Leap Year

One thing I definitely won't be doing today is proposing marriage. I did that 30 years ago and look where that got me. Emotionally I don't think I would survive another marriage breakdown so best not to go there. Also I'm not sure I can make the compromises needed to make a relationship work again and it seems unfair to expect someone else to fit around my life­style­.

Besides, after almost 9 years I've adjusted to being on my own and quite like it. I'm a bit of a workaholic, commute to continental Europe once or twice a week and usually have house guests either arriving or leaving so my life is pretty full. I would have preferred our marriage to have worked, but it didn't, and my message to anyone going through a divorce is there is a life after and you choose what to make of it.

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Mid-life Crises?

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CaseCheck

Legal 'wiki' CaseCheck began last October as a free database of Scottish court and UK employment appeal tribunal decisions.

Aimed at the legal profession, it is a useful resource for anyone in search of clearly structured legal information. Users are encouraged to find out about cases and draw their own conclusions by browsing through the 32 subject areas to find descriptions of the facts and issues, and a link to the full judgment.

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Scots Legal Independence

The 1707 Act of Union between England and Scotland saw the nations' individual Parliaments replaced by the new Parliament of Great Britain but the the Scottish legal system was preserved, with provisions that the Courts ... remain in all time coming within Scotland, and that Scots Law remain in the same force as before. This means today the devolved Scottish Parliament legislates for areas such health, education, criminal justice, local government, environment, and civil justice whilst the UK Parliament has reserved powers over matters such as defence, international relations, fiscal and economic policy, drugs law, and broadcasting.

The Herald reports today about concerns that the UK Governments proposed Counter Terrorists Bill now threatens Scots legal independence. The argument centres on clause 27 of the bill, which provides that proceedings for an alleged offence may be taken at any place in the United Kingdom. The Law Society of Scotland said that safeguards were needed to protect the prosecutorial independence of the Lord Advocate and the constitutional position of the High Court.

It strikes me the motto of the Order of the Thistle, Nemo me impune lacessit (None provoke me unpunished) often rendered in Scots as Wha daur meddle wi me? (Who dares meddle with me?) is appropriate for the brewing row.

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Domestic Violence Scotland

In Scotland, the main legislation which deals with the problem of domestic violence is contained in the Matrimonial Homes (Family Protection)(Scotland) Act 1981.

This legislation was enacted to deal with the problem that very often the victim of domestic violence is forced to remain in the family home because he or she has nowhere else to live.

The 1981 Act is mainly concerned with giving rights to spouses in respect of the matrimonial home. The act refers to the ‘entitled spouse’ and the ‘non-entitled spouse’. The entitled spouse is the one who has legal title to the matrimonial home, e.g. the owner or tenant. The non-entitled spouse is the spouse who has no legal title to the property, but is given certain rights of occupation under the 1981 Act.

Under the 1981 Act, the non-entitled spouse has the right to occupy the matrimonial home. However, the right to occupy the home on its own would be of very little use in cases of domestic violence. For this reason, the 1981 Act also gives additional rights. For example, the act entitles the non-entitled spouse to make payments, such as rent, that are due by the entitled spouse or to carry out repairs.

More powerfully, section 4 of the 1981 Act gives the court the power to exclude a spouse whether entitled or non-entitled from the matrimonial home. The court must grant an order where it is ‘necessary for the protection of the applicant of any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse which is or would be injurious to the physical or mental health of the applicant or child’. In other words, the court will exclude a spouse who commits domestic violence on their family.

Where an exclusion order is granted, the court must also make certain other specific orders where these are requested by the applicant. The court must grant:

• A warrant for the summary ejection of the non-applicant spouse from the home

• An interdict prohibiting the excluded spouse from entering the matrimonial home without the express permission of the applicant

• An interdict prohibiting the non-applicant spouse from recovering any furniture from the house

An exclusion order or a matrimonial interdict can be enforced by the police, who can arrest a spouse in breach of his or her obligations in certain circumstances.

Scotland Domestic Abuse Helpline 0800 591203

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Parenting Agreements

Parenting Agreements are designed as a tool to help parents who are separating to agree on future arrangements for their children.The break-up of a relationship is one of the most stressful times in anyone’s life. But for the children of these relationships experiencing their parents’ separation can be especially difficult.

Problems can be minimised when the break-up is sensitively managed by both parents working together to agree on what is best for their children’s future.Parenting Agreements may help separating parents to focus on some of the important areas of their children’s lives which they will want to make plans for. For example, their children’s living arrangements, their schooling, holidays, healthcare and so on.

Links to the Scottish Government's Parent Agreement pack is here, but in my view the Cafcass Parenting Plan pdf provides a better guide. Parenting Agreements are not legally binding so the difference between legal systems doesn't matter.

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Blog Roundup

I've been meaning to mention the new additions to my blogroll for a few days now.


Judith Middleton's Divorce Blog reflects on divorce, separation and associated topics although at present she is on a skiing holiday in Austria with Outdoorman and the children. In this post she recounts her dilemmas with the uplifts which I'm sure many skiers will identify with.


Lynne Bastow at Divorce Solicitor is a single mother with 3 children who gives excellent tips dealing with the emotional and practical side side of relationship breakdown. I particularly like the advice about seeing adversity as a chance for personal growth in her recent post Feeling Stressed?


Jacqui Gilliatt is the General Editor of the Family Law Week blog that complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law. Family Law Week is dedicated to family law news and training.


Sam Hasler's Indiana Divorce & Family Law Blog is full of useful information, news on divorce, child support, residency, contact, prenuptial agreements and other family matters. Although legally there are differences many of the issues surrounding divorce are universal such as Litigation Out of Control. It's always interesting to hear how things are done in other parts of the world and I'm grateful to Sam for mentioning Divorce Survivor.

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Scottish Divorcees Struggle

Whilst England has the reputation as having the most favourable divorce regime towards women in Europe Scotland is thought by some to have one of the least favourable. The differences were highlighted in Scotland on Sunday how women are often left to struggle after a 'clean break' because there is less scope for courts to award assets in their favour due to disadvantage or special circumstances. Also when payments for maintenance in Scotland are made, unless there are very exceptional circumstances, they are for a maximum of three years to allow for a period of readjustment.

There has been much controversy in legal circles over this issue. In 2006 Lord Hope of Craighead attacked the current Scottish principles in his comments in the English case Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 and thought they needed to be reconsidered in the interests of fairness as soon as possible. However, Kenneth Norrie, Professor of Law and Head of the Law School at Strathclyde University argues Lord Hope misinterprets Scots law, and that it can achieve exactly what Lord Hope stated it could not do. Kenneth Norrie argues that the certainty of Scottish legislation encourages pre-court settlement and his reasons not to amend were outlined in the Law Society of Scotland's Journal July 2006 edition.

"First, s 9(1)(d) should be amended in order to extend the three year period if, in exceptional circumstances, the judge finds that the disadvantage of reduced earning capacity ought to be compensated out of the other’s future income because the capital needed to provide this is not available. But this is not needed because other principles in s 9 (bearing in mind the inclusion in s 9(2) of future earning capacity, and the instalment provision in

s 12(3)) can achieve precisely the compensation sought. In my view removing the three year limitation to s 9(1)(d) would seriously compromise the clean break principle – as well as being a denial of the reality, accepted by their Lordships in Miller; McFarlane, that it is usually impossible for both parties to maintain existing standards of living after divorce.

Lord Hope’s second suggestion is to allow a periodical payment to be made under s 9(1)(b) (a principle he never, in fact, discusses). This would not so much compromise as remove completely from our law the idea of a clean break on divorce."

No doubt the debate is going to rumble on for sometime.

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Changing World

Absolutely nothing to do with divorce, but I only slept 4 hours last night and woke up to a different world. Castro, who has been president of Cuba for as long as I can remember, has resigned and President Musharraf conceded defeat in the Pakistani elections. Nearer home Guy Verhofstadt has also announced his resignation as prime minister of Belgium on 20 March.

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Capital Gains Tax

I've added a link to Her Majesty's Revenue and Customs capital gains help sheet pdf "Husband and Wife, Civil Partners, Divorce Dissolution and Separation" under 'Resources.' This explains how husbands and wives and civil partners are treated for CGT and the help sheet deals with transfers between spouses and civil partners who are living together as well as when separation has occurred.

The section about Private Residence Relief covers relief from CGT on one's main residence and the final three years of ownership of the former matrimonial home.

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Ofsted’s Inspection of Cafcass

Today the first Ofsted inspection report into the Children and Family Court Advisory and Support Service (Cafcass), which provide a social work service to children and families who are involved in family court proceedings in England & Wales, examined the East Midlands region. Some strengths were found in that cases were allocated promptly , Cafcass had good relationship with its statutory and voluntary partners, responded to complaints constructively and managed its finances soundly.

However the quality of practitioners’ work with children and families, assessment, court reports, safeguarding, systems to support and assure work with children and families and performance management were all found to be inadequate. Two things I found particularly worrying were Inspectors found an absence of clearly stated criteria, validated by research, for Family Court Advisers to use when observing contact between a child and a parent and that concerns were not adequately balanced across all aspects of the welfare checklist.

Ofsted makes 10 recommendations to improve practice and service outcomes for children covering;-

quality of case planning and recording
guidance in assessing drug using parents
guidance in the application of the ‘no order principle’4
assuring the quality of safeguarding practice
strengthening quality assurance
effectiveness of supervision
information for service users on how to complain
management priorities
collaborative work with partner agencies
the impact of training.

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Quote of the Day

On Valentine's Day Charlie Parker, BB King, the Beatles and Lord Byron feature in Time magazine's Quotes of the Day.

"Of all forms of caution, caution in love is perhaps the most fatal to true happiness." Russell Bertrand, philosopher and writer.

A bit more long winded Louis de Bernières sums love up for me in in 'Captain Corelli's Mandolin.'

"When you fall in love, it is a temporary madness. It erupts like an earthquake and then subsides. And when it subsides you have to make a decision. You have to work out whether your roots have become so entwined together that it is inconceivable that you should ever part. Because this is what love is. Love is not breathlessness, it is not excitement, it is not the promulgation of promises of eternal passion. That is just being in love which any of us can convince ourselves we are. Love itself is what is left over when being in love has burned away, and this is both an art and a fortunate accident."

(BTW the mandolin in the picture is made by Fylde Guitars from timber reclaimed from the Scotch Whisky trade)

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New Director at the SCLC

News today from the Law Society of Scotland's Journal Online includes Morag Driscoll starting her new post as director of the Scottish Child Law Centre. SCLC "promotes knowledge and use of Scots law and children's rights for the benefit of children and young people in Scotland."

The Centre provides a free legal advice service, by telephone, email and text message, on all aspects of Scots law relating to children and young people, including education; health; social work; divorce; residence; contact; children's rights; youth offenders; and access to files.

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Aamer Anwar

According to the online magazine of the Law Society of Scotland the human rights solicitor, Aamer Anwar, is to appear for his contempt of court hearing on 29th and 30th April. Aamer Anwar was the solicitor acting for convicted terrorist Mohammed Atif Siddique and had described the verdict as "a tragedy for justice and for freedom of speech", and claimed the prosecution was driven by the state and that his client had been found guilty of doing what millions of young people do every day - looking for answers on the internet.

Judge Lord Carloway said the remarks made by Mr Anwar were his personal views and they had attacked every area of the trial process apart from the defence. A spokeswoman for the Law Society of Scotland told guidelines on commenting to the media were clearly stated on its website and in the solicitors’ professional handbook.

In response, Mr Anwar said the right to freedom of speech was one of the pillars of liberty and justice. Mr Anwar’s counsel added the solicitor believed he was expressing the views of his client. Politicians, writers and lawyers are among those protesting against the contempt of court referral against the outspoken solicitor. Author Iain Banks, Labour politician Tony Benn, Independent MSP Margo McDonald, Respect MP George Galloway, convener of the Muslim Council of Scotland Bashir Maan and human rights lawyer Gareth Pierce are among those who have expressed support for the lawyer.

No doubt the Law Society of Scotland will review the guidelines on commenting to the media in light of the courts final decision. I just hope the current restrictions which are aimed at protecting 'public morals' and children in family law cases will survive intact.

References

BBC News 23/10/07"Contempt issue after terror case"
The Herald "Freedom to speak out against the system"

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Swearing In

Whilst clearing out my files ready to transfer them to my new computer I came across this gem. I'm not sure where it originated but there is a note to the effect this was said in court, word for word, taken down and published by court reporters.

CLERK: Please repeat after me: "I swear by Almighty God..."
WITNESS: "I swear by Almighty God."
CLERK: "That the evidence that I give..."
WITNESS: That's right.
CLERK: Repeat it.
WITNESS: "Repeat it".
CLERK: No! Repeat what I said.
WITNESS: What you said when?
CLERK: "That the evidence that I give..."
WITNESS: "That the evidence that I give."
CLERK: "Shall be the truth and..."
WITNESS: It will, and nothing but the truth!
CLERK: Please, just repeat after me: "Shall be the truth and..."
WITNESS: I'm not a scholar, you know.
CLERK: We can appreciate that. Just repeat after me: "Shall be the truth and..."
WITNESS: "Shall be the truth and."
CLERK: Say: "Nothing...".
WITNESS: Okay. (Witness remains silent.)
CLERK: No! Don't say nothing. Say:"Nothing but the truth..."
WITNESS: Yes.
CLERK: Can't you say: "Nothing but the truth..."?
WITNESS: Yes.
CLERK: Well? Do so.
WITNESS: You're confusing me.
CLERK: Just say: "Nothing but the truth...".
CLERK: Yes.
WITNESS: Okay. I understand.
CLERK: Then say it.
WITNESS: What?
CLERK: "Nothing but the truth..."
WITNESS: But I do! That's just it.
CLERK: You must say: "Nothing but the truth..."
WITNESS: I WILL say nothing but the truth!
CLERK: Please, just repeat these four words: "Nothing", "But", "The", "Truth".
WITNESS: What? You mean, like, now?
CLERK: Yes! Now. Please. Just say those four words.
WITNESS: "Nothing. But. The. Truth."
CLERK: Thank you.
WITNESS: I'm just not a scholar.

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The Knowledge or Truth Axiom

Epistemology or the theory of knowledge has a long and honorable tradition in philosophy, starting with the early Greek philosophers. The term is thought to have been introduced into English by the Scottish philosopher James Frederick Ferrier (1808-1864) who studied German philosophy at Heidelberg. Epistemology focusses on analysing the nature of knowledge and how it relates to similar notions such as truth, belief, and justification. Questions such as “What do we know?” “What can be known?” and “What does it mean to say that someone knows something?” have been much discussed in the philosophical literature.

The idea of epistemic logic, a formal logical analysis of reasoning about knowledge, developed more recently in the 1950s and 1960s. The major interest was in trying to capture the inherent properties of knowledge. Axioms for knowledge were suggested, attacked, and defended. More recently still, researchers in such diverse fields as economics, linguistics, artificial intelligence and theoretical computer science have become interested in reasoning about knowledge. For one thing, there are pragmatic concerns about the relationship between knowledge and action. There are also concerns about the complexity of computing knowledge, a notion we can now quantify better thanks to advances in theoretical computer science.

Does an of this have any relevance to divorce? I think it does because a few properties of knowledge can be derived . In particular the knowledge or truth axiom says that if an agent knows facts, the facts must be true. This has often been taken as the major distinguishing feature between knowledge and belief. While you can believe something that is false, you can't know something that is false.

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Pink Tape

In my blogroll is Pink Tape, an interesting blog of a barrister practising mainly in family law.

"I’d love to think that this blog will persuade at least one person we aren’t all the money hungry sharks you think we are. Some of us are quite nice really." (I'm sure they are.)

BTW pink tape is used by to tie up bundles of legal papers, these days mainly for sending papers to barristers

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The Blonde Map of Europe

Blogging can be addictive and it's surprising where it can lead. After following links for logic and reasoning I came across this map. One handicap in life is being stereotyped as blonde!

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Resignation?

Rowan Williamson, Archbishop of Canterbury proposing the adoption of some elements of Sharia law in the UK features heavily in the news today. He said "There are ways of looking at marital disputes, for example, which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings, they would seem more appropriate." Yer, rite as they say around here.

Under Sharia law there is discrimination against women because of patriarchal and cultural control in their communities. Some Muslim women in the West are worried about protection of their rights in Sharia courts. Running the two systems of law alongside each other would be a recipe for disaster and perhaps, unsurprisingly, there are now calls for the Archbishop's resignation.

Spiegel thinks the Archbishop is mistaken in thinking society is like a factory canteen which offers choices between meat and vegetarian menus. It accuses him as being naieve and his suggestion no more than preventative capitulation to a tricky problem. As some immigrants are not willing or unable to adapt to the rules of society, society would be adapting to the rules of the immigrants. (I've not transulated that well, but you get the gist.)

The Archbishop is known to be obscure. One commentator couldn't describe a lecture by the Archbishop as he said it was so ambiguous he didn't know when to heckle. Family Law Week blog illustrates this with the quote "I have been arguing that a defence of an unqualified secular legal monopoly in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circumstances in which that doctrine emerged, and that the essential liberating (and religiously informed) vision it represents is not imperilled by a loosening of the monopolistic framework."

Typical Glaswegian comments from the Herald readership;

"Who is the Archbishop of Canterbury anyway?
Is he in a rock band?
or does he jist wish he wis?"

"Being a Jedi, I fully support the introduction of Jedi Law..."

"Off with his head!"

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Ordinary Divorce Procedure

In Scotland when the conditions for a divorce under the Simplified Procedure are not met the Ordinary divorce procedure is used and a solicitor is required. The action begins with the solicitor for the pursuer drafting the summons (Court of Session) or initial writ (sheriff court). This is a formal document stating all the facts which is sent to the court. A copy is sent to the defender who then has 21 days to seek legal advice and consider their response. When adultery is being used as a ground for divorce, a copy is also sent to the third person involved if he or she is named in the summons or initial writ.

UNDEFENDED DIVORCE Where both parties are in agreement the action proceeds as an undefended divorce. Sworn statements are usually provided by the divorce applicant and the solicitor submits the statements to the court. The judge examines the case in private and the divorce decree will then be granted unless the court requires further information.

DEFENDED DIVORCE The defender may decide to defend the action, either because they object to the divorce itself, or because they dispute some aspect of the future arrangements for the care of any children, the proposed financial provision on divorce or both of these matters. If during the process defended actions are settled by agreement a Joint Minute of Agreement can be drawn up.

Child Welfare Hearing If the divorce involves a dispute in respect of children and the action is being defended in the sheriff court, the next step in proceedings is a Child Welfare Hearing. The sheriff may also order such a hearing in other instances where they consider it appropriate.

This is intended to bring about the quick resolution of disputes about children, proving that this can be done in a manner consistent with the child’s welfare. All parties are required to attend the hearing personally and are under a duty to provide the sheriff with as much information as possible so that he or she can take whatever steps necessary to deal with the matter.

The court may also refer the dispute to a mediator accredited to a specified family mediation organisation at any stage in the proceedings

Options Hearing Where a divorce is defended in the sheriff court the next stage is an Options Hearing. This is intended to give parties a chance to meet before the sheriff in order to ascertain if agreement can be reached without proceeding to a full proof (see below) or, if this is not possible, to focus the precise disagreement between parties.

The Proof If the matters at issue are not resolved the case proceeds to a 'proof.' A proof is a full court hearing where evidence is given by witnesses in proceedings open court. It can be reported by the media, subject to certain restrictions aimed at protecting 'public morals' and children.

Decree of divorce If the grounds of the divorce action are proven, the court will grant a decree of divorce.

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Simplified Divorce Procedure

Following on from yesterdays topic, Joint Minute of Agreement,
here is a quick run through the grounds for divorce and simplified divorce procedure in Scotland.

Grounds for Divorce
Divorce is available where a marriage has broken down irretrievably. This can be established by the pursuer proving one of four factual circumstances. Citing behaviour or adultery requires strong evidence involving at least one witness. 88% of divorces granted in 2006 were on the basis of one or two years separation .
• adultery: the defender has committed adultery
• behaviour: the defender has behaved in such a way that the pursuer cannot be expected to cohabit with him or her
• one years’ separation with consent: there has been no cohabitation between the parties at any time during a continuous period of one year and the defender consents to the granting of a divorce
• two years’ separation: there has been no cohabitation between the parties at any time during a continuous period of two years

Simplified Procedure
Conditions
• the ground for the divorce being relied upon is one of the separation grounds
• the action is not being defended by the other party to the marriage
• there are no children under 16
• neither party is applying for an order for financial provision on divorce
• there is no indication that either of the parties is unable to manage his/her affairs because of mental illness or impairment

To apply for a divorce under this procedure the applicant will have to fill in a form giving the reason for the divorce and information to support it. If the ground for divorce is a one year separation with the agreement of the other party, Form SPA is used and the applicant will have to get the other party to sign a consent form. Form SPB is used if the ground for divorce is two years without agreement.

The applicant must swear that the facts stated on the form are correct before a Notary Public or a Justice of the Peace who will sign the form, free of charge. The completed form, the marriage certificate and a fee is returned to the local sheriff court or Court of Session. The court will send a copy of the application for divorce to the other party. The other party then has time to object to the divorce. As mentioned above, if he or she does object then the simplified procedure cannot go ahead.

If the other party does not object to the divorce, the court will consider the application and let both parties know the result. If the application is successful the court will grant a ‘decree of divorce’ The whole process usually takes about eight weeks.

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Joint Minute of Agreement

In Scotland a divorce is not usually granted until all financial matters and issues related to children are resolved. Written agreement about financial provision and arrangements for children can be reached in the form of a joint minute of agreement which the court converts into a binding court order.

Finances The matrimonial assets and debts are those accumulated between the dates of marriage and separation. Inheritances and gifts are not matrimonial assets. On divorce matrimonial assets are shared 'fairly' (equally) and reflect the unequal burden of childcare which can arise on divorce, or compensate one party for any economic disadvantage they may suffer. Non-matrimonial assets are not shared but are a resource taken into account when sharing the matrimonial assets.

Spouses have a mutual obligation of financial support. After they have separated, but before they are divorced, this is known as aliment. Maintenance may also be payable after divorce to allow for a period of readjustment. This is called periodical allowance and lasts for a maximum of 3 years unless there are special circumstances.

Children Parents have equal rights and responsibilities for their children.

Parental Responsibilities

• to safeguard and promote the child’s health, development and welfare

• to provide, in a manner appropriate to the stage of development of the child, direction and guidance

• if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis

• to act as the child’s legal representative.

Parental Rights

• to have the child living with you or otherwise to regulate the child’s residence

• to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing

• if the child is not living with you, to maintain personal relations and direct contact with the child on a regular basis

• to act as the child’s legal representative.

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Mac Complacency

Mac users be warned! Like many fellow Mac users I relied on Macs not being targets for hackers, viruses or worms and only very recently installed extra protection. According to the Institution of Engineering and Technology magazine this was rather timely as the Cybercrime Trends Report from IT security firm Sophos predicts 2008 will see an increase in malware activity infecting Macs.

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Children's Inheritance

According to today's Herald Nigella Lawson is the latest of the super rich to disinherit her children believing that this will save them from a life without direction. "I am determined that my children should have no financial security," said Nigella, "It ruins people, not having to earn money."

Now I'm all in favour of meritocracy, but it seems to me as though someone publicising what is essentially a private family matter and not wanting to leave their children any financial security has rather lost direction themselves.

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Family Lore Blog

Random thoughts of a family lawyer

"Admitted as a solicitor on April Fool's Day (appropriate!) 1985. Since been working almost exclusively in family law. Member of Resolution and Law Society's Family Law Panel."..

Although I've only recently started to write my own blog over the last year or so I've become addicted to reading blogs and John Bolch's Family Lore (see my Blogroll) is one of my favourites.

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