Laws of Love

My attention was drawn today to the recent case of Imerman v Tchenguiz [2009] EWHC 2024 QB, which covers the fraught area of financial disclosure in divorce proceedings. The case is in fact however, a shocking example of the lengths people will go to out of mistrust!

The case concerned a Husband who had been in business with two of the Wife’s brothers. This business relationship had seemingly gone well for a few years and in fact some of the Husband’s businesses were based at premises owned by the brothers and also, importantly, his PC was linked to server space on the brothers’ businesses servers.

When the Husband’s marriage to the brothers’ sister broke down, the brothers then allegedly took it upon themselves to log-in to the Husband’s files (which were password protected, albeit that they knew the password), and they downloaded over various dates a range of documents numbering somewhere between 250,000 - 2.5m pages of documentation when printed! The brothers stated that they had done this owing to concern that the Husband would not properly disclose his wealth in forthcoming proceedings.

Perhaps unsurprisingly the Husband then applied to the Court for injuntive relief to prevent onward transmission of the information to any party, including the Wife and her solicitors. This claim was brought in the Queens Bench Division of the High Court rather than the Family Division as that was the appropriate jurisdiction given it was the Wife’s brothers, rather than the Wife, who had taken these actions. In due course the matter came before Eady J when the Husband sought summary judgment on his claim for injunctive relief.

The Brothers ran, it is fair to say, every defence under the sun, however common sense prevailed and a clearly unimpressed Mr Justice Eady found no difficulty in deciding that such wholesale taking of password-protected documents regarding personal finances and even including legally privileged material, was simply not acceptable. The learned Judge ruled that without doubt there could be no defence to the injunctive relief sought debarring the brothers’ from transmitting the information onwards, and it was always open to them to seek preservation Orders to ensure that the information was not destroyed so as to ensure in due course justice was done in the family proceedings.

Family lawyers are well used to the odd bit of ‘accidentally’ opened mail being shown to them, but this was breathtaking in scale. I suspect that, sadly, a very bitter divorce is on the way!

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.    

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.   

Frequently in practising family law we criticise the parenting of others. Indeed, I do so without even having children of my own. Yet I do think that as family lawyers we need to bear some responsibility for the extent to which those criticisms are actually valid.

A very interesting article in today’s Times was about the so-called “worst mom in America“, who had let her child ride the subway home from school on his own. This act appears to have enraged America, where fears of abduction etc. haunt every parent. I don’t want to comment particularly on her specific attempt at ‘regaining children’s independence’ in allowing her son to do something she used to do as a child all the time some twenty years ago; but it does make you think. What is the appropriate standard of parenting? Where does protection of children end and smothering begin? In Care cases we frequently use ‘good enough’ parenting, but what does that mean? As I say, a plethora of questions, but take a look at the worst mom’s blog for an interesting perspective on whether we are actually taking children’s freedoms away and instilling fear within them in the name of keeping them ’safe’.   

On a similar theme an interesting news story is the vegan child who appears to have medical difficulties as a result of the dietary choices made by her parents on her behalf. Seemingly Social Services are about to intervene and this story also raises questions of line-drawing and the extent to which modern society should or can regulate parenting, that most intimate of activities. Neglect is often taken to include failing to feed your child appropriately, but is ‘impropriety’ a particular choice of diet (include within this obese children eg)?

Finally in the trio of artcles there was an insightful piece on counselling and the extent to which psychotherapy and the like actually helps or hinders people. There certainly was a change-over between the UK and US whereby counselling appeared to be protrayed as the answer to all problems. Now it is  recognised that sometimes letting people deal with things internally can actually be more beneficial. Once more the question must be asked - to what extent should or can outsiders intervene in very personal affairs and is such poking and prodding helpful or right?

None of these articles provide answers but they do ask interesting questions and ones worthy of consideration by a profession where being critical of parenting styles and personality-types is often encouraged by emotionally wrought clients and the lawyer needs to act as a reality check for parents’ expectations and standards.

I see from the BBC website that Mr Justice Coleridge has weighed in to the debate on the changing nature of family life in the UK and the growing legal-aid crisis. The Western Circuit Family Division liaison judge was speaking at Resolutions’ annual conference in Brighton and appears to have given a headline-grabbing speech.

 Thanks to the BBC article and a Resolution News Briefing it is clear that this well-respected figure was not mincing his words.

Practitioners will be pleased to see Sir Pauls’ support for their current plight with him noting that, “the family justice system in this country has been and is being mismanaged and neglected by government”. Equally the Judge is reported as having urged policymakers to, “Stop chipping away at the family justice system and trying to have it on the cheap”.

Coleridge J also drew an ineresting comparison: “There has never been a greater need for the public to have access to a lawyer with speacialist family law and family justice experience than now. They are as vital a commodity in our national life as the local GP. Indeed their tasks are not dissimilar. When a family is going through crisis whether it be medical or psychological or legal, caused by family collapse, the first port of call is and should be the local GP if it is medical, and the local family lawyer, solicitor and barrister, if it is legal.”

Mr Justice Coleridges’ comments will be welcomed by practitioners who are rapidly being forced out of publicly funded family law owing to the growing cuts and an increasingly unprofitable sysyem which, though family lawyers may be committed to, other partners in mixed firms are not prepared to stomach.

The Judge also somewhat self-interestedly referred to the problems faced by the courts due to under-resourcing and the delays flowing from this. This will certainly be familiar to practitioners. Last week I tried to list a 5 day final care hearing and the earliest firm fixture was at the tail end of November - the system simply can not keep up, despite dedicated and expert judges and listing officers, and this is undoubtedly to the detriment of those resorting to the courts in their time of need.

The papers will probably however, attach rather less importance to these comments on the system, than on those made by Sir Paul alikening the threat from the growing number of family breakdowns to the dangers of climate change. The Judge urged the government to address the issue head-on and do something about it, mkaing it plain in the process that the current conservative plans are no answer either, “I am not talking about tinkering with tax rates for married couples. That is irrelevant and ineffectual window dressing”. The Judge also appears to ahve gone out of his way not to criticise single-parent families though we shall have to wait and see how his observations are portrayed in the press.

Finally the Judge urged a re-appraisal of of much current law including that relating to cohabitants, divorce and ancillary relief, noting that the social mores of the country today are totally different to those applicable when the applicable laws in those areas were last addressed.

Will the government act on any of the issues raised in this interesting speech? With the economy going south and the politcal race hotting up, family law - which is far more controversial than criminal law - is unlikely to be at the centre of any manifestos. Still, at least Sir Paul’s comments will add a welcome spotlight on the current mess - assuming that is, that the media give a fair representation of the Judge’s words.