In the House of Lords they ranged from deeply religious viewpoints expressed in unity by the Church of England Bishops, Chief Rabbi and members of other religions, to the practical and economic necessity of marriage given the substantial cost implications to the state of “a broken society ” with estimates of how much the latter would cost running into the tens of billions of pounds.

Baroness Deech has been well known since 2009 for her publicly stated and trenchant views complaining of substantial financial settlements awarded to a few wives in high profile cases.

In the marriage debate Baroness Deech called for new, but still fault-based divorce law that would make it even harder and longer to divorce. She believed new legislation was necessary to legalise draconian prenuptial agreements in order to protect pre-owned and inherited assets. And to make women independent, the reform of current maintenance law to bring it in line with Europe. But while she argues for greater independence for women along the lines of a European model where community property regimes do exist (as opposed to the common law found in this country), on the face of it her proposals would only cause great hardship for them. And she has also made it clear that she believes there should be no legislation at all for cohabitants, suggesting that it already exists when stating that: “there should be no more legislation equating cohabitation with marriage.”

I took a completely different stance during the Oxford debate in which I had the great honour to speak that week in February. I raised my concerns about discrimination against women who are usually lower-earning and child-raising. For me as a practitioner this is the real truth: marriage is seen as outdated because more men (usually the higher earners) are deciding against marriage in favour of cohabitation, where the penalties for a broken relationship are financially favourable to them because there is no law governing the breakdown of a cohabitation. Why marry if you can have your cake and, if it doesn’t work out, still eat it?

My position on cohabitation legislation is therefore diametrically opposed to Baroness Deech. It is my opinion that as more men opt to cohabit there is an urgent need to “even up” the playing field with divorce law. I disagree profoundly with her argument that if there is such legislation men will simply take off and leave women stranded. Is she really suggesting that men are really so fickle? That if cohabitation legislation was introduced to deal strictly with economic imbalance at the end of a relationship (as is the case in Scotland) they wouldn’t enter into one at all? That must presumably mean that men don’t ever want a family or permanency in their lives. Surely English men are more than mere procurators?

Divorce numbers increase

But what is really happening in relation to divorce? Are the divorce courts being overrun by “gold digging wives”? Shortly before the year-end the Office for National Statistics announced new statistics about divorcing couples in the UK. The tables are reproduced here.

There was a slight rise overall in the number of divorcing couples over the last year, but given there was a significant drop the year before I suspect this year’s rise was caused by couples who had decided not to proceed when the recession first began. In ‘09 the total number of couples divorcing dropped to 113,949, from 121,708 the previous year. In 2010 the number increased to 119,589, but was still lower than 2008. And so despite that increase, I believe the trend is still downwards.

More interesting, is the increasing number of men who are petitioning for divorce. Year-on-year those numbers have increased and now represent a 37-year high. While more women than men do still petition, the number is dropping proportionately. I have also frequently thought that the majority of women petitioners are doing so because the husband is content for them to petition, or because they have been manipulated into doing so. These women truly believe they are taking the first step, without appreciating the first step was already taken when they were steered into a lawyer’s office.

Whatever the truth, it is indisputable that growing numbers of men are now actually initiating divorce. They account for 34% of all petitioners, with most  in their forties and arguably at the height of their earning power.

If our divorce laws are resulting in “gold digging wives” travelling from the four corners of the world to take advantage, might they be under a misapprehension?  Our laws are in fact far more equal in terms of outcomes for husbands than a very few spectacular judgements (such as Miller v Miller and McFarlane v McFarlane (2006) UKHL 24) might suggest. The “yardstick of equality” introduced in White v White does not only apply to the wife.

There will be many reasons why men are choosing to take the initiative and divorce. I suspect it could be mainly because more women are working and therefore maintenance obligations will be lower as they are more self-sufficient.

Given the increases seen over the last ten years it is not because overall asset values have plummeted in the recession and men are swiftly taking advantage. No, it is more the case that men are seizing the opportunity to divorce because they aren’t going to be stripped of their fortune. And they don’t intend to make the same mistake next time.

Case law becomes clearer

As we have moved through the year case law has become even clearer and arguably more pro-male. In 2010 we had the cases of Imerman and Radmacher, both of which were seen as judgements that strongly favoured the husband. There were others too, relating to the treatment of post separation bonuses and income in favour of the husband.

Increasingly this year, courts are continuing to firmly distinguish between matrimonial assets and non-matrimonial assets – and ring-fencing the latter. The recent case of AR v AR [2011] EWHC 2717, in which a couple had been married for 25 years and had a total wealth of between £21 million and £24 million, is testament to this. The wife was awarded just £4.3 million, because the husband had inherited the bulk of their fortune from his father. Despite such a long marriage the Judge declined to permit the wife to share substantially in the fortune. There was of course also the case of K V L [2011] EWCA Civ 550, where the wife too retained the vast bulk of her inherited wealth – said to be worth more than £57 million at the time of the case.

Clean breaks ending maintenance obligations will be imposed if at all possible, even where courts lower down have erred on the side of caution (as was seen in cases L v L [2011] EWHC 2207 and A v L [2011] EWHC 3150). In fact those and other case reports published towards the end of the year (such as Gowers v Gowers [2011] EWHC 3485, V v V [2011] EWHC 3230, NG v SG [2011] EWHC 3270 and Z v Z [2011] EWHC 2878) are clear statements of current law. There is nothing wrong with any of them, but collectively they seem to provide judgements in favour of the husband. So is this the year when men are perceived to be coming up trumps?

Where are we, now that 2011 comes to a close and 2012 promises to bring with it the Law Commission’s report on nuptial agreements? Are we going to get pro-male, draconian legislation that is in fact not needed?

Baroness Hale gave the Audrey Ducroux lecture to Fellows of the International Association of Matrimonial Lawyers in Harrogate recently. Her speech has been published (it can be found here) and is well worth reading. She makes it clear – she sees no need for any further legislation.

I suggested in my posts after the Radmacher decision that we had gone far enough, and that new legislation is unnecessary.  I did so without knowing of these statistics, although they do in fact confirm my opinion. Men are actually voting with their feet. They are voting in growing numbers to divorce and to cohabit and they are signalling they are content with current legislation as it stands.

Although the courts are mandated to act equitably towards both sexes, from a bird’s eye view the pendulum does seem to swing in favour of either husbands or wives from time-to-time. The publicity afforded to a few fortunate wives some years ago may have given the perception that the courts were too pro-wife. But the “gold digging spouse” is a myth that has been laid to rest by the statistics, and from a certain perspective 2011 may perhaps be remembered in family law as a year of the man.

In a few weeks’ time I am invited to speak to the students at the University of Durham. I am going to enjoy developing my theme!

Direct access is pitting solicitors and barristers against each other when instead we should be working together, says Marilyn Stowe

When I decided to become a solicitor and not a barrister, my decision was based on a number of reasons – but not least that I wanted contact with real clients on a daily basis.

Also, as a student I worked for both solicitors and barristers and I didn’t like the more theatrical antics of the Bar. So, while it wasn’t for me, many of my friends did go on to become barristers and now play an active role in the spectacle of court hearings.

Three decades on I value the opinions of some as it is good to get a different perspective and discuss difficult points. It’s also good to hand over a case to an advocate whose job it is to represent my client in court. I have no problem sharing the risk and instructing counsel to do the job they are trained to do, while other solicitors prefer to keep the advocacy for themselves.

Recently the Bar Standards Board announced it is considering making it easier for members of the public to instruct barristers directly. The move follows the BSB’s decision earlier this year to remove the prohibition on barristers conducting litigation work, and will inevitably bring them into closer competition with solicitors.

It doesn’t make much sense to me. Solicitors have clear skills that barristers lack, and vice versa. Limited experience of dealing with clients directly, on a day-to-day basis, puts barristers at an immediate disadvantage in an increasingly specialised industry that is focused on client care and delivering consistent, cost effective results.

Increased specialisation has meant law firms can only compete by investing in their teams. Solicitors, trainees and assistants are now joined by admin and human resources teams, client care executives, researchers, IT specialists and marketers. In contrast, the Bar, with its one-man barrister brand with no ability to delegate and every case a nightly challenge, faces an uphill struggle to compete on the same terms. Barristers simply aren’t equipped in their Dickensian set up to deal with the needs of clients in the 21st century – day in, day out.

Room for everyone

So what would my solution be? To me it’s blindingly obvious. Increasingly, we have a New York-style operation in my firm, with a barrister and a German Rechtsanwalt who are both qualified solicitors. And we have another barrister who has recently joined as a trainee solicitor. We have a team of forensic accountants who were initially an ‘experiment’ but now fit perfectly into our structure. We all work together, complementing one another on a daily basis. In due course we will also set up a dedicated advocacy unit comprising more barristers all working under the same umbrella. It’s an exciting concept and one that I am confident clients will appreciate.

We each bring specialist knowledge and experience to the firm. It provides barristers with a wider context in which to practise and allows clients to benefit through increased choice and a greater pool of expertise at the earliest stages of their case – two of the BSB’s stated aims in relaxing the rules. In an amalgamated law firm, there is room for everyone.

I believe it would make more sense, for the consumer and us all, if we fused our profession under one name and worked together, rather than competed to do jobs that neither profession is fully equipped or trained to complete.

The great divide

There is no doubt that inequalities still persist in the legal profession because of the distinction between solicitors and barristers: one recent report highlighted the sad truth that, in the past ten years, not one solicitor has been appointed to the High Court.

This is clearly a fact that should lead to some soul searching within the highest echelons of the legal community, and I believe that increasing competition between the Bar and solicitors does nothing to resolve the fundamental inequalities faced within the profession. Indeed, to my mind it is these inequalities that prevent the justice system from being fairer and more representative – two aims that should surely be at the forefront of our minds as we wait to see what 2012 holds in store.

Despite these weighty issues, I do hope you all enjoy a relaxing and happy Christmas – and offer my best wishes for a prosperous and healthy New Year!

Arbitration is well-known and well-used to resolve commercial disputes, but so far it has not been applied to family law (Family Law Week provides some further detail here on how it will work from February 2012).

When applied commercially a suitably qualified arbitrator is nominated by both parties to decide the dispute. The arbitration process is then conducted by the arbitrator, who decides how it is to proceed and ultimately makes a decision that is legally binding on the parties. As Lord Wilson stated yesterday: “In principle…arbitration would be likely to avoid or lessen a number of disadvantages attendant upon proceeding to court, in particular delay and publicity.”

Earlier in his speech he had outlined the reasons why private family law disputes need to go to court at all. He gave five particular reasons: lack of legal advice; wrong legal advice; lack of clarity in the law; a refusal by one party to deal honestly with the other; and emotional reactions which prevent earlier settlement.

He then went on to succinctly outline the five main disadvantages of proceeding to court. He considered these to be: the cost; the delay; the publicity; the uncertainty; and the emotional burden on the parties as they go through the process.

The only out of court opportunities (known to lawyers as Alternative Dispute Resolution, or ADR) currently available to family lawyers are mainly limited to mediation and the collaborative law process, which most family lawyers know has a high failure rate from the beginning. Lord Wilson commended both methods, but in particular mediation, going as far as to say he had toyed with becoming a mediator had he simply retired from the Court of Appeal instead of going up to join the Supreme Court.

However, I think the fascination with both forms of ADR now mostly rests with the professionals who conduct it. ADR has singularly failed to capture the imagination of the public, because there are so many perceived disadvantages which simply cannot be surmounted, no matter how hard one may try or attempt to gloss them over.

I was one of the first ever trained family law mediators in 1995. At that time there were great hopes for mediation that ultimately foundered. My firm last year took on board the Government’s enthusiasm for ADR and decided to give it another go. At considerable expense we trained and set up a separate ADR unit, leaving no doubt that our firm is fully committed to ADR – as are most family lawyers. As a result we now have a number of highly trained mediators and collaborative lawyers within our practice.

The undeniable fact however, is that many of those who choose to instruct our firm do not, at present, have a preference for ADR. They are seeking a litigator in their lawyer and certainty of outcome – and there is no way that these wants can or should be glossed over. Yes by all means we can attempt to settle, but let’s not forget that the public are saying loud and clear that what they actually want is the resolution of their dispute as cheaply and quickly as possible. And ultimately they want legal help to get that resolution if they can’t reach a settlement between themselves.

Their rejection of all the flaws of ADR is not the “fault” of the lawyers. It is more a case of clients opting for what they want and understand.

The principal disadvantages of mediation are that it is manifestly unsuitable in instances: where one party is stronger than the other (e.g. where one party may be threatening and the other party is in fear, or one party is perceived to be stronger in terms of negotiating ability) and so the “full, frank and honest” disclosure required of a court process is not forthcoming; when it can delay resolution of a dispute because there is no requirement to achieve an outcome and one party may simply decide to string the other along and “outgun” them financially.

Furthermore, a failed mediation adds to the overall cost and there is never any certainty of outcome. Even when the couple have reached an agreement it may then be unwound because the truth of one party’s real financial position emerges, or they might have reached an agreement without fully appreciating their position in law – and then having consulted solicitors may change their mind before it is made into a court order. In short, it is far from being a perfect out of court system.

In a “collaborative” process, where lawyers do their best to assist the clients to reach agreement or withdraw from the case, few couples actually understand it and/or are even prepared to give it a try. They again want their lawyer with them for the journey. Otherwise why take care to choose the right lawyer in the first place if they are likely to be lost to the process?

I know of no family lawyer who regards alternative dispute resolution methods as widely successful or even vaguely popular among divorcing couples.

The Government’s enthusiasm for mediation should, I suggest, be taken with a pinch of salt. The removal of legal aid for most people in private family disputes means the Government are bound to push the benefits of alternative processes. In doing so they have ignored all the pitfalls that professionals in the field know of, and that have tempered their own enthusiasm for ADR. And all the enthusiasm in the world can’t make an inherently defective scheme work in great numbers.

Lord Justice Wall, the President of the Family Division, gave a speech of his own last night, which touched upon this subject. He told the Bar Council’s law reform committee that although he was a supporter of ADR, the public funding of mediation would not resolve the problems of the “myriad of unrepresented litigants who will come before the family courts”. He said that a new family justice service, as recommended in the recent Family Justice Review, would be neither practical nor necessary. In many ways his comments showed just how much the current system is creaking and in real need of fresh thinking.

So what of family law arbitration? There is little in the way of literature just yet, but in principle family law arbitration would certainly seem to have all the advantages that other ADR methods lack, and therefore appears to be a highly attractive proposition. To understand how it could work it is worth looking at what currently happens in commercial cases.

Commercial arbitration is to my knowledge swift, private and in many cases considerably cheaper than incurring two sets of legal costs during a protracted court process. Commercial arbitrators impose their own timetable which can short circuit the issues in dispute. Parties to a commercial dispute can have as much or as little legal representation as they choose and hearings take place in more informal settings than a courtroom and are therefore less emotionally burdensome. A major attraction of any commercial arbitration process is that it does have teeth and a legally binding certainty of outcome. The arbitrators who deal with these disputes are also experts in their own particular field. A specific arbitrator can be appointed by agreement between the parties or nominated by the Chartered Institute of Arbitrators. It is therefore in their own interests to have prepared beforehand, which is at odds with many cases held in the courtroom before judges, who are often too pressured to give each case similar standards of care.

Towards the end of his speech Lord Wilson said: “I am glad to learn that rigorous training effected in conjunction with the Institute of Arbitrators is a pre-requisite of a member’s accreditation as an arbitrator”. No doubt we will all learn more about family law arbitration in the coming months as the scheme is rolled out. And given the success of commercial arbitration I would have thought this method of ADR bears all the hallmarks of a potentially highly successful method for resolving financial disputes in divorce.

From a converted cobbler’s shop in Leeds to opening a third office in central London, Marilyn Stowe’s practice has come a long way in 30 years – but it hasn’t always been an easy ride, she explains as she celebrates her firm’s anniversary

Ours certainly isn’t the biggest law firm out there but even so, I’m incredibly proud – not to mention a little incredulous – whenever I consider how far we have come from inauspicious beginnings. Next year marks the opening of our third office, in Central London, and also our 30^th anniversary.

As so many founders of law firms have discovered before me, there is a world of difference between being a good lawyer and running a successful practice. Although the past 30 years haven’t always been a smooth ride, I wouldn’t swap them and I’d like to share some of what I have learned along the way.

The first office opened in 1982, in a converted cobbler’s shop in a modest suburb of Leeds. My husband, also a solicitor, had the idea for me to “branch out”. The area he chose had the city’s densest conurbation of both private and council housing, and a good mix of conveyancing and legal aid work was expected. With a secretary for company, I opened for business.

In reality, of course, it wasn’t as simple as that. The first piece of advice that I would give to any solicitor hoping to set up his or her own practice is this: even if you are bursting with entrepreneurial vision, don’t expect any “easy wins”.  My first office was funded by a bank loan of £28,000 – quite a sum to borrow in those days – and I felt the pressure keenly.

I set myself a target of one new case per day. A will, a house purchase, a debt, a divorce… anything! It was soon clear that when it came to building a good reputation locally, there were no shortcuts. It didn’t help that the regulations of the time prohibited solicitors from advertising their services. Instead, I made regular rounds of all the local building societies, estate agents, hairdressers and shops, introducing myself and trying to charm people into sending work my way. It was a slow, time-consuming process, and it certainly wasn’t what I had envisaged doing when I decided to become a lawyer, but eventually it paid off. People in the area got to know me and I used to chat with new acquaintances who, in turn, referred their friends and family.

These days firms are able to promote themselves in a variety of ways, from billboards to Twitter, but I believe that for any new firm, the same principle still applies. Reputations are formed over time and with great care, piece by piece, referral by referral.

There was also a good deal of opposition and cynicism to overcome, even from suppliers. In 1982, female company directors were a novelty in Yorkshire. My bank manager of the time made weekly “inspection visits”. The majority of competitors and suppliers were men, many of whom clearly regarded female business owners as doomed curiosities. Others were rude to my face. Times have changed and anybody opening a practice in 2012 is unlikely to face what I did 30 years ago, but one challenging business environment has been replaced with another. For a solicitor today it may be “Tesco Law” and current economic conditions. My advice: don’t underestimate your challenges, but never underestimate how far determination and tenacity can take you.

In the early years I frequently felt completely alone, but managed somehow. Eventually I was able to take on additional staff and the office began to grow.

What might I have done differently? Well, you have more time to devote to business if you have someone at home caring for the children. My husband is a legal aid lawyer who works every hour he can, so I never had that luxury. It has to be said that unless you can leave your baby for more than half a day at a time, which I never could, family life can clip your wings. During the 1990s and beyond, I turned down a number of opportunities to grow the firm in a different direction and at a faster rate. I don’t regret this though. My family came first and always will.

The biggest sacrifice was the decision to stop doing legal aid work, which I loved. Childcare commitments, along with reduced working hours, meant that I had to maximise profits in order to sustain the firm. Financially it made sense; in other ways it was a difficult break to make.

However when I stand outside our newest office, watching the four-storey building take shape, I can’t help but smile when I think back to those modest rooms in the cobbler’s shop. Thirty years later, those feelings of excitement, trepidation and gratitude are exactly the same. Strike out on your own and you are in for quite some ride – but if your experience is anything like mine, you won’t look back.

The 1989 Children Act came into force in 1991 and I remember its arrival very well, not least because it signalled an entirely child-centred focus in family law disputes. It was worth a try. Custody, the cause of so much animosity, was abolished in favour of “residence” and “contact” with children. The overriding principle, that the welfare of the child is paramount, became enshrined in law. Ever since then it has been slavishly applied in pursuit of a fair outcome in family law disputes involving children.

My practice is centred on private law disputes, and most are between the mother who has day-to-day care of the child, and the father who seeks to play a more important role in the lives of his children post-separation. In these modern times, the father has usually played a major role before splitting from his partner. Often he finds that once out in the cold, he has to fight – and fight hard in some cases – to keep up a meaningful relationship with his children. Many fathers give up en route. It becomes too expensive and too time-consuming. They lose faith in the various judges they meet along the way who, as the law requires, must remain impartial in the children’s overall interests.

David Norgrove’s solution? Fathers’ groups were hoping that equal rights of access would be given to both parents. In trying to help, Mr Norgrove has instead proposed the abolition of the terms “residence” and “contact”. But what will this achieve? Surely it is the principle that needs reviewing, rather than the name of the application?

It is true to say that the majority of disputes about children are resolved out of court. There may be flourishes or minor skirmishes, but most parents are ultimately pragmatic. They recognise the need for all family members to move on with their lives and adapt to a new lifestyle. In theory, the principle that the welfare of the child is paramount is applied by both parents to all decisions about future care. In reality, I suspect that many cases are resolved because all parties’ needs have been catered for.

In family law, the financial settlement on divorce recognises the needs and requirements of both parties and their children. All parties’ rights and interests are recognised. When it comes to disputes involving children, however, the focus narrows and the parents’ rights go virtually unrecognised. Child-centred legislation has its merits. However it excludes the respect and integrity that are, surely, due to all parties in what is described as “family” breakdown. Grandparents, for example, must obtain the court’s leave before they can make an application for contact. Why should they have to jump through two sets of hoops just to see their grandchildren? Aren’t judges more than capable of making a judgement without the prior requirement for leave, which causes such humiliation and distress?  Why such a lack of understanding for the needs of those other than a child?

The law is clearly not working as well as it could or should. Overlooked and disparaged, parents, grandparents and cohabitants are crying out for suitable legislation. What a shame it is that the Family Justice Review has dismissed this opportunity to even up the playing field and restore some dignity for all parties involved in family breakdown. Instead we have more of the same: an entirely child-centred review of the family justice system, which changes little.

Perhaps this isn’t surprising, when you look at the composition of the Family Justice Review panel. Lord Justice McFarlane, a former child-centred practitioner and academic, is its sole legal representative. Almost all the Panel’s members come from child-centred or administrative backgrounds. With such a narrow train of focus of expertise and experience, how could they fully understand the needs of all parties in family breakdown? Should we be surprised that they have produced a Family Justice Review that lacks vision and flair and is, essentially, more of the same?

Society has undergone profound changes in the 20 years since the Children’s Act took effect. The numbers of unmarried families, working mothers, stay-at-home fathers and grandparents who play an active role in childcare and unmarried families have all soared. I don’t take issue with the principle that the child’s welfare is paramount – that is as it should be – but my everyday experiences as a family lawyer convince me that the current law is deficient and that reform is required.

I don’t believe that reform is unrealistic, or far-fetched. I also think it is telling that earlier today, after I appeared on BBC Radio Five Live and suggested the same, listeners called in to agree. (You can listen to the programme here.)

So where do we go from here? I would like to see the Children Act reviewed not by a child-centred, bureaucrat-heavy review body, but by experts who work in the field day in and day out, who know the pitfalls of today’s legal practice and procedure. One sensible way forward would be to continue to place the child at the forefront of all decisions, while enshrining in such law the rights of all family members to a family life. In the meantime, the current problems are bound to continue.

Matthew Syed has written about Paternity Fraud in today’s Times:

“It hardly needs stating that this is scandalous. To put the interests of the child above the father’s right to know may sound benign but it is deeply pernicious. Imagine a man whose bank account is covertly robbed to pay for the upbringing of a child with whom he has no kinship. To inform the man of the fraud would clearly be contrary to the interests of the child. Would we really say that he should not be told?”

The feature cites cases of celebrities who have attempted to escape the consequences of their paternity. It quotes statistics which, at closer range, appear to be largely unproven. Mr Syed’s view about Paternity Fraud – or “PF”, as he calls it – is as follows:

“PF is unlike any other crime: it is a deception that reaches deep into our evolutionary selves. The urge to propagate one’s genes, to nurture one’s own flesh and blood, is the most basic of all impulses. A single DNA test might not merely unravel a lifetime of commitment; it could make a mockery of one’s raison d’être.”

I carefully read through this article several times, and tried to find the relevant statistical evidence to back up the claims about those millions of duped men across the planet. I found little. There are references made to a “current best estimate” and “unpublished data”, which apparently adds up to tens of thousands of men in this country and tens of millions worldwide. However hard data, to prove these claims beyond reasonable doubt, is not in evidence.

So is this issue as rampant and universal as Mr Syed would have us believe? He can only quote from one unpublished survey, which drew upon DNA samples from an unnamed number of “volunteer families” in the UK and identified an estimated Paternity Fraud rate of 7 per cent. Among a group of volunteer Ashkenazi Jews, the estimated Paternity Fraud rate was nil. The hysteria makes for good headlines, certainly, but is it founded in fact?

In the UK there were no restrictions on paternity tests until the Human Tissue Act 2004 came into force in September 2006. Section 45 states that it is an offence to possess without appropriate consent any human bodily material with the intent of analysing its DNA. Legally declared fathers have access to paternity testing under the new regulations, provided the parental DNA being tested is their own. They may not test other people’s DNA without their consent. Tests may however be ordered by courts when proof of paternity is required and the Ministry of Justice accredits bodies that can conduct this testing.

So should there ever be an unqualified and unregulated “right to know” as this journalist suggests, without recourse first of all to the courts to consider the whole matter in detail? I could not disagree more strongly.

The journalist argues for the rights of the father over the rights of the child. But that is not how the law relating to children is applied. The welfare of the (wholly innocent) child takes precedence and is paramount. Once a case comes to court I of course accept that honesty and the “right to know” is the most likely outcome, it being generally accepted that it is usually in the best interests of the child to know its origins.

But it isn’t a foregone conclusion and if there are cogent reasons, such as compelling psychiatric evidence that a child will be profoundly harmed by being told the truth, the court will have to weigh up the pros and cons and make a carefully considered order. They will always act on the fundamental basis that the welfare of the child is paramount and consider if the most serious long-term harm could be caused to a child who casually learns the truth of his or her parentage.

In any event, for all those tens of thousands of fathers who we are led to believe may be fretting about the paternity of their children, consider this: does it really matter whether a child is the biological offspring of his or her father? Does it really matter if a loving father and his child never find out? What harm is being done to the man, child or woman concerned – that is until they find out and the predictable fallout occurs? And yes, I have noted the practical arguments about possible, unintentional incest in the future– but is that barely a possibility, let alone a probability?

As a divorce lawyer who has acted for some 10,000 clients over the past 25 years, I wearied of the blame game long ago. I have spent my professional life advising many, many men and women who have been caught in the adultery trap. They are not monsters; they are human beings.

Nor do I believe that women who have had affairs are fundamentally wicked creatures who should be required to confess all, if they have become pregnant by one man and have decided to save their relationship by shielding a partner and child – and, in most cases, themselves – from the truth.

Human beings aren’t robots. Life happens to all of us. In the cases that I encounter, the truth has come out and the relationship has cracked beyond repair. In such cases the divorce won’t necessarily have been caused by the adulterous actions, but by the subsequent knowledge of those actions and the inability of both parties to move on.

In Webb v Chapman [2009] EWCA Civ 55 a father tried to sue his ex-wife for deceiving him over the paternity of her daughter. The couple divorced after a DNA test when the child was over 18 showed that the husband was not in fact the daughter’s genetic father. He unsuccessfully claimed damages against his ex-wife and her new partner at Bournemouth County Court and applied, unsuccessfully, to the Court of Appeal for permission to appeal against the ruling of the court below. Given all the hassle caused, I wonder, was it ultimately worth it?

The “right to know” is also acknowledged by Mr Syed to have wrought appalling effects on fathers who have found out the truth: “anger, angst and even metaphysical confusion”. He acknowledges that the ripple effect of knowing the truth has serious ramifications, not only for the man and woman, but also for the child. Not forgetting the siblings, the wider family, the biological father, the community and so on.

So here is a question to which I have no doubt you will all have different opinions. Can all that harm and all that trauma be justified simply because of the man’s “right to know”?

I don’t think it is. I don’t support the decision by Boots to sell paternity testing kits over the counter.  Experience has taught me, time and time again, that no good comes of opening Pandora’s Box. All over the world, people make mistakes.  Sometimes they come to regret those mistakes. But “knowing” at the expense of an innocent child and the wider families seems to me to be selfish beyond measure. Sometimes in society we consider our “rights” to be so sacrosanct, so precious and important, we become deliberately or unintentionally oblivious of the harm that “rights” can do to others.

As a pragmatist, a realist and someone who is firmly on the side of the wholly innocent child, I believe that the “right to know” should always come second. And as for selling paternity kits over the counter? They should be banned.

My latest post for The Times appears on The Experts blog today.

Baroness Hale of Richmond, the only woman judge in the Supreme Court, is “dismayed” that so many judges belong to the Garrick Club. The all-male club’s members include Lord Phillips, the President of the Supreme Court, and a further three of Lady Hale’s fellow Supreme Court justices.

“I regard it as quite shocking that so many of my colleagues belong to the Garrick Club, but they don’t see what all the fuss is about,” she said, addressing an Interlaw Diversity Forum at law firm Norton Rose.

At first glance, membership of a men-only club does not seem worth worrying about. If men want to spend time in the company of other men, as they do at football matches or down the pub, what is wrong with that? Well, women are not barred from pubs or football matches, as they are from the Garrick.

The club was founded in 1831 and its members are elected by secret ballot. Today it is one of the country’s last remaining elite, all-male preserves. Its membership policy apparently discriminates against women, which is of course illegal elsewhere. Prominent human rights lawyer Lord Lester of Herne Hill, QC, resigned his membership after a vote to admit women was defeated in 2006.

Looking through the many reader comments left on Times Law about Lady Hale’s outburst, I note that plenty are as bemused by her views as her fellow justices are. The (mostly male) commenters focus upon what one calls the “politics of feminism” and point out that there are also plenty of women-only “clubs” such as the Women’s Institute.

However, there is more to Lady Hale’s argument than this.

The Garrick’s current membership is thought to include leading politicians, peers – and at least a quarter of the country’s senior male judges. Lady Hale highlighted the “systemic barriers” preventing other women from reaching the top judicial ranks. One of the barriers she identified is a culture that “depends upon personal network relationships”.

Surely it is no coincidence that even in 2011, the highest courts in the land are handing down decisions that could be seen to discriminate against women? Yes, there are the two Supreme Court decisions in which Lady Hale was the sole dissenter – but there is also the Court of Appeal’s decision in Imerman v Tchenguiz (I have written about this before).

When I read the Imerman judgment, one passage referred to the possible consequences of a wife “infringing” a husband’s confidence by copying a bank statement found in his “own study” in their home! Such an elevated and segregated lifestyle may be commonplace for members of elite boys’ clubs, but it is wholly alien to the rest of us.

Politicians – another group with strong representation at clubs such as the Garrick – are, like judges, vulnerable to intense scrutiny.

The Government recently refused to introduce legislation giving improved legal rights to cohabiting couples. Women – particularly cohabitees who are also principle child-carers, with reduced earning potential – have again been left at a disadvantage.

Early next year, the Law Commission will be making recommendations to the Government in relation to matrimonial property agreements. The smart money is on a draconian stance to become law. Could anyone be blamed for thinking that such a policy will also have its origins and most powerful backers in the cosy club rooms, libraries and dining rooms of the country’s last all-male preserves?

No wonder Lady Hale is dismayed. For our judges, membership of a club such as the Garrick compromises a reputation for diversity and equality that should be beyond reproach.

This is a slightly expanded version of my latest post for The Times, which appears on The Experts blog today.

It has now been more than a year since the landmark Court of Appeal judgment in the case of Imerman v Tchenguiz. The decision, condemned by family lawyers at the time, has meant that litigants are no longer permitted to seize papers and documents left lying around, if it is deemed that such actions could breach a party’s “rights of confidence”.

Last weekend I was on a course in Bloomsbury with 22 family lawyers. Their number included a retired High Court judge, QCs, barristers and solicitors from various parts of the country. It struck me as a golden opportunity to find out more about the impact of the Imerman decision upon the profession, and its overall effect on family law.

On my own blog and elsewhere, I have made my feelings about it very clear. I regard it as by far and away the worst decision that I have ever come across in relation to ancillary relief. For the unwary, the Imerman judgment poses a major minefield when advising clients. Innocent “self help” by one party, to ascertain the true financial picture of the other, was previously accepted as it gave the court a clearer picture of both parties’ finances. Now it has been outlawed. In my experience, this has significantly altered the balance of fairness between parties, and made life very tough indeed for clients who are married to duplicitous and secretive spouses.

One problem is that we know far more from the judgment about what clients and their lawyers mustn’t do, than what they can do. It has long been common for new clients to turn up with bags of documents, some of which do not belong to them but to their spouse. We now know – often before they do – that a  “snooping” client can easily fall foul of the law and can face serious consequences in both civil and criminal law. By the time we are asked to advise, however, it is often too late. The “snooping” has already taken place. The client has seen. The client knows. So if you are a solicitor, what do you do to ensure that justice is done, with full disclosure made by the other side – while protecting yourself and the client at the same time?

In Bloomsbury at the weekend, I was interested to find out if the other family practitioners shared my alarm and concerns. What have their experiences been? What Imerman-related issues are they encountering? During the breaks, I dived in. It was an informal straw poll, but it did turn up some startling results.

The various Queen’s Counsel to whom I spoke commented as follows:

“Imerman? It’s all a bit of a damp squib, isn’t it?”

“Can’t see what all the fuss is about.”

“Nothing much has happened, has it?”

And this:

“I heard that it is going to the Supreme Court. I suppose we will learn more then?”

(Actually, I am not sure that it is. At the time of writing, it is not included on the Supreme Court’s  list of appeal hearings for the forthcoming Michaelmas Term.)

It would appear that, as far as QCs are concerned, there are no known cases with Imerman points to be resolved. No dramas, no fuss. As cases come and go, it’s all turned out to be a storm in a teacup.

Or so you might think. The solicitors to whom I spoke shared some very different experiences.

“Nightmare”, was one reaction.

“I always refuse to look at the other side’s documents if my client tries to hand them to me, and I tell her to put them back where they came from.”

“I tell her that she can write down what she remembers of what she has seen – and she thinks I’m bonkers!”

“I act cautiously, to protect myself.”

“I tend to argue that the documents were available jointly to them, and that she was free to use them.”

“If my client gives me Imerman documents I don’t look at them, but I do put them in an envelope and write to the other side for an undertaking the solicitors will hold them intact and will give full disclosure of them in the proceedings. I will then send them to the other side on receipt of their personal undertaking.”

Is the client still at risk of sanction? Apparently so:

“I came across a case recently in which both the wife and her solicitors must have seen the documents. I’m going to pursue it against them both straight away, if only because it puts her under pressure to settle…”

My conclusion? If this very small sample is representative of the profession as a whole, then amongst solicitors there is a wide range of opinions as to what to do. The solicitors are the ones who are clearly making the decisions at the beginning of the case, and each solicitor is using his or her own judgement about the correct procedure. Some are continuing to look at documentation; others are not. Self-protection is playing a key part, as is the desire to put pressure on the other side. Overall, it would seem that the “Imerman issue” is being ironed out as early as possible, before the case is heard.

What is lacking, however, is a uniform procedure. Instead, solicitors are groping their way forward in the dark. A code of conduct as to what constitutes good practice, and what does not, appears to be required. But such a code would be difficult to draft.

To my mind, it is not a good sign that there are no Imerman-related issues to trouble the Silks, if and when cases get that far. It does not mean that the Imerman decision is a “damp squib”. Instead, it indicates that from the moment a client walks into a solicitor’s office, the solicitor is concerned about the impact of adverse findings, including the threat of being removed from the case. In the main, solicitors seem to be acting cautiously and properly, as they are required to do. But is that at the expense of overall fairness?

I wonder how many dishonest litigants have rubbed their hands with glee over the past year?  Full and frank disclosure has not been made, but they have known that the spouse and the spouse’s solicitors can do little about it. For such a litigant, a potentially uncomfortable journey can become a walk in the park.

Are the courts making the right orders? Or are cases being sanitised so ruthlessly and effectively that, with the exception of one party, no-one (including the judge) ever knows the truth?

Grant Thornton doesn’t publish the number of UK firms which take part, nor their locations, but has canvassed the opinions of 101 family lawyers based on their client work in 2010. This year, for the first time, I chose not to take part. I’ll admit that I was more interested to find out if our family law colleagues’ experiences concurred with the conclusions of Stowe Family Law’s recent in-house survey.

As the UK’s largest specialist family law practice, our firm acts for clients not just in London but around the country, providing its own snapshot of the “divorce arena”. Over the past 18 months, in the wake of the recession, we have noticed some striking new trends. As it turns out, they are spot on with the Matrimonial Survey findings.

Lawyers who participated in the survey were asked for the average value of total family assets distributed between divorcing parties. The results indicate that the number of high net worth divorce cases, involving couples with assets of between £4 million and £10 million, has dropped sharply. I imagine that many such couples have seen their asset values reduce dramatically, and that many were badly hit in the recession. When the going got tough… We have found that at present, wives in this wealthy bracket are more inclined to “sit it out”. As one said to me: “How can I manage on only £3 million instead of £10 million?” She could be in for a long wait.

At the same time, couples in other asset brackets continue to divorce in numbers.  Of the family lawyers surveyed, 70 per cent put divorcing couples’ average family assets at between £250,000 and £2 million – exactly the same figure as last year. Perhaps this isn’t so surprising: the “squeezed middle classes” so beloved of certain newspapers really do exist. Economic circumstances have hit this group hard and if something has to give, it will often be the marriage.

For me, the most interesting results of all are the most common reasons given for marital breakdown. The extra-marital affair has topped the list every year since 2003. This year, however, just 25 per cent of respondents cited the extra-marital affair: the lowest level since the survey commenced. It has also been supplanted in the rankings, with 27 per cent of family lawyers opting for “growing apart / falling out of love”. This is quite a jump: in 2009, “growing apart / falling out of love” was selected by just six per cent of respondents.

These findings suggest that in the current climate, the extra-marital affair is a luxury too far – and I would agree. There is too much to do in rebuilding our shattered economy for wasting time elsewhere. Instead couples who are working hard to hold their heads above water, who grow apart are simply acknowledging their circumstances, rather than trying to play a blame game. Ask them if there is a chance of saving the marriage, and the answer comes back no. The decision has been made over a lengthy period, my clients tell me, and it is irreversible.

Over the past 18 months I have heard client after client comment either that their partner was playing no part in the commercial struggle, or had little comprehension of what it was like to go to sleep at night with the bank to face next day, or complain that their partner was too wrapped up in work and had neglected the family. These are couples who, exhausted by endeavours and feeling isolated and unsupported by one another, accept they are traveling in different directions and decide to part.

As for next year’s Matrimonial Survey results: much is likely to turn upon economic events, and for this reason I am reluctant to make any predictions, but I wonder if current trends will persist.  Will there be any relief for the squeezed middle classes? Will those high-net-worth wives tire of the waiting game? Time will tell.

Nonetheless I have found over nearly thirty years that the vast majority of people will instruct lawyers, build up a good relationship, pay their bills and move on with their lives without a problem.

In my firm, first of all, we do NOT pay referral fees we never have nor ever would. Clients sign a retainer which clearly states each fee earners charge out rates. There are no additional lump sums added to the bill for unrecorded time. Bills are calculated by reference only to recorded time and if time is unrecorded, it is not charged. Clients receive a fully itemized bill which they may always cross check against their own files. Our Admin team is ready, willing and able to assist clients to understand their bill. We give a costs estimate at the outset and if it becomes necessary to amend the estimate at any stage then we do so.

When it comes to paying their bills, and even with the best will in the world, and as hard as we try, some clients will have a genuine gripe. It is not systemic, sometimes things go wrong and slip ups happen. Rarely, but they do happen. Professionals in one field are the same as every other, none are exempt from unintentional error– we are all human. In these exceptional cases every attempt is made to sort the situation out to the satisfaction of the client.

But on other occasions some clients will simply refuse to pay for no particular reason, which is a sad reflection on the way society’s attitudes have changed in the time I have practised law.

Once (and this was the case when I started my first work placement before I qualified) solicitors charged in guineas, and no one ever questioned their fees. I think that was wrong too. But there is a fair balance between the two positions and no reason why there shouldn’t be respect between solicitor and client in relation to fees.

There are some who see no reason to pay a lawyer, because they believe they can do just as well themselves. Fair enough, that’s their decision.

Others however (and I accept it doesn’t happen often) will instruct a lawyer, but throughout the process will maintain an unspoken desire for a reduction in their bill – despite having signed up to a costs estimate at the outset. When the bills arrive they will exaggerate the number of complaints they have, in the hope that their solicitor will reduce the fee for a “quiet life”. This may occur because the client has unrealistic expectations that can never be satisfied. Or they may simply want to pay less than they have agreed to pay.

Some solicitors I consulted tell me they usually have to play ball – the alternative is a formal complaint and the time consuming process of justifying their position. Sometimes, in a small firm with no admin team, it is cheaper and easier for them to give in despite their being no justification for a reduction at all.

There are also (thankfully even rarer) clients who never have any intention of paying their bills and never do. I know of one man we were acting against who instructed three sets of lawyers and incurred very substantial costs with them all. He declared himself bankrupt and failed to pay any of them.

Any number of developments may have contributed to the belief that the lawyer of your choice should be an entitlement that you don’t have to pay for. The increase in “no win, no fee” legal services and an ever-growing compensation culture may be factors that have led some to believe lawyers don’t need to be reimbursed. Perhaps it is also something to do with the way complaints against solicitors’ costs are now routinely treated.

It has become much too easy to ‘nitpick’ and complain free of charge, after the case is over and before a bill is paid. Most solicitors have a horror story to tell of their treatment during an assessment process led by a district judge who seemed anxious to please an unrepresented litigant. There are similar tales of woe at the hands of the Legal Ombudsman or their predecessors, who often give the impression that unless a solicitor discounts a bill the problem is not going to be resolved easily. One solicitor based in London at a “Magic Circle” firm told me she has become almost ill from the stress of an investigation into the charges she rendered in a particular case. In this instance she believed the client had lodged a complaint to simply get some money back. They can do it because the service is free, so why not?

Another solicitor who had successfully handled a complex case for a client told me that his firm had received a surprise letter from the Legal Ombudsman six-months after the case had ended. He thought he was on good terms with his client, but was asked why he hadn’t offered them a “Sears Tooth” agreement or deferred payment until the end of his client’s complicated multi-million pound divorce. “Because I’m entitled to get paid under the terms of the retainer she signed”, was his concise reply.

That lawyers come in all shapes and sizes and charge different rates is a fact. That some lawyers choose to practice at Mayfair prices is their choice. If that’s what the lawyers want to charge you for their services, why not? But they have to be very good and justify their costs; otherwise no one would instruct them.

There is a place in the market for all legal firms and plenty of choice for those looking to instruct one. We can’t all go to Mayfair to buy a fabulous pair of designer shoes. Most of us buy similar goods without the brand name elsewhere. They may not have the same “cachet”, but that’s how it is.

I started my first small office wanting to practise law to help people. I loved communicating with them, having my ups and downs with their cases, and above all succeeding in the days when you really did win or lose in family law. I was, and remain, driven by a desire to be successful for my clients.

However, if you are good at your job people get to know about it fast. Your business grows and you do become successful. You learn how to run a business, and that running a business requires a solid bedrock of capital to fund it. I once met a solicitor trying to run his busy practice with a shoestring staff in the tiniest of premises. He wasn’t able to (or perhaps couldn’t afford to) invest enough into his firm and it made me shudder. The client must come first. If there aren’t sufficient resources within the firm, how can anyone expect to do a good job for the client? Resources include staff, IT, training, books and a host of other costs in common with all other professional firms. The busier the practise, the higher the running costs will be. And for it all to work bills do need to be paid.

A lousy lawyer, or indeed anyone in any field, may see other people succeed and think that it is easy. But if a person is driven principally by the desire to make money they are never likely to sustain success. To succeed you need talent and have to care about your clients’ needs. There are poor lawyers but the market will inevitably weed them out. All the marketing in the world can’t continue to sell the skills of a lawyer. Only their clients can ever do that. And clients vote with their feet.

So my feelings are straightforward. I work hard and I charge a rate for which I will handle your case. I will work damned hard to get you a result and I am not afraid to fairly address any concerns you may have along the way. My colleagues’ fee scales will differ, but they will do the same.

We do offer Sears Tooth agreements to some of our clients if we think they are getting a rough deal and couldn’t otherwise go to court and get a decent result. The risk of getting paid then becomes ours – and don’t underestimate the size of that risk. We also do some work entirely pro bono – free of charge – knowing it is likely we will never be paid at all.  And both can only be offered within the context of a sound commercial footing.

During the recession houses took longer to sell, bills took longer to be paid and the impact was so seriously felt by some law firms that they literally collapsed. Law firms need strong roots in order to thrive and survive long term. It is my aim that in fifty years’ time my firm will still be standing and serving its clients well.

The removal of legal aid from deserving people is a scandal, but is a decision by our elected government. It’s not the fault or responsibility of lawyers, who shouldn’t have to work for less than normal – unless they choose to do so. And we shouldn’t be made to feel guilty or undeserving of respect as a result, especially if the risk of taking on a case where payment may never be received is considered too great.

Ultimately, the success of a client-lawyer relationship and this whole discussion boils down to one word I have used throughout: respect. If mutual respect is maintained then a client will value their lawyer’s professionalism and trust them to deliver the right outcome. And in turn a lawyer will treat that trust with care and do their utmost to ensure it is never broken.