Tomorrow I will be appearing on the

Current child legislation is entirely focussed on the child, as David Milburn my partner in our Hale Cheshire office explains in more detail below.

One of the criticisms I had of the recent Family Justice Review, led by David Norgrove, was the large number of children-focussed professionals on the review body. I believe more attention should be paid to all members of the family, and although I accept that the welfare of the child should always be paramount, the lack of statutory rights for family members in relation to their own family does concern me. Is it not high time to accord formal legal rights to members of the family, subject to the overriding provision of the welfare of the child concerned?

Within the Children Act 1989 grandparents are not named as a special category at all, and they fall under the general category at Section 10 (2) – “All other persons”- unless the child concerned has actually been living with them in circumstances defined by the Children Act. Grandparents will require leave of the court to make an application for contact before the contact application itself can be heard at all.

Unlike David Milburn, who sets out his reasons below, I believe this additional requirement for leave is likely to encourage and potentially antagonise family members who may be opposed to contact for purely selfish reasons, and devalues the valuable status of grandparents in the family.

Whatever the arguments for and against current law, by far the best and most practical way to resolve these kinds of dispute is for a grandparent to always remain steadfastly neutral  before their child’s relationship ever breaks down. The grandparents must never allow blood to become thicker than water. Never make unkind comments about the child’s other parent, no matter how deserving those comments may seem. Grandparents do have to make huge sacrifices in these circumstances and also, should not be afraid to hold their own child to account if necessary. If grandparents are always perceived as neutral, and refrain from cutting remarks, then if and when a family breakdown occurs they have a far better chance of being involved in their grandchildren’s future.

I would be interested to hear your opinion so please feel free to leave your thoughts in the comments.

Should or should there not be automatic rights of contact for grandparents with their grandchildren? For some years now there has been healthy debate regarding whether they should be given the legal right to exercise contact.

To properly consider the question we first need to consider whether the existing system actually works. It should be noted that a grandparent is not treated the same in law as a parent.  Therefore in order to make an application for contact, he or she first requires leave of the court to do so – i.e. permission.

When the court considers the issue of leave it must have regard to Section 10(9) of the Children Act 1989 which states that the court should look at:

   (a)       the nature of the proposed application for the section 8 order;

   (b)       the applicant’s connection with the child;

   (c)       any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and

   (d)       where the child is being looked after by a local authority –

               (i)           the authority’s plans for the child’s future; and

               (ii)          the wishes and feelings of the child’s parents.

Therefore the court does have wide discretion when considering the issue of leave, bearing in mind the rights of the grandparents under the European Convention for the Protection of Human Rights and fundamental freedoms to a fair trial and to a family life.

There are many voices out there suggesting that it shouldn’t be necessary for a grandparent to seek leave. Often a grandparent has a strong relationship with their grandchildren and may have exercised regular contact with them – why then should they be forced to seek leave? They argue that the requirement only adds additional cost and delay.

Well it would seem that the answer to this question, as confirmed by the Family Justice Review report, is to prevent “hopeless or vexatious applications that are not in the best interests of the child”.  The Review felt that the requirement to seek leave was “not overly burdensome and should remain” – I agree.

While representing a grandparent I have never had a case where I have not been successful in first obtaining leave, and then achieving contact between them and their grandchildren. I would add that in all of these cases the right outcome prevailed.  Perhaps I have been fortunate to deal with cases where the merits of the case were strong. I am sure that there are many grandparents out there, who for one reason or another have been refused contact. Presumably that is because the court felt that overall it was in best interests of the child to deny them access.

I am a strong believer in the principle that the best interests of the child should be the paramount consideration, and must prevail over every other consideration – irrespective of the hurt done to parents and grandparents. I appreciate my opinion is not shared, even among the lawyers in this office. The Head of our Children’s Department, Stephen Hopwood, does not fully agree with me. While he accepts that overall the welfare of the child should always prevail, he believes that more should be done to enshrine the rights of parents and grandparents in law.

As Marilyn has stated above, she will be discussing these issues alongside Gloria Hunniford on This Morning tomorrow. I know that Marilyn has her own views on the subject, which she has shared on many occasions on this blog.

As I see it, the main problem actually facing grandparents and other litigants is the frustrating delays when making applications to the court. Cases tend to take too long to be determined and the procedure is open to abuse by unscrupulous parents who are determined to use their children as pawns in a family dispute.

As a parent myself I firmly believe that the relationship between a grandparent and grandchild is special and very important.  It breaks my heart to imagine those children who lose contact with their grandparents.  However, I believe that despite the problems with the court system it does still work in the vast majority of cases. I also think that the requirement to seek leave is still necessary to weed out those cases where contact really would not be in the best interests of the child.

David Milburn is a partner at Stowe Family Law’s Hale office. He deals with all work relating to the breakdown of relationships and the division of matrimonial assets. In particular he undertakes a number of cases involving mid to high-level assets.

An accredited member of the Law Society’s Family Law Panel and Resolution, David has represented footballers and other professional sportsmen. He places a strong emphasis on excellent client care.

Image credit: The Apparition of the Artist’s Family (1935-47) by Marc Chagall

During his year as Mayor there was a service at Ripon Cathedral to honour the return of troops from Afghanistan to their barracks near the city, and I stood in for the day as the Lady Mayoress. It was a day I won’t forget. The thanksgiving of the people who packed the Cathedral, many of them the troops and their families, was very moving. All of those in attendance were grateful for their safe return from one of the most dangerous places in the world.

Until we met in 2004, I don’t think Andrew had a longstanding relationship with a Jewish person before, and he and I have had long conversations about Judaism and how I deal with anti-Semitism. He knows I will stand up for who I am. Surprisingly perhaps, I don’t “blame” people for being anti-Semitic. I am sorry they are. However, I regard discrimination as an unpleasant part of the human psyche. I think people do naturally tend to differentiate against those who are unlike them – because of their race, religion or colour.

Last week Andrew took his mother out for tea. He does this every week, but this time he was seated near to an elderly man who appeared to be deaf. The man was making remarks that were anti-Semitic. “I’ve never met a decent Jew” he shouted loudly, and kept on in this vein until Andrew decided he had heard enough. He approached the man and told him he found his comments offensive. The man immediately changed the conversation.

Anti-Semitism is thousands of years old and is still alive and kicking across the world. Sometimes people make anti-Semitic comments that they have no idea are actually offensive. “I’m instructing you because you’re a clever Jew” said one client to me. Another said: “I’ve only come to you because I think you can handle that Jew boy lawyer in London. You’re all the same”.

But on a more positive note, what is marvellous about being English and living in England is that overall, we are not a country packed full of extremists. We do tolerate free speech, but only so much of it. We recognise that you can overstep the mark and we don’t slavishly adhere to the principle as they do in the USA, irrespective of who may be harmed in the process. We have a balance.

On the whole we are a country of moderation. We don’t execute people for murder as they do in the USA or China, although we do imprison serious criminals for life. We don’t have extreme swings of power in Government; we tend to replace one ruling party with another that isn’t too radically different, unlike Continental Europe where an extreme left-wing party can follow a right-wing one. We pass laws that are generally respectful and tolerant of people, although we don’t let them over step the mark. We have a monarchy that puts duty first, and is seen to work for the good of the country and its people, and a system of checks and balances between the Executive, the Legislature and the Judiciary that works very well overall and does not allow dictators to seize absolute power.

Yes, I am unashamedly proud of being English and living in this green and pleasant land. The country isn’t perfect, and nor are we, but overall we are a very decent country and enjoy a pleasant lifestyle. So I count myself and my family as incredibly fortunate to be English. Twists of fate over the centuries have meant that my ancestors have certainly known the most severe financial hardships in faraway lands, and suffered terribly at the hands of an absolute monarch. They struggled under the Tsar in Russia and had to flee the destructive pogroms. But by escaping, and being given a safe haven in England, they ensured their descendants escaped the horror of the Holocaust.

Today is Holocaust Memorial Day in the UK, when we honour the memory of all those people who died during the Second World War Holocaust and subsequent genocides around the world.

I grew up with people who experienced the horrors of the Holocaust first-hand. I was once with a girlfriend whose father told us the story of a little boy being put onto a train, given a kiss by his deeply saddened parents, and sent with fellow children to live in a foreign country – England. He said the little boy never saw his parents again, and then added sadly: “the little boy was me”.

His story has stayed in my mind from all those years ago. I remember another friend showing me his family photo album and telling me that everyone in that album had been killed in the Holocaust. His parents had managed to escape but the rest of their family had all perished.

I have seen elderly people with numbers tattooed down their arm; the branding they received when they entered a concentration camp.

And at school, in Jewish Assembly, we used to read the terribly sad diary of teenager Anne Frank, living her pitiful life hiding in Amsterdam during the Holocaust. She always lived in hope that one day the war would be over and she could be free again. It never happened. Her family betrayed, she died in Auschwitz.

But for the twists and turns of fate it could so easily have been my family too. In fact, but for the backbone showed by the people of this country in the Second World War, the fate of the entire world could have been entirely different.

My Holocaust education has shaped me. What I learned, determined me thereafter to stand up for what I believe, never stay silent and never ignore what I believe to be wrong even though it is often easier to look the other way and not get involved. Last March I went to view the beautiful golden portrait of Adele Bloch Bauer by Gustav Klimt at the Neue Gallery, New York. It was lost to her husband during the Holocaust, he had to flee Vienna and died penniless but the family never gave up and ultimately had the portrait returned to them by the Austrian government. For me, this painting is not only visually stunning but represents a triumph of the spirit and a family who never gave up – who were determined to survive the enduring nightmare of the Holocaust.

There are some people who oppose Holocaust Memorial Day and who argue it is unnecessary. It is not. Revisionist historians would have the world airbrush it from history. They argue it never happened. That it is a fiction that was invented. Or grudgingly, that it was all exaggerated.

It was not.

Today is a day for all of us to remember the unspeakable horror of the evil, that if left unchecked, men can do to each other.

I have visited the memorial to the Holocaust, Yad Vashem in Jerusalem, Israel many times. Each time it becomes harder for me to face the memorials to those who died in the concentration camps –selected to live or die on a whim – and to view the photos of people subjected to grotesque medical experiments. The photos of injections, operations, real shoes of murdered children piled high and children being forced by grim faced soldiers onto trains at gunpoint.

Many people also go to visit concentration camps such as Auschwitz, some of which today even look peaceful. Little is left of them. Mass graves are grown over with woodland and visitors have no real idea of what confronted captives some 70 years ago.

There is a brilliant post in today’s Times written by a young man called Oliver Hughes about his visit to Auschwitz with his father. What he writes reminds me of what my husband and son Ben thought when they visited it with my husband’s business partners, Arthur Bateson and Andrew Walker, and their sons. They all went because they believed they needed to see it; to show their boys the despicable sign above the entrance “Arbeit Macht Frei” and let them try and understand the sheer size and scale of the horror that resulted in the murder of millions – of which six million were Jewish. They also wanted to help them understand it happened within the lifetime of their grandparents and to ensure above all, through educating the younger generation, that it never happens again.

There is another very good reason for Holocaust Memorial Day. Soon the survivors with their tattooed arms will be no more. And only those who choose to never forget the truth and preserve it for future generations will be able to continue honouring the memory of an entire people almost, but not quite, wiped out.

But London is different. There is no such thing as leisurely or friendly, or so it seems to me. The pace is fast, people race along the pavements, no one smiles and everyone looks positively grumpy.

It was raining yesterday when I set off for the first full day at our new office, so I hailed a cab. Coming up Chancery Lane we drove past a fellow family lawyer who had his head down and was striding towards his office. Dressed all in grey and looking thoroughly miserable, his mood seemed to match the day perfectly.

“What have I let myself in for?” I asked myself as we swept past.

I don’t think people are fully back at work yet. High Holborn wasn’t as jam packed as usual and arrived in good time and felt relieved to see a set of friendly faces. Partner Gavin Scott who has come down from Hale and Paul Read, my trusted lieutenant from Harrogate. They both inspire confidence and I’ve no doubt they will inspire others too. Then in breezed Andrew Williams, our firm’s chief executive, who was fresh off the train with one of our senior secretaries to induct the new admin staff. All their firm, confident voices were very reassuring and I started to relax, despite all the teething troubles everyone who has ever set up a new office knows only too well!

On my walk home yesterday evening I was struck by just how dark the London streets were; the outlines of those same fast moving commuters only illuminated by the yellow light of passing cars, shops and street lights. When I reached home I found my flat was also uninvitingly cold, dark and empty.

I love being in London, but always know that my real home lies waiting in Yorkshire – and that I can head home whenever I want. This is something that those in broken relationships can’t do: go home. They are often trapped with feelings of loneliness, isolation and anxiety and my heart goes out to them at one of the toughest times of the year.

People don’t like living empty, grey and lonely lives. They like to be happy, which generally means living as one half of a couple. They like the companionship and all that brings: conversation, colour, arguments and ups and downs. Even if another party is involved, a marriage break down can still be achingly, unbearably painful and lonely. And divorce doesn’t give anyone immunity from pain.

So why does Sir Paul Coleridge, who has spoken on the same theme for some time now, think it’s possible to set-up a brand new foundation to save broken marriages? Why does he keep saying it’s as straightforward as his catchy slogan: “mend it – don’t end it”? How can he really think his foundation will work when a couple may have decided it can’t, and that their lives have changed for ever?

Had Sir Paul not been a hugely successful QC at the family bar before going up to the bench, and had he not personally known all his clients inside out, I could have better understood the formation of his Marriage Foundation. He must have heard first-hand from his clients during conference, when they were talking to him and pouring out their heart’s emotions, feelings and pain, that it is not as easy as to simply say “mend it” rather than “end it”.

A broken relationship is not always even the result of a mutual decision. A relationship usually starts to break down years or months before it finally does. The couple starts to “uncouple” and if they don’t realise what’s happening to them, by the time they do it will be years too late. I’ve heard of countless couples who realise there is nothing left when their children leave home. One or both of them choose to end the marriage and move on to start a fresh chapter while it’s still possible.

Divorce lawyers know by the time they meet their client any chance of a successful reconciliation is almost impossible. It can happen, but in my experience it doesn’t often – and that is nothing to do with me! I don’t make those decisions and know that the loneliness of a broken relationship can never be underestimated.

I have also never yet met a divorcing parent who doesn’t agonise over their children, who doesn’t consider the pain being inflicted on the family, but who also believes that overall the decision is best for all of them. These decisions are never easily made, they are made because those involved genuinely believe, or have come to accept, that the relationship that once existed is now dead. Criticise them or not, understand them or not, these couples have a right to end a marriage in the same way they have a right to enter into it.

So if any good needs to be done for society then by all mean let’s encourage couples into marriage, something which Sir Paul says is the gold standard for a family. There I completely agree, but the number of couples marrying is substantially dropping, so there is obvious work to be done by his foundation and others.

But again I recognise that not everyone does want to marry.  I happen to agree there is more chance of a successful family if the parents are married, but to try and force couples to get married or force them to stay married is, to my mind, plainly wrong. To impose a different standard on them, to require them to ‘mend it-not end it’ is wrong.

I also wonder whether the Marriage Foundation will campaign for divorce reform, and if so, should a judge be involved? And while I respect Sir Paul’s decision to speak out and campaign, isn’t a “guilty” party going to feel concerned if he or she comes before him in court, knowing of his views?

With our new London office opening on January 3^rd, the last few months have been manically busy and involved a large amount of travelling away from home. The few days’ breathing room over the next week will be a true blessing. I am going to wrap up warm and look forward to the greatest gift I know – quality time with my family.

I am very grateful to you all for following my blog, and I would like to wish you all a very happy and peaceful Christmas. In the words of Jose Feliciano, “I want to wish you a Merry Christmas from the bottom of my heart”. I have always loved his song ‘Feliz Navidad’. The simplicity of its lyrics and jubilant melody remind me of all the best elements of the season, whatever your faith: the simple joy and happiness of spending time with people we love.

I recently discovered this version of The Three Tenors singing it; a wonderful rendition. To all my readers, thank you once again and ‘Feliz Navidad, Prospero Año y Felicidad’.

P.S. We’ve received so many imaginative and thoughtful Christmas cards at the Stowe Family Law offices over the past few weeks. But one in particular caught my eye. This playful Christmas email was sent by Sir Peter Singer and features a picture taken during a recent trip to Poland. He has kindly allowed me to post the image – which he described as a “reflective moment”!

My Christmas present from Stowe Family Law’s PR agency, Tinderbox Media, made me laugh at the end of a hectic week and I wanted to share it with you. Karyn Fleeting who heads the agency is about to give birth within a few days but stays at work as if nothing is happening – although I think her Christmas is going to be very busy indeed! She walked over to my office in Harrogate to deliver this incredibly thoughtful gift. It is a Tom Knight illustration inspired by a tongue-in-cheek comment I made on this blog back in September, in response to a reader who thanked me for some advice.

Our new London office on Fulwood Place is in the background – and even my Birkin bag has been faithfully reproduced!

With 2012 shaping up to be a busy year, I could probably do with some wheels…

I’ve started to watch The Café, a gentle new comedy set in Weston-Super-Mare. It’s written and produced by Ralf Little and Craig Cash, both of Royle Family fame, and it’s a pleasure to watch. They understand elderly people, who are treated with love and respect by the youngsters around them. The theme music, ‘Beyond the Sea’, is sung beautifully too.

My parents, who are getting on a bit now, like going to cafes. In recent years they have called me at our Harrogate office and I have joined them for a cup of tea or snack at Bettys or Harlow Carr Gardens. We have had time for a chat and then, for me, it has been back to work. In the mirror, I have watched them smile proudly, as parents do, as they have watched me leave.

In the months leading up to my mother’s recent hospitalisation, my parents were doing their best to cope with the ceaseless impact of her diabetes. It is truly a cruel disease from which there is no respite for the sufferer or the carer. My mum became increasingly dependent on my dad for help; my dad assisted her with all her personal needs as well as running their home, doing their shopping and maintaining a semblance of normal life. He was, as we all recognised, running himself into the ground and desperately in need of help.

Debilitating illness takes its toll on everyone. Ruby, a carer, was finally recruited to assist them – but only after a struggle because my dad, our family’s very own Hercules, was reluctant to accept that he shouldn’t and couldn’t be trying to cope on his own. Ruby is wonderful and, since coming into our family a year ago, she has done her very best. However it has been a difficult year for a couple as fiercely independent as my parents are, especially for my dad who believes that he, and only he, can ever look after my mum properly.

Even so, my parents would not give up their visits to cafes. So two became three and I began meeting my mum, dad and Ruby for tea. For most of us it is a great pleasure: a break in the day to have a cup of tea and relax. For my parents it has become something else: a battle to be won and a symbol of their determination to keep going.

I hated seeing them so different to the strong healthy parents I had known and loved. As autumn drew in, my mum had to be warmly dressed before they could go out to a café. She had to be helped to put on a jacket over her cardigan. She had to wear different shoes. It took ages. They had to go in the lift from their apartment down to the garage, with my mum in her wheelchair. Then the wheelchair had to be collapsed and loaded into the car boot, before they could get in. My dad would drive, with Ruby in the back of the car and my mum in the front.

Five minutes later when they reached their destination, the café at The Mansion in Leeds’ Roundhay Park, they had to find a parking spot nearby. The wheel chair had to be carried from the boot and carefully reassembled, with foot plates, and then wheeled round to my mum’s side of the car. With help, Mum would somehow get into the wheel chair and would then be wheeled to the nearby café. It all took ages. It was a struggle from the moment the decision – a simple one, for most – was made to “go out for a cup of tea”. It usually took an hour or more to get ready.

One day in early autumn I called my parents on my back from the Cheshire office, and learned they were about to go again to the Roundhay Park café for tea. So I arranged to meet them there. I arrived just as my mum was being wheeled inside.  How I wished I could turn back time!  How much would I have given to see them having a cup of tea, with my mum taking charge and pouring tea out of the teapot for me, her daughter? Instead the four of us tried to overlook disabilities, had our tea and laughed together.

For some reason, it all came back to me as I watched The Café yesterday. I was with my mum at Aunty Doo Doo’s , where my parents are now living. Mum was propped up on pillows in bed, all tucked up, pretty in pink and bright as a button. She was telling Ruby and me about her own, special method of pastry-making, which I definitely intend to try one day.

My dad was watching the television, sitting in a chair. As usual, he pretended he wasn’t interested in the conversation – but I noticed him listening to everything I said to my mum, and smiling as she described her pastry-making.

I’d had a hard day at work, and was due to head off for London. It was dark, bitterly cold and snowing. I suddenly thought: what would I give now, just to see my mum being pushed in her wheelchair in an autumnal Roundhay Park?  Could I have imagined ever having such thoughts in autumn, when things were different and instead I longed to see my parents walk into the cafe, and have my mum pour me a cup of tea?

I am learning much from my parents about accepting disability. Every day may be a struggle, but they are living their lives together, and they wouldn’t have it any other way. My parents are still themselves: full of inner strength, and determined to spend all the time they have in one another’s company. Right now they cannot struggle to a café five minutes from home, but I do not doubt that  they intend to do so again in the spring. In the meantime, they don’t complain. They remain together, the bedrock of our family. Long may my dear parents both stay that way.

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.

Earlier today I appeared on BBC Breakfast, to discuss the Supreme Court’s ruling in Kernott v Jones. Accompanying me on the sofa was Patricia Jones, whose appeal against the decision to award her former partner half the value of their jointly-owned property was upheld by the five Supreme Court justices who heard the case.

My previous posts about Kernott v Jones:

What the Kernott v Jones judgment means for cohabiting couples – a look at the implications of the Supreme Court’s decision for everyday families, along with the Supreme Court’s press summary.

Kernott v Jones in the Supreme Court: what you need to know – I wrote this post the day before the Supreme Court handed down the ruling, predicting the case’s outcome (correctly, as it turned out). This post is lengthy, but aims to provide a breakdown of the legal arguments for lawyers and non-lawyers alike.

Kernott v Jones: a case of square pegs and round holes – when the case was heard by the Supreme Court, back in May 2011, I argued that rigid and outdated property law was ill-equipped to regulate the end of a cohabitating relationship that had been every bit as financially complex as a marriage.

Of course, I am not the only lawyer to have blogged about Kernott v Jones this week. For those with an interest in the case, here are some different perspectives, including two from property lawyers:

Nearly Legal | Jones v Kernott: Ending the big debate? – “My hope is that this line of cases will somehow re-connect the law with everyday life to the extent that is possible.  It will undoubtedly lead to more litigation.”

Family Law | Hayley Trim’s Analysis – “I wonder how many judgments we will now see saying ‘I infer from the parties’ conduct that they intended that they would share the property in these shares. And in the alternative, even if it is not possible to infer such an intention, it is fair having regard to the whole course of dealing in relation to the property to impute such an intention to them.’ Probably quite a few.”

Law and Lawyers | Cohabitation: what about the house? Part 2 – “It is to be hoped that Jones v Kernott will have added some clarity to the law but statutory reform is urgently needed.”

Rowena Meager’s Property Law Blog | Jones v Kernott (Round 4) - “I read the Supreme Court’s judgment with a sense of disappointment.”

Bundled off

It’s a new dawn and Marilyn Stowe is feeling good about a future where digital files will replace bundles in court

A few years ago a judge walked into the High Court where we were all sitting – silks, juniors, solicitors, assistant solicitors – taking up the first three rows of the court. “Ah,” he said, “the typing pool!” Everyone looked round and smiled. We all had laptops in front of us, and were surrounded by bundles of documents and paperwork. I suppose the well of that courtroom did look like an old-fashioned typing pool, albeit one staffed mainly by sharp-suited men.

Although our profession has a reputation for being locked into the past – even our pink tape has been around for hundreds of years – cutting-edge technology is now everywhere. Solicitors wield the latest tablets, software companies with unpronounceable names pump out press releases about the big-name law firms scooping up their services – and there is even a blog, lawyertechreview.com, dedicated to “technology, gadget and app reviews for lawyers”.

Now it looks like our ‘typing pool’ is on the way out, to be replaced by its modern equivalent, ‘the paperless office’. Keir Starmer, the Director of Public Prosecutions, has announced that criminal courts are to “go digital” from April 2012, with paper files and case bundles scrapped. Instead, lawyers, judges and juries will handle and follow evidence on screens. He describes the move as “the biggest transformational change in a generation”.

Dragged forward

Critics fear that the plan to drag courts into the digital age has given scant consideration to the logistics. Richard Atkinson, the chairman of the Law Society’s criminal law committee, has described the change as “very much driven by central government as a money-saving exercise”. Others have asked about security, and what defendants’ fates will be if and when systems crash.

Security is a glaring concern whenever lawyers and technology meet. Even the most secure systems, ringfenced with the virtual equivalent of adamantine, are vulnerable to expert hackers. The UN, the Pentagon… why should our courts, or our own firms’ files and databases, be any less susceptible? And what about the thorny issues of access and confidentiality? Never mind that, if the courts go digital, confidential documents may be sent to an addressee in error, just as emails can.

What if, in error, confidential documentation from a case finds its way into the public domain? You can’t prevent human error, and that’s the problem: such a mistake would breach data protection legislation on a massive scale.

As a solicitor, however, I am thrilled that the paperless court is set to become reality. What a pleasure it will be. As every solicitor and every hardy trainee knows, ‘bundles’ are actually heavyweight lever arch files. They are a terrific chore to prepare, copy and dispatch to all relevant parties, especially when the bundles have to be transported from one end of the country to the other.

Unexplained disappearance

Usually, at some point in a case, the contents of those lever arch files will be cross-checked against the court bundle – and I am sure that I am not the only solicitor whose heart sinks when it emerges that the judge’s bundle is incomplete. Sometimes, he or she will have nothing. Somewhere, somehow, in the courts across the country, the documents have been swallowed up whole, never to be seen again. You might think that lever arch files aren’t so easy to lose when they are piled high, with the name of the case and the court number typed in bold, black print. But, as most of you will know, the court can perform disappearing acts worthy of Houdini. When this happens, the case can be adjourned because the judge ‘hasn’t read the papers’ (how many times do we hear that?) or somebody will be sent out to photocopy hundreds of papers as quickly as possible. With a digital courtroom there will, of course, be digital glitches, but at least documents will be sent and retrieved quickly, efficiently and with minimal effort. I certainly shan’t miss lugging those great suitcases of files up and down stairs and into courtrooms.

Here at our firm, a small digital revolution of our own took place last year when fee earners were given iPads. A gimmick? Far from it: those iPads get so much use that many of us would not now be without them. I have become addicted to mine. Whether I am in the office or out of it, I can type my emails on a fair-sized screen. Because it is connected to our system network, I can see at a glance what is happening with each and every one of our cases, even when I am many miles away. At the same time, I can easily retrieve and refer to reported judgments online. In short, I now have the contents of our bookshelves and filing cabinets with me at all times, and I can see how valuable this would be to judges, lawyers and parties within a courtroom setting.

It is inevitable that, if Keir Starmer’s digitisation of the criminal courts is successful, other areas of law will follow. If security concerns can be adequately addressed, then I’ve seen the future – and there isn’t a wheeled suitcase in sight.

NB. Since filing my Solicitors Journal copy, I have been contacted by Jordan Publishing’s Family Law, asking if I would spread the word about its “new enhanced platform”. Coincidence or fate? Either way, this seems like a suitable place in which to give it a mention. The publication’s online services now include a complete up-to-date family law library and a mobile app version, free to Family Law Online subscribers, of its Family Law Reports.

One way to establish jurisdiction is via a form of residence in this country, but a major problem is the time frame involved. This is six months if the applicant is domiciled in this country, or twelve months if not.

Many clients are in no immediate position to assert that they have resided in this country for any recent period of time at all.

But there are two other potential avenues, assuming there ever was a connection with England, which allows you to proceed straight away and that is by asserting domicile, in one of two ways.

How to assert domicile

The first method, for European divorces that involve an applicant from an EU signatory country, is under Article 3(1) of Brussels II revised. The drawback is that both parties must be domiciled in this country. If that can be established, no prior period of residence is required.

The second, also outlined under Article 3(1) of Brussels II revised, is a “catch all” or safety net, for an applicant resident outside those EU countries. This method permits a petition to proceed “if no court of a contracting state has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun, the English court has jurisdiction.”

This means that in those non-EU countries, if either one of the parties is domiciled in England and Wales, it is sufficient to found jurisdiction in accordance with Section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973.

However it is not a free-for-all. There is also a second stage. Even if jurisdiction is established, then the judge must also consider whether the applicant’s connection with England and Wales is sufficient for the court to fully exercise its jurisdiction.

The case we are going to look at later in this post is a good example, because it will help readers to consider their own position and what might be required in terms of evidence, if they wish to go down this route.

But what does “domicile” mean?

Domicile differs from nationality, or residence. Domicile is the strongest connection a person can have to his or her country, and is acquired on birth. When born, a child’s domicile of origin is the domicile of his father if his parents are married, or his mother if they are not.

In Mark v Mark (2005) UKHL 42, Baroness Hale said:

“Domicile…is a concept of the common law.

“A person must always have a domicile but can only have one domicile at a time. Hence it must be given the same meaning in whatever context it arises.”

She added:

“It governs capacity to marry or to make a will relating to moveable property; it is one of the factors governing the formal validity of a will; the domicile of the deceased also governs succession to moveable property and is the sole basis for jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975; legitimacy, to the extent that it is still a relevant concept, is governed by the law of the father’s domicile; domicile is one of the bases of jurisdiction, not only in matrimonial causes but also in declarations of status or parentage under the Family Law Act 1976; it is the sole basis of jurisdiction to make an ordinary adoption order under the Adoption Act 1976, s 14, or a parental order under the Human Fertilisation and Embryology Act 1990, s 30. This is not an exhaustive list but it shows the particular importance of domicile as a connecting factor in family law.”

A child’s domicile of origin remains with him unless a domicile of choice is established. This arises “when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time”, as Lord Justice Buckley outlined in IRC v Bullock [1976] 1 WLR 1178.

Domicile of choice

So, in English law you are born with a domicile of origin determined by your parents. But you can change your domicile to a domicile of choice. Sometimes people do so intentionally, for example by advising Her Majesty’s Revenue and Customs that they are no longer domiciled in this country. Sometimes they do so by their actions. The taxman is wise to this. So there are a number of tests to determine if a change of domicile has really happened, before HMRC will give up on the tax.

So even though some parties may say that a domicile of origin has been changed one of choice, legally they may be found not to have done so.

The classic definition of domicile of choice is contained in the case Udny v Udny [2001] 1 FLR 921, which was decided in 1869. In that case, it was said:

“Domicile of choice is a conclusion or inference which the Law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time.

“To acquire a domicile of choice, a person must reside in a country with the fixed intention of settling there and making it his or her sole or principal home for an indefinite period. Residence simply means ‘physical presence in a country as an inhabitant of it’.

“Having acquired a domicile of choice, a person retains it until it is abandoned. Once abandoned, it is possible to acquire a new one. But if there is a hiatus, the domicile of origin revives.

“Abandonment only takes place when the person has left the country with no further intention of ever residing there again.”

If it can be established there is an intention to return to this country, for example, this may affect the decision. At Stowe Family Law we once had a case in which the parties had reserved burial plots in England for themselves, although they had moved overseas. When the wife wished to divorce it was a strong factor – if not the only one – to indicate that neither party had lost their domicile of origin.

Domicile and M v M

In the case of M v M [2010] EWHC 982, domicile of choice was considered in some detail. In this case, a wife issued a petition asserting jurisdiction because of her English domicile only. But her husband objected and the two stage process was undertaken by the court. Interestingly it was not the wife who had to prove her domicile, but her husband.

Mrs Justice Baron observed:

“The burden of proving a change of domicile lies on the party who asserts it. The standard of proof is the balance of probabilities. And cogent and clear evidence is required to show that the balance of probabilities has, ‘been tipped’ whether the issue is the acquisition or abandonment of a domicile of choice.”

Although the husband did not dispute that her original domicile of origin was English because her father was English, he argued that the wife had lost her domicile of origin and acquired a Danish domicile of choice.

But had she? This ultimately depends on the facts of each case which have to be considered in meticulous detail.

The family had spent four years in Denmark, which is not a signatory to the EU Council regulation. They had assets there (and none in England) and their children were of Danish nationality. Despite this, the court considered that the wife did not have the intention to remain in Demark indefinitely, and so held that that Denmark was not her domicile of choice.

The judge then went on to consider whether the court should nevertheless exercise its jurisdiction, applying the second stage of the test. Again, she pointed out that “the burden of proving that the balance of fairness requires a stay rests with the husband in this case for it is his application. It is not for him simply to show that England is not the natural or appropriate forum for the trial, but he must establish that there is another available forum which is clearly or distinctly more appropriate than the English forum.”

Mrs Justice Baron then followed Lord Goff of Chieveley in the House of Lords case of De Dampierre v De Dampierre in 1988 when he stated

“It is, desirable to consider the meaning of the expression “the balance of fairness” No doubt there are circumstances when it can plainly be perceived that it is more fair that proceedings should proceed in foreign jurisdiction than in this country. But experience has shown that there are difficulties. First, there are factors which cannot be evenly weighed. For one class of factors may be simply relevant as connecting the dispute with a particular forum whereas another class of factors (which may embrace the former) may point to injustice arising if the dispute is remitted to that forum. It is necessary, therefore, so to structure the inquiry as to differentiate between these two classes of factor, and to decide how each should be approached in relation to the other. Second, a factor may be such that its advantage to one party may be counterbalanced by an equal disadvantage to the other and a decision has to be made how such factors should be taken into account in considering “the balance of fairness” between the parties.”

Mrs Justice Baron, on the balance of fairness test, permitted the applicant wife to proceed in England. The judge stated: “When this case commenced and I read the written material, I thought that Denmark was a distinctly possible venue, but, as the case unfolded and the oral evidence emerged, it became abundantly clear the balance of fairness including convenience between these parties made this jurisdiction the more potent destination”.

So, if you are overseas and feeling despondent, what about asserting yours or your spouse’s English domicile, and letting your spouse argue the balance of fairness test against you… in England?

Postscript.

Professor Rebecca Bailey Harris has today given the firm a talk entitled “The New EU Maintenance Regulation” ( Council Regulation (EC)no4/2009) which came into force on 18th June 2011 and which deals with jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.

In so far as it relates to jurisdiction by virtue of the sole domicile of one party, as referred to above, there may be a problem obtaining a financial settlement if it also includes a maintenance element pursuant to the brand new Article 3 (d) (and the reference to nationality should be read as domicile for England) but as it is a new provision, there is no case law on the subject. The safer option might be to apply for a capital only type settlement with no element of maintenance contained within it.

This is a highly specialist area. I am alerting readers to it, but always, please, take legal advice.