AN ATTACK ON CHILDHOOD AND THE FAMILY

Government plans to cut family legal aid represent an attack on childhood and the family, said family law association Resolution today as the Government published the response to its legal aid consultation.

Under the cuts, thousands of vulnerable parents going through the trauma of divorce and separation will be forced to struggle by without legal help – creating a serious risk that many children will lose contact with one of their parents or be subjected to unfair financial arrangements that harm their upbringing.

“Where there are serious problems between parents, stripping away affordable justice will force families into situations where children simply lose contact with one of their parents, which is wholly unacceptable in a civilized society,” said David Allison, Chair of Resolution.

“The cuts will also mean that, separated parents with primary responsibility for caring for the children may not be able to obtain a fair financial deal from the former partner.”

Under the planned cuts, large groups of vulnerable people will no longer be eligible for legal aid. The only option available to families who still qualify for legal aid will be mediation, which is a valuable non-court option but not suitable for all and requires both parties to voluntarily agree to take part.

“The Government seems determined to turn a deaf ear to the misery that these cuts could create for thousands of children and families. Not to mention the long term impact the cuts will have on wider society and the costs that will transfer to other state funded services as people develop other difficulties such as mental health issues, as they seek to work through these things on their own,” said David Allison.

“These cuts are clearly ill-considered and rushed. The consultation process has been the latest in a line of similar coalition government fiascos. It received an unprecedented 5,000 responses according to the Ministry of Justice’s own figures. It is inconceivable that these responses have been given full and proper consideration.”

The volume of responses to the consultation is not the only indicator that the proposals are deeply flawed. Both the Justice Select Committee and the Family Justice Review have expressed concerns about the Government’s plans.

The Justice Select Committee called on the Government to rethink its decision to use domestic abuse as the only means of accessing free legal advice and help, and the Government’s own Family Justice Review has warned of the potential impact on the courts of families forced to represent themselves.

“It will become virtually impossible for many struggling families to get legal aid when going through the pain of separation. For many, losing family legal aid will be a cruel and unaffordable blow,” said David Allison.

Resolution warns that the Government’s proposals could be the final nail in the coffin for many legal aid providers, leaving too few lawyers able to help the small numbers of vulnerable people who would still be protected by family legal aid.

The cuts are likely to create spiralling costs for taxpayers and chaos in the court system as increasing numbers of people, stripped of their right to legal aid and affordable justice, try to represent themselves.

APRIL FOOL 2011

With all the changes taking place in our procedures and forms at the moment, it would have been very easy to fall for the April Fool across at Jordans Family Law today when they announced that the latest Practice Direction requires child friendly clothing in the family courts. Perhaps it’s just me, but actually the idea of Judges in polka dot robes designed by Cath Kidson has a certain appeal.

THEY DO THINGS BIGGER IN AMERICA

It may no longer be permissible in England and Wales but across the Atlantic in Illinois you can sue for breach of promise to marry.

The latest in the history of complaints filed for such involves two young lawyers in Chicago, who’d fixed their wedding for 21st August 2010. In time honoured tradition, approximately a month before, the groom went with friends to Las Vegas for a stag night or two. As the complaint that has been lodged says: the groom, “believing that what happens in Vegas stays in Vegas,” did not confess upon his return that he had indulged in intimate relations with one Danielle. Perhaps that was hardly surprising because when the bride to be found out she clearly was none too happy and is now suing her ex whom she claims ultimately called off the marriage on 28 July 2010, and the next day blamed her for his indiscretions in Nevada.

In her complaint the would-have-been bride seeks damages of $62,814.71 for her out of pocket and non-refundable expenses in relation to the wedding, reception and honeymoon together with recompense for the intentional infliction of emotional distress. Alleging breach of a fiduciary duty of implied fidelity the claimant asks the court to find that her ex’s behaviour was “extreme and outrageous” causing her to “suffer severe emotional distress.” By way of compensation she asks the court to award damages in excess of Cook County limits together with punitive damages and her legal fees.

I don’t know what the lady’s chances of success are but the claim is larger than many I’ve seen in divorce cases involving adultery. London might be gaining a reputation as the divorce capital of the world but Chicago must take some beating when it comes to compensation for breaking off engagements!

FEAR OF THE UNKNOWN

Attending court can be traumatic, especially if it is your first visit. Even if you are composed, the nervousness and, in some instances, bizarre behaviour of other people in the waiting area can affect you. At my local County Court there are occasions where a family list runs alongside a list of possession cases and whilst my clients might be there to secure directions from a Judge for valuations of property or for time limits to be given for production of documents, they can also be acutely aware that there are people in the waiting room losing their homes for non-payment of rent or mortgages.

I remember representing a client once upon a time when I found him in the waiting room looking decidedly pale and concerned. Indeed the whole waiting area seemed to have a deathly hush and pall about it, as some gathered around the list of cases pinned to the wall and others sat in chairs staring speechlessly in front of them.

“Is everything okay?” I asked my client.

“No,” he replied. “You didn’t tell me we had a hanging Judge. I’ve just seen the court list and it says that someone called Smith could be executed. I didn’t know that kind of thing happened any more and I don’t understand why I have to come to court on the same day. Will we have to sit near to it happening?”

All eyes turned in wonderment towards the window and the courtyard beyond. An entry on the court list had clearly had a deleterious effect on everyone gathered there that day. Fortunately no gallows had been hastily constructed since my last visit and I rose to check the list for myself.

The reason for my client’s concern became apparent and I returned to reassure him that suspension of execution referred, not as it had suggested itself to the public present, but rather to an application to defer a warrant issued to the court bailiff to seize a debtor’s goods!

ALL RISE

Mr Justice Coleridge made a speech this morning to the Association of Lawyers for Children. In it he expressed his concern that there is a creeping tendency towards disrespect for court orders in family proceedings especially in so far as they relate to contact with children. As we might expect from Mr Justice Coleridge he wasn’t shy in putting forward innovative solutions to this disturbing trend. Whilst Judges re-donning their robes might sound like a backwards step and removing carpets and houseplants from courtrooms would suggest he hasn’t visited my local County Court, his “three breaches and the child transfers place of residence” could have a certain resonance. He also criticised the extent to which the wishes and feelings of the children themselves are taken into account reminding the audience that the court, not the child, must make the decision.

“Times demand more open discussion and debate,” he insisted.

I do believe that the learned Judge has a point. So,if a suggestion box is called for and we’re aiming for a nostalgia trip, let’s start it off here and now:

1. On the basis that Parenting Information Sessions are being increasingly embraced, let’s add to them with defaulting parents being asked to do detention and copy out “lines” from their last session.


2. If the excuse used for a lack of contact relates to the child suffering from a cough, cold or other minor ailment, three spoonfuls of cod liver oil sounds like an appropriate remedy; for the parent that is and not for the child who will of course have made a miraculous recovery, once the due hour for collection has passed.


3. If men in suits, or even Judges’ robes aren’t deemed frightening enough, let’s add open court hearings with a baying public gallery, horsehair wigs and even gavels for sound effects.


4. Oh and what about throwing away the cushioned seats and bringing back all those hard wooden benches that used to adorn our courts? Especially useful if we return to waiting 3 or 4 hours for a case to be called.


5. Scope for deportation to one of our former foreign colonies on the other side of the world? Maybe not, after all the line will have to be drawn somewhere.
   

ONE OF THOSE DAYS

Ever had one of those days when you don’t know whether to laugh or cry and end up doing both anyway? Well yesterday was one of those. First the Chancellor told the nation about the drastic public sector cuts that are going to take place, including 23% at the Ministry of Justice, presumably hitting courts still harder. Then the Supreme Court took the opportunity to confirm that there is indeed a place for pre-nuptial agreements in English law and perhaps the budget cuts and the need to use those hard-pressed court services didn’t seem as bad; well at least there was an alternative. Indeed in the Press Release it issued today, Resolution, which has been campaigning for pre-nuptial agreements to be made enforceable, said:

"This judgment is a major step forward. We know that financial uncertainty is one of the most stressful elements of any divorce, and a pre-nuptial agreement can be a useful tool for couples wishing to reduce this uncertainty.

However, until now the enforceability of pre-nups has been very uncertain because they were seen as contrary to public policy and an attempt to override divorce laws. That principle has been swept away by yesterday’s judgment, which paves the way for these agreements to become more mainstream and less the preserve of the rich and famous.

With second marriages on the rise, people marrying later, and many couples entering marriage with money and property already to their name, it is likely that there will be more and more demand for pre-nuptial agreements. This much-needed judgment clarifies their status and is a victory for fairness and common sense.

The judgment is clear that pre-nuptial agreements are presumed to be enforceable except where they lead to unfair outcomes. Any arguments about unfairness are to be left to the courts to decide.”

ACCESS TO JUSTICE

Access to justice is fundamental to any civilised society. Recently however we had the absurd situation where the Law Society had to take the Community Legal Service to Court for a review of its tendering process for legal aid in circumstances where and by severely cutting the number of law firms that could offer a legal aid service, access to legal advice and representatives was crudely reduced. Although the Law Society won that round, we now hear rumours that legal aid will potentially no longer be available for many family cases and only on Thursday the Justice Minister, Jonathan Djangoly, indicated on the radio that people in family breakdowns are using court too often and that the Government is determined to look at this, with mediation being viewed as a positive alternative.

Of course lawyers came in for criticism, being blamed as lacking knowledge of the mediation process. Well I have news for Mr Djangoly, many lawyers, myself included, have trained as mediators and collaborative lawyers and invariably promote these methods as alternatives to traditional negotiation techniques or litigation. In my experience and for good reason not every client wants to go down those routes and without a commitment to the process neither mediation nor collaboration will succeed. However, just because those options are repudiated, doesn’t mean that everyone wants to go to court. In fact I would struggle to think of any client for whom the issue of court proceedings has been anything other than a last resort. Experienced family lawyers will always endeavour to encourage clients to settle disputes by whatever method is the most appropriate for their circumstances and, more than anyone, are fully aware of the cost and trauma that court proceedings can inflict.

MEET THE CHILDREN

Guidelines for judges meeting children in family proceedings were issued last month. Reading them, I have to acknowledge how much more sophisticated proceedings are now than when, once upon a time and more years ago than I can properly remember, I first started to frequent court as an eager trainee. I do recall, however, one instance when a senior Judge insisted on seeing a young child alone in a dispute over custody. Both parents were claiming that the child wanted to live with them to the exclusion of the other and, the child having lived happily with the mother for several years, the Judge was determined to get to the bottom of the father’s claim that she had changed her mind. The meeting took place in the Judge’s Chambers in private with a Court Welfare Officer present. In due course the Judge emerged and triumphantly declared that he had solved the puzzle and the child would not be changing homes. It seemed that her father had attempted to bribe her with the promise of a holiday in the exotic location of Skegness, if she moved to live with him.

Of concern at the time, however, was then whether or not the child was scarred by her experience of seeing the Judge. Not at all. She was overheard giggling with delight at seeing Father Christmas in November rather than December, though she did ask her mother if he always wore black and purple rather than red when he wasn’t riding in his sleigh!

PARTICIPANTS NEEDED FOR DIVORCE AND CUSTODY DISPUTE STUDY

I have been contacted on behalf of Dr. Julie Ancis, a professor of Counselling Psychology at Georgia State University in the USA, who is studying women’s experiences with divorce and custody disputes. The purpose of this research is to gain an understanding of women’s experiences within the legal system. Individual interviews are being conducted with participants, and will cover topics such as interactions with attorneys, judges, and guardian ad litems; coping; and parenting issues. Interviews are confidential and tend to last between 1 ½ to 2 1/2 hours. With the knowledge gained through this study, Dr Ancis would like to educate those in the court systems and health professionals about the unique challenges that women may face in divorce and custody disputes. The university may pursue a study about men’s experiences at a future date. If you have relevant experience and are willing to participate in the survey, Dr. Julie Ancis can be contacted at cpsjra@langate.gsu.edu

FOR RICHER OR POORER

When going through divorce there are many reasons why the vows made on a wedding day can come back to haunt. Take for instance the case yesterday in the Court of Appeal when it upheld the judgment against Mrs Marano made last year, ordering her to pay £5 million towards her ex-husband’s property losses.

“For richer or poorer,” has a certain resonance, and the case serves as a timely reminder in these economically challenging times, that fortunes can go either way. Whilst assets which accrue during a marriage can be shared on divorce, so too can debts.

IN THEIR BEST INTERESTS

The newspapers were quick today to report two court decisions yesterday where the best interests of children formed the core of the judgments. Both served to demonstrate what a difficult quest it can be for a Judge in determining best interests when sometimes there can be a very fine line between the available options.

In the first case the Supreme Court acted to reverse earlier decisions made in the Court of Appeal and High Court thus enabling a 3 year old child to remain in the care of his grandmother who had looked after him very much since birth, rather than move to live with his natural father. In the second, the Court of Appeal has refused leave to appeal to a mother who has been ordered to hand over her 11 year old son to the care of his father against, it was argued, the child’s wishes. The boy is reported as being vehemently opposed to seeing his father, but his guardian for the purpose of the court proceedings and a child psychiatrist agree that he is suffering emotional harm by being estranged from his father as a result of his mother’s attitude.

One has to wonder, when you see criticism levelled at the courts about decisions of this kind, why they are always expected to get it right when parents, who are also entrusted with the best care of their children, don’t.

THE MYSTERY OF THE MISSING MILLIONS

The press has been following the tragic divorce tale of Mr and Mrs Young. They separated in 2006 when it’s alleged Mr Young was worth some £400 million. It is reported that sadly he now claims that, and partially as result of the credit crunch, he is £23 million in debt and facing potential bankruptcy. Understandably Mrs Young does not appear to accept that so much money could go missing in such a short time but it seems the time limit set by the court for an explanation expired on 7th September and the case was back in the High Court this week. It was claimed on behalf of Mr Young that he had been unable to comply because he had been admitted to hospital apparently suffering from a mental breakdown. According to the press reports, rather than sending him to prison for contempt, the Judge has given him another 6 weeks to provide full financial details, as well as a medical report on his condition. One assumes this is to enable him to justify the reason for his default in circumstances where there seems to be speculation as to whether or not his illness could be faked as opposed to co-incidentally convenient.

Reading the reports which alluded to rent of £10,000 per month, expensive cars, jewellery, yachts, and maintenance needs of £48,000 per month, one realises that this is clearly a situation far removed from the routine divorce cases being decided up and down the country. The sum which Mr Young has purportedly lost in a period of some 3 years is more than most people spend in a lifetime, whilst a monthly maintenance payment of £48,000 would support many families for at least 2 years.

Ignoring social comment and aside from the spectre of a prison sentence (which incidentally a Judge can impose on anyone who breaches an order of the court), what really interests the press is, of course, whether or not the millions are simply missing, or indeed well and truly lost. It’s a kind of modern divorce detective mystery unfolding across the newsstands. A perpetrator and a motive have been implied, but the evidence is awaited.

NORTH/SOUTH DIVIDE

It was reported in the newspapers yesterday that Manchester law firm, Pannone, has revealed a North/South divide when it comes to the outcome of divorce cases. Its findings, based on trawling the results of some 1700 cases it has handled across the UK since 2007, allegedly show that courts in the North favour husbands and those in the South wives. How can this be? As someone who has only ever practised int' North, I am outraged. Is this another opportunity for a slur on the upper half of our country with far more to offer than images of “dark satanic mills,” flat caps and pigeons? Then I remembered that client who, once upon a time, displayed profound dignity and understanding when I indicated that she must find work and support herself.

“Nae problem hinny,” she responded, “After runnin’ round afta ‘im for twenty years, cookin ‘is meals, cleanin’ ‘is shoes and mekkin up ‘is bait box evry mornin’ then tendin’ to the ten babbies ar’ve borne ‘im, workin’ll be a doddle and a’ll get paid for it!”

A BIG EGO

In the course of my work this week I was reminded that court cases over marital assets can be as much about pride as the financial principles. Obstinacy by one or both spouses within a relationship can lead to marriage breakdown and then spill over to spoil settlement negotiations.

Becoming entrenched in your position prevents compromise and when misguided conceit sets in, a marriage hurtles towards oblivion and a case towards a final hearing. Deaf to sound legal advice, arrogance can result in an otherwise unnecessary judicial determination of matters that could have been settled months before with the same outcome and at a fraction of the cost.

Walking a legal tightrope you topple over. Remember pride comes before a fall (in net worth as well as emotionally).

BREAKING NEWS

There is obviously nothing good to say about swine flu, save that it appears to have snatched the headlines from the global financial crisis. Yours Truly was helping spread the news today when she gave a radio interview but it failed to refer to either topic; instead I was grilled about the opening up of the Family Courts to the press and why Resolution doesn’t think the changes go far enough, for which see my blog entry on Saturday. Mind, I have to say I was a little disappointed to have spent the greater part of yesterday in Darlington County Court without a sniff of a journalist present. I assume that our local reporters view attending court as something of a waste of time, if they can’t actually print what they witness. Hunting down potential flu sufferers or would be holidaymakers now heading for rainy Blackpool rather than Cancun must be far more fulfilling.

Of course some wit has asked me if I expect swine flu to affect the number of divorce cases I’m handling. “Only if I catch it,” I replied.

UNDER THE SCRUTINY OF THE MEDIA

New rules to open family courts to the media rushed in by the government represent a missed opportunity to allow thorough and effective public scrutiny, Resolution is warning, as it calls for the establishment of a Family Courts’ Inspectorate.

From Monday accredited journalists will be allowed to attend divorce, custody and care proceedings, unless the court has specifically excluded them. But the new rules will not allow journalists to report on what they hear in court and cases not considered newsworthy will presumably continue to be conducted in private.

Resolution believes that:
• The provisions should be further extended to allow journalists to report on specific cases but with appropriate safeguards to ensure anonymity and prevent identification
• An expanded Family Courts' Inspectorate, consisting primarily of lay members should be set up to report on consistency within the family courts.

BURYING ONE'S HEAD IN THE SAND

It has been a glorious, balmy June weekend and regrettably I have spent the greater part of it indoors doing office work. I have various court hearings in the next two weeks and there is a mountain of paperwork and other preparations that have to be undertaken. I know that many of my clients will have been doing the same. Once a court application for financial relief is issued, there is a strict timetable to comply with for the production of various documents and fortunately, most of the time, everyone involved is able to comply.

Sometimes, however, we come across an ostrich. “This isn’t happening to me,” he or she says.

“I’m not ready; it’s unfair; I can’t be bothered; it wasn’t my fault,” he or she mumbles as they bury their head in the sand.

Unfortunately ostriches rarely believe that courts have teeth and that Judges are not afraid to bare them. Default in collating and producing documents or complying in other ways invariably ends up in a wasted costs order against the ostrich and can result in a short prison sentence for contempt too.

Although the victims of circumstance, it’s always hard to feel sorry for an ostrich. Reminiscent of picnics on the beach, sand must get in its eyes and mouth, but, nevertheless, it would be well advised to keep its neck stretched and alert once court proceedings are served on it.

INVOLVING THE IN-LAWS

There appears to be a current trend for involving third parties in financial proceedings ancillary to divorce. In my experience it is a growing phenomenon especially in farming cases and those involving family businesses. “In case we can’t get what you deserve from your spouse, we’ll involve his or her parents,” seems to be the advice being given.

Recently I have been involved in two such matters, representing the third parties on both occasions. Now, pardon me for expressing my view but they never actually married the claimant, so why should they be penalised? They may have given birth to someone who did so marry, but in the eyes of the law that’s hardly a crime and certainly doesn’t give rise to vicarious liability.

As a lawyer I advise clients on the law and how it affects their position. I find it exasperating therefore when the opposing lawyer and his client think that an issue can be resolved by verbal intimidation, litigious threats, a rule of thumb, the misconstruction of case law or even a wish and a prayer.

Complex legal and equitable principles as well as trust law are usually involved. The legal position therefore needs to be properly and meticulously researched. There is not, however, any legal principle to the effect that simply because you spend time or money on someone else’s property or enterprise that you are then entitled to share in it or even assume ownership in its entirety. There are always other factors involved, including for instance common intention (and that’s before you get into considering the evidence to prove your case). Of course, it may all seem unfair depending where you are arguing from but whoever said the law or even life itself for that matter is fair?

If third parties are joined in your ancillary proceedings then you need to ensure that you do have a winnable argument. If not and as in my cases, no declaration will be made in your favour, the third parties will be released from the proceedings and you can be ordered to meet their legal costs.

This morning one of the expert witnesses involved asked me if succeeding for a third party in such circumstances gives me a feeling of euphoria.

Generally in contested family proceedings there are no winners, only losers. Both parties bear their own costs and everyone, including the lawyers, leaves the court thinking “what a waste and if only…” When you act for successful third parties however the victor doesn’t just win, he is victorious! The loser gains nothing except his own and the third party’s legal bills to discharge. For a family lawyer these are strange concepts and feelings. If I get to like them then I shall have to take up litigation instead with its ethos of win or lose.

NO WINNERS, JUST LOSERS

So the speculation and guess work are over as the Mills v McCartney financial proceedings completed today. Or should I say almost over, because it sounds as though they are back in court tomorrow arguing over Ms Mills' appeal against allowing the judgment to be made public.

What we did learn today is that Sir Paul is only worth half of what we had been led to believe and that Ms Mills only got a fifth of the sum she was looking for. All in all a typical divorce outcome played out before the world’s media who wanted to be able to proclaim one or the other a clear winner, but, as we all know, in proceedings like these there are invariably only losers. On the steps of the High Court Heather Mills appeared to claim the title of victor as she declared herself very, very happy, encouraged all would be divorcees to litigate in person and blamed Sir Paul for not being prepared to settle and so avoid the indignity of a court hearing. He on the other hand offered the press no comment and somewhere amidst the proceedings it’s rumoured that his lawyer received a soaking – I wonder if the court roof was leaking?

Maybe I’m completely off the wall but if I’d failed to secure £100 million of the £125 million I was looking for, I’m not sure that I’d be so quick to proclaim a victory. That said it could have been a reflection of how everyone feels once the weight of such proceedings are lifted and, despite her comment that their daughter will now have to travel B class because of the paltry maintenance award in her favour (£35,000 per annum), by my arithmetic Ms Mills will have the best part of £25 million and Sir Paul McCartney of £385 million.

OF RELEVANCE TO MERE MORTALS

In anticipation of the final judgment in the McCartney v Mills divorce on Monday 17 March, Resolution issued a press release today pointing out that although the sums of money involved in this case are far removed from the experience of most separating couples, it does raise a number of issues relevant to more ‘normal’ divorces.

Firstly, a high-conflict court battle is not the inevitable end to marriage breakdown, even when there is a lot of money on the table. The traditional approach to divorce involves two solicitors who rarely meet and who focus on representing one side of the split in and out of court. In contrast, mediation and collaborative law offer couples an alternative. With everyone sitting round the negotiating table at the same time, conflict can be reduced and couples are encouraged to reach agreements together, rather than having a decision ‘imposed’ on them by a judge. Collaborative lawyers work with each other during structured meetings with both the husband and wife to reach agreements that suit all the family – especially children. In this way, collaborative agreements are much more flexible than the court process, as couples are not obliged to follow the letter of the law and can instead agree to something different that works for them.

Secondly the need for pre-nups that stick. When courts decide how to divide up the marital pot, current legislation creates a great deal of uncertainty around who will get what. It’s this uncertainty that leads people to rely on expensive court battles and the interpretation of the law by individual judges. With second marriages on the increase, more and more people want the security of a pre-nuptial agreement to end this uncertainty. Resolution lawyers argue that the law is out of step with the demands of the modern family - a divorcee with children may be put off marrying a new partner preciously because the current law doesn’t protect money and property acquired before the relationship. Resolution is calling for legal changes to make pre-marital agreements binding, allowing people to take control of their own financial future rather than relying on the current lottery of divorce court hearings.

Thirdly that when assets acquired individually by a husband and/or wife are brought into a marriage this can be taken into account when finances are divided as a result of divorce, especially if the assets are considerable or if one party has made what the law terms an ‘exceptional contribution’ to the marriage. The usual position, however, is that a marriage is considered to be a partnership of equals, assets acquired during the marriage fall to be divided equally and unequal contributions are only relevant where it would produce an unfair result not to consider them differently.

Fourthly that the length of the marriage is of relevance. Sir Paul McCartney and Heather Mills were married for a relatively short time. The effect of the shortness of the marriage may be something mentioned in the judgment. Shortness of marriage can be important but only as one of the factors to be taken into account.

Finally, financial proceedings in family law cases are normally conducted in private. This encourages the parties involved to negotiate with each other, even when there is extensive media interest. Usually judgements are not made public. The judge in the McCartney v Mills case has indicated that he intends to make part of the settlement public due to the level of media interest in the case.