Sunday, August 31, 2008

Blog Roundup 2

First of all congratulations to BFS aka Bletherin' Dad of It's A Dad's Life. I hope his new born son is soon in good health. Compliments too to Jaqui Gilatt of Bloody Relations for making it to the Times list of best legal blogs and best wishes to Swiss Toni of Will I Be Barred as he embarks on the Bar Vocational Course as a mature student.

Commiserations to Judith Middleton of Judith's Divorce Blog after narrowly escaping a fire at the hotel adjoining her practice.

Lucy Reed of Pink Tape is training for a half marathon to raise funds to tackle domestic violence (not bad for someone who gave birth just a few months ago!) Mr P of We Love You Mr Pineapples is waxing lyrical about the Olympics and Mhairi of Mhairi's Travel Blog has been skydiving in New Zealand.

John Bolch of Family Lore has produced an e Book Do Your Own Divorce, a guide to divorcing without a lawyer.

Marilyn Stowe's latest post Clients and bankruptcy: a cautionary tale looks at what happened when a client sued her solicitors for professional negligence after they had failed to advise how bankruptcy would affect her financial claim.


Saturday, August 30, 2008

Database of Domestic Abusers

A report published by Her Majesty's Inspectorate of Constabulary have recommended a database listing all victims of and perpetrators of domestic abuse should be set up. According to the Journal Online in this story further recommendations were;

reviewing the role of the domestic abuse officer

all forces working together to develop a common approach to training and support for officers

all forces adopting common ways of risk assessing victims and managing those risks

forces reviewing and reinforcing their quality assurance practices and processes for recording domestic abuse incidents.


I'm Back Online

Well at least I hope I am. The Edinburgh festivals are almost over and I have more or less caught up after broadband connection problems left me with a backlog of emails to deal with. I now have a new modem so hopefully there is nothing to keep me away from my blogging addiction.


Wednesday, August 27, 2008

Finding a Lawyer Online

I have strong reservations about websites such as the American site Avvo mentioned in this post providing consumer rankings of lawyers but there appears to be slightly more sophisticated ways of using the internet to help find a lawyer. There are of course searchable databases held by the Law Society of Scotland, the Family Law Association Scotland and the Scottish Collaborative Law Group or the Law Society and the lawyers organisation, Resolution, in England & Wales. The Times looks at other innovations aimed at providing more accessible information here.

This includes the publication of disciplinary decisions by the Solicitors Regulation Authority on its website and the Legal Complaints Service plans to make public the complaints records of law firms. Also emerging are online registers of lawyers' professional experience and one where someone can submit their legal problem and receive responses from law firms from which to choose a lawyer. On further investigation I have also found this independant website who review law firms.

Now I'm left wondering how on earth I managed to find a solicitor without logging on.


Tuesday, August 26, 2008

Right of Audience & Anonymity

Following a series of newspaper articles and public pressure regarding the secrecy in family courts mentioned in this earlier post last week a judgement preserving a child's anonymity was handed down in public. In England & Wales a litigant in person may be accompanied by a McKenzie friend to a court hearing for the purpose of assisting them in matters such as taking notes, organising the documents, and quietly making suggestions. A McKenzie friend has no right to address the court. N (A Child), Re [2008] EWHC 2042 (Fam) relates to McKenzie friends' rights of audience.

Whilst determining financial provision for the child the father had represented himself with the assistance of the well known campaigner for open justice, fathers' rights activist and McKenzie friend, Dr Michael Pelling. During the proceedings it was agreed it would be simpler and quicker if Dr Pelling, with all his knowledge of points of law and procedure, addressed the Judge rather than the father. Then in the final hearing of the section 8 (the section of the Children Act 1989 which deals with residence, contact and other orders) proceedings the mother had appeared in person, assisted by a McKenzie friend, Mr David Holden, and the father was represented by Mr James Bogle, who was attended throughout by Dr Pelling, acting as his solicitors' clerk. The child's guardian was represented by Ms Kate Hudson.

The father's side objected to the mother's wish that Mr Holden be allowed to speak on her behalf, examine and cross-examine witnesses and make submissions. Mr Bogle's objections were (1) that the mother had not made an application to that effect at the start of the hearing as required by the President's Guidance and she had not given any notice of such application and (2) that there were in any event no exceptional circumstances to justify Mr Holden being given rights of audience in this way. No ruling was made on the 21st July and the parties went away to negotiate returning on 24th July when the mother wished Mr Holden to address the Judge. This is what happened next;

14. Since he was instructed only in the section 8 proceedings and the issue which the mother wished to canvass related in part to the Schedule 1 proceedings, Mr Bogle indicated that oral submissions in relation to Mr Holden's proper role would be made by Dr Pelling. But this, as I pointed out, gave rise to a difficulty, for Mr Bogle's skeleton argument (which I understood Dr Pelling wished to adopt) had concluded with the submission that, because the mother's application raised important questions of principle and fairness in relation to rights of audience, and because the hearing of the application and judgment thereon would not appear to require any reference to the circumstances or private life of the child the subject of the section 8 proceedings, the hearing should be in open court with public pronouncement of judgment in accordance with the common law principle of open justice (reference being made to Scott v Scott [1913] AC 417) and in accordance with Article 6(1) of the Convention.

15. The difficulty, of course, was that although Dr Pelling, as a solicitor's clerk, had a right of audience before me in chambers, he had (as he agreed) no higher courts right of audience and therefore no right of audience before me in open court. And given the objection he wished to take on behalf of the father to Mr Holden being granted a right of audience for the purpose of the proceedings, it would scarcely have lain in either his or his client's mouth to assert a similar right of audience on his own part. So although Dr Pelling would be at liberty to address me in chambers in support of the preliminary argument that the substantive hearing be in open court, were he to be successful in that argument (which I was inclined to think he would be) and were I accordingly to go into open court for the substantive argument (which was likely), he would not be able to address me. Thus, unless Mr Bogle were to be instructed in the matter, any oral arguments which the father might wish to put before me he would have to make himself.

16. Faced with this difficulty, high-minded principle soon gave way to practical pragmatism. Dr Pelling indicated that the father now wished me to deal with the matter in chambers, so long as judgment was delivered in public. In the circumstances I was prepared to agree to this course.

After hearing the arguments in chambers Mr Justice Munby granted Mr Holden the right of audience and after hearing his point the parties went away and negotiated an agreement in relation to the section 8 proceedings. The judgement was drafted preserving the anonymity of both parties and the son. At this point the father submitted that there were good reasons against anonymity namely; (1) he and Dr Pelling wanted to "be free to write and talk about the proceedings but that it would be quite artificial and unnecessary for the father to conceal the fact that he was a party and was speaking from direct experience." (2) anonymisation inhibits the free interchange of ideas and communication of experience in a democratic society and if the case is anonymised then it will be difficult for anyone interested to contact the father, though others interested in rights of audience and McKenzie friend issues may well wish to do so and (3) there is a case for changing the law in regard to rights of audience but campaigning is inhibited if one does not know the identities of those involved in setting case precedents.

The mother's submission was that litigation had gone on for for almost all of the child's life, the consent order was to end this and the child shouldn't be used as a pawn in a political agenda. Ms Hudson representing the child's guardian supported this view and it was ruled the detriment the child would suffer should his family and name be disclosed outweighs any right the father or the world at large to discuss matters by reference to the names of the parties. The judgement was handed down to the public and the anonymity of both parents and the child preserved.


Monday, August 18, 2008

Sex, Drugs & Aristocrats

I was intending to do some catching up with a review of blogs but having got as far as reading The Dirty Duchess a post about the Duke and Duchess of Argyll's divorce in 1963 by John Bolch of Family Lore I was reminded of the other Argyll case, Argyll v Argyll [1967] Ch. 302. This was a case when the same Duke of Argyll was prevented from publishing information about his former wife’s private affairs and personal habits. The injunction was based on the confidential relationship which exists between married couples.

The Duchess had questioned her stepson’s legitimacy and in 1959 the Duke's ex-wife and the heir sued. The Duke was keen to suppress rumours, the Duchess denied she had spread any, and the injunction was granted by consent. Then the Duke sought divorce for adultery and the Duchess cross-petitioned alleging he was having an affair with her step-mother. Her step-mother successfully sued.The Duchess then sought prohibition of the publication of newspaper articles by the Duke on the basis that confidence between spouses during marriage should be protected by the court.

Submitted by the Duke was prohibition ought not to be granted, first, on the ground that she herself had broken the mutual obligation of confidence between herself and her husband by some articles by her published in the ‘Sunday Mirror’ and secondly, by her attitude to the sanctity of marriage as set out in Lord Wheatley’s judgment in the divorce proceedings. In the Judge's view by far the most serious complaint about anything in the Duchess' articles was a statement that her husband had been taking purple hearts.

Despite her infidelities during the marriage the Chancery judge refuted the argument that the Duchess had forsaken any right to marital confidence. The marriage in question was his third and the Duke had since married his fourth wife. “Is the attitude of the duke to his former marriages to be taken into consideration, or is it to be assumed that he travelled the road to Damascus before each marriage?” asked the Judge. Also according to his biography, the Duke did have an affair with the Duchess’s step-mother after the divorce. During the case Ungoed-Thomas J referred back to Prince Albert v Strange to prove that rights in information could exist without a preceding contract or physical property and Emperor of Austria v Day and Kossuth (1861).

Ungoed-Thomas J found that, if the information could be regarded as confidential, and there was no counter-balancing public policy exception, protection should be given.


Saturday, August 16, 2008

Edinburgh Festivals

It's that time of year again and apart from my broadband connection problems outlined in this post returning this week and work the Edinburgh festivals have proved distractions from blogging.

The Book Festival is my favourite and this week has seen visits from David Dimbleby, Tony Benn, Ian Rankin, Alexander McCall Smith, David Owen and Gordon Brown to name but a few. Speaking at the festival author Andrew O'Hagan suggested Jeremy Paxman could use his fishing rod "for something else" after the Newsnight presenter's comments about Robert Burns reported here in the Herald. Amnesty International held a series of interesting events.

With divorce and family in mind Tony Parsons' talk focused on his book My Favourite Wife about an ambitious lawyer in Shanghai exposed to the temptations of an affair. Louis de Bernières, the author of Captain Corelli's Mandolin, made a welcome return to Edinburgh and Carl Honoré looked at the pressures piled on parents to raise the perfect child, arguing for a slower,more relaxed approach. One event I didn't go to but looked appropriate for someone going through divorce was a workshop Dealing with Rejection looking at key practical and emotional techniques to help to deal with rejection with author, playwright and psychotherapist Caroline Dunford. I later discovered this was meant for writers!

On the Fringe I went to see my son perform twice and came across The Accidental Death of an Accordionist at the same venue. This was a murder mystery with the audience participating as dancers at a ceilidh and was great fun. I also went to the Alex Yellowlees Jazz Quartet gig. Alex is the consultant psychiatrist I mentioned in this earlier post

Again on the subject of divorce there was Confessions & Obsessions of a Thirty Something Divorcee this was billed as;

Xara reveals her thoughts about love, life and sagging boobs as she prepares to attend the wedding of her ex-boyfriend. Can she love again?
Sarah Millican's Not Nice was in the same vain. I gave them both a miss.

Next week the Festival of Politics starts and the Law society is hosting a debate. Vice President Ian Smart will line up along with singer Annie Lennox, former cabinet ministers Denis Healey and Douglas Hurd, activist and comedian Mark Thomas and the Society's Director of Law Reform Michael Clancy on a panel under the theme A Law Unto Itself?


Friday, August 15, 2008

Cape Crusader

A Fathers 4 Justice campaigner climbed on to a gantry over the M25 this morning causing traffic havoc. The Daily Mail reports Geoffrey Hibbert, dressed as Batman, brought Britain's busiest stretch of motorway to a standstill during rush hour. Thousands of drivers, including holidaymakers on their way to Heathrow, were left stranded after police were forced to shut part of the road for nearly two hours. Apparently the police made the decision to allow Batman to stay on the gantry all day. I'm glad the police didn't knock Batman off his perch but is this type of protest the way to win friends and influence people?


Friday, August 8, 2008

I'm Gonna Do It All Some Day

I first met singer songwriter Karine Polwart a number of years ago when she worked for Scottish Women's Aid before she became a professional musician. Like Charles Kennedy, who presented her with a BBC Radio 2 Folk Award, Karine studied  philosophy. It’s three years since Karine scooped a trio of BBC Radio 2 Folk Awards, including “Best Album” and “Best Original Song”, an accolade she won for a second time in 2007. Recently she became a mum. Last weekend I heard Karine perform this song at the Cambridge Folk Festival.


Connection Problems

I came back from a long weekend on Monday night to discover I'd lost my internet connection. It's amazing how much I rely on the internet. First of all I work from home a great deal and I use the internet for everything from banking to ordering groceries and booking tickets. Over the last few months I've been without a connection several times so I decided it was time to contact customer services. A nice young man at the call centre in India was telling me how hot it was over there and when I asked him if he lived in the east or west, thinking the monsoons might not have arrived in his area yet. He replied India is in the east! I despair at how ignorant the British are sometimes perceived abroad. Anyway I've finally managed to get my connection up and running properly which is just as well because the 'engineer' couldn't shine any light on the problem. I'm just keeping my fingers crossed it's not an intermittent fault.


Friday, August 1, 2008

Captain Pugwash

Whilst having every sympathy for parents who are denied contact with their children without exceptional reason, I think the fathers' rights movement does a great disservice to many fathers. Contact isn't about parental rights, equality or fairness it is about the children's right to a meaningful relationship with both parents. It's bad enough one parent flouting contact without the other's grievances being ratcheted up and them being encouraged to adopt unhelpful and often hostile strategies.

Pro sexist fathers' rights groups often present a skewed view. It seems at least someone has cottoned on.


Court Fees Rise

Scottish Court fees go up today.

Sheriff Court Fees Amendment Order 2008

Divorce and dissolution of civil partners Initial writ in an action of divorce or dissolution of a civil partnership (other than a simplified divorce or dissolution of a civil partnership application) was £92 now £120

Application for Simplified Divorce and simplified dissolution of civil partnership was £70 now £90

Court of Session Fees Amendment Order 2008

Divorce and dissolution of civil partners Writ by which a family action is originated (other than a simplified divorce or dissolution of a civil partnership application) was £92 now£130

Simplified divorce or dissolution of a civil partnership application was £70 now £100

Initial lodging of affidavits in a family action where proof by affidavit evidence has been allowed was £40 now £55

Application by minute or motion for variation of an order in a family action was £21 now £30

Reclaiming motion (appeal) was £120 now £170


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