I have been reading a judgement that has recently been handed down by brand new appointment to the High Court Bench, Mr Justice Mostyn. I have been eagerly looking forward to what he has to say from the Bench and I’m pleased to say he certainly has not disappointed this reader. In this case he touches upon a subject that is often considered taboo, namely the competence of some of our judiciary. I should emphasise from the outset my own belief that the vast majority of our judges are indeed highly competent and experienced.

But Mr Justice Mostyn appears to be unhappy with the actions and findings of a District Judge below in a bitterly contested children case. That the case was fraught with difficulties, there is no doubt. But it is the manner in which it was dealt with by the judge that concerns him.

This case included a total of 17 days of hearings over a lengthy period. Thirteen other witnesses gave evidence, there were 300 pages of handwritten notes, a court transcript of the evidence running to over 1600 pages, and costs estimated at £120,000 for the father, who was paying privately. Similar sums were spent on the legal aid budget for the mother and the court-appointed Children’s Guardian.

It is unusual for an appellate court to set aside findings of fact in the lower court on the basis that the original judge is in a unique position to make those findings, having actually heard all the evidence. However, Mr Justice Mostyn set aside all the district judge’s findings and then enquired whether it was legitimate for him to conclude that “there was in fact no purpose to the inquiry at all”.

So it seems that nearly £400,000 – including a substantial sum of taxpayers’ money – was spent on a completely useless exercise. Ouch!

Continue reading »

Suppose that you are going through a very nasty financial case in the course of your divorce.

Suppose that your former spouse is behaving very badly during this process.

Suppose you both know that the court is likely to make the usual costs order in the case, with each side being asked to pay their own costs.

The party who decides to behave badly decides there is not much to lose. This party takes a gamble and increases their own costs in an effort to minimise the eventual settlement, safe in the knowledge that he or she will not have to pay the costs of the other side.

On the other side the frustration is clear. Costs are going through the roof and a nasty game is being played out. It is extremely difficult to find out what the opposing spouse is worth at all. Smokescreens and mirrors prevent anything other than a lengthy and convoluted legal process. The stronger spouse, confident the weaker one is getting nowhere, makes derisory offers.

It is pretty clear to all concerned that the intention (usually unspoken, but obvious nevertheless) is to rack up costs as much as possible, raise as many obstacles as possible to avoid disclosure, to avoid coming to the table and in general, to make life as hard as possible so that those derisory offers become more “palatable” as an end to this protracted saga.

This type of behaviour is not uncommon, especially when a spouse has much to lose. One of the worst examples I encountered recently was a client who told me her husband had telephoned the solicitor she had previously instructed, and personally threatened him and his firm with ruin if they touched her case. When she instructed another firm, he did exactly the same.

Suppose you are at your wits end, you are approaching court and you believe that you will ultimately succeed. However your costs have cleaned out all your savings. You desperately need to have your legal costs met, or your struggle will have been in vain. What can you do about it? How can you make the court depart from the normal “no order” principle?

Here is my advice: Continue reading »

As family lawyers, we talk a lot about needs when we advise our clients. We talk of capital needs for housing, transport and to redeem liabilities and income needs to meet ongoing annual and monthly expenditure. Needs are trump cards for arguing for a departure from an equal division of capital for a wife with children who cannot otherwise re-house, even if it means taking inherited assets away from the beneficiary in some cases. Needs apply equally to income as to capital, and are an important concept in family law.

Within ancillary relief proceedings, each party will give full and frank disclosure of their financial situation. As part and parcel of that disclosure process, each party must also complete a budget sheet, setting out what they say they need to meet their outgoings. We provide all Stowe Family Law clients with a budget sheet at the outset of the proceedings, so that they can consider their own needs early on.

I thought of this as I read an article over the weekend in the Saturday Telegraph Magazine, about a family who had been asked to account for every penny that they had spent in a month. The point of the article was to highlight whether we are in fact aware of what we spend, even in the current recession driven economy. The couple in question were successful, with an income of £150,000 per annum, an income that most people would consider enormous, yet they were still spending more than they earned. Continue reading »

Many grandparents are surprised to discover that they do not have automatic rights of residence or contact with their grandchildren. But could their rights be about to improve?

This week it is my turn not to criticise, but to praise the Conservative Party. Newspapers have reported that the Conservatives, if they win the next election, intend to give new, improved legal rights to millions of grandparents in England and Wales.

According to the Daily Mail:

The law will be changed to ensure [grandparents] do not lose contact with their grandchildren after a family separation, divorce or bereavement.

They will also be put at the front of the custody queue if their grandchildren face being fostered or taken into care. 

As it happens, I am currently advising the research team at one of Britain’s best-loved soaps on this same subject. The storyline is top secret though! I have had lengthy discussions with the researchers about current law; they were incredulous to discover that Continue reading »

 Stowe Family Law recently dealt with a complex and interesting case that has served to highlight the evolving place of children in our society, both in terms of their legal status in the eyes of the courts in England and Wales and in terms of the importance, in line with their maturity, of their wishes and feelings.

The case involved a child of 16 who is a British citizen. The child has lived abroad for the last two years, and continues to do so. The courts of a number of countries might have had jurisdiction.

We acted for the child and her relative. The relative had applied for a residence order in her favour and for leave to remove the child from the UK. As the child was already in situ with the relative abroad, the court was being asked to formally approve the change in living arrangements.

The law relating to children is a complex system of rules and requirements, particularly when the children are not living in England and Wales.  Even though a child may be English and speak only English they may not fall within the court’s jurisdiction and may instead be subject to a foreign court and law.  Before making an order in a case the English court must first consider whether it is within their powers to make an order.  The court will look at the habitual residence of the child, their current location and their ties with England and Wales.

When a case does come before the court they must take into consideration various factors to make the decision.  First and foremost is the wellbeing of the child and a key part of that will be the child’s own opinion.  Continue reading »

Cafcass, which stands for Children and Family Court Advisory and Support Service, was coined by the Criminal Justice and Court Services Act in April 2001. A public body, Cafcass looks after the interests of children involved in family proceedings. 

Its role in private children law is to:

• Safeguard and promote the welfare of children.
• Help the courts in coming to an arrangement that would suit the child involved
• Investigate all welfare concerns and/or any wishes and feelings of a child of sufficient age.
• Provide the Court with a report of its investigations, including a recommendation.
• Help appoint a children’s guardian in cases where the children need to have their own voices.
• In some cases, help provide families with supervised contact.

Private children law proceedings are extremely emotional and traumatic experiences for families. A child’s welfare, best interests, wishes and feelings are central to children law. It is sometimes difficult, therefore, for a court to make a decision as to where a child should live and how much contact they should have with the non-resident parent without first investigating the child’s circumstances. This is where Cafcass comes in.

As a Cafcass volunteer, I used to supervise contact at a contact centre in Sheffield once every four to six weeks at weekends. I saw many families that had been subjected to the court system. I saw some cases where supervised contact worked really well, especially for the younger children. Parents and grandparents would bring age appropriate presents for children or grandchildren. These families would then move on to manage their own, unsupervised contact without the aid of Cafcass or the court system. Success.

However, the other side of the coin featured families whose behaviour prompted obvious and continuing welfare concerns. Continue reading »

Despite those assurances that I would make a full recovery, I had to have keyhole surgery on my leg last week. I can’t pretend the day of the surgery was pleasant; it wasn’t, it was all like a bad dream.

When clients are anxious about court appearances, I always advise them how best to cope. On this occasion I administered the same advice to myself: the day will pass faster and better than you think; then begins the period of recovery. As my doctor told me, I have had an operation on the most important weight-bearing joint in my body. It will take time to recover; I must be patient.

Just as a patient isn’t “cured” in the operating theatre, a divorce doesn’t “end” in the courtroom. A client must never think that an appearance in court or a day of settlement will provide immediate closure. A subsequent period of recuperation and rest is essential: it allows the client’s mind to settle and readjust. Often for example, when the immediate trauma of the divorce is over, clients can suffer from panic attacks and other stress-related conditions. These are normal and are part of a healing process that, in my experience, typically lasts for 12 months after the case is resolved. I advise my clients that they should not expect a quick fix. It won’t happen. I have found that when clients know that those up and down days will continue for some time, they find it easier to deal with their experiences and emotions. For many of them, the healing process is all about the conquering of the unknown.

A couple of days before I went into hospital, a member of our admin team came in my office, to discuss a client who was fretting about the divorce and financial process. Our client wanted to know what the courtroom would look like, how she should dress and how she should speak in court. What exactly was going to happen to her? What form would the hearing take? Would she have to sit like a criminal in the dock? Continue reading »

Qualified solicitor Andrea Essen joined Stowe Family Law in 2005. She specialises in cross-border divorces and cases involving children.

It is tragic when a family breaks up and children are left in the middle between parents – but never more so than when the parents become so bitter towards each other, they are unable to work together for the sake of the children.  Relationship breakdowns are rarely neat and are never free of heartache.

Parents suffer when they lose that precious day-to-day experience of living with their children.  I have lost count of the number of times a parent has come to see us in tears because they no longer see their child every day or because they perceive the other parent as experiencing more of the joys of parenthood than them.  Sadly, the inevitable consequence of living in two households is that even if there is an equal division of time, one parent is bound to miss out on something.

Unfortunately it can be difficult for people to extract their emotions from important decisions regarding their child. Recently I was involved in a case where the parties were so wrapped up in their personal disputes, they forgot to put their children first.

This couple had parted ways when Dad met someone else and moved out of the family home.  Continue reading »