About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Friday, 30 July 2010

Imerman - Hildebrand Documents Clarified

The Court of Appeal has given Judgment in Imerman: Husband's documents to be returned to him. Hildebrand v Hildebrand does not authorise use of wrongfully obtained documents. Permission to appeal to the Supreme Court has been refused by the Court of Appeal, but it may yet be sought from the Supreme Court.

Judgment here.

Thursday, 29 July 2010

Cafcass: the National Audit Office

Seemingly I am not the only one to have noticed the inadequacies of Cafcass. The BBC reports on the conclusions of the National Audit Office inspection of the service.

The report is summarised as concluding:

The Children and Family Court Advisory and Support Service (Cafcass) could have responded more quickly and cost effectively to the large and sustained increase in care cases from local authorities following the Baby Peter tragedy, had it fully resolved known organisational challenges, according to a report today by the National Audit Office. But Cafcass’s management could not have predicted the sustained increase in care cases from November 2008. In April 2009 they realised that the flow of care cases was not slowing and that they had to act.

Cafcass had to deal with an extra 200 new care cases each month from November 2008 – around 40 per cent more. Simultaneously, the courts needed advice on hundreds more children involved in family breakdowns. Consequently, the allocation of dedicated family court advisers to children’s cases slowed, and delays in providing advice to the courts increased. Between November 2008 and July 2009, the number of children involved in care and other public law proceedings without a dedicated family court adviser grew from around 250 to 1,250. Delays in allocating family court advisers can cause stress to children and families.

Cafcass was not well placed to respond efficiently and effectively because it had only partly resolved known organisational challenges around management information, IT systems and staff engagement by the time demand started to increase.

Cafcass increased its capacity and, between August 2009 and June 2010, reduced the proportion of children without a family court adviser, from 10 per cent to 2 per cent in care cases and from 34 per cent to 5 per cent in family breakdown cases. The Department allowed Cafcass to bring forward £4.6 million from the 2009-10 and 2010-11 budgets and gave Cafcass an extra £4.8 million. The cost increases do not represent a failure of value for money.

Cafcass continues to face enormous challenges in meeting the needs of vulnerable children and has responded with a major rethink of how it manages their cases. It is now implementing a £10 million transformation programme that should allow it to improve how it deals with future fluctuations in demand. In order to be successful, these changes will require greater organisational cohesiveness and improvements in staff morale.

Openness in the Family Courts: news roundup

Christopher Booker in the Telegraph raises concerns about some specific public law cases in his ongoing campaign against closed family courts. Another article in the Telegraph reveals that a group of 100 mothers have launched a class action at the International Criminal Court in the Hague.

The Solicitors Journal summarises Mr Justice Munby's views on the subject given at the Hershmann-Levy Memorial lecture delivered to the Association of Lawyers for Children. The complete text can be found here

In the spirit of openness many will be pleased to see that Birmingham City Council has published the full report of the Serious Case Review in relation to the death by starvation of Khyra Ishaq. The story is full covered by the BBC and the page links to the full 180 page report. I understand John Hemming MP (for Birmingham Yardley) was on Radio 4 not so long ago trying to make an argument that closed family courts were at the root of the problem in this case??

Interesting post on a author Heather Brooke's blog about 'open justice' and records of hearing

Justice Secretary to slash Legal Aid budget

Ken Clarke has started to indicate where the cuts will fall on the Legal Aid budget in this article in the Telegraph . Divorce cases are mentioned but no specific reference yet to cuts affecting private law contact cases or public law.

Tuesday, 20 July 2010

Shopportunity: Canterbury

On the train with a colleague (Helen Knott) and she is telling me about The Goods Shed - apparently an organic food market shop with an attached cafe and restaurant right next door to Canterbury West station which she thoroughly recommends. My personal favourite in Canterbury is Fenwicks - I know there is one in London but the one in Canterbury is particularly handy as it is very near the Magistrates Court and on the route back to the station from both Magistrates and County Courts.

Sadly we are both heading towards Margate!

Thursday, 15 July 2010

Divorce website by Josiah-Lake Gardiner

I am grateful to Bryan Reed of Josiah-Lake Gardiner (a London firm) for drawing my attention to their new online service www.justdivorce.co.uk which aims to help people to obtain their own undefended divorce without using a solicitor, at an affordable rate. They work on a fixed charge basis ranging from £259 to £339 including VAT (not including court fees). The site is fully regulated by the SRA, unlike many other online sites.

The website contains a large amount of helpful free information about divorce and related issues on the front end of the site, which visitors find useful in any event as an information resource. This content enables potential clients to make an informed decision as to whether or not they are entitled to a divorce, and whether justdivorce.co.uk is right for them. If a client decides to go ahead she (or he) then registers for free, and completes an online questionnaire which captures the information we need to prepare the court papers etc. The questionnaire also contains further helpful guidance as to what details are required, and can be completed at a pace which suits the client. A free guide to divorce will be given to all clients who register to use the site.

After completing the questionnaire the client then orders and pays for the service, and so there is no financial commitment until that point. The lawyers at Josiah-lake Gardiner then begin work on the file. They prepare all of the required court forms and all letters to the court, from issue of proceedings to the final divorce decree. They make full use of technology so that these documents can be drafted very efficiently, and then checked by the client via the internet. The forms and letters can then be downloaded, printed off and sent to the court by the client from anywhere in the world. A full explanation of what is required is provided.

Justdivorce.co.uk also provides other related services such as Financial Clean Break Orders, Divorce Decree Searches, and Marriage Certificate Translations. If a client’s situation is too difficult or complicated to be handled online, then they can offer expert in-house advice on a more traditional basis via Josiah-lake gardiner. They promise not to farm work out to third party solicitors for referral fees.

Much of the above comes from the description Bryan sent me but I have checked out the site - it is very user friendly and easy to negotiate, has a useful glossary and understandable explanations of basic information about divorce. it struck me as a great marketing initiative which also offers helpful free content to the lay client. I look forward to seeing the promised developments to the site.

Tuesday, 13 July 2010

Money: when is it relevant to children cases?

I am grateful to Peter Ryder, solicitor, for the following thoughts on residence, parental responsibility & relocation. He writes:

"I do think we family lawyers need to start connecting the court's power to make orders under s. 8 CA 1989 with judicial unwillingness to link those powers to the imposition upon non resident parents of responsibility as parents. In the case of T v B [2010] EWHC 1444 the court recognises that, in a case where unmarried parents jointly enter into an AID programme which results in the woman (or one of the women in a same sex situation) giving birth to a child, it lacks the power to treat the mother's former partner in that joint endeavour as a parent despite having earlier made a joint residence order in favour of that former partner. The net effect is that the mother with the child is left to provide for the child and the ex partner with joint residence escapes all contributory financial responsibility, at least in law. No ordinary person would see that as justice and neither should we.

The problem encountered in T v B can only be resolved by legislation but not so other, similar situations.

The same disjoinder of the law and justice can also apply to opposed relocation cases, whether within or outside the jurisdiction. The case law on relocation is generally silent on the question of whether or not the parent who objects to relocation has been providing child support to the best of (usually) his ability. This is, of course because the courts have imposed a de facto embargo on that issue being raised in cases where s. 8 orders are sought. I have encountered numerous cases where a non contributing father's opposition to relocation inside the UK was listened to with great sympathy by the courts whilst the mother's evidence on her economic struggle became a source of judicial irritation when the father's failure or unwillingness to provide child support was raised. Mothers in such situations may feel entitled to conclude that the court favours the interests of the feckless freeloader over those of the working parent.

Since it is nearly always the mother whose relocation is opposed I wonder how long it will be before someone argues that fettering her right to live where she chooses is discriminatory of women. After all there is no reported case of an absent parent being refused permission to relocate even though there must be some cases where a child has suffered as the result of a cherished father deciding to live drop out of his or her life."

A timely thought - Clare Renton in her as usual excellent article on Relocation clearly identifies a certain sea change in judicial thinking on relocation with courts showing slightly more support for the non-resident parent. I don't suggest that the sea change is wrong but I am involved in advising a mother with regards to relocation where the father is on benefits (for reasons which are not clear he seems not to have worked for a very long time and is on DLA but not somehow having any difficulties managing contact etc) and making no contribution to the child's maintenance (although he somehow seems to manage to pay for flights and related costs to get to contact) and is also therefore entitled to legal aid. The mother has relocated partly for work prospects having lost a job and needing to requalify which she could not do where she was originally living. She has been a student teacher for the last year but is now qualified and hopes to have a job soon which will impact on her qualification for legal aid. The court has allowed her to change location but will not yet confirmed that the permission is permanent and the father keeps pushing the case back into court requiring her to take time off, travel to the hearing with associated costs and make complicated arrangements for the care of his child as well as her other older child. As Peter suggests she is often at least impliedly rebuked by the courts if she raises any issues about money and is left feeling that the court considers her relocation to be in the lifestyle choice category rather than as she sees it an economic imperative if she is to provide her children with a stable and comfortable home environment.

Of course, the courts attempts to separate money and children are admirably well-intentioned. Some non-resident parents are genuinely unable to better their financial position and obtain employment and it cannot be right therefore to hold it against them that they cannot make a contribution. Equally some resident parents are in the same position and the courts are rightly reluctant to say that the fact that one parent can offer a higher standard of living to the child is a reason for depriving the less well off parent from looking after the child. It may, of course, present advantages in that a non-working resident parent can offer the child full-time care. It may be heresy to say this out loud but the truth is also that parents who know that litigation is looming with regards to children (not to mention divorce) deliberately place themselves in a position where they are not in employment in order to qualify for legal aid (obviously if they do so obviously we would have a duty to the public funding authority to spill the beans but most parents who do this are clever enough to do so without making it obvious). How often have you been in a case where the Judge will say with a sigh when dealing with a particularly irritating contact dispute which he might have expected to settle by agreement - and I suppose both parties are in receipt of public funding? Experienced and sensitive judges will take on board that the fact that they are not supposed to pay too much attention to financial contributions in cases involving children does not mean that it is necessary unreasonable for one parent not to view the other one as 'responsible' when they are not making a financial contribution or to refuse to make financial contributions when they are not being allowed contact for no good reason. The trick, of course, is to work out the difference between the genuinely can't pay as opposed to the not willing to pay for all the wrong reasons.

Contact Centres Protocol

A new protocol on the use of contact centres has been published with the endorsement of the President of the Family Division.

Contact Centres Protocol

Guidance on McKenzie Friends

The Master of the Rolls & the President of the Family Division have issued new Guidance on McKenzie Friends . The previously issued Practice Direction of 2008 has been withdrawn. The guidance spells out what McKenzie friends may and may not do, when they should and should not be allowed, that they cannot recover costs and that the court should consider whether they should be invited to attend advocates' meetings.

The following factors should not be taken to justify the court refusing to permit a litigant receiving such assistance:
(i) The case or application is simple or straightforward, or is, for instance, a directions or case management hearing;
(ii) The litigant appears capable of conducting the case without assistance;
(iii) The litigant is unrepresented through choice;
(iv) The other party is not represented;
(v) The proposed MF belongs to an organisation that promotes a particular cause;
(vi)The proceedings are confidential and the court papers contain sensitive information relating to a family’s affairs.

A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of confidentiality.

I would add to that list that the McKenzie friend may be a witness in the case or may be proposed to be involved in contact facilitation or is the new partner of one of the parents (and the other one objects for proper reasons which may include the potential witness point) or where there is a particularly hostile relationship between the McKenzie friend and the other party.

The guidance also deals with the circumstances in which it may be desirable to allow the McKenzie friend to have rights of audience which the court should be slow to grant.

Monday, 12 July 2010

Cafcass: advocates duties when there is no Officer appointed

One of the most regrettable casualties of the increase in workload has been the availability of Cafcass Officers to report in cases. I posted a while back about having seen my first case begin and end without a Cafcass Officer. Another fellow cyclist (Claire Holland of Lawrence Davies solicitors) told me that she was just approaching an IRH / possible final hearing in a public law case in which she was acting for the children but no Guardian had been allocated. The other parties in the case were heading towards a reunification plan with parents who needed a great deal of social work and other support and wanted the case to be concluded at the IRH. She was fairly confident that the plan was a good one but felt particularly concerned that the devil was probably in the detail of the support package which was just the sort of thing she would prefer to rely heavily on the Guardian to scrutinise. She was minded to ask for the case to be adjourned but had no idea by when Cafcass could allocate and do any work. At the last minute a Guardian was allocated but could not come to court. The court had hoped that the GAL could spend the day at court and be ready later in the day to make a recommendation. By the time it became clear that the Guardian could not attend the court agreed that the case should be adjourned although it insisted on a very tight timetable for the newly appointed GAL to complete their work (less than a month). The court indicated, however, that had they known at the outset of the day that the GAL could not attend they would have been minded to deal with the case on a final basis.

Another cyclist told me about a difficult hearing where the court was having to decide on interim removal in a finely balanced case without the benefit of input from a Guardian involving a mother with a poor track record but very considerable recent improvement such that it was on a knife edge whether there should be early separation followed by assessment or placement together with assessment. The court felt it had to err on the side of caution but would have very much welcomed a considered view from a GAL.

I have just met a Cafcass Guardian for the first time in a case which has been going on for some months. She was not appointed for several months but was still so deluged with work ( she reported having 29 cases to deal with) that she had not felt able to prioritise the case and therefore had not met the parents or seen the child. The child was very young and placed on an interim basis (before proceedings) with a member of the friends & family network and was having extensive contact to the parents. The case concerned an injury to the child but the fact finding is not for months and the parent's have accepted they have no choice but to agree that the child should be accommodated on an interim basis. The Guardian came to court on the last occasion for the first time because issues had arisen leading the local authority to seek an ICO having managed the case to date with a s 20 agreement.

I was told at court today about a Cafcass Officer somewhere north of London who had been dealing with 54 cases and imagine our surprise has now gone on long-term sick leave.

The President's Interim Guidance asks the following(arguably dangerous) questions re public law cases with a view to easing the workload of Cafcass.

* Does a Guardian need to be appointed at all?

* Can the Guardian's attendance at particular hearings be excused? They should normally be excused from attending fact finding hearings.

The court is supposed to make a directions stating by when a Guardian should be appointed, taking account of the timetable for the child and the specific needs of the case (for example, as to when welfare issues may be before the court). I would comment that firstly, many courts do not seem to be aware that this is what they are being encouraged to do and secondly, it does not make much difference because the workload of many Cafcass Officers is frankly overwhelming. Often a named officer will have been allocated but because of their individual case load they will not actually be able to complete any useful work.

This is certainly one of the issues which I will be dealing with in my response to the Family Justice Review's Call for Evidence (responses are due by 30 September 2010).

Duties of Advocates

The Bar Council has published the following advice for barristers:

"It has come to the attention of the Bar Council that Counsel are at times appearing in court on behalf of children even before a Guardian has been appointed. Frequently, the child's solicitor is not at court. Counsel finding themselves in that situation are reminded that they may not make submissions on the child's behalf and hold no more than a watching or noting brief in such circumstances. More generally, Counsel are reminded that their active participation in such proceedings depends upon their having clear instructions which will be given by the Guardian through a solicitor."

The Law Society website containst two useful documents :

In the Practice Note on Acting in the Absence of a Children's Guardian they say:

"In default of instructions you should represent the child "in furtherance of the best interests of the child" in view of Section 41 of the Children Act 1989 and Rule 4.12 of the Family Proceedings Rules 1991. What work is necessary will be a matter of your professional judgement in the individual case. You should not, however, undertake the Guardian's professional role. You should not make welfare decsions and recommendations based on personal feelings. While you should act in accordance with the particular child's best interests, you are not in a position to advise the court what those interests are but you make make the court aware of all the available options, without specific recommendations".

What that advice seems to me to indicate is that solicitors without Guardians can only go a little bit further at court than their barrister counterparts. In other words they can perhaps express a stronger view about assessments, directions & case management but should refrain from commenting directly on, for example, whether or not a child should be removed from parents on an interim basis (assuming that the child is not old enough / competent to give instructions directly). In fact the Law Society Guidance spells out that advocates should not recommend that an interim care order be made. They can make submissions reminding the court of important evidence and facts which support the argument for removal but they should also be sure to acknowledge any counter arguments. They can also make submissions as to whether the evidence passes the threshold test.

Regrettably I am encountering many cases where advocates go much further than this and start making representations as to welfare (often adding the offending words 'I think') which can tip a case away from parents, particularly in the magistrates' courts. The Law Society Guidance specifies that if urgent and specific welfare advice is needed the advocate should consider applying to the court for leave to consult an expert social worker or other appropriate expert to advise the court. This may be easier to say than to implementand the court has to be mindful of the burden on the public purse. No doubt the LSC would have something to say about it too and it could cause problems later on in a case if the independent then took a different view from the Guardian. Such an appointee would also not have the powers vested in the Guardian by the Act and the rules. That said, this is an option and arguably a better one that straying into US style partisan advocacy habits.

It was au revoir not adieu

I am rather embarrassed by the lack of posting on the blog particularly when, as recently, I receive compliments about it (from fellow family barrister & cyclist Dorothea Gartland (last year's winner of the ALC Newcomer of the Year award) as I peddled my way 200+ miles around Northumberland & the Borders recently with the Borders Marauders raising money for Biking for Children in Care. I have to admit that the cycle ride came at the back of a long holiday which I had been promising myself for months to recover from an extraordinary year of a heavy workload. I also have to admit that I am now very well rested - and very grateful to be able to take a holiday like that - and have come back with renewed vigour to apply to this blog.

The plan for the blog is to move away from a news item based approach since there are news item on the main Family Law Week site and on many other blogs including Family Lore to develop more analytical and practical content. This will include the development of some new series of posts, for example, tips for beginners, reviews of family solicitor websites, mini case libraries & questions & answers etc. And on a more frivolous note - Shopportunities (thanks to my sister for this word) when I will tell you about great shops near far flung courts.

It would be really great to have contributions from others - it is now much easier to post comments so if you were previously defeated come back and have another try. If you have any ideas for posts as a one off you could email them to me at jacqui.gilliatt@4bc.co.uk or if you would like to become a more regular contributor let me or Lucy Reed know.