Laws of Love

When I was younger and started to go into family law, I still remember one of my best friends saying, “so, sleazy divorce lawyer it is ay?”. Now, I practice in all areas of family law, divorce as well as public and private law children, but just occasionally I do look at my career choice and wonder?!

The thing is that in this country, we thankfully haven’t quite gone the way of the US in having divorce lawyers as per the movies who are mini-celebrities in themselves.

As such my notice was attracted when I received “the lawyer” daily e-mail today as it described how Peter Andre has instructed a relative newcomer to the British divorce lawyer club to represent in him in his future publicity-fest. What was interesting was that the e-mail listed the ‘top’ british divorce lawyers, as follows:

Fiona Shackleton (of Payne Hicks Beach - and Shacka of Macca fame!)

Helen Ward (of Manches)

Mark Harper (of Withers)

Raymond Tooth (of Sears Tooth)

Maggie Rae & Liz Vernon (of Clintons)

Sandra Davis (of Mishcon de Reya)

and now … Stephen Foster (of Stewarts Law)

These names are indeed those lawyers dealing with the types of client that lend themselves to the ’sleazy divorce’ stories that one sees in the tabloids (and for the record I don’t think the above ‘good and great’ or indeed any divorce lawyers in the UK are ’sleazy lawyers’). However, the description of them as the ‘magic circle’ of divorce lawyers is one I would question.

Whilst the above are certainly superb lawyers, I would raise the other 99.9% of practitioners who deal with the small to medium cases which do not make the headlines. Actually, to my mind these lawyers are the true celebs as cases with ‘oodles’ of money are straightforward - trying to make non-existenet sums stretch is far more complicated (and emotionally challenging and heartbreaking), than deciding who gets the LA penthouse.

I found myself listening to a fascinating programme on Radio 4 this morning entitled What is a Wife?

The programme explored the changing trends in marriage and indeed whether marriage has a future in the 21st Century. It’s certainly true that marriage rates are dropping and co-habitation is increasing, but the programme suggested (as well as raising various humorous takes on marriage), that in fact in 25 years only 10% of the country may be in marriage and instead there may be renewable contracts.

Particularly when Valentines Day is only just behind us, it was surprising (and indeed somewhat refreshing) to hear such a non lovey-dovey take on marriage. That said, of course this country’s political parties appear desperate to support ‘the [married] family’ at the moment and it does appear that the stage is set for yet more controversy. The documentary raised the issue of parenting having been divorced from marriage and this scene which is evidenced in family courts up and down the country on a daily basis  is certainly the root of the politicians’ interest in it all.

Is marriage heading for the rocks? I suspect not as, given I’m something of a romantic (and indeed an engaged romantic!), I believe there will always be a place for the ‘mystical’ side of marriage. However, what people must realise is that whilst marriage may be seen as an outdated tradition and divorce law is chaotic, sadly i legal terms cohabitation law is potentially even more of a mess.

PS - One wonderful thing about the documentary was the title music - “Housewife’s Alphabet” by Peggy Seeger, well worth 79p! 

I have yet to deal with a case where one party openly states sex addiction as a reason for divorce. This article however highlights the growing numbers being diagnosed and equally that it is far from being a male only condition. Perhaps the article is more interesting however for its comments regarding the self-esteem issues that lead to such addiction (and indeed are often the root cause of other like addictions).

It’s an intri guing and controversial issue. Have a look at sex addicts anonymous for more!  

In my last post I expressed concern at recognising alternate legal systems in English Law when they bring such different principles into play. A truly shocking example of the practices carried out in the name of religion / culture is this story regarding the forced marriage of children as young as 10 in Yemen. The girl in the article managed to escape her marriage after 3 days, having been raped, and is now, aged 12, seeking a divorce.

I don’t say for a moment that English Sharia courts would condone such practices, but stories like this do show the very different vaulues other systems can represent and the need to keep English Law’s independence.

For close watch on the topic of Sharia law I defer to John Bolch who posts regularly. This article however was of particular interest because it reported that a Junior Minister recently suggested that whilst Sharia Law is not going to gain jurisdiction in the UK in family matters, it is always possible for agreements reached in Sharia courts to be submitted to English courts as consent orders. The Times article notes that the reporting of this possibility has been criticised and so it should be.

The difficulty lies in the very nature of consent orders which, whilst judicial acts, are ultimately the least safe exercise of judicial discretion. The reality of everyday court life is that when a proposed consent order is placed before the Judge, there is indeed a cursory check of the information before the court to ensure that the order is fair, however rarely is there any in-depth investigation and the court relies upon the truthfulness of the parties and the skill of the parties’ advisors.

The danger is that whilst agreements reached via a Sharia law ”mediation” (or indeed any other type of mediation) may appear superficially fair, such that they get approved by an English Judge; there may very well be different principles etc brought into play. There is a risk that women used to being subservient may well see a financial settlement as ‘fair’ yet without proper financial disclosure in a Sharia court the Husband is then free to put what he wishes in the English disclosure and all the Judge will see will be two parties in agreement. Likewise in relation to orders regarding children, those used to being subservient may well be subject to principles which might offend English law in reaching an agreement that, to an outsider, is not inherently wrong without investigation of the actual circumstances. 

The truth is that mediation other than under Sharia works because there is faith that mediators have remained neutral and ensured the parties truly consent and are not pressured. Sharia court mediations (let alone hearings) are implictly dangerous due to the different starting premises that apply (a woman’s role is in the home etc), and the position women often find themselves in whilst ending relationships (ostracised, used to being underdogs etc). 

Recognising anything to do with Sharia Law is inherently complicated and there is a great risk if the waters are muddied, as suggested by the Junior Minister, injustices will occur which, particularly in family law, could have devastaing consequences for the lives of those involved. The true difficulty is that unless the parties tell the Judge that Sharia was used he would be none the wiser.    

The Times published today the story of Debbie Purdy, an MS sufferer who went to the High Court seeking clarification of what may happen to her husband if he were to assist her in travelling to Switzerland to commit suicide when her life became intolerable. Ms Purdy’s claim was against the DPP / CPS for not having issued detailed guidance as it has in the cases of domesic violence and football-related crimes.

Sadly the High Court ruled that the claim was not made out as though no specific guidance is available (and it certainly is not), the general guidance by way of the Act and normal prosecuting guidelines are such as to provide for Ms Purdy’s human rights (seemingly despite the fact there is no straight answer!). Leave to appeal to the Court of Appeal was granted so the case may not be over, however the Judges concluded by stating that it is for Parliament to act.

The difficulty with this is that controversial matters such as assisted suicide or cohabitation are very unlikely to ever receive proper parliamentary consideration. This issue is particularly pertinent to family lawyers as of course may ‘family law’ issues often fall within the politically sensitive arena. Cohabitation reform has been needed for many years and even when it was referred to the Law Commission they at first said it must be a matter for Parliament and no fresh legislation has yet emerged.

It does make you wish for an alternative method of legislating these areas where political hot potatoes are forever passed around and the law becomes massively outof date until judicial activism eventually fills the gap. Respecting Parliament is all well and good (and indeed proper), but Parliament must stop ducking issues and have the tough debates that are needed to update the statute book.

The BBC recently published this story about an action against God in the States being thrown out by the Judge.

The action was brought by the Nebraska State Governor for an injunction against God to prevent “death, destruction and terrorisation” by God. (I do know terrorisation isn’t a word but it’s an american case!). The concerning thing however has to be the ground that the case was thrown out by Judge Polk: “Given that there can never be service effectuated on the named defendant this action will be dismissed …”.

Surely the case ought to have been thrown out for reasons other than that God doesn’t have an address to serve the papers and besides, if he’s truly omnipresent surely he’d have known anyway!

My thanks to Pete Doughty in Chambers for bringing this one to my attention and for anyone interested in employment law he’s just started a new employment law blog.

I always worry about writing posts condemning budget cuts in family law, but yesterday’s article in The Times, if true, tells of yet further concerning cutbacks. 

The alleged proposals are concerning for family lawyers (and family court clients) for three reasons however:

- Closing court centres and cutting court staff can only lead to poorer access to justice. The reality is that outside London and other major urbanisations, it is important to have a local court. Often family clients have extremely limited resources and serious childcare needs. The prospect of forcing parents etc. to travel 30 miles + just because their local court was closed will have serious implications (I’m ignoring the fact that owing to legal aid cuts clients in rural areas may have to go similar distances just to find a specialist lawyer!). 

- Equally further redundancies among court staff will only lead to a poorer service at court. Court Service employees are not paid large sums as it is and they are, for the most part, dedicated to their jobs. The system is, sadly, coping with far more work than it is truly fit for, and fewer staff can only lead to greater delays and a higher proportion of cock-ups.

- The article appears to state cuts will be made in “double representation” in public law (Care) cases. The very idea that there is double representation is a fallacy. A wheeze of CAFCASS legal has been for some time that if, in a care case, a Guardian is supporting the Local Authority they do not need separate representation. This is untrue. A Children’s Guardian may well support the plans of a Local Authority but they may well do so for different reasons and arrive at decisions from an entirely different perspective (that of the child), and it is lunacy to say that the court is not entitled to have that differing perspective enunciated by a dedicated representative to make sure the court takes on board what is said.

- The other avenue for “double representation” may be to prevent parents having different represenation if they run the same case. The difficulty is that there are truly very few care cases where parents do run the same argument. Any case in which domestic violence is a live issue (a huge proportion of care cases), is a case where separate representation is needed. Likewise cases involving sexual abuse or non-accidental injury require separate representation (invariably even if both parents admit such acts one will claim they were co-erced by the other). Equally in Care Cases the key decision is usually eventual placement of the child and parents (assuming they are separated), almost always have different strengths and weaknesses and  these need to be put forward vigorously. 

Ultimately in relation to family law (and particuarly care), it is understandable that the government will feel pressured to cut costs; however it must be realised in Whitehall that family law delivery ‘on the cheap’ will lead to huge injustice (and in Care cases it is strongly arguable wrongful permanent removal of a child is far more serious than a period of wrongful imprisonment). Further, when so many social problems are said to be due to children being given poor / unfortunate parenting, a small cut in the Ministry of Justices budget may well require huge increases in other areas of government activity, not to mention a further loss of social cohesion.

When will it be realised that court staff and family lawyers are, on the whole, dedicated and hard-working professionals desperately trying to ensure the system remains fit for purpose.   

Hi All,

Just a quick post to apologise for not having been around for some time and also allowing the site to once again be filled by junk comments!

As a result of the spammers I’m afarid I’ve had to prevent comments appearing until they’ve been moderated for the moment but hope to find a cleverer filter asap.

On a more family law note, I am now back on track to keep posting regularly so please keep checking back!

I’m grateful to Pink Tape and Family Law Week for alerting me to the decision of the House of Lords yesterday in Re B. It is not often that family cases of any type make their way to the Lords, still less Care cases, so a careful analysis of their judgment will be necessary. Having said that it appears that the following main points arise:

Proof the child is suffering or is likely to suffer significant harm

The requirement to prove significant harm or a likelihood of significant harm has become known as ‘threshold’. Without such matters being proven, the court is not entitled to intervene by making Care or Supervision Orders under the Children Act. In relation to actual suffering the law is simple in that it must be proved acts did occur for that to be made out (as to what constitutes proved - see below). The difficulty arises in relation to what is required to substantiate a likelihood of harm.

In Re B, Baroness Hale makes clear (and the other Law Lords agree) that where a likelihood of harm is based on certain facts it must be proven by the court that those preceding events did take place - it is not sufficient to found a likelihood of harm, to say that there is a real possibility certain events took place. (see paragraphs 22 & 54). The Judge notes that the potential for a real possibility of events having taken place founding a likelihood of harm is at great risk of reversing the burden of proof and is not to be tolerated.

The Standard of Proof

There has been confusion for some time regarding the standard of proof in Care Cases (i.e what we mean by “proved”). Traditionally English Law recognises two versions of the standard of proof, the civil standard - balance of probabilities, ie something is more likely that not to have occured - over 50% ; and the criminal standard - beyond reasonable doubt or so the ct is sure - ie in the region of 99%.

The problem arose however that owing to the way various Judge’s formulated the test in Care and other proceedings, a judicial gloss was put on the civil standard so that the more serious the allegation the most cogent the proof required. This risks the conclusion that 51% would not be enough.

Baroness Hale however makes it quite clear that 51% IS enough. The civil standard pure and simple is to be applied and the judicial gloss is to cease (see paragraph 70). 

Split Hearings

Baroness Hale also makes interetsing observations regarding split hearings noting that they are simply one tool within the court’s armoury and really should only be utilised in cases where there are certain issues capable of speedy resolution; or in cases where work might be required between hearings (see paragraph 75). The Judge also expressly disapproves the elements of split hearings being heard by different judges (see paragraph 76).

The roles of the Local Authority and Court

There are some interesting comments on the differing roles of the LA and court with the LA being seen as acting to prevent and the court being the arbiter as to what steps are in fact justified to protect. (see paragraphs 57 & 58) 

Judging

Finally there are some choice quotes on judging:

“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence” (paragraph 32)

And  in relation to the first instance Judge in this case failing to be able to make firm conclusions on certain allegations:

“My Lords, if the judiciary in this country regularly found themselves in this state of mind, our civil and family justice systems would rapidly grind to a halt. … The task [deciding, often on oral or non-documentary evidence] is a difficult one … But it is the task which we are paid to perform to the best of our ability” (paragraph 31)

 - hmmm - i must say I’ve had days where these principles haven’t quite been put into practice!!!