Family Law News 23rd February – 8th March 2011

Mediation

23.02.2011: The government has released details about the mediation protocol, which from 6th April will make participation in mediation mandatory for couples involved in contentious divorces. They will have to attend a mediation awareness session, where the benefits of mediation will be explained to both parties before they decide whether the service is right for them.  The protocol does not apply to couples not planning on contesting terms in court. The person initiating the case will have to engage a professional mediator, who will contact the other party to arrange a mediation awareness session that can be carried out either with both parties present or individually. Evidence of this session will have to be presented before the case is accepted by the court. Fears have been expressed though that there are an insufficient number of professional mediators available to support the system. Practice Direction 3A states that applicants do not have to have used a mediator if the applicant has contacted three mediators within fifteen miles of their home, and none of them can conduct the Mediation Information and Assessment Meeting within 15 working days of contact. With the expected increase in demand, some legal professionals have expressed fears that this loophole will be easily exploitable. Source: http://www.familylaw.co.uk/articles/Mediation23022011-635

Hague Convention on Child Abduction

28.02.2011:  The Government of Singapore is establishing a central authority to implement its obligations under the Convention. This will come into effect from 1st March. The Japanese Government is consulting with experts in March to consider acceding to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Source: http://www.familylawweek.co.uk/site.aspx?i=ed80419

Legal Aid

28.02.2011: The judiciary has published its coordinated response to the legal aid consultation paper, written by a sub-committee of the Judges’ Council. They acknowledge the financial pressure which the system is under, but raise a number of concerns regarding the current proposals. Chiefly, they fear that there will be a great increase in the number of litigants-in-person in the legal system, and that this will produce significant costs and delays in the courts. They are also concerned that access to justice will be lost to many, and that it will be increasingly difficult to attract able legal professionals to undertake this work.
The Council of Circuit Judges reiterated these points. They also claimed in their response that the gateways to funding are too narrow, particularly as they disregard abuse towards other members of the household. They expressed doubt that out of court options such as mediation would be able to cope with the number of cases the Government hopes it will take on. The Association of District Judges concurred, pointing out that cases with alcohol abuse, drug abuse or mental illness can be just as complex as those where there is domestic abuse, but are not eligible for funding. Source: http://www.familylawweek.co.uk/site.aspx?i=ed80420

01.03.2011: The London legal aid firms Blacklaws Davis and TV Edwards will be merging on 1st May, 2011. Blacklaws Davis are to join TV Edwards, along with London criminal law and care work firm Dundons. In light of the proposed cuts in legal aid provision, the merger will allow for greater efficiency savings, as well as creating a firm with of heightened size and influence, which will be able to exert greater influence on the provision of legal aid services. Source: http://www.familylaw.co.uk/articles/legalaidmerger01032011-635

Child Maintenance

06.03.2011:  CMEC estimates that 91,000 children a year are now benefiting from arrangements made between parents who both contact Child Maintenance Options following separation. This represents an increase of 30,000 on last year. CMEC estimates that a similar number of children benefit from arrangements made after one parent contacts Child Maintenance Options. To encourage wider use of the service, parents on tax credits who contact HMRC to report changes in circumstance following separation can now request a call-back from Child Maintenance Options. Source: http://www.familylawweek.co.uk/site.aspx?i=ed80699 

Legal Professionals

02.03.2011: Sixteen family lawyers were included in the 120 newly appointed Queen’s Council. All are barristers. Seven family lawyers received silk in 2010. Those appointed this year were:

Timothy Bishop, 1 Hare Court
Barbara Connolly, 7 Bedford Row
Tina Cook, 42 Bedford Row
Katharine Davidson, 1 Hare Court
Nkumbe Ekaney, Albion Chambers
Rex Howling, 4 Paper Buildings
Gwynneth Knowles, Atlantic Chambers
Stewart Leech, Queen Elizabeth Building
Alistair MacDonald, St Philips Chambers
Sarah Morgan, 1 Garden Court
Leslie Samuels, 3 Pump Court
Howard Shaw, 29 Bedford Row
Christopher Wagstaffe, 29 Bedford Row
John Wilson, 1 Hare Court
Jeremy Weston, St Ives Chambers 
Catherine Wood, 4 Paper Buildings

Source: http://www.familylawweek.co.uk/site.aspx?i=ed80489

Divorce

07.03.2011: A recent survey conducted by Opinium Research for the investment management firm Rensburg Sheppards has found that 35% of parents are unwilling to leave an inheritance for their married children when they die, as they fear that the money will go to their child’s spouse in the event of a future divorce. Additionally, one in four parents revealed they were not confident that their children’s marriages would last. Source: http://www.familylawweek.co.uk/site.aspx?i=ed80706

Court cases of interest:

24.02.2011: Care: RE D (A CHILD: CARE ORDER) [2011] EWCA CIV 34: The father had been convicted of four serious offences involving child pornography and attempting to procure an underage girl for sex, for which he had served a prison sentence and undergone treatment. Although expert reports indicated he had made significant progress, he remained on the sex offenders register. The mother subsequently discovered she was pregnant, and a judge made a full care order. On appeal, it was found that the judge had been wrong to make a full care order at the point that she did as it ignored expert evidence that the father was a low risk to his daughter, which meant that with further work it may be possible for the family to live together. Due to Art. 8 and the Children Act 1989, s1, the decision for a full care order has to be one of last resort. The reference of the judge to a level of risk not supported by expert testimony, and a refusal of further expert assistance obtainable without a significant detrimental effect on the child, meant that the implementation of a full care order was not a last resort in this case, leading to the appeal being upheld.

25.02.2011: O (Children) [2011] EWCA Civ 128: Child Abduction: The mother and father originated from Nigeria, but had met in the United States. The father, and their children, held dual US/Nigerian citizenship. The mother took the children for a holiday to Nigeria in February 2009, and subsequently informed the father that they would not be returning to the US. The father initiated court proceedings in the US both for the return of the children and an application for sole custody, during which he misled the court about both the whereabouts of his children and the contact that he had with them. The father began legal proceedings in Nigeria in November 2009. 
    The mother and children came to England on holiday in July 2010. The father’s application under the Hague Convention prevented the mother and children from leaving the UK, with the father seeking the return of the children to the US. Although the judge noted that proceedings had begun more than 12 months following the children’s removal, and that the children were settled in Nigeria, the judge rejected the mother’s other defenses and exercised his discretion to return the children to the US.
    In the Court of Appeal, Lady Justice Black referred to Re M (Abduction: Zimbabwe) [2007] UKHL 55 [2008] AC 1288, and that Hague Convention policy factors are only one issue among many to be considered when deciding whether children ought to be returned. As such, the Court of Appeal found that the first-instance judge had placed too great an emphasis upon the Convention factors, without considering them in their totality and relating to the individual circumstances of the children. Numerous factors, such as the children not considering the US to be their home, the presence of extended family in Nigeria, and the fact that the mother had never concealed the whereabouts of the children, led the court to uphold the mother’s appeal. Source: http://www.familylawweek.co.uk/site.aspx?i=ed80351