Family Law News 4th- 18th October 2010

1) Domestic Abuse
The link http://www.familylaw.co.uk/articles/Wall15102010 stated that:

“15 OCTOBER 2010
The President of the Family Division has said in a speech given yesterday to a Resolution conference on domestic abuse that family judges focused too much on the future of relationships instead of investigating allegations of domestic abuse.” “…Sir Nicholas said: "Judges, I suspect, came late to realise the true evil of its effects on victims and on children. The ethos of the Children Act 1989 was perceived by many, myself included, as non-blameworthy, un-recriminatory. Look forward, not back. The relationship is over: don't spend time raking over its embers: look to the future. "I suspect that this attitude prevented a number of us from investigating allegations of domestic abuse, and also stopped us permitting victims to advance abuse as a reason - to take just one example - for denying contact."
"Both the Family and Criminal jurisdictions are increasingly complex and it very rare for practitioners to be expert in both fields. As a result, there is little real understanding of the procedures by each of the other area, and in particular of, for example, the practicalities of sharing information across the two jurisdictions," the judge said.”

2) Child Maintenance and Enforcement Commission, LSC and other bodies

The link http://www.familylaw.co.uk/articles/CMEC14102010 stated that:

“14 OCTOBER 2010
The government has announced this morning that the Child Maintenance and Enforcement Commission (CMEC) is … to be scrapped. Specific details of what will replace CMEC have not yet been announced, only that it will be brought under more direct Ministerial control as an executive agency of the Department of Work and Pensions who will have responsibility for its functions.”  In addition it stated that “…the Legal Services Commission is to be abolished and its functions moved to the Ministry of Justice. The Legal Services Ombudsman, which oversees the handling of complaints about lawyers in England and Wales, is also to be completely abolished by 2011. Non-Departmental Public Bodies to be retained on the grounds that they perform a technical function which should remain independent of the government include the Family Justice Council, the Family Procedure Rule Committee, the Law Commission of England and Wales and the Legal Services Board. However there is still some doubt over the future of Cafcass pending the outcome of the Family Justice Review Panel…” “Also under still under consideration is the Office of the Children's Commissioner which is subject to a formal review to be finalised by the end of November.”

3) Pre- nuptial agreements

The link http://www.familylaw.co.uk/articles/Radmacher14102010 stated that:

“14 OCTOBER 2010
… the Supreme Court has confirmed that the ancillary relief case of Radmacher v Granatino will be handed down on Wednesday 20 October.The appeal is against the Court of Appeal's decision in Radmacher v Granatino [2009] EWCA Civ 649, [2009] 2 FLR 1181. The case will give guidance to practitioners as to the status and effect of pre-nuptial agreements, including the weight to be attached to agreements and the expectations on lawyers and the parties in relation to them.”

4)  Media accessing the family courts

The link http://www.familylaw.co.uk/articles/Media11102010 stated that:

“11 OCTOBER 2010
Justice Minister Jonathan Djanogly has stated that the government has decided to wait until the Family Justice Review has published its final report before determining whether to allow more media access to family courts. Part 2 of the Children, Schools and Families Act 2010 received Royal Assent in April, but the provisions in Part 2, which relates to the reporting of family court proceedings by the media, have not yet been commenced.” “Part 2 of the Act is controversial amongst many family lawyers due to concerns about the diminished protection provided to the welfare and privacy of the child, the undermining of key ethical principles underscoring the work of professionals such as doctors and social workers, and the delay and cost which the system would have to bear. The House of Commons own committee on human rights questioned whether the measures conflict with the UN Convention on the Rights of the Child.”

5) Legal Aid and Mediation

The link http://www.familylaw.co.uk/articles/MoJ071010 stated that:

“MINISTER WARNS THAT LEGAL AID COULD BE CONDITIONAL ON MEDIATION
07 OCTOBER 2010
More people should consider mediation rather than going to court to sort out family disputes, Justice Minister Jonathan Djanogly has told radio listeners.” “"Often it's dealing with contact with children or intimate personal relationships that really shouldn't be going before the courts. We are determined to look at this." There were nearly 45,000 child custody cases in England and Wales last year, costing the legal aid system £143m.The minister said that he didn't think it is right that the taxpayer has to "foot the bill" for the courts process in non-violent cases because parents won't mediate.” “"There isn't enough knowledge within the courts system and, I have to say, with lawyers as to the benefits of mediation."”

6) Japan and Child Abductions

The link  http://www.familylaw.co.uk/articles/Japan051010 stated that:

“05 OCTOBER 2010
The US House of Representatives has passed a resolution calling on the Government of Japan to address the problem of abduction of US citizen children to Japan. The resolution also calls on Japan "to work closely with the US Government to return these children to their custodial parent or to the original jurisdiction for a custody determination in the United States, to provide left-behind parents immediate access to their children, and to adopt without delay the 1980 Hague Convention on the Civil Aspects of International Child Abduction".” “According to the House of Representatives, Japan has never issued and enforced a legal decision to return an abducted child to the United States.” “In his International Family Law opinion piece last week David Hodson explained: "Under Japanese law, only one parent is given parental authority which then gives exclusive entitlement to decide all issues regarding the child including location of residence. There is no statutory visitation or contact entitlement to the other parent who has almost no say in the child's subsequent upbringing such as education, health, adoption etc. There are no or minimal joint or shared parental residency arrangements.
"Japan is not a member of the Hague Convention and is unlikely to join soon, contrary to some expectations."”

7) Professor Eileen Munro’s review

The link http://www.familylaw.co.uk/articles/Munro041010 stated that:

“04 OCTOBER 2010
Professor Eileen Munro has published the first part of her review of how to remove the barriers and bureaucracy in child protection services. Part One: A Systems Analysis seeks to understand why previous reforms have not led to the expected improvements to practice and outcomes.” “Professor Munro concludes that while previous reforms were well intentioned and often well designed, they were frequently made in isolation and in response to specific incidents. She says the cumulative effect of this has been to create an imbalance at the front line where professionals focus more on complying with process and regulations than to providing a service that meets the needs of children and young people.” “The review was announced by the government in June and will consider changing the case management structure from social workers functioning within a hierarchical structure to working in small autonomous teams of five that handle cases together. Each team has an administrator who does the paperwork allowing the social workers to spend more time with vulnerable children.”

Court cases of interest
The link http://www.familylaw.co.uk/articles/ECJC40010 stated the case of:
“ABDUCTION: J MCB V LE (CASE C-400/10 PPU)

14 OCTOBER 2010
 (European Court of Justice; 5 October 2010)
The Irish father and British mother cohabited for more than 10 years and had three children. The family had lived in the UK but were resident in the Republic of Ireland when the mother left home with the children…” “The father applied to the Irish court seeking rights of custody but before the court case, the mother flew to England.” “The English court sought determination by the Irish authorities as to whether the removal of the children was wrongful. The Irish court held that the father had no rights of custody and that the removal had not been wrongful. On the father's appeal, the Irish court asked the ECJ for a preliminary ruling as to whether Brussels II precluded a member state from requiring an unmarried father to obtain a custody order in order to qualify as having custody rights. The ECJ confirmed that a member state is not precluded from making the acquisition of rights of custody by an unmarried father dependent on obtaining a court order.” “‘Rights of custody' is an autonomous concept independent of the law of member states, but it is for the member state to determine who has rights of custody at the relevant time.”
The link http://www.familylaw.co.uk/articles/EWHC20710 stated the case of:
“LEAVE TO REMOVE: J V S (LEAVE TO REMOVE) [2010] EWHC 2098 (FAM)

13 OCTOBER 2010
 (Family Division; King J; 2 July 2010)
The Japanese mother and Swedish father were based in England with two children. Following divorce the mother decided she wanted to move with her children (aged 10 and 8) to Japan, in part because of the recent bad health of the maternal grandparents but also because the mother's life and social opportunities were generally much greater in Japan. The father refused permission and the mother sought permission from the court. The father responded with an application for shared residence. There was evidence that the mother was becoming seriously ill which was associated with her depression.” “… the court held that the mother's health would suffer if permission was refused. The mother was to take on the burden of arranging contact and maintaining complete flexibility as to contact in Japan whenever the father was able to visit.”