child maintenance but the largest share of the assets normally goes to the main carer of the children.
5. Consider mediation. All family lawyers will ask you to consider mediation and if you are entitled to legal aid financially it is usually a pre-requirement that you try mediation before you will be funded to take your case to court. Mediation can be done face-to-face or separately, either on different days or in different rooms if the two of you find it difficult to face each other.
A mediator is usually a family lawyer who has been trained in mediation. They will be independent of you and your ex and able to look at the overall situation (property, income, children etc.) and help you to reach an agreement that meets the needs of everyone concerned. They will have experience of handling their own cases in court and will know what a court would be likely to order and can offer sound guidance on what proposals are reasonable. This helps to protect you if you feel that your ex will just dominate the conversation and bully you into accepting less than you are entitled to. Your own solicitor will check the details of any agreement and ensure that it is fair.
Any agreement reached in mediation can be turned into a court order with everyone’s agreement so that it binds both of you. The cost of mediation is usually far less than fighting cases through court, meaning that more of the available assets are divided between you rather than spent on legal fees.
So if you are ready to take this step, ask friends for recommendations to find a good family lawyer in your area, or go to the Law Society’s website to search for family solicitors. Many will offer a free half hour of advice with no obligation to pay anything so you can test out whether you would feel confident instructing a particular solicitor.
Finally, you will need a good working relationship with your solicitor so make sure that you are honest from the start and that you listen carefully to the advice given. Most solicitors will allow you to bring a friend for moral support if you feel anxious about going to your appointment.
Bio: Alex Sebuliba is the marketing coordinator for Brookman Solicitors. Brookman Solicitors are family law specialists who deal with a full range of legal matters including divorce in the UK and international family law.
Seeking legal advice about the breakdown of your marriage or civil partnership is a big step to take because it will feel very final: you are taking a formal step towards divorce or dissolution. There are ways in which you can make this process easier, as set out below, but it will take considerable courage and strength to get through these next few weeks rationally and reasonably and with minimal impact on the rest of your family, particularly your children.
1. Find a good family lawyer. Most family lawyers specialise in all aspects of family law including divorce and ancillary relief (dealing with the finances after the relationship breaks down), domestic violence and contact/residence issues.
There are many solicitors out there who deal with all sorts of work, from criminal cases to personal injury matters and handle family law cases as well. But specialist family lawyers are much more familiar with the system: they know what judge would be likely to say about a case and they know how to deal with the other person’s solicitors. A non-family lawyer might create problems and arguments where there do not need to be any, and might not secure the best possible outcome for you. There is a family law protocol that good family solicitors adhere to, ensuring that matters are dealt with in a calm, non-antagonistic way.
2. Remember that your children come first. You may be feeling very bitter towards your ex, especially if the breakdown of the relationship was triggered by their actions. You may feel resentful that you are having to make major changes to your life such as moving house or having less money than before. But one of the most difficult things to come to terms with is probably the idea of spending less time with your children and of your children spending time with people you might not know – such as new partners.
There is little you can do to change this, it is something that you will need to come to terms with. Be supportive of their time with their other parent, sending them off with a smile and warm words, no matter how difficult it is. Your ex will always be the parent of your children and they should be allowed to have that relationship with them. If you find this very difficult, good family solicitors can arrange for you and your ex to attend mediation to discuss any problems and to sort out arrangements that suit you both.
Your children do not need to know why you and your ex have separated, it is enough for them to know that you two, as adults, have chosen to separate. It is important, though, that you stress that both of you still love your children and always will.
3. Re-prioritise your spending. You might not have chosen a divorce, but if a divorce is imminent then you will need to deal with the fact that you will need to make changes to your finances. Your solicitor will be able to advise you on how the assets ought to be divided and family mediation can help in coming to an arrangement that both of you agree to – this is generally easier to accept than a court order that is imposed.
Make a list of your income and outgoings. Prioritise those outgoings that you must pay, such as your mortgage/rent, council tax and food bills. Change where you shop to reduce bills and cut out ‘luxuries’ like satellite television and expensive mobile bills – at least until you know just how much you will have to live on in the longer term.
If you can no longer realistically afford to live in your home (even after taking into account any benefits and child maintenance you might receive) then remember that it is just bricks and mortar and it is more important that your children have a home with a loving parent than to live somewhere unaffordable where there is always anxiety and worry about paying the bills.
4. Check out your benefits situation. When there were two of you living together you might not have been entitled to any benefits or tax credits. Be sure to contact the benefits agency to check what you are entitled to (the Citizen’s Advice Bureau is also a useful place to ask, and your solicitor may be able to help too) and if your ex is not paying maintenance then you can contact the Child Support Agency. Normally courts do not get involved in ordering child maintenance but the largest share of the assets normally goes to the main carer of the children.
5. Consider mediation. All family lawyers will ask you to consider mediation and if you are entitled to legal aid financially it is usually a pre-requirement that you try mediation before you will be funded to take your case to court. Mediation can be done face-to-face or separately, either on different days or in different rooms if the two of you find it difficult to face each other.
A mediator is usually a family lawyer who has been trained in mediation. They will be independent of you and your ex and able to look at the overall situation (property, income, children etc.) and help you to reach an agreement that meets the needs of everyone concerned. They will have experience of handling their own cases in court and will know what a court would be likely to order and can offer sound guidance on what proposals are reasonable. This helps to protect you if you feel that your ex will just dominate the conversation and bully you into accepting less than you are entitled to. Your own solicitor will check the details of any agreement and ensure that it is fair.
Any agreement reached in mediation can be turned into a court order with everyone’s agreement so that it binds both of you. The cost of mediation is usually far less than fighting cases through court, meaning that more of the available assets are divided between you rather than spent on legal fees.
So if you are ready to take this step, ask friends for recommendations to find a good family lawyer in your area, or go to the Law Society’s website to search for family solicitors. Many will offer a free half hour of advice with no obligation to pay anything so you can test out whether you would feel confident instructing a particular solicitor.
Finally, you will need a good working relationship with your solicitor so make sure that you are honest from the start and that you listen carefully to the advice given. Most solicitors will allow you to bring a friend for moral support if you feel anxious about going to your appointment.
Bio: Alex Sebuliba is the marketing coordinator for Brookman Solicitors. Brookman Solicitors are family law specialists who deal with a full range of legal matters including divorce in the UK and international family law.
Labels:
Guest Posts
News Podcast: For the week to the 17th of June 2013
A summary of the most important family law news stories and cases from the last week, in the usual short, easy-to-listen, format.
(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)
(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)
Labels:
Podcasts
Saturday, June 15, 2013
Edgar Venal Knighted!
===PRESS RELEASE===
London, 15th June 2013: Edgar Venal has
The citation reads: "for services to the advancement of the good name of the legal profession".
Responding to the honour,
Sir Edgar has asked me to say that reports that he paid for the honour are entirely without foundation and that the name of anyone suggesting this will be passed to the Venal & Grabbit Defamation and Extortion Department.
Regarding the fact that Sir Edgar's name was not mentioned in the Honours List, he said: "as everyone knows, I am a modest man. I therefore requested that my name be omitted from the List".
He concluded: "I shall uphold all that is good about the honours system. My knighthood changes nothing. Just so long as you address me "Sir"."
===ENDS===
Labels:
Press Releases,
Venal and Grabbit
Something for the Weekend: The Supremes - Stoned Love
For those who, like me, have heard quite enough from Middlesex Guildhall this week, here are a rather more melodic type of Supremes:
Labels:
Something for the Weekend
Friday, June 14, 2013
The Horrific Medical Malpractice Casebook
Labels:
Guest Posts
Friday Review: Cases, fees, figures and... Mr Gove
Notable things this week:
The two biggest stories this week come, of course, from the Supreme Court.
Firstly, we had B (A Child, in which the Supreme Court dismissed the appeal, by a majority of 4:1. There has been some comment on this judgment (for example this post by suesspiciousminds), but clearly child care is not as 'sexy' as multi-million pound divorce cases...
Hot on the heels of B (A Child) we had Prest v Petrodel, in which, to the surprise of some, Mrs Prest's appeal was unanimously allowed. What was not surprising was the outpouring of analysis and comment following the judgment, with Resolution, 1 Hare Court, Jeremy Posnansky QC and Joshua Rozenberg all being particularly quick off the mark, not to mention the press releases I received in my Inbox (and which still remain there). Expect a lot more in the coming days...
As mentioned by Colin Mitchell on Twitter, it seemed more than a coincidence that, just as our eyes were diverted by the excitement of two family law Supreme Court judgments, a new Family Proceedings Fees Order was being released, including an eye-watering 20% increase in the fee to issue a divorce petition, from £340 to £410 (although this does include the decree absolute fee). Another example of justice becoming the preserve of the better-off.
Elsewhere, Cafcass reported a record-breaking month for private law applications. Some lawyers considered that this was due to a surge in the number of litigants in person following the legal aid cuts at the beginning of April, and warned that this could lead to the 'collapse' of the family courts. Others, however, say the rise is simply a temporary blip due to the rush to 'beat' the cuts. I guess time will tell...
Meanwhile, a report from the Centre for Social Justice warns that around one million children are growing up with no contact with their father, and that some of the poorest parts of the country have become "men deserts". Hmm. Why am I always sceptical of research that supports the arguments of those who commissioned it? Indeed, there is a different view, for which see this article in the Guardian.
Mind you, the way some parents behave you do wonder whether children might be better off without either of them...
Finally (taking care to say nothing about the defacement of a certain painting of the Queen), I would like to draw your attention to this post on The Children's Services Blog. Serious case reviews are, of course, a serious subject, but you have to wonder what Mr Gove was thinking when he chose to appoint an air accident investigator to the new Serious Case Review Panel, but not anyone with any direct child protection practice or social work management experience...
Labels:
Friday Review
...AND JUSTICE FOR NONE: Chapter 7 - A Phone Call
IN CHAMBERS, 14 Little Graymatter Square. Arthur Conscience has come to a decision.
He picks up the phone and dials.
"Judge Dodgy." A voice on the other end replies.
"Ah, Judge Dodgy." Says Arthur. "I've had a little thought about your proposal, and come to a decision."
"And?" Asks Judge Dodgy impatiently.
"I've decided I will represent you." Says Arthur cooly.
"Excellent!" Replies Judge Dodgy. "When do you want to see me?"
They arrange a conference in chambers the following week.
"We'll go through the evidence against me and tear it to shreds!" Proclaims Judge Dodgy.
"Quite." Says Arthur.
"With you representing me, the jury won't believe a word the prosecution say!" Proclaims Judge Dodgy.
"Quite." Says Arthur.
"And after we've won, I want to take defamation proceedings against everyone who's sullied my good name!" Proclaims Judge Dodgy.
"Quite." Says Arthur.
"One last thing - what made you decide to represent me?" Asks Judge Dodgy.
"Well," replies Arthur with a smile, "everyone has a right to the best legal representation." Arthur thinks he can hear a cough at the other end of the phone.
"Quite." Says Judge Dodgy.
Labels:
And Justice For None,
Venal and Grabbit
Thursday, June 13, 2013
Family Lore Clinic: Is a consent order legally binding?
As I have mentioned before, the term 'consent order' usually refers to the court order setting out an agreed financial/property settlement on divorce or dissolution of civil partnership, and that is the meaning I will assume in this post.
The answer to the question is quite simple: Once the consent order has been made, it is binding just like any other order. The fact that the terms of the order were agreed, or that it was agreed that those terms would be made into an order, make no difference. The order is binding just the same as if the court had made the order without the agreement of the parties.
The only 'proviso' to the above is that the financial/property settlement is dependent upon the divorce being finalised, and therefore if it has not been finalised the consent order will not take effect until the decree absolute.
As usual, if you require specfic advice, then you should consult a specialist family lawyer.
Labels:
Family Lore Clinic
Wednesday, June 12, 2013
Prest v Petrodel Resources Limited and others: Appeal allowed
The Supreme Court has today allowed the wife's appeal in Prest v Petrodel.
The Issue
Whether it is open to the court in ancillary relief proceedings to treat the assets of a company of which a spouse is the sole controller as being assets to which that spouse is ‘entitled’ for the purposes of s 24(1)(a) Matrimonial Causes Act 1973.
The Facts
The appellant wife brought financial proceedings ancillary to her divorce from her husband Michael Prest. The husband was ordered to pay a lump sum of £17.5m to the wife, which he has not paid. The respondents are all Isle of Man companies under the control of the husband. The wife obtained an order that real property held by the respondents should be transferred to her so as to reduce the lump sum order. The respondents successfully appealed against that order.
The Decision
The Supreme Court unanimously allowed the appeal by the wife and declared that the seven disputed properties vested in the companies are held on trust for the husband on the ground (which was not considered by the courts below) that, in the particular circumstances of the case, the properties were held by the husband’s companies on a resulting trust for the husband, and were accordingly “property to which the [husband] is entitled, either in possession or reversion”. Lord Sumption gave the leading judgment and Lord Neuberger, Lady Hale, Lord Clarke and Lord Walker added concurring judgments.
A press summary of the judgment is available here, and the full judgment here.
Labels:
Finance/Property,
Law Reports
In the matter of B (a Child): Appeal dismissed
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| The Supreme Court |
The Issue
Whether a child of two years of age should be permanently removed from her parents and placed for adoption. In that regard, whether the child was likely to suffer significant harm within the meaning of s.31(2)(a) of the Children Act 1989, and whether her permanent removal was a proportionate response to any such risk that she did face.
The Facts
‘A’, a girl now aged two years old, was removed from her parents at birth. The first Respondent subsequently applied for a care order permanently to separate her from her parents and to have her placed for adoption. The grounds on which the order was sought were principally that her mother (‘M’) suffered from a psychiatric condition that led her to seek unnecessary medical treatment; that both her parents exhibited a dishonest approach when interacting with care personnel and other professionals; and that it was not appropriate for her father (‘F’) to care for her of his own accord. It was asserted that A was at risk of harm in terms of her emotional and social development and also due to the risk she would be presented for unnecessary medical treatment or adopt M’s behaviour in doing so. The Family Division of the High Court granted the care order. Both parents appealed that order on the grounds they did not present a risk of significant harm to A, and that in any event her permanent removal and placement for adoption was disproportionate to any risk that they did present. The Court of Appeal upheld the care order, and the parents now appeal that decision to the Supreme Court.
The Decision
The Supreme Court dismissed the appeal by a majority of four to one.
A press summary of the judgment is available here, and the full judgment here.
Labels:
Children,
Law Reports
Tuesday, June 11, 2013
News Update: 11th of June 2013
WELCOME to this week's Family Lore News Update.
NEWS
Family courts risk 'collapse' as surge in custody cases follows legal aid cuts
The family court system is in danger of “collapsing in on itself” after a surge in the number of warring parents turning up in person to launch child custody cases because of legal aid cuts [see Cafcass story below], leading lawyers are warning. Full story: The Telegraph.
Prest v Prest: supreme court prepares to rule on landmark divorce wrangle
Will Yasmin Prest "pierce the corporate veil" and get the £17.5m divorce settlement her former husband has been ordered to pay her? That's the intriguing question the supreme court will answer on Wednesday. Full story: The Guardian.
Record-breaking month for private law applications
In May 2013, Cafcass received a total of 5,061 new private law cases, representing the highest ever month on record. This is a 5% increase on February 2012 levels. Clearly, mediation is not the answer to everything... Full story: Cafcass.
Slight drop in Care applications in May
In May 2013, Cafcass received a total of 965 applications. This is a 1.8% decrease on May 2012, however the year-to-date figures are still up on last year. Full story: Cafcass.
'A million children growing up without fathers'
A million UK children are growing up without a father in their lives, says a new report on family breakdown. Full story: BBC News.
Foster care to be extended to the age of 21
Teenagers will be helped to stay with their foster parents until they reach 21 under plans being put to MPs this week. Full story: The Independent.
Independent reviewing officers are not challenging enough, says Ofsted
Officers employed by local authorities to review care plans are failing to make enough of a difference for looked-after children, a damning report has found. Full story: Children & Young People Now.
Serious case review panel established
Education Secretary Michael Gove today established a new independent panel to help ensure that lessons are learned when a child dies or is seriously harmed and there are signs of abuse or neglect. Full story: GOV.UK.
Use of expert witnesses in family courts is on the slide, finds Cafcass
The use of expert witnesses in care proceedings cases, particularly independent social workers, has fallen radically over the last three years. Full story: Children & Young People Now.
Supreme Court to deliver judgment in Petrodel v Prest next week
The Supreme Court will deliver its judgment in Petrodel Resources Limited and others v Prest on Wednesday, 12th June. See also the news story above. Full story: Family Law Week.
Supreme Court to deliver judgment on ‘significant harm’ and proportionality of response
The Supreme Court will deliver judgment in B (A Child) on Wednesday, 12th June. See also the blog post below. Full story: Family Law Week.
Child maintenance reforms will 'penalise single parents'
Proposals to reform the child maintenance system will leave many lone parents worse off, causing children's welfare to suffer, research suggests. Full story: Children & Young People Now.
News from the Supreme Court
The Supreme Court grants permission to appeal one High Court and one Court of Appeal decision. Full story: Family Law Hub.
Ombudsman attacks council for failing to support boy abandoned by parents
The Local Government Ombudsman has sharply criticised a local authority for its failure properly to support a child abandoned by his parents. Full story: Local Government Lawyer.
Fresh inquiry sees MPs investigate support for children in care
A group of MPs has launched an inquiry to examine whether looked-after children receive the support to which they are entitled. Full story: Children & Young People Now.
North West council fined £70k after data breach relating to adopted child
A council in the North West has become the latest local authority to be fined by the Information Commissioner’s Office after a data breach in its social services team. Full story: Local Government Lawyer.
New mediation laws to help separating couples
Separating couples will be legally required to find out about ways to settle disputes away from the courtroom, under new laws currently going through Parliament. Full story: GOV.UK.
Insemination case: Chances missed to check on adopted daughter
A review into how a mother was able to force her adopted child to impregnate herself has found agencies missed opportunities to intervene. Full story: BBC News.
Peers defeat attempt to kill gay marriage bill
Campaigners for same sex marriage welcome the result after a wrecking amendment was defeated by 390 to 148 votes. Full story: The Guardian.
Government welcomes new ideas for supporting separated families
Additional funding available for projects to help separated parents and their children. Full story: GOV.UK.
PRACTICE GUIDANCE
General Medical Council guidance: Acting as a witness in legal proceedings
The General Medical Council has published guidance for doctors who act as professional witnesses or expert witnesses. Full story: Family Law.
Legal Aid Agency Guidance on the Remuneration of Expert Witnesses
The Legal Aid Agency has published updated guidance on remuneration for expert witnesses. Full story: Family Law.
President's Guidance of 4 June 2013: Committal for Contempt of Court
On 4 June 2013, the President of the Family Division issed guidance on committal for contempt of court. This guidance supplements the Practice Guidance issued on 3 May 2013. Practice Guidance: Family Law.
CASES
Just two new cases this week:
R (Mother) v C (Father) & Anor [2013] EWHC 1295 (Fam) (17 May 2013)
Application by mother for permission to relocate with her child ton Columbia. Permission granted. Full report: Bailii.
A Council v M & Ors (Judgment 4: Foreign Adoption: Refusal of Recognition) [2013] EWHC 1501 (Fam) (06 June 2013)
Application for a declaration that an adoption in Kazakhstan is recognised in England and Wales. Held that it was not an adoption that is recognised. Full report: Bailii.
ARTICLES
Legal services orders
Since 1 April the family courts have had the power to make a legal services order, which is a new form of interim order compelling one spouse to make provision for the other’s legal costs. Full article: Law Gazette.
Disclosure of confidential information: public interest immunity
David Burrows looks back at Durham County Council v Dunn [2012] EWCA Civ 1654. Full article: Family Law.
Finance and Divorce June 2013 update
Anna Heenan, solicitor and David Salter, Joint Head of Family Law at Mills & Reeve LLP analyse the financial remedies and divorce news and cases published in May. Full article: Family Law Week.
Samantha Bangham’s Week in Cases 7 June 2013
Samantha Bangham looks at the week's case highlights. Full article: Family Law.
The Revised Public Law Outline .... and this time they mean it
Andrew Pack, care lawyer with Brighton & Hove City Council, explains and comments on the changes made by the recently published Revised Public Law Outline. Full article: Family Law Week.
BLOG POSTS
A thin week for blog posts too:
Rescuing children from significant harm: looking forward with trepidation and hope
Allan Norman looks forward to the Supreme Court judgment in B (A Child). Full post: The Not So Big Society.
“Tales of the Un-experted” (sorry)
CAFCASS have just published a study looking at experts – their use in proceedings, what type is being used, who asked for them, were they helpful? Full post: suesspiciousminds (about time he apologised for his post titles!).
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News Updates
Monday, June 10, 2013
News Podcast: For the week to the 10th of June 2013
A summary of the most important family law news stories from the last week, in the usual short, easy-to-listen, format.
(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)
(If you can't see the audio player above, try refreshing your browser. Alternatively, you can listen to the podcast here.)
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