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.

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.

IT'S ART NOT SCIENCE

Apprentice Man, who has no idea what he might want to do with his life other than strum his guitar and lie in bed longer than is reasonably permissible, recently had to decide which subjects to pursue to A’ level. Not an easy choice to make when you do not yet appear to have developed any vocational yearnings. Should one lean towards the arts or the sciences, or even study a mix of both?

When dividing family assets, Judges have discretionary powers which means that guessing the outcome can be interpreted as a stab in the dark. Of course, that’s not really the case. Despite most lawyers’ pedantic insistence on thinking in straight lines and applying pure logic to resolve irrational dilemmas, the family lawyer has elevated such thought processes to another plane where experience, legal knowledge, psychology and human dynamics all intermingle. Hence advising a client on the likely outcome of a court application has to be an art rather than a science.

Apprentice Man has opted to stick with the sciences. I do not believe that he has any intention of becoming a family lawyer.

NEST EGG PROTECTION

The long queues at Northern Rock branches this week are worthy of comment. What is it that makes people panic about money even when they are given assurances by the Government that their funds are safe? Discounting the potential for a lack of belief in politicians’ promises, or the English phenomenon of joining queues because we appear to like standing in line, I think it’s something much more deep rooted. Money equates to security and we all need to know that our little nest eggs are safe

Inevitably in divorce cases panic arises in relation to money. Some clients deal with this by rushing to the bank and withdrawing everything; others seek to transfer it into the account of a close friend or relative, sometimes fabricating a debt or other apparently legitimate reason for the transaction. The trouble is that there is always a paper trail showing the movement of funds and this inevitably leads to some embarrassing or convoluted explanations.

Once upon a time I acted for a client. On the day his wife left him citing grounds for divorce that included his meanness towards her, he withdrew a substantial sum of money representing a quarter of his life savings from the bank, and donated it to a local charity in which his mother was an active fundraiser. Subsequently, in court, the Judge congratulated him on his altruistic nature but held that, as he could clearly afford to be generous and had no need for funds of this amount, he should give his wife an equivalent quarter and the remaining half should be divided equally between them!

A GOOD LAWYER

Last week I was driving back to the office from court when Radio 2’s Drive Time started. Chris Evans began the programme with the following quip: “A good lawyer knows the law; a great lawyer knows the judge!”
It set me thinking…
When you have been practising in the same location for 25 years it is inevitable that you know the Judges you appear before. In my case they were nearly all professional colleagues, solicitors in other firms with whom I had a good rapport and one of my partners even left the firm to become a Judge too. I suppose one day I might even find myself appearing before one of my former trainees! Hence my vested interest in being nice to staff for, if only the quip were true, I could be repaid several times over.
The trouble is and I tell you quite sincerely, it doesn’t make the slightest difference. Once upon a time, my opponent advised me before we went into the court room that it was the Judge’s birthday and as a longstanding personal friend she wanted to stay behind after the case to hand over a card and small gift. As there were no clients present (we were arguing over a technical legal point) and the present was well secreted in the bottom of her bag, I confirmed that I had no objection. In Court I’m proud to say that I decimated my opponent's arguments, the Judge found in my favour and awarded costs to my client. It was what could be described as annihilation. Nonetheless my opponent still gave the Judge the package; I have to confess that in her shoes I might have been inclined to discard it in the first bin I came across. Instead she took defeat on the chin. After all, we and the Judge were just doing our jobs, and friendships exist outside of the courtroom not in it