Tuesday, June 30, 2009

Bloggers Guide

Many people do not seem to realise they have a duty to use information given in court proceedings for the purposes of the proceedings only and there are restrictions on disclosing information. When the rules don't allow it disclosing information contravenes Article 6, Human Rights Act 1998, the right to a fair hearing, and if children are involved their rights to privacy and anonymity.

Lucy Reed of Pink Tape has now compiled a useful list of ten things bloggers should know when writing about family proceedings.


Monday, June 29, 2009

Lawyers: Fixed Fees

In his blog post this morning Andrew Woolley of Family-Lawfirm argues in favour of divorce lawyers charging fixed fees and the Law Society in England & Wales banning hourly charging. The problem is it is not always possible for solicitors to gauge how long a case will last and the amount of time they will need to put in so Andrew suggests taking an average or setting a limit.

I do not know how feasible setting a limit is, but surely taking the average means clients whose divorce is straightforward pay for the work done on more complicated cases.


Sharia Rulings 'Inappropriate'

Sharia courts should not be recognised under Britain's 1996 Arbitration Act, according to a new report from independent think-tank Civitas.

According to Denis MacEoin, author of Sharia Law or 'One Law For All'?, sharia courts operating in Britain may be handing down rulings that are inappropriate to this country because they are linked to elements in Islamic law that are seriously out of step with trends in Western legislation that derive from the values of the Enlightenment and are inherent in modern codes of human rights. Sharia rulings contain great potential for controversy and may involve acts contrary to UK legal norms and human rights legislation.

Full press release Source Civitas 29 June 2009


Sunday, June 28, 2009

A Warning for Cheaters

Next time you play away, just think who might be watching ... The world and his wife, thats who!

Usually I don't read the blogs on the site Wikivorce because I find them too depressing, but I caught sight of this one from a private investigator about footage his firm provided which found it's way on to YouTube.


Saturday, June 27, 2009

SLAB Ordered to Pay Defendant's Costs

Apparently the Scottish Legal Aid Board have been ordered to pay a man's legal cost for defending court actions paid for by the Board. After William Bohannon separated from his partner he tried to get her to pay a personal bond of £50k he had loaned to her. His ex-partner refused, was sequestrated and then raised actions in the Court of Session in Edinburgh seeking to recall the sequestration and have the personal bond set aside. Carol Ballard, or Young as she is now after marriage, was granted legal aid to fund her actions but both actions failed.

Mr Bohannon successfully defended the actions, but was left with lawyers' bills of more than £33,500 and asked the Court to find the legal aid board liable for his expenses in the action. To clarify, when assessing someone's eligibility for legal aid SLAB must follow rules set down in law by Parliament so there needs to be a legal basis for a case as well as it being reasonable in the particular circumstances to award legal aid. The solicitors acting for William Bohannon had repeatedly raised with SLAB there were problems and asked that legal aid granted to Carol Young be suspended.

Lord Brodie said "The board has not chosen to defend its conduct in the matter" and he was satisfied that Mr Bohannon would suffer financial hardship if no order was made.

Full article Source The Herald 27 June 2009


Friday, June 26, 2009

Backwards Britain

Interesting comment by Johann Hari today about why the Tories' policy to mend "Britain's broken society" is a backwards step. The policy relies heavily on sociological research findings that children from broken homes or single parent families are more likely to have poor educational and behavioural outcomes than children whose parents stay together. However, a new study by Professor Kelly Musick and Dr Ann Meier of Cornell University into children whose parents stay together in disharmony for the sake of the children has shown the children do worse than any other group. Thus the Tories' policies to keep families together would actually increase the numbers of children in the worst performing category.

At the same time David Cameron is committed to pulling Britain out of the European Social Chapter which means rights for part-time workers will be eroded, leading to lots of stressed out parents having less time to spend with their children. Also the Married Couples Allowance would be a big redistribution of wealth to people who don't need it, paid for by cutting Tax Credits to SureStart to the Educational Maintenance Allowance to the poorest people who do.

Full article Source The Independent 26 June 2009


Thursday, June 25, 2009

At-risk Children Left in Danger

On Tuesday a report by HM Inspectorate of Education on Dundee's children's services brought forward after the killing of toddler Brandon Muir says child protection there was unsatisfactory. Social workers had been alerted to concerns over Brandon before he was killed by his mother's drug addict boyfriend, Robert Cunningham, who was sentenced to 10 years in prison. The damning report highlighted the failures of the Council, the police, heath services and court officials in Dundee to protect vulnerable children from "significant harm" in the homes of drug addicts and alcoholics.

Full article Source The Scotsman 24 June 2009


Privacy and the Family Courts

After thousands of family court hearings that previously would have taken place in private in England & Wales were opened to the media in April following lobbying from fathers’ groups, campaigners and the media, the Earl of Spence and his wife Caroline are seeking injunctions on press coverage. Mr Justice Munby earlier rejected requests to ban the press from their divorce hearing saying it was a new public policy that the media be allowed to attend family hearings unless proper grounds could be shown to exclude them.

Full story
Source The Times 24 June 2009

Update: The Earl of Spence and his wife Caroline decided to resolve the issues without the aid of the judge. Details of their final settlement will not be made public.

Report Source The Telegraph 24 June 2009


Tuesday, June 23, 2009

Bitterness on 'Divorce Website'

Liz Jones has written a scathing attack on the Wikivorce website in her Daily Mail report "How warring husbands and wives are pouring out bitterness on new 'divorce website" this morning. She makes very valid points about the dubious benefits to venting and that websites are no substitute for counsellors or lawyers. However, I am somewhat bemused by one comment that Wikivorce is seething with so many stories about men who end up in a council flat. As a regular visitor to the forums I am only aware of one man who ended up in a council flat.

In the article Liz Jones contends that "instead of a site telling you how to arm yourself both in emotional and legal terms, there should be a site which makes sure you actually want to get married in the first place."

"You should have to be counselled, extensively, before you are allowed to shuffle down that aisle and conceive that poor blameless child who will have to face the arguments and witness the mud slinging."

Actually if nothing else Wikivorce demonstrates that married couples should try to resolve their problems because they do not just disappear on divorce, particularly when there is a lifetime of parenting ahead.

Full story Source The Daily Mail 23 June 2009


Monday, June 22, 2009

News Roundup 4

The news is rather quite on the divorce front in Scotland at the moment but there are several recent interesting stories from south of the border.

Divorce settlement granted after 22 years

A woman has won £220,000 in a ground-breaking divorce settlement — 22 years after separating from her husband.

They were married only four years before they split up but they never formally divorced.

The woman, who is in her fifties and lives in West London, was prompted to bring her claim after learning that her husband had secured a windfall by inheriting some money.
Full report Source The Times 13 June 2009
Judge calls for action to stop British 'epidemic' of family breakdown

A national commission should be created to tackle Britain’s “epidemic” of family breakdown, a senior judge said yesterday.

Mr Justice Coleridge, a Family Division judge, said that the commission should establish marriage as the “gold standard” for relationships and put an end to the constant games of “musical relationships” or “pass the partner”, which can scar children for life.
Full story Source The Times 17 June 2009

History-making divorcee Julia McFarlane is awarded an extra £100,000 a year

A divorcing wife who made legal history when the law lords awarded her a £250,000-a-year payout from her husband has won a 40 per cent increase in her maintenance payments.

Julia McFarlane, 49, who separated from her husband Kenneth in 2000, will receive £350,000 a year although her needs have been put at £150,000.
Full story Source The Times 20 June 2009

Tycoon Scot Young faces jail in £400m divorce

A secretive tycoon at the centre of one of Britain’s biggest divorce cases is facing jail over the whereabouts of his £400m fortune.

Scot Young, a “fixer” to Russian oligarchs and British billionaires, has been told that he could be imprisoned for failing to tell a High Court judge where his money has gone...........

The judge has ordered that Young’s passport be seized to stop him fleeing the country. “There is a real risk that he will leave the jurisdiction and not be seen again,” Mr Justice Charles told a hearing at the High Court last week.
Full story Source The Times 21 June 2009


Wednesday, June 17, 2009

Public Petitions Blog

New social media has been introduced by the Public Petitions Committee at the Scottish Parliament, as part of the petitions process. The public petitions process is a key part of the Scottish Parliament's commitment to participation, openness and accessibility. It allows individuals, community groups and organisations to raise issues of concern with the Parliament and now petitioners will be able to provide videos and photos about their petitions as part of the committee’s new blog page.

Past petitions include;

PE589 Mr George McAulay, on behalf of the UK Men's Movement.

Petition calling for the Scottish Parliament to take the necessary steps to recognise Parental Alienation Syndrome and to develop early intervention strategies to prevent parental alienation.

PE624 Ms Ann Mallaby, on behalf of the Women's Land Reform Group

Petition calling for the Scottish Parliament to take the necessary steps to introduce new legislation into matrimonial law to address the alleged violation of women's land rights and farm business in cases of divorce.

PE944 Gary Strachan

Petition calling on the Scottish Parliament to urge the Scottish Executive to (a) investigate why there is no presumption of equal access/residence for children with both parents after separation in Scottish law; (b) investigate bias against fathers as equal parents in the Scottish Court System; (c) investigate why contact orders are not enforced and (d) investigate why parental responsibilities and rights are ignored by the medical, welfare and governmental institutions to the detriment of children

PE997 Peter Cox, on behalf of the Mothers for Justice Campaign

Petition calling on the Scottish Parliament to urge the Scottish Executive to provide greater protection to the children and partners of abusive parents by introducing legislation to ensure that (a) where an allegation of abuse has been made against a parent, access rights are suspended pending a full investigation; (b) all previous convictions of an abusive parent are taken into account before access rights are granted; (c) all access hearings are held in open court; and (d) all sheriffs who deal with child custody cases are given appropriate training.

PE1051 Jimmy Deuchars, on behalf of Grandparents Apart Self Help Group Scotland

Petition calling on the Scottish Parliament to urge the Scottish Executive to make the Charter for Grandchildren legally binding ensuring that the rights of children are recognised by all public agencies and families, and enforced by law.

Stewart Mackenzie

Open petition calling on the Scottish Parliament to urge the Scottish Government to introduce a McKenzie Friend facility in Scottish courts as a matter of urgency. (See this earlier post)


Never A Dull Day

Whilst browsing I came across a fairy tale.

It was a long, long time ago, that Princess Fiona, then aged 30 years, met her true love. Her champion, who was but five years her elder, had secured her release from a dreadful ordeal that was imprisonment, in a far, far away tower. His name was Shrek.

Within weeks the happy couple cohabited, initially in a modest swamp dwelling. Shrek was then a humble apothecary, but he sought greatness. Fame and fortune did indeed await him.

Shrek toiled for many years, seeking the elusive elixir. In 1998, after ten years of blissful cohabitation, the couple married. They purchased the matrimonial home, Yew Tree Cottage, for £100,000, with a 90% mortgage. However, at the turn of the following year, Shrek found his fortune. On the eve of Millennium, Shrek discovered and then sold to Never Never Inc. a sole manufacture and distribution licence for his Happy Ever After potion. The sale raised £3 million, together with an annual licence fee of £100,000. The couple purchased a more palatial property for £1 million cash. Shrek retained the remaining capital and his income.

Shrek grew tired of the marriage. In 2002 he met Darla, an Australian beauty, and his indiscretion soon led to irretrievable breakdown.

Princess Fiona, now aged 46 years, issued a divorce petition against Shrek, now aged 51 years. Ancillary relief has been claimed.

Shrek, who now that he has money, has reverted to type, seeks your advice upon the following issues:

1. Surely this is a short marriage case and Princess Fiona will not get much?

2. If I am wrong, must she get half?

3. What reasons are there to depart from equality?

4. If she is going to get substantial relief, I'll move to the Australian outback and she’ll have to find me.

5. Can I run the millionaire’s defence?

6. I am about to be sued by a Swiss financial institution for £½ million – is that relevant?

7. I want a clean break but I can't afford it. Please advise upon Fiona’s maintenance claim.

A link to the article in Word format is available below but it would be interesting to know what a Scottish lawyer would make of it as the points of law and outcome would be very different.

Full article Source Zenith Chambers


Tuesday, June 16, 2009

Boom or Bust

The accountancy firm Grant Thornton has recently published it's sixth annual survey of "the UK's leading law firms" specialising in family law. I have downloaded the report as a pdf but cannot now find the address, grr... The survey of matrimonial lawyers makes interesting reading and I have highlighted some of the figures below;

• 48%, of respondents predicted a fall in the number of couples filing for divorce in the English and Welsh Courts due to the economic slowdown

• women filed for divorce in 91% of cases and in all but 3% of cases, the divorces are not contested

• 23% of lawyers believe that the number of divorces will stay at the same level as the previous year

• lawyers supporting collaborative law has fallen to 81% from 89%. However, the number of respondents trained as collaborative lawyers has increased to 50%, up 2%

• the total family assets for distribution in a divorce, dealt with by the respondents, fell from £2.85 million in 2007 to under £1.5 million this year

• 65% of respondents predict there will be a fall in lump sum financial agreements and an increase in maintenance based settlement

• 59% of lawyers surveyed advise on pre-nups more than other types of agreement

• 52% of respondents predict that there will be an increase in pre and post nuptial agreements due to the economic slowdown

• 82% of solicitors felt that pre-nups should be a factor considered by the Courts. This compares to 18% of respondents considering that they should be legally binding, down from 56% in 2007

• lawyers are increasingly concerned about the treatment of cohabiting couples, 45% called for a change in legislation.

• 19% of respondents have had instances of cases involving concealed assets over the last twelve months it has been more common for the concealment to be an action of the husband (91% of the cases). This year there were no cases (2% in 2007) of the concealment resulting from the actions of a wife

• 85% of respondents, had dealt with cases which had international elements

• The jurisdiction thought by 98% of respondents to most favour the wife (in terms of financial settlement) continues to be England and Wales. Whilst Scotland continues to be cited as the most favourable jurisdiction for husbands (30% of respondents in 2008)

Press release
Source Grant Thornton


Family Lore Blawg Review

John Bolch, aka King John, of Family Lore has been very busy indeed writing this Blawg Review which has taken me the best part of a day to read as I kept going off on a tangent following the links to matters as diverse as freedom of the press, the Tolpuddle Martyrs and a lawyer charged with billing during sex. It is a shame work kept getting in the way.

I'm not sure I really count as a blawger but having been included makes me feel much less out on a limb.


Monday, June 15, 2009

Rape Victim Found Dead

The Firm reports Ann Robertson, the woman who fled from the witness stand during cross examination about her previous relationship in a rape case and was imprisoned, has been found dead. Later Scotland's most senior judge investigated and upheld a complaint about her treatment.

See my earlier posts Restrictive Rape Laws and Ann Robertson's Complaint Upheld.

The cause of death is unknown at this time.

Full article Source The Firm 12 June 2009


Silver Divorces

According to The Independent a recent survey by the equity release trade body showed that 13,678 couples over 60 got divorced last year, a 49 per cent increase since the 1980s. Marilyn Stowe says: "The problem is there are only limited assets and funds in the majority of cases and you simply can't stretch those assets to attain the same standard of living as the couple may have previously enjoyed."

The current financial climate adds particular complications to dividing assets for those divorcing late in life;

• the sale price that reflects what the property was worth until recently is potentially unachievable

• the option of equity release if one party wishes to stay in the home can lead to a reduced payout.

• with a weak stock market it is not a good time to liquidate stocks and shares and the knock-on effect is a reduction in retirement capital

• fewer than 1 in 10 divorces involve an element of pension sharing and often, wives are left disadvantaged

• for a state pension, divorced couples will have to revert from the married state pension allowance back to the individual state pension allowance.

Full article Source The Independent 14 June 2009


Friday, June 12, 2009

Rape Not Proven

After a four-day trial at the High Court in Inverness rape charges against a Portuguese man were found not proven by a majority verdict. Djarga Balde, 24, was accused of of raping three women in Buckie and Elgin between 2005 and 2008.

Full story Source The Scotsman 12 June 2009


Thursday, June 11, 2009

Things Are Not Always As They Seem

More observant readers may have noticed I changed the photograph in the header of my blog a week or so ago. The old photograph was very atmospheric but rather grey and dismal.

I thought it would be more appropriate to feature the sun and to avoid any copyright issues I cropped one of my daughter's photographs. Since then a number of people have emailed to ask where it was taken and I'm afraid to disappoint, but it wasn't in Scotland.

The photograph is Mitre Point, close to Milford Sound in the southwestern South Island, New Zealand.

The message for divorcing couples is things are not always as they seem and there is a difference in believing something to be true and knowing it is true.


Wednesday, June 10, 2009

Child Support & Tax Credits

Despite any other failings of the the Child Support Agency I find the website of is generally very good. When the non resident parent has children living in their household their net income is reduced by an allowance before the child maintenance assessment is calculated. Information about what happens if the non-resident parent has other children living with them is on page 15 of the CSA leaflet How is child maintenance worked out? available to download here;

If the non-resident parent pays the basic rate, we will not take
into account:
• 15% of their net weekly income, if there is one child living
with them
• 20% of their net weekly income, if there are 2 children living
with them, or
• 25% of their net weekly income, if there are 3 or more
children living with them.

However one piece of information parents seem to have difficulty accessing is that when the non resident parent has children living in his/her household and he/she earns more than their new partner the household's working family tax credits are added to their net income before the CSA assessment.

The Child Support (Maintenance Calculations and Special Cases) Regulations 2000 set out the position in Rule 11, Part IV TAX CREDITS, Schedule , Statutory Instrument 2001 No. 155;

(2) Where working families' tax credit is payable and the amount which is payable has been calculated by reference to the weekly earnings of the non-resident parent and another person -

(a) where during the period which is used by the Inland Revenue to calculate his income the normal weekly earnings (as determined in accordance with Chapter II of Part IV of the Family Credit (General) Regulations 1987[42]) of that parent exceed those of the other person, the amount payable by way of working families' tax credit shall be treated as the income of that parent;

(b) where during that period the normal weekly earnings of that parent equal those of the other person, half of the amount payable by way of working families' tax credit shall be treated as the income of that parent; and

(c) where during that period the normal weekly earnings of that parent are less than those of that other person, the amount payable by way of working families' tax credit shall not be treated as the income of that parent.


Monday, June 8, 2009

Divorce Advice Warning

Andrew Woolley of Family-Lawfirm warns divorce advice has many traps for the unwary. In my earlier blog post back in January 2008 I wrote self-help groups can be a good source of information, advice, guidance and support but it can be unreliable, or plain wrong, sometimes with disastrous results. My advice to anyone divorcing would always be consult a lawyer early on in the process to find out where you stand and what your options are.

Last week a national newspaper highlighted the advantages of Wikivorce (see this post) in providing advice about the legal process and I think it is important to remember the basis upon which members like me originally registered.

Let me start by saying that Wikivorce is not a replacement for solicitors. Wikivorce is a place you can learn, share and make friends. It is a community of people going through divorce (or recently divorced) who support each other during a very challenging stage in their lives. In fact I believe that Wikivorce can complement the work of solicitors by providing its members with emotional support, but also basic information on the divorce process. This should enable them to work more effectively with their solicitor, to achieve wherever possible an amicable, negotiated out of court settlement.

Ian Rispin, Wikivorce founder commenting on Divorce Solicitor's blog
11 June 2007.


Sunday, June 7, 2009

No Marriage, No Divorce

If you are planning an exotic wedding abroad the case of Gillian Hudson is a warning to check the ceremony will be valid. The High Court found that although there was a
religious ceremony in South Africa it had been worded in a way that did not comply with marital laws so Gillian wasn't married. As there was no marriage there could be no divorce or financial claims.

Full story
Source The Times


Saturday, June 6, 2009

Contact Non Compliance: 3 Month Sentence

According to The Scotsman a woman has failed in her appeal against a three month sentence she claimed was "harsh and oppressive."
Tina Monem, 26, failed to comply with a contact order to make her child available for six hours contact a week after her allegations against the father were found to be unsubstantiated. The sheriff held her in contempt although it seems sentencing was delayed to see whether new contact arrangements would be successful. A three month sentence was then handed down and the mother was released after a few days pending the appeal.

Three judges in the Court of Session ordered Tina Monem to return to prison to complete the sentence and found she had committed contempt against them too. Lord Gill, the Lord Justice-Clerk, speaking on behalf of the appeal court, said the mother was to be given the opportunity to "reflect on the gravity of her conduct and to desist from it" and sentence for the contempt of the appeal court was deferred for six months.

Full story Source The Scotsman 6 June 2009


D Day Dodgers

I wasn't born until well after D Day but I'm old enough to remember stories of people who were. This parody was attributed to Major Hamish Henderson of the 51st Highland Division, written after Lady Astor referred to the men of the 8th Army who were fighting in the Italian campaign as the "D-Day Dodgers". She apparently forgot that they had fought their way from Alexandria, Egypt, through Libya to Tunisia, to Sicily and then up the boot of Italy to a summer retreat called Monte Cassino without any relief.

Captain Henderson personally accepted the surrender of Italy from Marshal Graziani in 1945, the first major surrender of an Axis army in the West. On the 65th anniversary of D Day let us not only commemorate the Normandy Landings but also remember the efforts the D Day Dodgers and all those others who contributed to the defeat of fascism.

See more about Hamish in this earlier post.


Friday, June 5, 2009

Scottish Divorce History

The records of the Registrar General for Scotland, held in the National Archives of Scotland, are a source of information on the social history of Scotland, since they deal with everyday life and personal relationships. Scottish Way of Birth and Death is a project at the University of Glasgow's Department of Economic and Social History reviewing a history of civil registration in Scotland from its beginning in 1855 until World War II.

During first 10 years of registration (1855 and 1864) the average number of divorces in Scotland each year was 17. By 1905-14, the figure had increased to an average of 222 per year and an average of 458 divorces per year in 1915-24 were registered, however the numbers were so low they were not included in the General Register Office annual reports until 1920. In 1942 the figure was over 1000 for the first time.

In the 1890s, it was reputed a Scottish divorce could cost as little as £12 and very poor people could claim financial help from the Poor Law authorities if they had a good case against their spouses. The law gave equal rights to both sexes, although in practice most divorce cases were brought by women, except during and after the World Wars.

A law of 1600 barred anyone divorced on grounds of adultery from marrying the third person named in the divorce action. A child born to an adulterous couple would be illegitimate in Scotland, even if they had gone through a form of marriage after the divorce. Apparently even in the later nineteenth century jurisdiction was a problem and English courts refused to recognize the dissolution of marriages made in England but ending in Scotland, unless the couple could prove that they were genuinely living in Scotland.


Thursday, June 4, 2009

Online Divorce Sites and Chat Rooms

When we divorced it never crossed my mind to use the internet and it was a few years later when I was looking for a specific piece of information I first stumbled across a divorce online forum. Initially I couldn't make much sense of what people said but through reading others experiences and checking the facts I became little more educated and begun to understand how the systems in England & Wales and Scotland worked. I must confess though, chat rooms are not for me and only once did I inadvertently enter one and made a quick exit. Today the women's section of The Times carries an article about the development and success of Wikivorce which draws on Wikipedia, in that it is up to members to add an interesting resources to the site whenever they find one.

Like tens of thousands of men and women facing divorce, Jane was at her wits’ end when she turned to the internet. There she found wikivorce.com, an online support group for couples facing the end of their marriage. The website, which was launched two years ago and boasts a new visitor every minute, is an online community that offers free access to information, support and advice for people going through divorce or separation.

While online chats about divorce and marriage troubles are multiplying on sites such as mumsnet and ivillage, specialist sites such as ondivorce.co.uk and divorce-online.co.uk, which claims 31,000 members, appear to be proof that divorcing couples are increasingly seeking friendship and advice anonymously and online through chat rooms and the blogosphere. But will these burgeoning internet divorce chat rooms mean an end to acrimonious courtroom battles and the need for professional relationship counsellors?.....

I'm not sure why the article is in the women's section, there are many men who use the site too. In fact I believe at one stage there were more male members than female ones. Ian Rispin, founder of Wikivorce, judged that family law needed an extensive makeover and aims to provide support to people who have no choice other than self represent. Wikivorce has recently launched in Scotland and Australia. However, The Times echos my thoughts about the pitfalls;

Nick Longford, the chairman of Resolution, the organisation that represents 5,700 family lawyers, welcomes the online support groups but warns people to think carefully before attempting to save legal fees and going it alone with the help of a website. Legally, divorce can be very complicated, he says, and although lawyers can cost anything from £150 to £400 an hour, you pay for their experience and emotional support in navigating the treacherous divorce waters. If you go to court, costs can double. If the case reaches a final hearing, they can treble.

“I would hate people to think that this is a panacea and make themselves vulnerable,” he says. “As for selfrepresenting, there is an awful lot of law involved. We need a number of methods so that people can make an informed choice, but it’s not easy and it can be a full-time job.”

Of course, he would say that — as he admits — but he points out that while costs can spiral in court, most of Resolution’s clients manage to sort out their differences through lawyers and do not end up in front of a judge.

Christine Northam, a counsellor with Relate — which is in talks about working alongside Wikivorce and endorsing it as a tool for support in divorce — agrees that chat rooms have their place but insists that they are no substitute for professional advice.

“These sites may help by giving you good emotional support — but they may also mean that you stay stuck in a rut and carry on thinking that all men are bastards, and so on,” she says. “Counselling is about facing what has gone wrong and letting go. By knowing yourself a bit more, you should avoid making the same mistakes again — if you haven’t had counselling you can get sucked into repeating those mistakes.”

Northam also warns users to be aware of the risks attached to using divorce sites. No advice comes without an agenda, she says, be it from your mother, a friend or a newfound wiki mate, so users should consider thoughtfully where the advice they are given is coming from before acting on it.

Full article Source The Times 4 June 2009


Tuesday, June 2, 2009

A Child's Wishes

In the recent English Court of Appeal case R (A Child) [2009] EWCA Civ 445 a mother appealed against a residence order in favour of the father. A brief history of the case was the parents had separated in 2001 after a relationship of about three years when the child was nearly two. The father had remarried and the child lived with the mother. In 2008 the mother was suffering from drink problem brought on by the suicide of a good friend and approached the father for help as she felt she could not cope. It was agreed that the son should live with the father given the mother’s problems. Shortly after wards the father applied for residence which was granted despite a CAFCASS report recommending that the child should live with the mother.

The mother appealed on the basis that the judge i) had lost impartiality in questioning the mother; ii) erred in his treatment of the child’s wishes and iii) had been wrong to reject the CAFCASS recommendation. All three judges agreed point i) that the judge had not put any pressure on the mother with his questioning.

There was dissent between the judges on point ii) and iii). Wall LJ said "He [the judge] was in my judgment correct to treat the wishes as but one of the several checklist factors to which he had to have regard and he properly went through the checklist. " He went on to say the CAFCASS officers recommendation “on balance, I think L should return to live with his mother” was not strong and the "judge was well able to conduct his own evaluation of the relevant consideration."

This was countered by Rix LJ:

"in my judgment, he [the judge] has erred in more than the balancing of the weight of various check-list factors. He has erred essentially, in setting on one side the firm evidence of the child’s own wishes, and in rejecting the CAFCASS reporter’s own clear recommendation, in favour of a return to residence with the mother, together with the reasons given for both. He has not done so because of any new evidence or of a reasoned challenge to the opinion of Dr Cochrane [CAFCASS officer]. He has simply critically discounted the child’s wishes, and essentially ignored Dr Cochrane’s recommendations and conclusions, and has done so without hearing either. The CAFCASS reporter is, to a very great extent, the eyes and ears of the court, especially where the child is concerned, but the judge has not “listened” to the child, and he has ignored the reporter."

Moore-Bick LJ agreed with Rix LJ that there should be hearing before a different judge and that another CAFCASS officer should be asked to prepare a fresh report for that purpose.


Should Legal Services Disciplinary Findings Be Published?

I missed the English Court of Appeal ruling last month refusing to grant an injunction to stop Private Eye from publishing details of a complaint against a former President of the Law Society, Michael Napier. According to The Times the ruling also clears the way for thousands of other cases each year against solicitors and barristers to be publicised, as well as findings by the legal ombudsmen who act as a last “court” of appeal.

One lawyer told The Times “This will be a free-for-all for complainants. Anyone aggrieved with his or her lawyer will be able to publicise details, whether the complaint was upheld or not — and the public will think there's no smoke without fire.”

I have some sympathy with this view but surely being open and making disciplinary rulings public when a complaint is upheld would be preferable and more balanced than the public relying on media stories?

Findings of the Scottish Solicitors Disciplinary Tribunal are available online.

Source The Times 21 May 2009


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