Saturday, January 31, 2009

Ancillary Relief Toolkit

Following his eBook Do Your own Divorce, written to help people in England & Wales who cannot afford legal services in divorce proceedings, John Bolch of Family Lore has put together a list of web links relating to ancillary relief. The Ancillary Relief Toolkit is a list of web links relating to ancillary relief, including legislation, leading cases, calculators, tables and other very useful links.

Both resources could be extremely useful as preparation for those people preparing to divorce using a solicitor too. In order to make informed decisions most solicitors' clients really need to do a little research in order to understand what is happening.


From Pillar To Post?

I rarely post about celebrity divorces but in The Scotsman today this article highlights the difficulties of arrangements for children with international divorces. It is 'believed' an amicable decision has led to Madonna being given 'temporary permission' to have the children to live with her in New York. The children are 'likely' to share their time between Madonna and Guy Ritchie but be educated in the US. Madonna is to hand over the children when she is in London for the first concert of a European tour.

In view of a comment made by Professor Stephen Scott, Professor of Child Health and Behaviour at the Institute of Psychiatry at King’s College London, to The Times last year that "children don’t like being in different homes on different days of the week" I wonder what the children really feel about being shuttled from pillar to post between term time and the school holidays.


Thursday, January 29, 2009

Internal Relocation

According to Wall LJ ETS v BT [2009] EWCA Civ 20 is the first "internal relocation" (relocation within England and Wales) arising where there is already in existence a shared residence order to reach the Court of Appeal.

Briefly, the parents are unmarried and the mother is British, although she also has an Israeli passport. The father is Serbian, but is settled in England. Their relationship began in 1999 and ended in December 2005, when the mother left the father, taking their daughter, L, with her. During 2007 the mother's application to relocate to Israel was was refused and the judge ordered shared residence.

A second application was made this time to relocate from North London to Chew Magna. This was again refused along with the father's application for a more equal division of L's time between the parents. The judge found the mother was not entirely truthful, she had delayed telling the father about the intention to relocate, she had made a number of unilateral changes to L's care and her motivation for the proposed move is to diminish the father's relationship with their daughter.

The interesting bit is consideration of what effect, if any, does a shared residence order have and what weight should a judge give to the existence of such an order. After reviewing the relevant authorities on internal relocation there was some disagreement with the judge's approach in the judgement under appeal. Nonetheless the Court of Appeal ruled relocating was not in the child's best interest and the appeal was dismissed.

Finally, in the post script Wall LJ said something which was very similar to my mantra about it not mattering to children in ten years time a jot whether they do x or y, but whether children grow up with positive feelings about both parents is likely to stay with them forever.

Each parent represents 50% of L's gene pool. Children, moreover, learn about relationships between adults from their parents. In twenty years time it will not matter a row of beans whether or not L spent x or y hours more with one parent rather than the other: what will matter is the relationship which L has with her parents, and her capacity to understand and engage in mutually satisfying adult relationships. If she is given a distorted view of adult relationships by her parents, her own view of them will be distorted, and her own relationships with others – particularly with members of the opposite sex – will be damaged.


Bypassing Courts

Polly Toynbee's article about the Welfare Reform Bill in The Guardian on Tuesday seems to have caused rather a stir. There are 900+ comments and the numbers are still rising. I think the point has been missed that the CSA/CMEC already can confiscate driving licences and passports so all the new measures would mean the courts would be bypassed.

The expropriation of driving licences and passports is a much better way of enforcing child support than sending non payers to prisons which are already bursting at the seams. However, sanctions are only imposed after all other measures have failed and the time saved bypassing courts is very small compared to the overall time spent getting to that stage. Given the CSA/CMEC are not the most efficient organisation and make many errors it makes sense to me that the responsibility for ordering confiscation would be best left with the courts.


Divorce Tourism On The Rise

Or as The Scotsman put it Come to Scotland – a land full of history, stunning scenery…and cheap divorces. This relates to a "surge" of successful businessmen forum shopping for divorce to take advantage of the law in Scotland where the objective is a clean break. In England, the article says, wives not only get a proportion of the assets but also a spouse maintenance order for life. Rachael Kelsey of Sheehan Kelsey Oswald said nine out ten times the wives would be better off divorcing in England.


Wednesday, January 28, 2009

Girl Marries Dog

Reuters carries the strange video of a young girl in Jharkhand, India being married to a dog because there is a superstition that it will overcome any curse put on the family. Before any under employed family lawyers get too excited Reuters say the girl is free to marry a man later without getting a divorce.


Tuesday, January 27, 2009

England v Scotland

Further to my posts Cohabitation and Palimony looking at financial provision for co habitants in Scotland and the first case under s28 Family Law (Scotland) Act 2006, CM v STS, Marilyn Stow has two guest posts comparing proposals for cohabitant rights in England to those we already have in Scotland. Jenny Wilmot's and John Fotheringham's posts are here and here.


Monday, January 26, 2009

Welfare Reform Bill

The CSA could apply to court for the expropriation of driving licences and since last year the new Child Maintenance and Enforcement Commission (CMEC) has the power to apply to court for the confiscation of passports when non resident parents refuse to pay child support for their children.

Today The Times reports the Welfare Reform Bill, due for its second reading in the House of Commons tomorrow, will enable CMEC to bypass the courts and order non compliant parents to hand over their driving licences and passports.



Despite opposition from the Conservatives and Liberal Democrats the Government launches a children's database, ContactPoint, today. According to The Telegraph the database of 11 million under 18s including their names, ages and addresses as well as information about their parents, GPs and schools. There are concerns that sensitive information will be mislaid or lost.


Sunday, January 25, 2009

Burns Night

This is a video of the opening of the Scottish Parliament ten years ago featuring an acquaintance of mine, Sheena Wellington. The reference toPaulo Nutini at the end is an indication that Burns is still as popular with young people as ever.


Divorce Income Changes

Both The Observer and The Independent report new research, Marital splits and income changes over the longer term, carried out by Professor Stephen Jenkins, a director of the Institute for Social and Economic Research and chair of the Council of the International Association for Research on Income and Wealth today. Stephen Jenkins combined data from 14 different British Household Panel Surveys over 1991 to 2004 with the findings from five European surveys.

The study confirmed previous research that there are large falls in income in the year after a marital split for separating women and children, but not for separating men. Over a six year period 1998–2004 after splitting the immediate large fall incomes for separating wives did recover but not to their previous levels. Women who did not have a job in any of the five years after a marital split, or who did not find a new partner fared the worse. Stephen Jenkins pointed out the differences were not influenced so much a gender but more to do with the parenting differences of fathers and mothers.


Saturday, January 24, 2009

Sheriff McCreadie Style

Recent changes to my blog have caused a few problems and reminded me of the hapless Sheriff Robert McCreadie who managed to delete evidence in a trial after hitting the wrong button on his laptop. He then blamed a solicitor for speaking too quickly. Apparently on other occasions he sent the jury home after his computer crashed and interrupted cases because the W and E on the keyboard didn't work. The story was recounted by Hector McQueen in the University of Edinburgh's blog Scots Law News during 2007 here.

So in true Sheriff McCreadie style I managed to loose all my links which have now been retrieved and updated. The new links in the right hand sidebar are;

Faculty of Advocates

Hague Convention ( Civil Aspects of International Child Abduction)

National Debt Line Scotland

REMO (Reciprocal Enforcement of Maintenance Orders)

Reunite (charity specialising in international parental child abduction)

Scottish Solicitors' Standards

UN Convention on the Rights of a Child

Relationships Scotland (formerly Relate and Family Mediation Scotland) and the Scottish Family Law Group have updated their sites since I first added them to my list. There is a bug with the links so some of the hover links and visited links don't work which I'm trying to fix.

Another problem was was the tracking of the number of visitors to my blog didn't appear to work, but rather mysteriously it seems I only had one visitor in two days and a bumper number on the third day. I had altered the text size and then realised I was using my laptop and desktop users probably couldn't read the small text - doh!

Anyway I hope everyone can read the text and I would appreciate feedback about the text size, the tag cloud which I've reduced in size, the colour of links in the posts and whether the sidebar links are difficult to read because they are squashed into a narrow column.

Now all I need is a .scot domain name.


Friday, January 23, 2009


I'm still a bit behind with blogging, but at last I have managed to get all my papers to my accountant so he can work out how much tax I'm due to pay at the end of the month so hopefully I'll have a bit more time.There are one or two stories and blogs worth mentioning.

Following on from The Ancillary Actuary's earlier debate about women loosing out on pensions in divorce last weekend The Independent carried an article The better halves who get the worst of it when romance dies looking at the problem. David Lister, a partner at law firm Mishcon de Reya, raises the point that a wife will need a greater percentage of the pension fund as it has to go longer.

Continuing the pension theme in a judgement M-D v D [2008] EWHC 1929 (Fam) recently released in England a wife successfully appealed an ancillary relief order on basis that the order had failed to make sufficient provision for her pension and the husband ordered to pay further lump sum of £35,000. Thanks to John Bolch of Family Lore Focus for the lead on this and also a post Ever Heard of NAPOD? Divorce : The Blog about…Divorce

This is about a trade body for companies who provide online divorce services but are not regulated. However, it appears there is just one company behind this who are promoting it as a reason to use their service over any other.

Incidently John Bolch has started a new Family Lore Focus Forum.

Finally in The Times article How to make divorce feel great Amanda Lynch looks at a London-based service called Divorce Support. Its founder, Charlotte Friedman, was a family law barrister for 25 years, before training as a therapist, and now offers individual therapy or group sessions for fellow divorcees.


Tuesday, January 20, 2009

Divorce News From Asia

As some readers might have spotted I have changed the look of my blog and I am rather behind with posting. Perhaps I should have really titled this post Divorce History in Asia.

I am now convinced the Family Law (Scotland) Act 2006 got it about right when it reduced the times to divorce after separation with consent to one year and years without consent. Last week Reuters reported a fall in the number of divorces in South Korea after a reversal of policy enabling most couples to divorce on the spot. The change was brought about as couples who fell out were immediately applying for divorce. Now couples with children go through a three-month cooling off period while childless couples can end their marriage after one month. On-the-spot divorces are still granted in cases of physical or sexual abuse.

An earlier Reuters article carried a story about the fears of recession triggering an increase in the number of divorces in China where one paper said the number of people seeking divorce advice increased by 30 percent in the second half of last year. in 2007 there were 2.1 million divorces in China in 2007, nearly seven times the figure of 1980.


Thursday, January 15, 2009

Therapy US Style

Marie Fahnert of Chigago Divorce Lawyer found the video of a therapy game for children of divorce above stressful to watch and wonders if it's actually appropriate for children. I don't think it is, but perhaps if it was shown to separating parents the children wouldn't need therapy.


Wednesday, January 14, 2009

Ruth Cronin MacInnes or Smith v. Colin Andrew Smith

Euan Dow of CaseCheck reports the case Ruth Cronin MacInnes or Smith v. Colin Andrew Smith [2009] CSOH 2 heard on 5 January 2009 when the wife sought, among other things, a periodical allowance and a capital sum payable on the sale of the former matrimonial home. Given the pursuer's age and poor health, and having regard to the income likely to be available to her, which will be far below the income of the defender the court awarded the wife a periodic allowance for a period of three years in the sum of £2,000 per month.

A further award of periodic allowance was considered under the principle contained in section 9(1)(e) of the Family Law (Scotland) Act 1985 - "a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period." Lord Malcolm concluded that a periodic allowance was appropriate and awarded £1,500 per month after the initial three years until the defender's retirement.

A capital sum payable on the sale of the former matrimonial home was not fixed because of the uncertain property market and it will be open to parties to apply for an appropriate order.


Tuesday, January 13, 2009

Your Family

The NSPCC website Your Family has produced some tips on how parents can help their children to deal with divorce.

Say “I love you”
Tell children how much you love them. It sounds obvious but kids of all ages need extra reassurance if they feel their family is falling apart, and that they will be separated from loved ones

Listen up
Listen to your kids and comfort them if they are upset or worried. When you are caught up in your own worries, it can be easy to forget the feelings of those around you

Keep talking
Reinforce the fact that the split is not their fault

Be honest
While children do not need to be involved in every detail of a divorce, it’s important to be as honest as possible about what happened and what’s going to happen while giving as much reassurance as possible

Keep a routine
Try and keep the day-to-day schedule as normal as possible. Introduce any changes slowly and talk them through with your children

Family time
Make sure both parents have as much time as is practical to spend with the children, unless there are obvious reasons why this would be dangerous — such as a partner with drink or drug problems

Home sweet home
If your children come to visit you in your new home, make sure there are some familiar items there such as toys or posters for the bedroom. This will help them to see that you are still a big part of their lives.

Share the load
When appropriate, try and share out the childcare responsibilities between both you and your partner, so your kids can see that both parents are still very involved in family life

Keep some things to yourself
Don’t criticise your partner in front of the children or alienate them from him/her. Whatever has happened between you two, your children will still love both parents equally

Phone a friend
Find someone you trust to talk to about what’s happening in your life. It makes things harder if you bottle up the hurt, and having a friend to talk to means you are less likely to let off steam in front of the children

Remember the little things
Children may be very worried about things that don't seem important to you, like what is going to happen to their pet or whether they will see their friends. You need to remember that these things are important to your kids

Get a second opinion
Children often find it difficult to express their feelings, especially younger kids. Look for signs in your children’s behaviour to keep track of how they are dealing with the split. Ask friends, families and teachers to keep an eye on their behaviour too. Remember that when you are dealing with your own feelings of grief, it can be hard to spot the signs that your children may be giving out, which might not be obvious.


Monday, January 12, 2009

Busy Lawyers

January is said to be a busy time for family lawyers with divorces peaking after the Christmas break and last week The Herald reported that this year the credit crunch is expected to be a contributory factor in setting new highs in Scotland. What the papers don't report is the Christmas Contact orders that have gone wrong, a subject Lucy Reed of Pink Tape touches on in this post.


Instability & Attachments

I've been reading the excellent Family Affair blog of Jay Belsky, Director of the Institute for the Study of Children, Families and Social Issues and Professor of Psychology at Birkbeck University of London, for sometime and his post The Timing of Family Instability persuaded me it was appropriate to add the blog to my blogroll. In his post Jay Belsky considers research into the timing of changes in family structures. it was found there is a 'sleeper' effect of early family instability that isn't apparent early in life, but results in children developing less well across the primary school years.

In his latest blog, Attachment Security: Born or Made? Jay looks at the extent that secure childhood attachments are influenced by the care given and genetics. The scientific explanation is worth a read but it seems to support the notion we all vary in our susceptibility to environmental influences.


Wednesday, January 7, 2009

Review 2008

The last three weeks I've been busy with the seasonal festivities, daughter visiting from Australia, son's birthday and I even managed to get away for a short break. I've only just got around to reflecting events of the past year.

January My very first blog ever setting out a wish list and there have been some moves in the right direction. C-MEC came into operation this year although it remains yet to be seen how effective the change over from the Child Support Agency will be. Relationships Scotland was formed from Relate Scotland and Family Mediation Scotland and with the support of the Scottish Collaborative Law Group pilots of parenting classes were initiated throughout Scotland.

February The first of three damning regional Ofsted inspection reports into the Children and Family Court Advisory and Support Service, the organisation that provides a social work service to children and families who are involved in family court proceedings in England & Wales.

March The Court of Session ordered three children to be returned to their mother in France. Subsequently the father was extradited to face charges of child abduction.

April The Glasgow Bar Association voted for industrial action in protest against the Scottish Government's plans to reform legal aid. Justice Secretary Kenny MacAskill was to announce an increase in the level of civil legal aid payments and a new scale of payments for complex family law cases a month later.

May The launch in Edinburgh of Scotland's first specialist legal service, Cl@n, for children and young people who need legal advice and representation.

June In SS v Childen's Reporter Sheriff Stoddart ruled that an interim contact order did not "vest" any parental rights and responsibilities in the father, but did relate to the exercise of such rights. the case sent back to the children's hearing to reconsider.

July Sheriff Nigel Murray Paton Morrison set out a list of factors to consider in cases when permission to remove a child from the jurisdiction permanently is sought.

August Thousands of drivers, including holidaymakers on their way to Heathrow, were left stranded after police were forced to shut part of the M25 when Fathers 4 Justice campaigner, Geoffrey Hibbert, dressed as Batman and climbed on to a gantry. In September Fathers 4 justice was disbanded and then relaunched??

September In Scotland's first 'palimony' case a mother was awarded £14,460 representing a half share of a tax bill and a half share of the estimated £26,000 to cover childcare.

RAB v MIB overturned decisions by sheriffs in Aberdeen and an English Court that the child residency case should be heard in English courts.

Nigel Don tabled a motion, Family Law Disputes, in the Scottish Parliament.

That the Parliament recognises that current arrangements for settling family law disputes could be improved and that current law still discriminates against parents who are not married; notes that parents can find it difficult or impossible to enforce contact orders where the other parent is unco-operative and that disputes where broken families live in more than one jurisdiction within the United Kingdom are unnecessarily difficult to resolve; further notes that these issues are particularly relevant due to recent cases in the north east; encourages current moves by Scotland's legal profession towards collaborative dispute resolution, and notes with interest the new system of less adversarial trials being developed in Australia.

October Launch of the Scottish Legal Complaints Commission.

November Scottish Justice Secretary Kenny MacAskill announced the upper disposable income threshold for civil legal aid is to increase from £10,306 to £25,000.

December New measures for the enforcement of child contact orders introduced in England& Wales.


Monday, January 5, 2009

Happy New Year

A rather belated Happy New Year to everyone after a rather longer than planned break.


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