The Govan Law Centre, an independent, charitable community run law centre, has an online Dictionary of Legal Terms in Scots Law and a Scots Law Debt Dictionary. I've added the Dictionary of Legal Terms in Scots Law to my resource links.
In a recent case, AM v IM, heard at Edinburgh Sheriff Court in June the specific issue was whether the Mother should be able to take an 11 year old child (GM) to live permanently in Spain on the Costa Blanca. After hearing evidence, the Sheriff indicated that there appeared to be no Scottish authority setting out the law and the factors to be considered in "emigration" cases. He was advised that there were no cases of a parent seeking to take a child to a non English speaking country, although the Sheriff was aware of one unreported case, Pinkerton -v- Pinkerton 15 May 2006.
Having considered authorities cited*, a list was made of the following matters for consideration in making a decision;
(1) The reasonableness of the proposed move abroad. In many cases the reason for moving will be for a parent to be with a new partner or because of the parent's or partner's career. In considering reasonableness, the court will give considerable weight to the wish to move of an applicant parent with a residence order in respect of the child. This is because as has been said in many cases, including Fourman, above, a child requires security and stability. That is best achieved if the life of the parent with the residence order is also secure and stable. The court will be reluctant to interfere with the right of a person to live where he or she wishes. There is, however, no presumption in favour of that parent or any other person; and the weight to be attached to that parent's wish is still subject to the best interests test.
(2) The motive of the parent wishing to take the child abroad. To some extent this factor overlaps the reasonableness factor, as a poor or wrong motive would also be unreasonable and a move to be with a new partner or because of a career, for example, may be reasonable.
(3) The importance of the contact with the other or absent parent in the child's life.
(4) The importance of the child's relationship with siblings, grandparents or other members of the child's extended family who are left behind.
(5) The extent to which contact (if appropriate) is able to be maintained. It is almost inevitable that contact will be affected by a move abroad. It does not follow that because it would be affected to some extent that the move should be refused.
(6) The extent to which the child may gain from a relationship with family members as a result of the proposed move.
(7) The child's views, where he or she is of an age to express them. One must bear in mind that a child may not be able to balance all the factors which an adult would have to consider. Furthermore, one should not be surprised if a child would prefer the current arrangements to continue. One can assume that a child would not wish to lose friends or have contact that he or she enjoys reduced.
(8) The effect of the move on the child.
(9) The effect of refusal of the specific issue order on the applicant particularly where that parent already has a residence order.
(10) The effect of refusal on the welfare of the child.
(11) Whether it is better for the child to make the order than that no order should be made. It does not seem to me that, in opposed emigration cases, this no-order factor adds anything to all the other factors which might be considered. It is difficult to envisage circumstances in which it would be appropriate for a child to be taken out of the jurisdiction but that no order should be made. If parties were agreed, there would be no application to the court. Different considerations may apply in relation to matters such as residence and contact. In White -v- White, 2001 SC 689, 699, para. [21], Lord President Rodger, as he then was, regarded this factor as the second limb of the welfare factor, and mentioned that it was designed to give effect to Parliament's view that matters should be regulated by parties wherever possible. I list it lest this statutory consideration be overlooked.
Following my post yesterday I found research published by the Department of Constitutional Affairs "Litigants in Person: Unrepresented litigants in first instance proceedings" by Professor Richard Moorhead and Mark Sefton, Cardiff University. It's difficult to collect data on errors in law so the study concentrated on administration and procedural errors. In family cases litigants in person made errors overall in 37% of cases as opposed to sols who make errors in 13% of cases. Serious errors were found 1% of represented cases and 6% for litigants in person.
Types of errors made by litigants in person;
• respondents failing to answer questions on the acknowledgement of service
• flawed reasons for objecting to paying costs
• failing to submit relevant documents, or failing to submit the correct fees
• flawed objections to paying costs, where costs were awarded against them
• respondent filing an answer out of time
• errors in the submission of consent orders
• inadequate and inappropriate questions in a questionnaire to the other side
• applying for a residence order to be made in favour of the other parent, who had no wish for such an order
• inappropriately raised financial matters in CA cases
• unrealistic demands about the scheduling of contact visits
• refusal to have any dealings with the other parent or their solicitor other than at court
• inappropriate involvement of children in the proceedings by encouraging their writing directly to the judge
• substantial delays by respondents in making the full and frank disclosure relating to finances required under the rules
• filing evidence but refusing to serve it on the applicant
• applicant failing to appear on the first injunction hearing of their application without apparent reason and without notifying the court, resulting in the case being struck out
• failure to contest an application for a residence order in the belief that as the child was 10 years old, the child’s wishes would automatically prevail
I should point out this relates to England & Wales as people representing themselves in Scottish family court cases is unusual.
Representing oneself in Court is a false economy if the result of inexperience is to loose out because of misunderstandings, poor presentation or being ordered to pay the other party's costs. Recently I came across a litigant in person (someone who represents themselves in court as opposed to having legal representation) in England who, having agreed a settlement at a First Appointment/Financial Dispute Resolution hearing, was under the impression because he hadn't signed an order by consent the settlement wasn't binding. In fact when an agreement has been reached at the FDR and acknowledged by the Judge, then the agreement is final (Rose v Rose [2002]1 FLR 978). The aim is to encourage finality and discourage appeals and applications to be set aside. Unfortunately if consent is withdrawn later, but before the consent order has been drawn up, the court can make a final order noting that it is not a ‘consent’ order.
When I pointed this out and suggested proper legal advice would be a good idea it turned out the hapless man couldn't afford a solicitor but wasn't entitled to legal aid. He was under the impression that because the FA/FDR had taken place before the decree nisi he had grounds to appeal. (A judge cannot make an order unless there has been a decree nisi but they may direct that a consent order be made on pronouncement of decree.) There were not a lot of assets involved and the Judge had warned if the matter was pursued further the LIP may become liable for paying his wife's costs. Again the man was mistaken, thinking wrongly that because the other side had agreed not to pursue costs for the divorce petition he was immune to being pursued for the costs of the financial proceedings.
He is not alone, litigants in person often don't do themselves any favours but what alternatives are there when costs make legal representation inaccessible?
Family Mediation Scotland and Relate Scotland have merged to form Relationships Scotland. A comprehensive service sounds a good idea to me. The website, currently under construction, is here and I have added a link to my resources menu.
The new organisation will support a comprehensive and developing national network of 26 relationship and family mediation services and 23 child contact centres across Scotland. The services provided for individuals, couples and families will include:Read more...
Relationship Counselling
Family Mediation
Child Contact Centres including Supported and Supervised Child Contact
All Issues Mediation
Family Counselling
Young People’s Counselling
Group Work with Separating Couples
Young People’s Support Groups
Mediation in the Context of Homelessness
Sex and Relationship Therapy
Telephone Counselling
Training for Counsellors, Mediators and Supervisors
Meena Raghunathan or Fairley v Alan Fairley [2008] 104 was an action concerning the separation of cohabitants. The couple separated sometime in 2006 with the pursuer contending the date was in June after the introduction of s28 Family Law (Scotland) Act 2006 on 4 May which gives cohabitants certain rights to financial provision. The defender contended a date in April.
After hearing evidence Lord McEwan found the defender has been untruthful about the date to the Court and also to his solicitor and his witness. His reason for behaving in this way is only too obvious. It was ruled that the parties cohabited until 5 June 2006.
Thanks to Casecheck for bringing this case to my notice.
Reuters carried the story Scots boy must give up Narnia website after lawyers for the C S Lewis estate filed a complaint with the U.N.'s patent and copyright agency WIPO in Geneva. The domain name was bought by the Saville-Smiths as a birthday present for their son, although it was alleged the boy's father had not been completely honest and registered and is using the disputed domain name in bad faith. A transfer order has been suspended pending appeal.
The Scottish Family Law Group has an information booklet to download here.
Collaborative law is an alternative from the conventional way to divorce intended for those couples who wish to find sensible solutions in a non confrontational way. Each party has a lawyer trained in collaborative law and they all work together to discuss the terms of the separation which are tailored to suit their priorities and needs. The aim is to provide an effective forum for resolving issues in a fashion that does the least damage to long term family relationships.
One feature is it is possible to involve other professionals such as counsellors, financial advisor or accountants. Collaborative law may be used to resolve any issue that would traditionally involve solicitors or the courts, the difference being that everyone involved in process agrees not to go to court and should that happen both lawyers are disqualified from any further involvement.
Intervention at an early stage is vital, as that is when most families will feel their strongest emotions.
A few months ago our son returned from performing in a music festival in France inspired by the French rap version of a traditional Breton song, Tri Martolod (Three Sailors.) I searched for the Alan Stivell version and found this video. To my surprise I recognised Scottish musicians Charlie McKerron (fiddle) and Donald Shaw (piano) in the background. I met Charlie last in November and apparently he had just recovered from a broken arm after the Lorient Festival.
Valuations
The basis on which pension rights are valued for divorce purposes is the Cash Equivalent Transfer Value (CETV) unless the pension is in payment, when it is a Cash Equivalent Benefit.. The CETV is a value that can usually be obtained easily from pension scheme administrators. However, CETVs will often not take into account matters such as discretionary benefits, even where there is a very high likelihood of payment, or death in service benefits. Thus CETV’s often undervalue the pension by as much as a third, particularly if the pension is final salary or related to salary. On many occasions, it can be worthwhile getting an actuarial valuation in cases when a pension is relevant. Apparently after undertaking a costs benefit analysis often the CETV is accepted rather than spend funds on a proper valuation report.
See Peter J Moore's article What is Wrong With Relying on CETVs in Divorce?
To improve matters the Government would need to set out rules about how the pension schemes must calculate valuations rather than leave significant factors down to the discretion of the scheme.
Pension Sharing
Sharing the CETV 50/50 does not necessarily give 50/50 actual value to both parties, and definitely not 50/50 income. For example, on retirement a pension scheme member might receive significantly more in respect of married service than the ex spouse recipient of a pension credit receives. At the point of divorce couples report a lack of information on which to base informed decisions.
The position could be improved by requiring pension schemes to provide the following information;
• Valuation in connection with a divorce
• Usual literature issued by the scheme on receiving requests in connection with a divorce
• Confirmation of how the scheme would deal with a Pension Credit in the case under consideration
• Confirmation that the valuation assumes no Pension Commencement Lump Sum is taken.
• Commutation rate for converting pension to lump sum at normal retirement age.
• If shadow membership allowed, the factors they use to convert a pension credit award into an income for the recipient
• Confirmation of any protected Tax Free Cash entitlement at A Day
• A copy of the scheme rules
• A copy of the latest member communication
• Scheme definition of spouse (does it include the need for the spouse to be living together at the date of death?)
Offsetting
Instead of pension sharing there is the option to offset the pension against other assets. Typically one party to the divorce will keep their pension in return for losing much of their share in the matrimonial home. However because pensions are unrealisable they are considered less valuable than liquid assets and the question of how much less valuable arises. There is no proper guidance and there can be massive discounts to the pension valuation on top of tax discounts.
I suggest statutory guidance is required to ensure both parties leave the marriage on an equal footing
The media is full of reports that twice as many children from separated families have problems than those children from intact families, but not often do we hear what the actual numbers are. According to Children of separation and divorce: surviving and thriving - what makes the difference? at Dad Info 15% of children from intact families and 30% from separated families have serious problems. 70 per cent of children grow up without serious problems after their parents separate. The article was written by Professor Michael Lamb, Head of Department in the Faculty of Social and Political Sciences at Cambridge University, and includes 10 golden rules to protect children from the effects of separation.
The relevant date (the date of separation) was disputed in a recent preliminary proof hearing. Sometime in 2004 a wife discovered that whilst on holiday with her husband in the Autumn of 2003 he had visited a prostitute and had contracted a sexually transmitted disease which had been passed onto her. As a result the husband left the family home in December 2004 although he visited on occasion, staying for a short while. The wife also visited his flat and her position was, until May 2007, she had hoped and expected that they would return to live together full time in a conventional married style. Lord Turnbull ruled, on the balance of probabilities, that the couple had ceased living together as of 15 December 2004 and this was the relevant date for valuing the matrimonial property.
The full judgement is here and the case was reported in the Scotsman article "The dentist, his wife, the prostitute, a nasty disease and a £2m divorce case"
I was going to blog about a series of articles about the secretiveness of family courts in England & Wales in The Times this week and I've been pipped at the post by John Bolch of Family Lore here. The only things I would add is according to this Times report apparently the Council of Europe is instigating an investigation into the matter and during May the Guardian carried an interesting article here about what really goes on in family courts.
Read more...
Despite house prices continuing to grow in Scotland The Herald reports here the slow down in the property market is causing problems for some separating couples who are finding it difficult to sell the former matrimonial home. This coupled with problems securing a mortgage means it is more likely divorcing couples will be compelled to continue living together.
Rather confusingly the article continues backing the story by quoting Marilyn Stowe, of the Yorkshire and Cheshire-based Stowe Family Law firm;
"This is a very difficult time because, with their main asset essentially being significantly depleted, the value having gone down, it means that there is less money available to rehouse both parties."
According to the Journal Online the current deadline for clients to make complaints about their solicitor to Law Society of Scotland is to be reduced from 2 years to one year when the new Scottish Legal Complaints Commission opens on 1st October 2008.
The rise in court fees could explain the reduction in the number of applications in care orders in England & Wales according to the BBC on Tuesday. This means vulnerable children in need of protection could be at risk.
On Thursday the BBC reported that many solicitors in England & Wales oppose plans to publish details of complaints brought against them.
The Independent published this article claiming that more women and children than thought were trafficked into into the UK.
6,000-18,000 Trafficked women are thought to work as prostitutes in Britain
167 Victims identified in a police operation to free them
13 Victims aged between 14 and 17
£500,000 Amount seized in brothel raids
500,000 Number of women trafficked into the EU each year
As a change I've added two new blogs which have nothing to do with divorce or family law but might just brighten up the day. Mhairi's Travel Blog, is very new as my daughter starts a round the world trip.
The second, We Love You Mr Pineapples, is a "blog of wisdom" from Mr P just to make sure we don't take life too seriously.
8 Kids, three white rabbits, a horse, a vineyard in Italy and a wife. Be nice to me - I might let you pick my grapes. Have connections in Italy through a series of "uncles". You would like them..really.Read more...
Further to my post here and this article in The Times human rights solicitor Aamer Anwar was cleared yesterday of contempt of court. At the High Court in Edinburgh, Lord Osborne said Mr Anwar’s words had been "angry and petulant", and failed to meet the standards expected from lawyers in Scotland. The court left open the matter for the Law Society of Scotland whether Mr Anwar had met the standards set by it for solicitors. The report is here in the Herald along with a video of Aamer Anwar's statement outside the Court.
Mr Anwar said after yesterday's judgment: "As a defence lawyer I never set out to win a popularity contest, but I was taught it is a lawyer's duty to fearlessly represent his client no matter what crime he is accused of or how demonised he is by society."
He added in a written statement: "As our government criminalises communities and creates thought crime', lawyers still have a responsibility to be the guardians of our liberties and to campaign against injustice."
Until now I've avoided the stories behind my music interludes because I didn't want to bore anyone with the details but as several people have asked, here goes.
Nearly all the videos I've posted are of musicians who I know, or have met at some point, and I was surprised when Dave Francis (on guitar here) sent me a link to this video in May. This was the original melody (and in my view the best one) chosen by Robbie Burns. The Cast, Dave and his wife Mairi Campbell, recorded it in 1996 and the last place I would have expected to find it was on the soundtrack of the blockbuster film "Sex in the City."
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