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Father’s application for return of child to Germany dismissed

The rationale behind the Hague Convention on Child Abduction is that the child should usually be returned to their ‘home’ country, where decisions as to their welfare should be decided. It is therefore comparatively rare that a return is not ordered. Accordingly, ‘non-return’ cases are more likely to be noteworthy.

The latest such case that I have come across is CA v KA, a decision of Mr Justice Mostyn in the High Court. The case turned on the issue of acquiescence, i.e. whether the ‘non-abducting’ parent had consented to, or acquiesced in, the retention of the child in the ‘foreign’ country.

The relevant facts of the case were that the parents were married and lived in Germany, along with their daughter, who was born on the 5th of July 2016. On the 3rd of August 2018 the mother brought the child to this country, for the purposes of a holiday. They were booked to return to Germany on the 30th of August 2018, but they did not return. The father then made an application under the Convention for the summary return of the child to Germany.

The crucial moment in the case came on the 22nd of October, when the parents spoke for about two and a half hours on the telephone. During the course of that conversation, Mr Justice Mostyn found, they reached a substantive agreement, which provided that the child would remain in the primary care of her mother and would have frequent contact with her father.

On the following day the father wrote an email to the German authorities requesting the withdrawal of his Hague Convention application, and stating that “my wife and I were able to find a very good and mutually agreed solution which is in our daughter’s best interests and which we will regularise.”

On the next day the mother sent a draft parenting agreement to the father, which was prepared by her and which stated that the matters were agreed on the 22nd of October, including that the child would reside in the United Kingdom with her mother.

Notwithstanding all of the above, the father proceeded with his Hague application (presumably, he withdrew his request to withdraw the application, the judgment of Mr Justice Mostyn does not explain). However, Mr Justice Mostyn found that the email and draft agreement clearly showed that the father had consented to, or acquiesced in, the retention of the child in this country by the mother.

As he went on to explain, proof of acquiescence does not establish an absolute defence to the application. However, it opens the door to the court exercising its discretion to refuse to order the return of the child. Here, whilst Mr Justice Mostyn was quite clear that it should be the German courts that make decisions regarding the child’s welfare, he did not believe that it would be in her interests for her to be uprooted and to be exposed to the risk of ‘ping pong’, returning her to Germany now, in circumstances where the mother must have a strongly arguable case in the German court to be granted permission to relocate with her to this country.

Accordingly, he declined to exercise his discretion to order a return of the child to Germany, and the father’s application was dismissed.

An interesting case, although I have to say rather an odd one, in that the father decided to proceed with his application after clearly indicating his wish for it to be withdrawn. Once his email to the German authorities came to light (and he produced it himself on the morning of the hearing), then his application was surely doomed.

You can read the full judgment here. (Mr Justice Mostyn also has some important things to say about the limited nature of Hague applications, and the need for the parents to pursue substantive relief (as to what is ultimately in the child’s best interests in terms of residence and contact with the non-residential parent) in the courts of the ‘home’ country – see paragraphs 5 to 9 of the judgment.)

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Author: John Bolch

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Another step forward in surrogacy reform

This morning, Thursday 6 June, the Law Commission released their consultation paper on surrogacy reform, and their thoughts, proposals and recommendations make up a 498 page report

At the time of writing, I haven’t read the report cover to cover yet despite getting a sneak preview a couple of days ago, however, by way of a summary the Law Commission has covered every aspect of this complex area in law, and I have broadly summarised their proposals as follows:

A new pathway to legal parenthood

This is designed to create the possibility of the intended parents being recognised as the legal parents of a child born through surrogacy from the time of birth. It focuses on the intentions of those involved and won’t require the intended parents to make an application to the Court. There will be safeguards in place, for example, if the surrogate objects to the agreement following the birth but it is designed to ensure there is more legal certainty for all those entering into surrogacy arrangements in the UK.

A continuation of the existing parental order process

The parental order route will remain in circumstances where the new pathway doesn’t apply, and this will largely cover international arrangements. This will remain similar to current Court process, but the Law Commission is proposing some changes to the existing criteria and processes to achieve further clarity for intended parents and to make the process easier overall.

Greater regulation is proposed for surrogacy arrangements

This suggests that surrogacy organisations could be regulated and could then oversee the arrangements which fall inside the new pathway.

A national surrogacy register

A national surrogacy register is suggested which will record the details of the surrogate, the intended parents and any egg/sperm donor involved in the arrangement. This will be accessible to surrogate children, with non-identifying information being available at the age of 16 and identifying information at the age of 18.

Payments

The report identifies the difficulties and contrasting views of those already consulted in relation to surrogacy payment. As a result, they have not yet been able to make any provisional proposals on this. However, they have commented on the different categories of payments which they propose that a surrogate may be able to receive and seek views on whether these payments should be allowed.

These categories of payments are:

  •    Compensation for pain, inconvenience, medical complications or death of the surrogate
  •    Loss of earnings from being a surrogate
  •    Essential costs of a pregnancy
  •    Additional costs of a pregnancy
  •    Costs associated with a surrogate pregnancy
  •    Gifts
  •    Compensation for loss of welfare entitlement

Nationality/passports

It proposes streamlining and shortening the process to obtain a passport/a visa in international surrogacy cases.

Next steps

Within the report, 118 questions are asked of the public in respect of their proposals, and a formal consultation period will now begin. This culminates on 27 September 2019 and so if you would like your view, now is the time to act.

Here at Stowe Family Law, the surrogacy team will certainly be putting forward their views and comments, and if you have any questions about the report or any of the wider legal issues please do not hesitate to get in touch with me at [email protected]

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Author: Bethan Carr

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Addressing specific property division questions

When’s the last time you had an accurate and up-to-date accounting of all your financial accounts? This could include a 401(k), savings account or other financial assets. It could also mean the status of your liabilities, like credit card accounts or auto loans. If you aren’t able to answer these questions off the top of your head – you’re not alone.

When you’re going through a divorce, it’s important to get a full understanding of these questions or more. In order to fully understand your property division issues in your case, it is important to know the status of all marital property assets and liabilities to understand what a fair and equitable asset division would look like. Even missing or undervaluing one account could shift the entire perception of the process.

At our law firm, we work with our clients to attempt to ensure that there is a full accounting of all financial accounts that are between spouses. Sometimes, a hidden account makes itself known. Maybe you have a specific goal that you want to accomplish with the property division process? It is important to approach that particular initiative and understand what a realistic approach might be to achieve it.

A divorce case can be complicated. The dissolution of a marriage is exactly what it sounds like – the dissolution of what was built between a couple. Whether you’ve been married two years or 20, there can be many questions associated with the divorce and, specifically, with property division. Ensure that you are achieving everything you want with a tailored approach to your divorce and property division.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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Father required to pay more child support after breakdown of contact

If a non-resident parent (‘NRP’) enjoys shared care of a child (i.e. an average of at least one overnight stay a week) then the amount of child support maintenance that they are required to pay will be reduced, with the amount of the reduction depending upon the number of nights per year that the child spends with the NRP. Accordingly, for example, if the child stays with the NRP for between 52 and 103 nights per year then the maintenance is reduced by one-seventh, if the child stays with the NRP for between 104 and 155 nights per year then the maintenance is reduced by two-sevenths, and so on.

But what if a court has ordered that the child should spend a sufficient number of nights with the NRP to warrant a reduction in the child maintenance, but the order is not being complied with – what is the effect of this upon the amount of child maintenance that the NRP is required to pay? This was the question facing the Upper Tribunal in the recent case EA v Secretary of State for Work and Pensions and SA.

The relevant facts of the case may be stated quite simply (in fact, I am going to simplify them even further, for the sake of clarity). The mother and the NRP (I shall call him that, rather than ‘the father’, for the sake of consistency) had two children, one of whom is grown up, and the younger of whom is now aged 13. The parents divorced in 2013, and on the 31st of May 2013 the court made an order providing for the father to have overnight contact with the younger child, including alternate weekends from Thursday to Mondays, and additional holiday dates. However, by at least October 2015 the contact arrangements had broken down, as a result of which the NRP was not enjoying the overnight contact set out in the order. This was against the NRP’s wishes, the mother claiming that contact stopped because the child didn’t want it, and had run away one weekend to avoid contact.

Meanwhile, in August 2016 the Child Maintenance Service (‘CMS’) made a decision about the level of child support maintenance that the NRP was liable to pay with effect from the 24th of July 2016. The amount included a reduction for shared care, based upon the terms of the contact order. The mother requested that the decision be reconsidered, and as a result the decision was revised on the 1st of November 2017. The effect of the revision was to increase the payments by the NRP, because the deduction for shared care was removed, in the light of the fact that the overnight contact was not actually taking place.

The NRP appealed. The First-tier Tribunal rejected the appeal, and the NRP appealed again, to the Upper Tribunal.

The Upper Tribunal also refused the appeal. Whilst the regulations state that, when considering the issue of shared care, the CMS must consider the terms of any court order providing for contact between the NRP and the child, there is no obligation to determine shared care solely on the basis of the provisions in that court order. The weight to be attached to the court order is for the CMS to decide. They are also entitled to take into account evidence that the provisions of the order do not accurately reflect the number of nights for which the NRP is expected to have overnight care of the child during the relevant 12 month period. It is not the intention of the child support legislation that the contact arrangements set out in the court order must take precedence over the actual overnight contact, no matter how old the court order was or how long it had been ineffective. The deduction for shared care is to reflect the respective costs of caring for the qualifying child borne by the parent with care and the NRP, and to do otherwise would not be in the interests of the child, or in accordance with the policy intention of the deduction for shared care.

Here, the First-tier Tribunal had concluded that “there was likely to be no or limited overnight care in the 12 months from the effective date”, and that determined the matter. The Upper Tribunal judge concluded with the following:

“I can understand [the NRP’s] frustration. He wishes to see his son, and would like [the mother] to facilitate that. He considers it is in the best interests of his son to have contact with him, and feels it is unfair that he pays additional child maintenance, having lost credit for shared care because contact ordered by a court is not happening. However, if [the NRP] is not content with the present level of contact, he has avenues of recourse in the courts available to him.”

You can read the full report of the case here.

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Author: John Bolch

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Is your surname different from your children? Then you need to read this before you travel abroad…

It’s fast approaching peak holiday season for UK families as the schools get ready to close for the six-week break. Travelling with kids can be tricky at the best of times but for those parents who do not have the same surname, it is a lot more complicated.

Emma Newman, the Managing Partner at the Stowe Family Law office in Esher explains what a parent can do about it.

“I first wrote on this subject four years ago and since then have received an inordinate number of questions on this subject. More and more women seem to be affected by this issue as more of us have a different surname to our child. Some, like me, may be divorced from their child’s father and have remarried taking on a new name. Other women are married but have chosen not to take their husband’s surname whilst their children do and of course, there are more and more unmarried couples who have children.

Many of us are now looking forward to enjoying some time away in the sunshine as the summer holiday approaches but if you have a different surname to that of your child you need to take note and take action to avoid unnecessary stress.

The checks that are in place at ports, airports and international railway stations to prevent children from being kidnapped are all very understandable but they have caused a huge amount of stress, upset and even missed flights for many women and their children. This can easily be avoided by ensuring you carry the right documents.

So, what can you do to ensure your holiday goes smoothly? Much depends on your particular circumstances but the officials need to be satisfied with your relationship with your child so the documents you may need are:

Your child’s Birth Certificate – this document gives the name of your child, their date and place of birth and will match with the details on their passport. It will also give the full names of both parents at the time of their birth. So be careful; if your name has changed since your child was born you will need to take more documents with you.

Proof of your change of name – this could mean travelling with your Marriage Certificate or a Change of Name Deed. On my last trip abroad I also found carrying an expired passport in the name I held at the time of my child’s birth (and therefore as set out in his birth certificate) was very useful as not only did it show what my name was then but it also had a photograph of me and the Border Official was able to marry up the Birth Certificate, Marriage Certificate and the expired and current passports.

You might also want to warn your children that they may be asked questions directly by the immigration officials and they should not be worried and answer clearly and honestly. This is not the time for them to make jokes.  When I have been stopped at immigration my son was asked who I was, who my husband was, where he had been and how old he was.  It was made very clear that he needed to answer himself and I couldn’t answer for him.

If you are not travelling with your child’s father I would always ensure that you can prove you have the father’s consent to you taking the child abroad.

If there is a Child Arrangements Order in place which states that the child lives with you, technically you only need to obtain the other parent’s consent if you are going to be out of the UK for more than 28 days.

However, in every other case, you should have the permission of every other person with parental responsibility for the child. If you don’t have this consent or a Court order, you are committing child abduction.

I always recommend asking the other parent to sign a consent form before travel or to write a letter setting out their consent. The document should provide the full contact details of the other parent and specific details of the trip including the dates, destination and address. The other parent should sign the form. It is also a wise idea to attach a copy of the other parents’ passport to the consent form.

Travelling abroad with children can be stressful enough. However, you can minimise some of the costs by ensuring you have enough space in your luggage to pack these multitude of documents. Happy holidays!

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Author: Emma Newman

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Stowe guests: Tax and divorce by Sofia Thomas Limited

In this instalment of Stowe guests, we catch-up again with Sofia Thomas from Sofia Thomas Limited.

A specialist tax consulting services to law firms, family offices and high net worth individuals, Sofia has worked in financial service for over a decade and has previously consulted for Google.

She joins us on the blog today to share her answers to some of the most common question she receives from clients regarding divorce and tax.

In my last guest blog for Stowe Family Law I shared some top tax tips to consider when getting divorced. In this piece I thought it might be helpful to pull together a list of the most common questions client’s ask me.

Do I need to consider tax on my divorce?

 The big money questions! I have pulled together a high-level flow chart for Stowe blog readers to provide some guidance on this question.  Clearly, it’s not possible to cover all eventualities, however, I have considered the most common issues. In situations where there may be some tax implications I’ve included some questions which I hope will assist you in raising this with your solicitor or tax advisor.

Download flow chart PDF

Will my settlement be taxable in the UK?

 No, divorce settlements are not taxable in the UK. This is the same for deferred settlements. If a deferred settlement is paid late and there is interest due on the late payment, the interest only may be taxable. For example if you divorce in 2020 and per the consent order your £200,000 settlement will paid to you by December 2021. There may be a clause in the consent order, that if not received by this date there will be interest due on the late payment at 3%.

Assuming you finally receive the settlement by June 2022 you would received £200,000 plus £3,000 in late payment interest. The £3,000 interest only will be assessed to tax.

What if my settlement is tied to the sale of an investment property we both own?

 If you are the joint owner of a property which is going to be sold after the divorce and your settlement proceeds will be funded from this sale then there will be a potential tax liability. You will be taxed on your percentage of the gain. The capital gains tax rates for property in the UK are 18% (if you earn under £46,000) and 28% (if you earn over £46,000 or if the value of the gain would take your income to over £46,000).

Each individual in the UK has a capital gains tax annual allowance of £12,000 (for 2018-19) which reduces any taxable gain.

By way of simplified example if you sold a shared property for £500,000, if you owned 50% of the property you would need to report the portion of the gain which relates to your ownership of the property.

For example, see the simplified capital gains tax calculation below;

 

Simple Capital Gains Tax Pro Forma
50%
Sale Price £250,000
Purchase Price (£125,000)
Less all costs
– selling costs
– purchase costs
– improvements to the property		 (£5,000)
Total Gain £120,000
Less Annual Allowance (£12,000)
Taxable Gain £108,000
Capital Gains Tax Payable at 28% £ 30,240

 

This gain must be reported on a tax return and paid to HMRC. If your settlement is funded by the sale of a joint property after the divorce one option available to you, is to seek advice on the potential capital gains tax liability and then request an indemnity against this in the consent order.

We are selling our main home will there be capital gains tax to pay?

In the UK there is a relief called Principal Private Residence relief (PPR), this relief allows you sell your main home without paying tax on the gain if you meet certain conditions.  The main conditions are

  • You have lived in the property as your main home for the whole time you have owned it

There is an addition to this relief which allows the relief to continue for an additional 18 months after the you have left the home. Note that this 18-month extension may be reduced to 9 months from April 2020.

In simple terms if you have both lived in your house as your main home for the whole time you have owned it then principal private residence relief should be available to exempt the total gain, so that no tax is payable.  If one spouse has moved out of the martial home but it is sold within 18 months from the date they moved out, again no tax should be payable.

If you have not lived in the home the whole time you have owned it or have multiple properties you should seek further advise. Additionally, if you have been absent from the home for over 18 months there are some reliefs which may be available to reduce any taxable gain but you should seek advice on this.

You can find out more about Sofia Thomas Limited by visiting the website here.

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Author: Stowe Family Law

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Do we need a code for solicitors dealing with children disputes?

The other day I came across a tweet from a well-known and very highly regarded family lawyer. She said that she had just attended a meeting of various groups regarding how resolving child arrangements on separation could be more child-focused, and that one strand of the discussion was the role solicitors can or do play in inflaming conflict. She asked how we could change that, and said: “If there were a Code, what would it include?”

But do we need a code for solicitors dealing with children disputes?

The answer, I think, is that we already have one. Or two, to be precise (not including various other available guides).

The first code in time was created by Resolution, the association of family lawyers. Their Code of Practice specifically tells members of the association that they should “Reduce or manage any conflict and confrontation; for example, by not using inflammatory language”, and “Support and encourage families to put the best interests of any children first.” Those two brief statements seem to say all that is really needed, both to deal with the issue of inflaming conflict, and to make sure that discussions regarding arrangements for children are child-focused. You can read the current version of the Code here.

Of course, the Code only applies to members of the association, and not all family law solicitors are members. However, all are members of the Law Society, which also has a code, albeit that it goes under a different name: the Family Law Protocol.

The Family Law Protocol specifically states that it endorses the Resolution Code of Practice, and says that the Protocol should be read in conjunction with the Code. The main protocol, which you can read here, says that solicitors dealing with children matters should:

  • emphasise the need for parents to accept parental responsibility for their children;
  • aim to promote the child’s welfare as the paramount consideration;
  • encourage separation of addressing the children’s needs from those of the parents;
  • encourage the use of mediation and other dispute resolution options;
  • provide information about local support/guidance services;
  • provide information about parenting apart.

And elsewhere in the Protocol (which comprises a book some 200 pages long) there are two whole chapters, setting out guidelines for solicitors dealing with private and public law children matters. The guidelines enlarge upon the above, and set out the duties of solicitors dealing with such cases.

So it will be seen that we already have two codes dealing with the concern regarding the role solicitors can or do play in inflaming conflict in children disputes, and it is difficult to see what more could be added by another code. All family law solicitors will be bound by one or both of the codes, and it could be argued that the endorsement of the Resolution Code by the Law Society Protocol effectively means that all family law solicitors are bound by both codes. Whatever, if they follow the codes then surely they will not be guilty of inflaming conflict in children disputes?

And therein lies the rub, to misquote Shakespeare. These are just codes, with no real sanction if they are not followed. Now, I haven’t been practising myself for some ten years, but when I was I was aware of many solicitors who did not follow the codes, and I would be very surprised if they have all disappeared in that decade, although I would hope that their numbers have reduced. Yes, I’m sure that there are still some solicitors out there who conduct their cases in an inflammatory way, and no doubt also encourage their clients to pursue cases in an aggressive fashion.

But the same would surely be said about any new, additional, code, assuming it could say anything not already covered by the existing codes. Why would a new code stand any better chance of compliance than what we have already?

In short, we don’t need another code. What we have should cover everything we need. What is required is for solicitors to follow the codes that we’ve already got. I’m not necessarily saying that the codes should be strictly enforced (that raises all sorts of complex issues, such as client confidentiality), but there are steps that can be taken, such as courts registering their disapproval of inflammatory tactics by solicitors, and educating solicitors (and the public generally) as to the damaging effects of such tactics.

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Author: John Bolch

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A closer look at the latest call for a family justice inquiry

In my weekly review post here last Friday I mentioned the recent call from a group of 37 “concerned family and human rights lawyers, working in-house in women’s organisations, in private practice and at the Bar”, who are asking for an independent inquiry into the treatment of domestic abuse in the family courts. As I said, they do not think that the twelve-week review into how the family courts protect children and parents in cases of domestic abuse and other serious offences, that was recently announced by the Ministry of Justice, provides “enough time to properly evaluate the reasons why the system is currently placing children and victims at unacceptable risk”, and they therefore ask for a full public inquiry. I thought I would have a closer look at what they said in their letters to David Gauke, the Justice Secretary, and Paul Maynard, Parliamentary Under-Secretary of State for Justice, in particular their twelve-point plan of possible improvements to the family justice system for their proposed inquiry to consider.

Before I begin I should explain for the benefit of the lay reader that the system does already include rules to deal with child arrangements cases “in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.” This is Practice Direction 12J (‘PD12J’), which sets out what the court must do in such cases. You can find PD12J here. The problem with PD12J, say the authors of the letters, is that it is inconsistently applied by courts across the country, with some courts ignoring it, or ‘nodding it through’, “without any proper risk assessment, leaving women and children vulnerable.”

OK, on to the twelve-point plan, and my comments (where sequential points deal with related issues, my subsequent comment covers all of those points):

1. “Improved procedures for early notification and identification of abuse within the wider definition.”

Comment: They do not elaborate upon what ‘improved procedures’ they seek, so I’m not quite sure what they mean here, but the wider definition refers I assume to the proposed statutory definition of domestic abuse contained in the government’s Domestic Abuse Bill. As to early notification, the application form for a child arrangements order (which you can see here) already requires the applicant to state whether domestic abuse is an issue, and if so requires them to complete a form (see here), giving details of the alleged abuse. I don’t know how much earlier the court can be notified.

2. “Triaging of domestic abuse cases to be undertaken by an independent body properly qualified to understand and identify abuse and risk.”

Comment: Does this mean a specialist court, as suggested at point 6 below, or something else? Surely, consideration of the truth of domestic abuse allegations, which must be done before any further steps are taken, is a function of a court? If so, then isn’t this already how the system should work (subject to proper training of the judiciary – see point 9 below)?

3. “A review of whether the current approach to fact-finding hearings (including decisions by courts on whether to hold a fact-finding hearing, the fact-finding hearings themselves and what happens after findings are made or not made) is the best approach for survivors of domestic abuse and children.”

4.“Fast-tracking cases with disputed allegations of domestic abuse to a fact-finding hearing so the nature, extent and impact of the abuse can be identified. Where findings of domestic abuse are made, decisions made by judges following findings of domestic abuse should prioritise child safety and take into account risk assessments completed by accredited domestic abuse experts. Sufficient resources will need to be made available for risk assessments.”

5.“The fact finding must offer a fair process with:

a. A consistent national approach to special measures

b. Legal aid for both parties where financially eligible up to  the conclusion  of the hearing

c. National guidelines for timely police disclosure

d. A domestic abuse coordinator in each court appointed in order to specifically ensure that victims going through the court process are properly protected and all necessary measures are in place, to try to minimise the risk of further abuse through the court process.”

Comment: It seems to me that point 3, which suggests that fact-finding hearings may not be the best approach, is inconsistent with points 4 and 5, which suggest improvements to fact-finding hearing. Or maybe I’m just being pedantic. Whatever, I’m not sure that much of this actually goes that much further than PD12J, assuming PD12J is properly and consistently applied. In other words, we just need to make sure that the present system actually works as intended. As for getting more resources, including for legal aid for both parties, good luck with that.

6. “Explore alternative justice models for domestic abuse cases, for example:

  • Specialist domestic violence problem solving courts similar to the FDAC model adopting a multi-agency approach to domestic abuse.
  • Trauma informed models such as the approach taken by the Family Violence Courts Division of the Magistrates Court of Victoria, Australia).
  • Involving independent domestic violence advisors and independent domestic violence advocates during the process to assist the court and survivors.”

Comment: OK, I’m all for looking at alternatives. Of course, if they require further resources then that may be a problem.

7. “There should be a court recorder collating data which is made publicly available and reporting good and bad practice to the Domestic Abuse Commissioner to embed better practice and instil greater confidence in the court process.”

Comment: Agreed, provided it does not overburden already hard-worked court staff.

8. “Where domestic abuse is established (through a fact-finding hearing or otherwise) protective measures must be considered expeditiously.”

Comment: See my comment to points 3 – 5 above.

9. “Training for the judiciary to better understand domestic abuse, particularly the nuances and subtleties of abuse such as gas lighting, coercive control, and financial abuse especially apparent when hidden by a polite, non-threatening perpetrator. Input from psychologists in this regard is key.”

Comment: Agreed, although the judiciary already receives training in this area. Is there such a thing as too much training?

10. “More accredited perpetrator programmes which should be both clearly accessible and better resourced so that if a referral is made the outcomes are easier to predict and timescales are clear in order for sensible case management to take place.”

11. “Both survivors and perpetrators spend too long waiting for support or change programs. This wait impacts the process and prejudices children who are denied a safe relationship, if one can happen, or the security of knowing that an unsafe contact will not occur.”

Comment: That old issue of resources again…

12. “Legal aid for early legal advice needs to be reintroduced for ALL separating parents who are financially eligible. Cases that do not involve domestic abuse or safeguarding issues could then be diverted from the court system to mediation.”

Comment: Again, and as I said on Friday, good luck with getting legal aid reintroduced. As for the second point, this seems to suggest compulsory mediation, which I always thought was something of a non sequitur. The process of mediation involves encouraging the parties to agree a settlement, not imposing a settlement upon them. To agree matters, the parties must engage with the process. If they are forced into such a process against their will, then they are surely unlikely to engage.

You can read the full text of the letters here.

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Author: John Bolch

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A week in family law: Divorce reform, forced marriage, and yet another call for an inquiry

I will begin with a short trip across the Irish Sea, for some good news. People in the Republic of Ireland have voted overwhelmingly to liberalise their divorce laws. The Irish constitution currently states that spouses must be separated for four of the previous five years before they can get divorced. However, 82.1% of voters backed a change to that law, in a referendum held last Friday. The Irish parliament will now decide a new separation period before divorce is allowed, the Irish government having indicated prior to the referendum that it believed a two-year separation period (i.e. a minimum of two out of the preceding three years) was long enough. The Irish Minister for Culture Josepha Madigan, who previously proposed a liberalisation of the law in 2016, commented: “I think it’s an emphatic, unequivocal result, and, even though we have a very low marital breakdown in Ireland, it just demonstrates the amount of people who stand in solidarity with them.” Excellent.

Back in this country, new figures released by the Forced Marriage Unit (‘FMU’) reveal that the number of forced marriage cases they dealt with jumped to a record high last year. The FMU dealt with 1,764 cases in 2018, an increase of 47% over the year before. The Home Office said that the sharp increase in cases does not “necessarily represent” a spike in prevalence, but rather a greater awareness of forced marriage being a crime, and an improved data recording process. Of the cases dealt with by the FMU in 2018, 75% involved female victims and 17% involved male victims, with the sex of the victim being unknown in the remaining cases. Where the age was known, 17.7% of cases involved victims aged 15 years old or less, and a further 14.9% involved 16 and 17 year olds. You can read the full statistics here.

Moving on, no sooner do I voice my concerns over the constant calls for changes to the family justice system than another one crops up (as I said in my post sometimes it seems as if hardly a day passes by without the announcement or call for some new inquiry, review, initiative, or campaign for change). The next such call has come from “a group of [37] concerned family and human rights lawyers, working in-house in women’s organisations, in private practice and at the Bar”, who are asking for an independent inquiry into treatment of domestic abuse in family courts. Apparently, whilst they welcome the announcement last week by the Ministry of Justice that a panel of experts will review how the family courts protect children and parents in cases of domestic abuse and other serious offences, they do not think that a 12-week review is “enough time to properly evaluate the reasons why the system is currently placing children and victims at unacceptable risk.” They say that “any inquiry must be independent if justice is to be seen to be done”, and set out a shopping list of 12 “possible improvements to the family justice system for the inquiry to consider”. I particularly like the last, rather hopeful, one: “Legal aid for early legal advice needs to be reintroduced for ALL separating parents who are financially eligible. Cases that do not involve domestic abuse or safeguarding issues could then be diverted from the court system to mediation.” Good luck with that. If you wish you can read the whole letter here.

And finally, a salutary tale for any litigant tempted to tip the scales of justice in their favour by harassing the judge dealing with their case. The High Court has dismissed an appeal by a couple who were jailed for harassing a judge in adoption proceedings. Gary Hilson and Tracy McCarthy were found guilty of harassing Her Honour Judge Carol Atkinson and given a 16-week jail sentence by the Crown Court. The harassment included sending emails to the judge’s personal email address, making comments in the presence of court security staff to the effect that they knew the judges’ home address, and making comments in court which indicated they knew the movements of the judge’s husband and daughter. The High Court said that these incidents were capable of amounting to harassment, being designed to harass and intimidate the judge in relation to her public duty to the prejudice of the proper administration of justice, and therefore dismissed the appeal. Quite right too. You can read the full judgment here.

Have a good weekend.

The post A week in family law: Divorce reform, forced marriage, and yet another call for an inquiry appeared first on Stowe Family Law.


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Author: John Bolch

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Husband succeeds in appeal against financial order after process found to be unfair

As a family lawyer who spent most of his time dealing with cases involving clients of ‘ordinary’ means, it is nice occasionally to come across the report of a financial remedies case in which the parties do not belong to the ‘mega rich’ class (of course reported cases are more likely to involve the mega rich, as they can better afford the cost of taking their cases to the higher courts, where the judgment is more likely to be reported). The Court of Appeal decision in Crowther v Crowther, which was handed down in February 2017 but has only recently been reported on the Bailii website, was such a case.

The case concerned an appeal by the husband against an order that the wife retain the former matrimonial home, the only capital asset of the marriage, which had been purchased entirely from an inheritance that the wife had received from the estate(s) of her late parents. The case is not just of interest for what was decided, it also acts as a further demonstration of the difficulties that can arise as a result of legal aid not usually being available in financial remedies cases.

I don’t need to spend much time setting out the facts of the case. The parties were married for about ten years, before they separated. The property was purchased about half way through that period. At the time of the final financial remedies hearing it was valued at about £200,000, and was mortgage free.

After the separation the wife continued to live in the property, which has four bedrooms, along with her adult daughter from a previous relationship, and that daughter’s partner. The husband was living in his parent’s home.

A complicating factor was that both the husband and the wife were found to be vulnerable, in terms of their psychological and mental health. In fact, the wife’s mental condition led to concerns as to whether she had capacity to conduct the litigation. The husband, meanwhile, appeared to be physically disabled, although medical experts found very little physical explanation for his apparent disability, and that there was a very significant element of ‘functional overlay’.

The husband was fully represented at the hearing, and the wife was a litigant in person. The husband argued that the matrimonial home be sold, that the net proceeds be divided equally, and that that would provide each party with sufficient to rehouse themselves. The wife argued that the husband was not entitled to any claim on the house because it represented her inheritance from her parents, and that if he wanted to live independently, the husband could easily fund it by either obtaining council accommodation, or through housing benefit. He did not therefore need any capital from the house.

The hearing was conducted by His Honour Judge Tolson QC. He of course was put in the difficult position of trying to ensure fairness between one party who was represented, and one party who was not. To achieve this he undertook questioning of the husband, effectively on behalf of the wife. The questioning was extensive, and as a result of it Judge Tolson formed the opinion that the husband was unlikely to be able to live independently. This had not been part of the wife’s case. Nevertheless, it was a primary reason for him concluding that receiving a half share of the property would not actually meet the husband’s needs. Accordingly, he ordered that the wife should have the property.

The husband appealed, to the Court of Appeal. Giving the leading judgment Lord Justice McFarlane found that the process adopted by Judge Tolson had been unfair to the husband. The husband should have been given advance warning that the issue of whether he was able to live independently would be raised, so that he could take steps to present his case in order to meet it. He had been given no such warning, and that determined the appeal, irrespective of any issue of whether Judge Tolson had wrongly put the issue of contribution (i.e. the wife funding the property out of her inheritance) above the issue of the parties’ needs.

Accordingly, the husband’s appeal was allowed, and the case was sent back to the family court to be heard again. Lord Justice McFarlane expressed the wish that the wife should be represented, the case in his view being sufficiently complex to justify exceptional legal aid funding.

As I said earlier, the case is a demonstration of the difficulties that can arise as a result of legal aid not usually being available in financial remedies cases. It also shows that that can lead to unfairness not just to the party who is unable to obtain legal representation, but also to the other party.

The full judgment can be read here.

The post Husband succeeds in appeal against financial order after process found to be unfair appeared first on Stowe Family Law.


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Author: John Bolch