Thursday 26 January 2012

Is there no end to the compensation culture?

Surely the ambulance chasers have gone too far this time?  There's a depressing new judgment on bailii.

Santa and his elf

It seems that a Mrs. Dufosse, together with family members, went to see Santa in his grotto in November 2009.  (Just don't get me started on the subject of how early it is appropriate to be getting into the festive spirit!).  Anyway, Mrs. Dufosse soon found herself on her back in the grotto and in some pain.  Underneath her was an icicle.  This being in November and in a centrally heated store, Selfridges to be exact, it was, of course, an artificial icicle.  Santa's little helpers, the ones from the insurance company, denied liability, so her claim for compensation went to trial before a district judge.

At trial, the main focus was whether or not the whole accident had been faked.  The insurers claimed that there had been no icicle there at all.  Now this was curious to say the least, because there undoubtedly was a plastic icicle there by the time the Selfridges first aider arrived.  Going equipped to claim could be a new offence under the Theft Act perhaps?  Unsurprisingly, that issue was resolved against Santa - the judge was satisfied that there had been an icicle there and that Mrs. Dufosse had fallen because inadvertently she had stepped on it.

The judge found that Santa's helpers had performed a very competent risk assessment, so there was no breach of statutory duty.  Good to see that Santa is well on top of modern Health and Safety Regulations!  Santa and his attendant elf said that although the lighting in the grotto was dim, it would have been bright enough to have seen the icicle on the floor.  However, the judge at first instance found Santa and his elf to have been blameless - it was just one of those thing, an accident.  The Court of Appeal, however, thought differently.

Lord Justice Rix said, "in my judgment, the learned district judge took an overly benevolent view of the performance by Santa and the Elf of their duties in this case and I would allow the appeal."  For some reason, the good Lord tends to write in long sentences with plenty of subordinate clauses.  Here's an example:
" It is true that Santa sat for the 90 seconds or so between one lot of visitors and the other on his throne immobile with nothing else to do than to survey his dominion for the sight of any icicles on the floor. But if the question is: what is the correct inference to make as a matter of probabilities, either that the icicle on which Mrs Dufosse fell, although there, was not there to be seen, or that on this one occasion, Santa and his Elf were not as careful in taking precautions against impedimenta on the floor as they should have been; then, in my judgment, the proper and indeed only possible inference, ultimately, is that on the balance of probabilities, the icicle was there to be seen."  Which being interpreted means, Santa and/or his elf should have seen the icicle before Mrs. Dufosse trod on it and fell. 

So it transpires that Santa is indeed liable in damages to Mrs. Dufosse after all.  Elf and Safety gone mad, I think!  (You knew it had to be said, didn't you?)

Tuesday 24 January 2012

Discretion is the better part of family litigation

There's nothing new about the concept of privacy in family proceedings.  It crops up with some regularity both in relation to family finances and children proceedings.  My attention was drawn to this article in the Northampton Chronicle:

Northampton Chronicle

As far as I'm concerned, privacy is just common sense in family matters.  Few cases are of genuine broader interest to the public or to lawyers.  Any number of people think that their family dispute is out of the ordinary because of their opponent's behaviour, but sad to say, after years in family litigation, very little I encounter has the capacity to surprise me.  Yes, I can be disappointed by how clients and their former spouses treat each other but it very rarely comes as any sort of shock.

There's that old saying, don't wash your dirty linen in public.  In the family law arena, it has legal force, and with good reason.  People say and write things in family cases which years later they are almost certain to regret bitterly.  Worse, they can say things which cause the deepest imaginable embarrassment and hurt to their children.

The most notorious case of this type occurred last year and has so far resulted in prison sentences for two people.  Vicky Haigh was publicly "outed" by a High Court judgment last August - you can read about it here, for example:

Daily Mirror Vicky Haigh

Most recently, in December last year, Vicky has been imprisoned for three years for breaching an injunction which prevented her from having any contact with her daughter, presumably because the court decided that the way she behaved with her daughter was likely to cause harm to the child .  One of Vicky's supporters, Elizabeth Watson, was imprisoned at the time of the hearings in August, as reported here:

Elizabeth of the family Watson

So the message here could not be clearer - the Court will do whatever it has to in order to protect the child.  And one of the key interests of the child is not to have his/her privacy violated at the whim of one or other parent. Where there are individuals who refuse to comply with court orders, unfortunately the courts will have to exercise their powers to insist on compliance.  Whereas adults have some sort of control over their own destinies, children are uniquely vulnerable and so it is only right that first of all their interests should be foremost and secondly, that orders to promote their welfare should be enforced.

Friday 20 January 2012

It just doesn't work this way - thank heavens!


Just reading the title of this article is enough to raise the blood pressure.  The author is Kelly Rose Bradford and you can find a list of her articles for the Daily Mail at this link:

Kelly Rose Bradford Daily Mail articles

All very enlightening and moderate, I'm sure.  It seems that Kelly is a freelance journalist who writes for the Express as well as the Mail - now there's a surprise!  On her own website she describes herself thus: " Wearing my serious hat, I produce well-researched, thought-provoking, informative copy on health, pregnancy and birth, parenting and women's issues."  So which of these is the best descriptive term for her most recent article?

Option 1 - Well researched.  As this is just a rant about her own personal prejudices, research hasn't entered into the equation.  Nothing has been researched at all.  She has reacted out of her own apparently ungovernable emotions.  That has to be a fail.

Option 2 - thought-provoking.  Well, 1218 people have commented on the article as I go to press, and that in the space of only just over 24 hours.  Something has been provoked right enough.  As many of the replies are forceful but reasoned, perhaps thought has been provoked. The trouble is that I rather think that it would be equally accurate to describe it as "red mist inducing", where thoughts are certainly provoked but not necessarily constructive ones!

Option 3 - informative.  This falls foul of the same issue as option 1 - it's all entirely subjective.  It informs us of Ms. Bradford's prejudices but very little else.  An informative article would perhaps tell us whether in the wider community such a stance is considered acceptable.  Perhaps it would tell us how courts view this sort of reason for limiting contact with fathers (as it is most usually fathers who are affected).  No, it's just Ms. Bradford's take on what her son's father can and cannot do.  It doesn't even explain how it is that she believes that she has the right to dictate to her ex.

So does this article have any value?  Actually, it goes a little way to restoring my faith in human nature.  If you list the comments by approval rating, you find that all the top rated comments, entirely without exception, strongly take issue with our Kelly.  They find her actions and opinions obnoxious.  Conversely, the comments which are worst rated are all approving of the article.  The switch from disapproval to approval comes when the comments switch from supporting Kelly's stance to condemning it.

So what are the realities here?   Evidently the great British public simply doesn't share this restrictive and controlling approach.  What Kelly doesn't get, and most other people do, is that her son is not her possession.  I don't know why in this age of equality it remains the case that so many mothers see the children as theirs alone and not as shared with their fathers.

In my experience, courts firmly take the view that whereas it is appropriate to give a little time to allow children to get used to the new reality of separated parents before getting to know a parent's new partner, there is going to come a time when the new partner will have to come into the equation.  Just look at it from a practical perspective - let's say that Dad now lives with someone else.  In the dead of winter, if the children are not to be allowed to come into contact with the new lady, who is supposed to vacate their home when contact is taking place?  Does Dad have to take the children out on a miserable day, or does his new partner have to make herself scarce?  And who has the right to force this choice anyway?  Why does Mum think that she is allowed to call the shots?  The truth is that she isn't and if push comes to shove, a court won't permit her to.

That of course is the fatal flaw in Kelly's article.  She adamantly insists that there is no way she will allow it.  "There is just no way I am ever going to hand my little boy over every other weekend to play happy families with someone who is nothing to do with him."  But what if a court orders her to?  Is she going to disobey and find herself the subject of court sanctions?  How undignified and immature would that be?  Perhaps she needs to go down that route simply to get the benefit of the Separated Parent Information Programme ( - it certainly looks like she needs some serious help in getting a realistic view of how to do things. 

After all, it's not about her - it's about what's best for her son.  His voice is not even considered by her and his happiness is not even mentioned.  The reason for her ultimatum is her emotional demands and it has nothing to do with what's best for the child.  It's as well that the only standard the court applies is the child's welfare and that is why Kelly is ultimately doomed to fail.  There's no reason from the child's perspective that he should be excluded from any contact with his Dad's new partner, so a court won't forbid it.  However, it's clearly best for him to continue his relationship with his Dad, so a court will certainly make orders to ensure that he can.

Monday 16 January 2012

Your first visit to your family law solicitor

I have just come across Alan Larkins family law blog.  Alan is a member of the team at a specialist Brighton firm, Family Law Partners.  He has recently written an immensely helpful blog on how to prepare for a first meeting with your solicitor, focused mainly on the financial and property aspects of a separation.  I can do little better than to post a link to it:

Time is money, certainly as far as lawyers are concerned.  If you prepare yourself in advance for your meeting, you can save a serious amount of time and hence cling on to more of your money - what's not to like about that?  Alan's list of things to do also helps focus on what your solicitor need from you in order to help you and, by implication, by missing  things off the list suggests what things just waste time.  If it's not in the list, it's unlikely to be of any value.  It will just take up expensive time and reduce your bank balance. 

I know you feel deeply hurt by what your partner has done to you but a full blow by blow account of how things have fallen apart takes up a great deal of time and very rarely affects what a court is going to order.  That's something which is conspicuously missing from Alan's list, and with good reason!

Thursday 12 January 2012

Brevity – the soul of judicial discretion, and what’s wrong with equality anyway?

The problem with most appeal reports on family finance cases is that they concern cases which fall into a relatively exclusive category – ones where there's enough to go round! The reality is that the overwhelming majority of clients in practice are looking at dividing a pot which is insufficient to provide in full for what they each need for the future. Practitioners have to advise not on how to divide a surplus but how to manage two deficits!
Moor J has allowed the report to be published on bailii and early on he explains what the case was like: "This case was difficult for the District Judge and it has been difficult for me. There is simply insufficient capital and income available to cater for the needs of both parties." There's a terrible familiarity about that for most people separating and for their lawyers.
"The court has to be fair to both parties but, in one sense, the only way to do that is to balance the unfairness." I've always referred to this as 'the equality of misery principle'. The closest thing to justice most courts can manage is to ensure that both parties leave court feeling fed up!
The virtue of brevity
For the second time in recent days, an appeal judge has commented on the fact that the judge at first instance is not necessarily going to be exhaustive or detailed in his judgment. If it's a brief judgment, that doesn't mean it's appellable. Moor J quotes Thorpe LJ from 2003 when he said, "The more experienced the judge, the more likely it is that he may display the virtue of brevity. Certainly, it is not incumbent upon the judge to adopt some formula for judgment or simply to parrot statutory provisions. For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions."
This is the second time in a matter of weeks that Thorpe LJ has been quoted. Munby LJ quoted him in a children case recently when he said, "the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?" Thorpe LJ had previously observed that one should not ignore the "seniority and experience" of the particular judge, the "huge virtue in brevity of judgment", and that the "more experienced the judge the more likely it is that he may display the virtue of brevity." I should add that there is no obligation for a judge to go on and give, as it were, reasons for his reasons."
How the case played out
This was a Husband's appeal against an order by which the Wife got 70% of the matrimonial home, which was, as is normally the case, by far the largest asset. The Wife was also to be paid maintenance of £500 per month for four years, but without a bar on extending the term. It was a long marriage, with the children of the family now close to independence. The appeal was allowed, with the following reasons being given:
(a) It does not sufficiently reason the very significant departure from equality that is the effect of the order. Indeed, the judgment does not mention the need to justify a departure from equality.
(b) In so far as there is a needs justification for departure, it does not explain how the resulting capital order will fairly meet the needs of both parties, as opposed to the Wife alone.
(c) It does not adequately explain the interplay between the periodical payments order and the capital order.
It's perhaps the first of these which is most important. Where there's a long marriage, the court needs to explain expressly why an equal division of the assets would not be fair. As Moor J said, the inequality of income may well be the reason but the judge needs to say so if that's what it is. What's more, the judge has to take both parties difficulties into account. All too often, husbands feel that it's the wife's hardships which have the greater influence with the court. The judge at first instance simply didn't explain how the Husband would be able to live separately here. Both parties need to be able to live independently of the other. An order which doesn't provide for this falls foul of one of my other principles, "the park bench principle", which holds that an order which has the effect of leaving one party to sleep on a park bench falls foul of the court's duty to make such order as is just and reasonable in all the circumstances of the case.
The upshot of all this was that on appeal, the court dismissed the Wife's claim for maintenance, saving the Husband at least £24,000 over a four year period.
Lessons to be learned
  1. If the judge deals with the case in short order, that doesn't mean he/she hasn't dealt with it adequately. You need a lot more than that in order to have a successful appeal.
  2. At the end of a long marriage, equality of outcome should be regarded as justice, unless there's a clear reason that it isn't. To give one party the lion's share of the assets and leave the other with a continuing maintenance burden is going to be extraordinarily hard to justify.

Monday 9 January 2012

Is this unreasonable behaviour?

How about an erudite discussion on sham marriages, grounds for decrees of nullity and so forth?  Any takers?

Judges and children – AJ v. JJ and others [2011] EWCA Civ 1448

It sounds like a definition of people you should never work with. Animals are less of a problem!
Actually, I raise this as a topic because one of the oddities of Children Act proceedings is that judges very rarely meet with the children themselves. It seems strange that the person who has responsibility for deciding what is the best living arrangement for a child doesn't actually meet with that child face to face. I have known parents bring their child to court on the first occasion in the expectation that the judge will talk to him/her. It never happens that way.

Well why not? Even for adults, court hearings are traumatic and stressful events. Imagine the effect on children. They would come into an adult environment, burdened with the hopes and expectations of both parents and terrified of letting either one of them down. They would be afraid of the lash back from the disappointed parent once the court hearing was over. Given that the entire ethos of Children Act proceedings is to promote the welfare of the child, imposing stress and distress on the child would be to do the exact opposite of what the court is there for. So in general terms, children are spoken to by the Children and Family Reporter, who then reports back to the court what they had to say and what key information has been communicated by them.

However, the Court of Appeal has now suggested to judges that they may need to be rather more flexible. It arises from a case in which a mother had brought her children to England from Poland for a prearranged holiday. At the end of the holiday, she failed to return the children, despite the fact that the Polish court had ordered custody to the father years before. Shortly after withholding the children's return, she applied to the Polish court for a change of custody. The father, understandably, made an application under the Hague Convention for the immediate return of the children to Poland. The Polish court was seised of proceedings so there really seemed to be no defence to this.

At first instance, the High Court judge did indeed order their immediate return. The mother appealed. She argued that the judge had wrongly rejected an application for the children to be joined as parties on the basis of their objection to returning. The second limb of the appeal was that the judge should have taken the initiative and should have decided to see the children himself. This was because the children were being said to object very strongly to their return to Poland. 

The Court of Appeal decided that the second ground of appeal was made out. The judge should of his own initiative have decided to meet with these children. However, the clear guidance of the Court of Appeal was that the main purpose of the meeting was to enable the children to understand why the decision was being made and how their worries about returning had been taken into account. The judge would have the opportunity to see for himself whether the children objected in the way described to him. However, that was not the prime intention. 

Importantly, the court said, "The Judge's authority can be an influence for acceptance."
"These children understandably felt themselves to be vulnerable and lost in a complex legal landscape. They needed to understand that the proceedings in this jurisdiction were brought under an international instrument and were essentially summary in character. They needed to understand that they were habitually resident in Poland and that accordingly the Polish court had primary jurisdiction under Article 8 of Brussels 2 Revised. They needed to understand that any profound investigation of their future would be determined by the paramount consideration of their welfare and that the task of assessing that was for the Polish Judge. They needed to understand that their mother had initiated that process during the course of the summer holiday. They needed to understand that a summary return order might be a transient order dependent on the outcome of the mother's application for custody and relocation. They needed to be informed of the fundamental shift in their mother's case elicited by the Judge's questions."

In other words, the court didn't really question the merits of the decision itself but it was concerned that quite needlessly there might be serious disruption and distress for the children where, if someone took the trouble to explain to them just what was going on, that could all be avoided. Nightmare scenarios of protesting teenagers being bundled onto aeroplanes against their will could and should be foreseen and steps taken to prevent them happening. The court was saying that it was the judge who had the responsibility to make sure that this conversation happened. It's going to be extremely interesting to see what effect this may have on judges meeting children in the future.

Tuesday 3 January 2012

Same old myth, marginally different spin.

Every new year sees the same old recycling of the divorce myth.  You can find it here,,
and here,,
and even here,

No, it's not lawyers who say that this is traditionally the busiest day for divorces, it's journalists who traditionally say it at this time every year.  I confess that I'm now getting a little irritated by this.  You see I don't believe that most people see divorce as an impulse buy.  Rushing off in a temper to a solicitor is not something which people do.  The solicitor is actually the last person who gets consulted.  I suspect that family are first to hear the worst about a failing marriage.  Close friends certainly get to hear early.  It's only when other people who are close to a couple have said that they understand why there's a problem that one or other of them goes to see the solicitor.  Many couples actually seek professional counselling before going to a lawyer, and so much the better.  No, ending a relationship which was intended to be life long is a serious business and most people take it seriously.

Yes, I dare say I shall see plenty of new instructions before the month is out.  Perhaps some of them result from disputes which came to a head during what was meant to be the festive period.  However, there's no sign of a stampede yet today, just like all the previous years I've been doing this.