In Practice: A class apart

It's been something of a quiet week for professional news.

I suppose I should mention that the SRA has extended the deadline for renewing practising certificates to the end of February. This applies to all those renewing, irrespective of name. The SRA does emphasise that it is still important to renew as soon as possible, presumably in case of (further) problems.

Returning to the issue of fusion, solicitor Richard Burnett-Hall wrote a letter that was published in the Gazette yesterday, in favour of the President of the Law Society's idea that solicitors and barristers should undergo the same training. He pointed out the costs of training for the Bar and the risk of meagre earnings for newly-qualified barristers, all of which:

"...means that the intake is substantially skewed towards those with independent means who are often privately educated. This not only discourages able candidates from other backgrounds, but more insidiously maintains the public’s impression that the bar and the judiciary are predominantly public school- and Oxbridge-educated, and from a class apart."

All very commendable, although if this is the same Richard Burnett-Hall who works as a consultant at Bristows, I note that not only does he have a double-barrelled surname, he also has an MA from Cambridge. Perhaps some solicitors are also a class apart...

And that's about it for this week. As I have finished early, I shall now retire to my club, where I shall have a G and T whilst gazing out of the window, watching the great unwashed go about their menial lives...

Win a Divorce - On Valentine's Day!

What could be better - and more fun - than telling your wife live on the radio on Valentine's Day that you are divorcing her?

This hilarious stunt is to be carried out by those wacky DJs Robert and Jono at crazy New Zealand radio station The Rock FM. In return for doing the dirty deed, the husband, known as 'Sam', will have his divorce paid for by the radio station. According to The Rock:

"Across our fair land there are hundreds of poor blokes who thought they married an angel who, in fact, turned out to be Satan in a dress.

So Robert and Jono have put it on themselves to help one of those blokes out.

But this won't be your standard marital break-up. This will be aired live on the radio. On Valentine's Day.

Robert and Jono have found their Divorcer - Sam - and are helping him prepare to get his life back by ditching the ball and chain."

Classy.

As for Sam, who won a competition to be the lucky 'divorcer', he says that he: "Is confident nothing is going to go wrong."

Well, what could go wrong?

Two lessons for separated fathers

Autor y su Hijo by Carlos Vergel Frorentti

Two lessons for separated fathers, neither of which is new, but both of which cropped up this week:

Lesson number 1: The world ain't out to get you
I was reminded of this just this morning, when I read a comment on this post that I wrote on Monday. The commenter, clearly a fathers' rights supporter from his name, repeatedly (mis-)used the word 'misandry' when talking about a poll in the Guardian regarding fathers' contact rights.

I hate to disappoint, but whilst there may be a few misandrists working in the family justice system, there is no conspiracy against fathers. Why should there be? For example, the accusation is often made against family lawyers, but it simply doesn't make sense: family lawyers act for mothers and fathers - why should they discriminate against half of their clientele? When I acted for a father in a residence/contact dispute I did the same job as I did for a mother.

The law, in fact, is gender-neutral (there is nothing in the Children Act that favours mothers over fathers), and it has long been acknowledged by the courts that that the welfare of children is usually best served if they continue to have a proper relationship with both parents (see, for example, Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124).

So why, a fathers' rights supporter would say, are the vast majority of residence orders made in favour of mothers, and why are the courts so bad at enforcing contact orders in favour of fathers? As to the former, this simply follows from the fact that, in our society, mothers are usually better placed than fathers to be residential parents - it is simply down to what is best for the welfare of the child, not any conspiracy against fathers. As to the latter, this ultimately (i.e. once it has been established that the mother is entirely at fault, which is actually quite rare) flows from the obvious practical difficulties in taking enforcement action against someone caring for one or more children. If she ignores other methods of enforcement, the ultimate sanction is prison, but then: (a) who then looks after the children and (b) what will be the effect upon the children of such action?

Another aspect of the 'world is against me' paranoia is, of course, a desire by some fathers to blame anyone and everyone for the situation they find themselves in, when they only need to look in the mirror for the source of their troubles. I'm not for one moment saying that all fathers who fail to get contact with their children are to blame for that, but everyone who has worked within the family justice system has seen many examples of fathers who are their own worst enemies. Aggression towards the mother and hostility towards the court (and, when things don't go their way, even towards their own lawyers) are not likely to achieve satisfactory outcomes.

So, my suggestion is that the 'victim mentality' of many fathers is not only wrong, it can be counter-productive, masking the true reasons for some fathers losing contact with their children.

Lesson number 2: You can't solve every problem by changing the law
It is a common theme amongst fathers' rights supporters that the law is to blame for so many fathers losing contact with their parents. Such an argument loses some of its strength when one thinks that in 90% of cases arrangements for children are agreed between the parents without recourse to the courts, and that in 2010 the courts refused only 300 of 95,000 contact applications. Nevertheless, fathers' rights groups call for a change in the law, giving fathers equal 'rights' in respect of their children, usually along the lines of a presumption of shared residence. They seem to think that this is the panacea that will lead them to their parenting nirvana.

You can't blame them; you only have to watch the news or read the Daily Mail any day to see 'experts' and politicians calling for a change in the law to resolve the latest issue of the moment. More often than not though, when one examines the problem in detail one realises that the present law is quite adequate, or that the problem is just not so straightforward that a simple change in the law will cure it.

This issue of shared parenting has, of course, been in the news this week with the publication of the Government's Response to the Family Justice Review. Contrary to the recommendation of the Review, the Government has chosen to give the matter further consideration, believing "that legislation may have a role to play in supporting shared parenting".

Well, I don't want to dash anyone's hopes, but I think it may be somewhat optimistic to expect any such legislation to have any significant impact upon the outcomes of future children cases. Whatever the guidance from parliament, the courts will still be dealing with the same difficult practical problems as before, with the same limited options as to satisfactory outcomes.

In any event, I have news for you: the courts have already for some years been fully conscious of the possibility that some sort of shared residence/parenting arrangement may be in the best interests of the children (see, for example, D v D (Shared Residence Order) [2001] 1 FLR 495), and many shared residence orders have been made. Any change in the law is likely to have little effect upon the way the courts already look at things.

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[This post was in part inspired by this excellent Comment is free article in the Guardian on Monday by Liz Trinder, professor of socio-legal studies in the Law School at Exeter University.]

Music to a divorce lawyer's ears...

On a slow day for family law news, I came across this story, of what must be one of the shortest marriages ever, certainly the shortest I have come across. It is not entirely surprising, however, that the bride changed her mind only one hour after the wedding, as she was 20 and her groom was 80...

Knight Ryder

[Don't blame me, blame @SobukiRa.]

MIAM should be compulsory, say Venal & Grabbit

I have received the following press release from Messrs. Venal & Grabbit, Solicitors:

===PRESS RELEASE===

London, 7th February 2012: Leading firm of divorce lawyers Venal & Grabbit think all husbands should be advised to use MIAM™, their new method for hiding assets from greedy vindictive wives. Short for 'Move and Insulate All the Money', MIAM™ teaches wealthy husbands unbeatable methods for salting away property, in such a way that avaricious wives and interfering judges will never be able to find it.

Senior Partner Edgar Venal said: "These days many lily-livered lawyers fail in their duty to protect rich husbands from money-grabbing wives, resulting in many such men losing large parts of their hard-earned fortunes. We at Venal & Grabbit teach husbands the principles of MIAM™, to ensure they keep everything they deserve. We believe that all lawyers should advise their husband clients to use MIAM™ ...provided, of course, that they pay us an appropriate fee for doing so."

===ENDS===

Happy Birthday Charles Dickens!

Attorney and Client: Fortitude and Impatience by "Phiz" (Hablot Knight Browne) for Bleak House

In view of his obvious concerns for the welfare of children, it seems entirely appropriate to celebrate the 200th anniversary of Charles Dickens's birth on a blog devoted to family law. Of course, the law was one of his most famous targets in the wonderful Bleak House (above), but hopefully since then we have learned a thing or two, even if we may not be perfect!

62.5% think divorced fathers have sufficient access rights under current law

According to this poll in The Guardian, 62.5% of the population think that divorced fathers have sufficient access rights under current law. Well, that was the result shortly after I voted. Strangely, the result has since gone completely the other way. This could not possibly be due to fathers' rights groups mobilising their minions to warp the result, could it? If it was, I didn't see that coming...

Of course, as @julie_doughty has quite rightly pointed out, the poll has two serious flaws: firstly, it only refers to divorced fathers, rather than all separated fathers, and secondly, it refers to 'access', rather than 'contact' - the Guardian really should know better than that. After all, it is more than 20 years since the Children Act...

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UPDATE: Having checked with Julie, the Guardian has now amended its headline!

LoreCast for the week to the 6th February 2012

In a bumper edition, Natasha and I bring you the top family law news stories from the last week.



(Those without Flash can listen here.)

Government Response to the Family Justice Review

The Government has published its Response to the Family Justice Review.

The Government has accepted the majority of the Review’s recommendations, in full. Going through the detailed responses to each recommendation in the Review, I have identified the following main areas where the recommendations have been rejected, or not accepted in full:

1. The recommendation that charges to local authorities for public law applications should be removed: The Government says that the Review "did not find any evidence that court fees prevented local authorities from fulfilling their statutory duty", and that: "The cost of these fees has been built in as appropriate to the Spending Review settlements for 2010 for those departments affected."

2. The recommendation that the time limit for the completion of care and supervision proceedings should be set at six months, with a stipulation that a trial judge proposing to extend a case beyond six months would need to seek the agreement of the relevant Designated Family Judge/Family Presiding Judge, as appropriate: The Government responds: "the Panel’s proposal that extensions beyond the time limit should be agreed by a senior judge would encroach on judicial independence and may create further delay. For these reasons, the Government does not accept this part of the Panel’s recommendation, but to ensure that there is transparency about any decision to extend a case beyond the six-month time limit and that the proportion of cases requiring extensions can be kept under review, the reasons for the extension will be recorded and stated in court."

3. The recommendation that no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents: The Government feels that further consideration of this is needed. It says: "On careful reflection, the UK Government believes that legislation may have a role to play in supporting shared parenting and will consider legislative options for encouraging both parents to play as full a role as possible in their children’s upbringing." A working group of Ministers has been established to develop proposals for legislative change, which will be brought forward for wide debate and consultation later this year.

4. On the Review's recommendations regarding enforcement of orders: "The Government does not agree with the Review’s conclusion that additional enforcement measures are not the answer. Whilst the courts already have a number of enforcement powers (a fine or imprisonment for contempt of court; the imposition of unpaid work; and the award of compensation for financial loss suffered by the other parent) there are practical and evidential hurdles which in practice mean that these sanctions are little used. The Government therefore intends to explore the feasibility of providing the courts with wider enforcement powers so that in appropriate cases these can be used to address wilful disobedience in respect of the court’s order. Parents should also be made aware at the outset of proceedings about the potential consequences of disobeying any order made by the court and the Government believes that this could help to prevent enforcement from becoming the central issue."

5. On the recommendation that the Government should establish a separate review of financial orders to include examination of the law:  "The Law Commission is already taking forward a project to look at how provision might be made for pre-nuptial, postnuptial and separation agreements to be given legal effect, so as to provide couples with more control and certainty about how their assets are to be divided on divorce. Ministers have agreed that this project should be extended to include a limited reform on the substantive law on Financial Orders relating to needs and non-matrimonial property. The project will take around 18 months to complete. The Law Commission will then undertake a separate project to make recommendations for improving the enforcement of Financial Orders. These two projects together will improve the substantive law and make it easier to enforce Financial Orders once made by the courts." In other words, the recommendation is rejected.

As to what happens next, by April this year the Family Justice Board will be established and the legislative changes that will be required will be clarified. The Government will report on progress in implementing the wider reform programme by April 2013.

For some reaction to the Response, see this article on Family Law Week, this article on Family Law and this article in The Guardian. Family Law also has a reaction from James Carroll, Co-chair of the Law Society's Family Law Committee, here. Hayley Trim on Family Law has also given her analysis of the Response, here.

Highly implausible?

"Plainly, H is about to quit the jurisdiction. His asserted intention to travel to Africa to engage in charity work strikes me as highly implausible, and I consider that there must be some ulterior reason for his wish to leave the country." - Mr Justice Mostyn, Young v Young [2012] EWHC 138 (Fam) (03 February 2012)

Something for the Weekend: The Mavericks - Dance The Night Away

I was reminded of this during the week. A simple 'feel-good' song:

In Practice: Fusion, training, renewals and a Charter

Back to a slightly fuller In Practice this week:

One of the stories that I would have mentioned in last week's In Practice post but for the uncertainties of the Law Society Gazette website was the speech by the Law Society President John Wotton to the Saïd Business School in Oxford, in which he visited a subject that I have touched upon here before, i.e. fusion of the two halves of the profession. In a speech entitled Fission or Fusion, he expressed the belief that the division between solicitors and barristers will "wither away" as a result of the reforms set in motion by the Legal Services Act, and said that he thought it was "inevitable" that the professions will "need to revisit the question whether [they] should continue to be separately trained, represented and regulated".

Not everyone agrees that such a future is inevitable. One (unsurprisingly anonymous) commenter to last week's Gazette story expressed the view that: "If anyone thinks the Bar is going to do other than look after its own, they are barking mad."

Notwithstanding that, however, the Gazette reported yesterday that the chair of the Bar Standards Board Baroness Deech is actually thinking along similar lines to Wotton, at least when it comes to training. In a speech to students at Oxford University last week she proposed that barristers and solicitors should share most of their training, saying that the new structures in which lawyers can practise, and the severe shortage of pupillages, have called into question the way both branches of the profession should be trained. Her idea is that 'solicitors and barristers could do most of the core professional training together and then branch out to the bar or solicitor side towards the end' (quite where the branch should be located is not clear, but obviously somewhere in what is now the vocational stage). Such a change, she said, 'would help those uncertain which branch of the profession to train for, as well as those who realise that they made the wrong choice'.

Meanwhile, turning to more prosaic matters, the SRA has reported that it is clearing up its backlog of online practising certificate renewal applications, although if I read the report correctly, as of last Friday only 7.5% of applications had been completed, which doesn't seem much to me, given that the deadline is the 21st February (the 13th February for those whose names commence with the letters A to D). For an account of one solicitor's experience of using the new system, see this letter that was published in the Gazette yesterday.

And finally, congratulations are in order for the Institute of Legal Executives, which received a Royal Charter last week. ILEX has thus become CILEX.

Venal & Grabbit endorse Asda Valentine's Day card

They'll understand...

Venal & Grabbit have endorsed Asda's 7p "Smart Price" Valentine's card.

Senior Partner Edgar Venal said: "In these times of economic hardship it makes sense not to spend too much on your partner's Valentine's Day card. I'm sure anyone receiving such a card will appreciate how their loved one has put frugality first when choosing how to show their affection... by the way, my telephone number is 01234 666-666."

LSC: Guilty of 'sharp practice'?

Still on the subject of public law proceedings, it is obviously essential that parents facing the possibility that the state may remove their children from them should be properly advised and, if necessary, represented. It is therefore with considerable dismay that I hear more and more complaints about failures by the LSC to properly and promptly remunerate lawyers doing child care work.

The latest such complaint is in a letter from William Bache of William Bache & Co, published in the Gazette today. He refers to the recent closure of West Midlands legal aid firm Jewels, and agrees with Mark Jewels that that "melancholy event" was most likely caused by late payments by the LSC.

He goes on to say that his own firm's experience with the LSC has been similar, and that many other legal aid lawyers have told him that they have not received payments from the LSC for months. In fact, he believes "that some secret direction has been issued by the government to the LSC to reduce by any means possible the sums to be paid to the dedicated and hardworking (not to say long-suffering) practitioners", including:

"...reductions in amounts once allowed; rejections of major claims for the most miniscule of reasons; and disallowance of items that their declared policy says are allowable."

He says that "many would describe such tactics as sharp practice", compounding "the pre-existing scandal of lamentable rates of remuneration and the creaking administration of payments", and fears that if this situation continues:

"...more excellent firms will fail, leaving a vulnerable section of our community without the expertise they desperately need to deal with the visceral issues connected with the potential loss of their children."

It is not, of course, just that firms will fail - many others will simply choose to stop doing this vital work. What then for the likes of Tiffany and Mike?

And for any lay person thinking that this is just another example of the bleating of fat-cat lawyers, think again. Most child care lawyers are doing this very difficult and complex work for the sort of limited rewards any self-respecting fat cat would consider loose change, and at the very margin of profit.

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UPDATE: Please read the first comment to this post, which seems to sum this issue up nicely.