Family Law News 19th October – 2nd November 2010

1) Child Protection System reform
The link http://www.familylaw.co.uk/articles/LGA02112010 stated that:

“02 NOVEMBER 2010
The Local Government Association has warned that new evidence of the continuing staffing problems faced by council social work teams make reforms to the child protection system more urgent than ever to prevent vulnerable children slipping through the safety net…Funding for children's services is among budgets being reduced by 28% overall. The LGA has warned that deep cuts to local government's finances combined with higher demand for child protection work since the baby Peter Connelly case will pose very difficult questions for councils over how they can keep children safe. Baroness Shireen Ritchie, Chair of the Children and Young People Board at the LGA, says the Government needs to do more to reduce bureaucracy for social workers, freeing them up to focus on working directly with children…”

2) LSC and legal Aid contracts
The link http://www.familylaw.co.uk/articles/LSC27102010 stated that:

“27 OCTOBER 2010
The Legal Services Commission has announced it will not appeal against the High Court's judicial review decision to quash the outcome of the family tender round for new legal aid contracts. The Law Society brought the judicial review after the recent tender round of family legal aid contracts cut the number of firms by 46%. The LSC was given permission to appeal after the High Court ruled the LSC breached procurement law by failing to give advance notice of the requirement for panel membership. The court quashed the contracts in four categories of practice: family; housing and family; children only; and child abduction.
However, the LSC have… said that any appeal would only prolong the uncertainty over the future of family legal aid contracts, causing difficulties for clients and providers alike. The LSC is now working closely with representative bodies and the Ministry of Justice on how to manage family legal aid contracts as well as combined family and housing contracts…Earlier this month the LSC announced the extension of the current family contracts until midnight on the 14 December 2010.”

3) Social Work Reform Board
The link http://www.familylaw.co.uk/articles/BASW27102010 stated that:

“27 OCTOBER 2010
The British Association of Social Workers (BASW) has sharply criticised the Social Work Reform Board (SWRB) for contributing to the Family Justice Review without fully consulting the views of all Board representatives. In a letter to SWRB chair Moira Gibb, BASW's chief executive Hilton Dawson said the contribution had prompted ‘dismay' among many of the Association's membership, in part because of its reference to ‘duplicate assessments' in describing the roles of the children's guardian and independent social workers who offer expert testimony in family court proceedings…

BASW's view is that the SWRB report undermines the legitimate independent roles of children's guardians and ISWs, which the Association feels have separate and useful functions…The submission also questions the role of Cafcass children's guardians, describing their role as "superfluous in all but the most complex cases".
BASW insisted, however, that the SWRB analysis highlighted a lack of understanding about the work guardians do and the distinction between a local authority social worker, an ISW and the guardian. The tripartite system, said Mr Dawson, ensures a child is independently represented and that the whole assessment process is properly scrutinised by an independent social worker, measures he insisted are vital to ensure the best possible outcomes for children and families…”

4) Ministry of Justice and budget
The link http://www.familylaw.co.uk/articles/SpendingReview20102010 stated that:

“20 OCTOBER 2010
The chancellor George Osborne has announced in the government's spending review that the Ministry of Justice's budget will be cut by 23% from around £9.5 billion to £7 billion over four years. The MoJ has also announced that it expects to save £350m on legal aid, details of which are expected to be released in November. Reacting to the Legal Aid announcement, Law Society president Linda Lee said that while the figure of £350m is less than some had feared, losing this amount of money from the system will inevitably prove to be a significant blow to legal service provision and access to justice… The court service faces job losses of 2,950, of which 1,130 are expected to go as a result of closing 150 magistrates and county courts and legal aid reforms. Further budget cuts will be dependant on ministers achieving changes to sentencing, prisons and legal aid funding… The Law Officers Department, which comprises the Offices of the Attorney General and Solicitor General, will see a 24% cut to its budget…”

5) Prenuptial Contracts
The link http://www.familylaw.co.uk/articles/Radmacher20102010 stated that:

“20 OCTOBER 2010
The Supreme Court has found in favour of Katrin Radmacher and held that the Court of Appeal was correct in allowing the enforcement of a prenuptial agreement…In July 2009 Katrin Radmacher won her Court of Appeal case to enforce a prenuptial agreement that protects her personal wealth from legal claims by her former investment banker husband, Nicolas Granatino...The couple executed the prenuptial contract in Germany three months before they married in London in 1998 with Mr Granatino agreeing not to claim against his wife if they separated. In dismissing the appeal by a majority of eight to one, the Justices found the Court of Appeal was correct to conclude that there were no factors which rendered it unfair to hold the husband to the agreement...In reaching their conclusion the Justices considered three issues that arose in relation to the agreement.

Firstly, the Justices considered the circumstances in which the agreement was made. The Court held that parties must enter into a postnuptial agreement voluntarily, without undue pressure and be informed of its implications.
Secondly, the Justices considered if the foreign elements of the case enhance the weight that should be accorded to the agreement. The fact that it was binding under German law was relevant to the question of whether the parties intended the agreement to be effective, at a time when it would not have been recognised in the English courts. It follows that after this judgment, it will be natural to infer that parties entering into agreements governed by English law will intend that effect be given to them.
Finally, it considered whether the circumstances prevailing at the time the court made its order make it fair or just to depart from the agreement. It considered that a prenuptial agreement may make provisions that conflict with what a court would otherwise consider to be fair. The principle, however, to be applied is that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family, but respect should be given to individual autonomy and to the reasonable desire to make provision for existing property…”

6) Divorce Laws
The link http://www.familylaw.co.uk/articles/Lords19102010 stated that:

“19 OCTOBER 2010
…the House of Lords debated reforming the laws governing divorce, including prenuptial contracts and no-fault divorce.…
Speaking in favour of introducing compulsory mediation before legal aid is granted in matrimonial disputes, Lord Bach said that although we should be proud of our criminal law system, when it came to the "sensitive field of family disputes, is it really to be argued that confrontations in court should be the rule, rather than the exception?" "However, there is - I have heard lawyers say this themselves - a belief that some lawyers in the industry have from time to time merely paid lip service to the option of mediation. In some ways, one cannot blame them because the incentive is to keep the case going," Lord Bach added…”

7) Resolution and Family Justice Reforms
The link http://www.familylaw.co.uk/articles/Resolution19102010 stated that:

“19 OCTOBER 2010
…In an interview in The Times on Monday, David Norgrove, chair of the government's Family Justice Review, said that that keeping family disputes out of court would create huge cost savings and suggested that compulsory family mediation could be a way forward. Responding to Mr Norgrave's comments, chair of Resolution David Allison … said that 90 percent of family cases are already settled out of court, often with the help of a family lawyer. "We are deeply concerned that in its hurry to bring about cost-saving reforms, the Government is going to narrow the gateway to court to such an extent that those families who need it cannot access it."

David Allison also warned that the Government appeared to be rushing ahead with its support for mediation as the only solution to the problems of the family justice system without doing the groundwork. "How many suitably qualified and regulated family mediators are there in the country? Currently anybody can set up as a mediator. We understand that there may be fewer than 800 mediators who belong to a self regulating body and are concerned that there may not be enough mediators out there to meet demand if it is made compulsory in family cases, or if a compulsory assessment is required before going to court." He concluded: "We urge the government to properly investigate all alternatives, including collaborative law, arbitration and early parent information, before opting for a quick fix solution to the problems facing the family justice system…"

Court cases of interest

1) The link http://www.familylaw.co.uk/articles/ECHR1326 stated the case of:
“CONTACT/ HUMAN RIGHTS: MIJUSKOVIC V MONTENEGRO (APPLICATION NO 49337/07)

25 OCTOBER 2010
(European Court of Human Rights; 21 September 2010)
A divorced father refused to return young children following holiday contact. Social services ordered the father to return the children and attempted enforcement with police support.  The paternal grandparents physically prevented the enforcement. Warnings were issued by social services to the father, but he was not fined and no forcible transfer was attempted at this stage.  The father argued that the children did not want to return to their mother's care. The mother brought enforcement proceedings. The court eventually fined the father but when forcible enforcement was attempted, the children had been moved elsewhere.  At one stage the court granted custody to father on basis of informal discussion between the children and a psychiatrist. After almost four years, the children were finally transferred to their mother's care. In meantime the father had been found guilty of domestic violence towards the mother, but the conviction was overturned on basis that it was time barred. He had also been acquitted of child abduction. The mother alleged breaches of her human rights. The government argued that the mother had not exhausted effective domestic remedies.

Held, Convention only required exhaustion of remedies relating to breach alleged, which were available and sufficient. Breach of Art 8 made out in delay in enforcement. No explanation for delay in enforcing either social services' decision or court decision that children should be returned.”

2) The link http://www.familylaw.co.uk/articles/ECHR1544 stated the case of:
“CHILD SUPPORT: JM V THE UNITED KINGDOM (APP NO 37060/06)

22 OCTOBER 2010
(European Court of Human Rights; 28 September 2010)
The children were resident with the father, although the children spent two-and-half days a week with the mother. The mother was in a stable lesbian relationship, in a house purchased with her partner as joint tenants. The mother was required to contribute to the cost of the children's upbringing. The assessment of the mother's housing costs did not take into account her relationship, although would have done if she had been cohabiting with a man. The mother challenged the assessment, in part on the basis that it did not make full allowance for her housing costs. The appeals tribunal allowed the mother's appeal on the basis that it was appropriate to compare the mother's situation to that of an individual in a heterosexual relationship. The Child Support Commissioner upheld the tribunal decision, seeing no reason in context of child support legislation to distinguish between families according to the sexual orientation of the parents. The Court of Appeal upheld subsequently that decision. However, the House of Lords allowed the Secretary of State's further appeal.

Held, there had been a violation of Art 14 ECHR in conjunction with Art 1 of Protocol No 1. It was not readily apparent why mother's housing costs should have been taken into account differently than would have been the case had she formed a relationship with a man.”