Thursday, January 31, 2008

Hague Convention & Discretion


In the January edition of the Law Society of Scotland's magazine , Kenneth McK Norrie, Professor of Law in the University of Strathclyde, looks at the latest Hague Child Abduction Convention in the UK and South Africa cases.

First off was the judgment handed down from the House of Lords, Re M and Another [2007] UKHL 55, featuring two children who were born and raised in Zimbabwe. Immediately following their abduction to the UK by their mother both children wanted to return, but by the time the father suceeded in making a Hague Convention application the children had been in the UK for more than two years. Baroness Hale held that the courts retained discretion and because the children were settled there was no obligation under the Convention to order their return to Zimbabwe. Further to this she advocated a child centred approach to be adopted in all Hague Convention cases.

The second case was Central Authority v Houwert [2007] SCA 88 (RSA). A South African mother and child had not returned to the Netherlands after a trip to South Africa and the court there ordered the return of the mother rather than the child. This later was recalled and a new order issued ordering the return of the child, although incidental orders which are not enforcable under the Hague Convention remained. Kenneth McK Norrie hopes "that courts in other jurisdictions resist the temptation to go so far beyond the scope of the Hague Convention in the orders they make in addition to the order for the return of the child."

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Wednesday, January 30, 2008

Ranking Lawyers?


The Financial Times in this article reports on the a new American website, Avvo,("avvo" as in "avvocato", the Italian for lawyer) aimed at providing "consumer-friendly attorney rankings" which was sued by a lawyer who didn't like his ranking. The judge ruled that "Avvo was merely expressing its first amendment right to free speech - and to free disparagement, so long as it was clearly couched as opinion and not fact." The judge then went on make clear that he had no time for lawyer rankings or indeed those for judges:

"In his opinion vindicating Avvo, that he was himself identified by the magazine Lawdragon in 2006 as one of the leading 500 judges in America, on the basis, among other things, of the fact that he cited Bob Dylan in his opinions. "What can one say about such nonsense," he asks in his Avvo opinion. "As my parents would tell me when I informed them of my amazing achievements as a child in Staten Island, NY, 'that and five cents will get you a ride on the ferry'." The judge made fairly clear that, even in these days when the ferry from Staten Island to Manhattan costs much more than five cents, he still considers such ratings worthless."

Quite.

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Tuesday, January 29, 2008

German Honour Killing


Further to my post about forced marriage and honour killings the Spiegel reports today the horrific story of the 'execution' of 24 year old Emine See, witnessed by her 5 year old daughter on the way to nursery in Munich. After ambushing and shooting Emine, the Turkish uncle of her ex-husband shot the the little girl in the chest before turning the gun on himself. Emine died at the scene, the uncle died later in hospital and the little girl was admitted to hospital and is expected to survive.

G├╝lsen Celebi, a lawyer who represents Muslim women said it isn't unusual in Muslim culture for a woman who separates from her husband to be forced into marrying into the husband's family so there is no shame brought to the family. She believes it is possible this tragic murder was the result of Emine rejecting the uncle's advances rather than retaliation for divorcing her ex-husband. Either way such behaviour is completely intolerable and totally unacceptable anywhere, but in particular in any modern European country.

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Sunday, January 27, 2008

Forty Something

Reading Hardeep Singh Kohli's column in Scotland on Sunday about being catapulted into his fifth decade has caused me to reflect on where my life has gone since we separated almost a decade ago.

It's all rather a blur, being the breadwinner and main carer of two teenagers didn't exactly leave much time or energy for anything else, but the children haven't turned into the feral creatures Bob Geldof predicted. They both seem happy, achieve and get on well with others. Although bringing up children on my own was never part of the bigger plan, the philosophy of no recriminations and making the best of any given situation has always stood us in good stead. I recommend it to anyone whose marriage breaks down.

Now there is much to look forward to and I hope Hardeep is right - the forties are the new thirties, the fifties are the new forties and the sixties have been abolished. I'm actually older than Hardeep, although I'm not going to say by how many years. Recently after a mishap (see my post Haggis Smuggling ) my GP did suggest perhaps I should grow old gracefully and not try to outdo our 21 year old son on the ski slopes. Nae chance.

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Prosecution of Under 8s?

Further to my post about the children's hearings system Children's Commissioner, Kathleen Marshall, highlights the media calls for lifting the exemption of under 8s from prosecution in the Sunday Herald. The idea behind children's hearings is they attempt to address failings in the child's upbringing when a child commits a crime. Scotland already has one of the youngest ages for criminal responsibility in the world and calls to criminalise children as young as four seems completely crackers.

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Friday, January 25, 2008

Haggis Smuggling

I thought I'd woken up on 1st April rather than Burns Day when I came across this article in the Times about otherwise respectable Americans dodging sniffer dogs and $1,000 fines for haggis smuggling. It reminded me of my otherwise respectable father smuggling Lincolnshire pork sausages when we lived abroad and his luggage arriving several days late. I'll leave the rest to the imagination.

The Herald covered the First Ministers online Burns Night Message calling for, amongst other things, reflection on the richness of our culture which is a very sore point . Usually I migrate to Glasgow in January for the Celtic Connections winter music festival featuring artists from around the globe alongside Scottish talent. However, due to nursing a couple of cracked ribs and a fractured pelvis after launching myself off a Scottish 'hill' at 50-60 mph I'm missing out this year.

Alex Salmond also announced a bid to put the poet's face on Bank of England banknotes and this makes me feel quite smug as my real name already appears on the back of a Scottish banknote.

Anyway my Burns celebration tonight will be a supper of spaghetti Bolognese, drooling over the rather fine Scotch someone gave to my son for his 21st birthday and listening to Glaswegian Sanjeev Kohli's 'Ode to a Samosa' that bares resemblance to the work of another Scottish bard, William McGonigle.

"Wee sleekit, cowrin' triangular tastie, oh what a picnic is in thy pastry."

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Wednesday, January 23, 2008

Social Trends


The National Centre for Social Research released the British Social Attitudes annual report today. Amongst the findings were the following [my comments in brackets];-

• 70% of people think there is nothing wrong with sex before marriage, up from 48% in 1984.

• Only 28% of people think married couples make better parents than unmarried ones

• Only 17% of men think that a ‘man’s job’ is to earn money, while a woman should stay at home, down from 32% in 1989


• But women continue to have more liberal views about gender roles than men. Four in ten men (41%) and three in ten women (29%) think that ‘a pre-school child is likely to suffer if his or her mother works
[Until attachment based child care for under threes is widely available I am firmly in the camp that pre-school children do suffer from group child care]

• Men and women disagree when it comes to saying how much of the housework they do. Two-thirds of women (68%) say that in their relationship they usually or always do the cleaning – but only 54% of men say this of their partner
[Does it really matter, as long as it gets done? I thought that 's what children were for anyway!]

• There is widespread confusion about what protection cohabiting couples have under the law, with 51% of people thinking (incorrectly) that there is such a thing as ‘common law marriage’

• No less than 84% of full-time women and 82% of full-time men would like to spend more time with their family. In 1989, only 75% and 70% respectively felt that way. Among part- time women, 68% would like to spend more time with their family compared with 59% in
1989

Professor David McCrone, co-author, comments:
‘Considerable numbers of English and Scots do feel British. But we have seen a steady long-term shift away from being British towards being English and being Scottish – though for most people it is still a question of being both English (or Scottish) and British, rather than a choice between them.’

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Tuesday, January 22, 2008

When In Rome.....Part 2

Again thanks to Family Law Week for bringing to my attention this report in the Financial Times about the growing opposition to implementing Rome III, which was to simplify divorce throughout the EU. Dissent is lead by Sweden who claim the proposed change would in many cases result in the application of divorce laws from the country in which the couple had most recently lived and the enforcement of sharia divorce law. This certainly was never what was intended.

"Swedish courts should apply Swedish law" as one official said, isn't any different from saying the UK questions "the need for policy­makers in Brussels to stick their noses into delicate matters of family law ...." or indeed When In Rome... do as the Romans do.

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Good News?

After Dashed Hopes and a Bad Omen the good news is the Legal Services Commission (England&Wales) has announced £1m in grants for Community Legal Services. Mike Jeacock said “The refined Specialist Support Service will complement our strategy for the Community Legal Service as well as our wider objectives of ensuring vulnerable clients have access to the advice services they need while obtaining better value for taxpayers money.” About time too!

Thanks to Family Law Week for bringing this to my attention.

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Monday, January 21, 2008

European Judicial Network


Continuing the European theme of the thread When In Rome... the European Commission's European Judicial Network in civil and commercial matters website provides a useful resource for those needing information about divorce in EU member states and international law.

There are sections on divorce, parental responsibility and maintenance and a drop down menu to chose a language in the top right hand corner. Be warned, some of the translations are rather odd. Clicking on a flag reveals the entry for that country, community law or international law.

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Sunday, January 20, 2008

Bad Omen

Another article from yesterday in the Times about Patrick Parkinson, who designed the Australian child support system, flying in to voice his concern over C-MEC (the organisation replacing the CSA.)

"There is a great danger that child maintenance in Britain will now be seen as voluntary, that nonresident parents can decide whether or not they want to support their children,” he says. “The second danger is that the resident parent, usually the mother, ends up acquiescing to the first offer made [by the father] on the grounds that at least they will get it."

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Children's Hearings

I missed this article in the Glasgow Herald about reform in Scotland's children's hearing system announced on Friday. This will merge the work of the Children's Reporter Children's Reporter service, the delivery and administration of Children's Hearings and the recruitment, training and support provided to panel members.

The national system for hearings has over recent years seen an increase in the number of referrals and an overhaul was overdue. As an ex lay panel member I am delighted to see the voluntary contribution is to be maintained.

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Saturday, January 19, 2008

When In Rome.....

My family moved to Luxembourg when I was 11 years old and rather than send me to the European or American schools my father insisted that "when in Rome, do as the Roman's do" so I was packed off to a school in an 18c abbey which surrounds the basilica of St Willibrord in Echternach. This was a cultural shock, firstly because my maternal family were strict Methodists and secondly I had to learn three languages, plus a wee bit of Latin, very quickly. Our teachers all spoke Luxembourgish, although some subjects were taught in French and some in German because there were no Luxembourgish text books. (Luxembourgish, like Gaelic, was transmitted orally and only since WWII has it become a written language.) Thus Luxembourgers are capable of moving seamlessly between all three languages and many are fluent in English and Italian.

Anyway, recently I met up with an old school friend who is a Luxembourgish lawyer and after a couple of glasses of Riesling from the local vineyard we started talking about the good old days and things not being what they once were. Luxembourg civil law is based on the French Civil Code and in spite of modifications remains faithful to the Napoleon Code although influenced by modern French and Belgian legislation. However German or Luxembourgish is often used administratively, meaning in practice Luxembourg court proceedings move seamlessly between all three languages and occasionally lapse into English. In the old days a lawyer from another EU state wishing to practice in Luxembourg under his home country's professional title had to attend a hearing to verify their proficiency in French, German and Luxembourgish, but of course in the interest of harmonisation such proficiency tests no longer exist.

From my friend's point of view the UK government’s decision to opt out from the Rome III regulation (which was intended to simplify divorce procedure throughout the EU) is rather strange, although he does accept that it's implementation here would have been difficult and given rise to practical as well as procedural problems.

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Thursday, January 17, 2008

The Ancillary Actuary

I have added to my blogroll the Ancillary Actuary blog from the pension valuation specialists at Bradshaw, Dixon and Moore which is "intended to encourage an exchange of ideas and promote debate about the financial issues that arise in a relationship breakdown. The concept is to create a platform for discussion that is not available elsewhere. Aimed mainly at professionals working in this area; lawyers, accountants, financial advisors and actuaries, it is also a potential source of information for the general public."

Both Peter Moore and Nigel Bradshaw are well known contributors to Family Law Week and Peter has recently become a regular poster on Wikivorce.

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Tuesday, January 15, 2008

Hector the Hero

For those who think there are too many variables to devise an accurate divorce financial settlement calculator we now have Hector (High-End Computing Terascale Resource) which was officially launched yesterday at Edinburgh University by Alistair Darling. One of the top 20 most powerful computers in the world, and the first and largest of its type (a Cray XT4) in Europe Hector computes at a rate of over 50 teraflops (50 million million calculations per second).

Supercomputing allows the creation of sophisticated models and simulations through which hypotheses can really be put to the test and because Hector is so powerful, the results they get from their simulation should be very precise. Scientists from Southampton University, for example, have been using Hector to model the behaviour of fluid flows, which could be useful in understanding air flow over aircraft wings. Turbulence is particularly difficult to simulate because it involves eddies with a wide range of length and time scales. Using Hector, the team have constructed the largest fluid simulation ever carried out in the UK.

Supercomputers use a lot of energy and get very hot - which is why Scotland is a prime location for them. According to the Scotsman Hector will be obsolete in 6 years, having run up a bill of £113 million. So if Hector could be accessed for computing divorce financial settlements, by my calculation it would cost £35 per minute.

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Monday, January 14, 2008

Self-help


There are many advantages to support groups, both virtual and real. Self-help groups can be a good source of information, advice, guidance and support. They are accessible to people with common interests, convenient and inexpensive and there may be some therapeutic value from encouraging members to be both altruistic and cathartic. Supportive groups or forums may instill hope. Anonymity over the internet frees participants to explore their “true” selves without risking alienation from family and friends.

The flip side is that information, advice, and guidance can often be unreliable, or plain wrong, sometimes with disastrous results. Non-verbal cues are missed over the internet, which may lead to a misreading of the situation, and anonymity limits the ability to hold members accountable for their behaviour. When self-help groups or forums are polarised a sense of grievance can easily be ratcheted up by emotional sharing and derogatory discourse. This encourages members to engage in malicious, destructive and unproductive strategies.

If groups or forums can avoid these pitfalls they may complement professional advice, but I don't think anyone should be under the illusion that self-help groups or forums can ever replace it.

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Sunday, January 13, 2008

Twin's Marriage Annulment

In the wake of the reported marriage annulment of a pair of twins who had been separated at birth and found out too late that they were related this article in the Sunday Times considers the attraction that twins might feel for one another and the dilemma not registering biological parents on birth certificates poses.

On balance I think children should have a right to know where they come from, but given the rate of normal births when the husband or partner of the mother is not the biological father of the child and the potential disruption the truth may bring it is difficult to decide what really is in the best interests of children.

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Forced Marriage

Andrew Johnson in the Independent highlights the issue of forced marriages and honour killings after a coroner ruled on Friday that 17-year-old Shafilea Ahmed was "unlawfully killed" and that "the concept of an arranged marriage was central to the circumstances of her death."

Shafilea went missing in 2003 after claiming she feared being forced into marriage and her body was found 5 months later on a river bank in Cumbria. Members of her family, including her parents, were arrested in connection with the death, but later released without charge.

Regardless of creed or culture forced marriage and honour killings are unjustifiable and truly dishonourable.

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Scottish Clearances


Having taken an impromtu break to take advantage of the best skiing conditions in Scotland for about a decade I'm catching up with the news.

There was a new take on the Clearances in this report about the lack of places in Scottish women's refuges in the Sunday Herald. According to Scottish Women's Aid annual statistics report due to be published this week women and children are turned away in 60% of cases and are often sent to safe houses in England.

One thing that struck me as rather odd was the article quoted that on average a woman will be assaulted 34 times by her partner before she reports it. As far as I'm aware this figure was from an old British crime survey in one particular year.

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Thursday, January 10, 2008

Will Scotland Divorce England?

My intention wasn't particularly to post about Scotland when I started this blog, but news involving Scotland continues to catch my eye this week with Iain McWhirter's article in the Guardian. I don't always agree with Iain McWhirter, however, on this occasion I think he may have a point that federalism is inevitable if the differences within the 'marriage' are to be 'reconciled.'

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Tuesday, January 8, 2008

Fiona

OK, Fiona isn't my real name. I haven't been able to upload an image for my profile yet, but I chose Princess Fiona as an avatar because she is very different from how she might first appear. Underneath the archetypal fairy tale princess persona Fiona is really very independent, resourceful and isn't afraid of engaging in combat.

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Monday, January 7, 2008

Dashed Hopes

Further to my 2008 Wish List of yesterday hoping for the better enforcement of court orders and contact orders that bind both parties the Herald reports today that the Scottish Government (as the Executive is now called) has dropped plans to pilot family court facilitators and commissioned research into the problem of non-compliance with contact orders.

Obviously this is a huge blow to parents who are denied a relationship with their children by their ex-partners, but perhaps less obvious it's also a blow to those caring for children who are hauled through the courts to have contact imposed only for the contact to be taken up erratically or not at all. As part of the Family Law (Scotland) Act 2006 debate, Hugh Henry, the then deputy justice minister, promised the pilot scheme and commissioned research would attempt to address both issues.

At present the only means Scottish Courts have available to enforce contact are thought somewhat draconian, either a fine or imprisonment, but there are a range of further possible measures which could be deployed such as community orders, parenting classes and/or financial recompense. These same measures might also be used to protect children from the emotional harm they can suffer through the unreliable and inconsistent uptake of contact.

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Sunday, January 6, 2008

Wish List

As this is beginning of the year I would like to set out some things relating to divorce I would like to see happen during 2008.

1) Reform of the child support system so that it delivers and is fair.

2) Education and support for divorcing couples and their families,  delivered promptly by multi-disciplinary teams.

3) Reform of the legal aid system to ensure equal access to the law.

4) Clear rules to regulate financial settlements.

5) Streamlining of paperwork required by the Courts.

6) Improved enforcement of court orders and penalties actually being applied for non-compliance.

7) Reform of the law so that contact orders are legally binding on both parties.

8) Additional dedicated Family Courts established in Scotland.

9) More user friendly information provided about family law and legal procedures in Scotland.

10) A concession enabling divorced parents to use each other's unused inheritance tax allowance. (Well, pigs might fly!)

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