Family Law Week has just produced the judgment in the case I mentioned in an earlier blog - the Court of Appeal has decided an appeal by a father against the very limited contact he was permitted with his child who lived with her lesbian mother her mother's long term partner.
You can see the earlier blog here: Designer families - can they ever work
I ended that post by asking the question, do I need to change my advice to clients? Is it now the case that what parents decide should be the caring regime for a child prior to birth should become a key factor in how the court determines the appropriate order to be made in Children Act proceedings? Well now we know the answer - it's no! I can carry on just as before.
The report is now on bailii and is quite short and digestible - A v. B and another
The oddity of the case at appeal is that there was actually no appeal against the order - just the judgment, the reasons for the order. In other words, the father didn't take issue with the amount or frequency of the contact ordered for the present, what he was unhappy with was the implications of the judge's thinking for future increases in his involvement in his child's life. The Court of Appeal shared those concerns.
Firstly, the recent idea of Hedley J to think of parenting in terms of principal and secondary carers has already been discarded. Thorpe LJ says of this, "I would not endorse the concept of principal and
secondary parents. It has the danger of demeaning the known donor and in
some cases they may have an important role. In the present case some
would say that the primary carer is the full-time nanny."
Secondly, it highlights the inherent weakness of limiting parenting to function or time spent. That really is the effect of that last sentence. It's the nanny who provides the majority of the hands on caring - how can we define the importance of a parent in terms of who picks up and drops off, who gets up in the middle of the night, who reads with the child and so forth? A good parent may well do all these things, but so, perhaps, does a good nanny!
Most importantly, for me at least, is the point about parents making their own plans before the child is conceived and then being forced to stick with them. Not so, says Thorpe LJ, and for me this is by far the most predictable element of the judgment - how could it be different? "I am cautious in reaction to Mr Howard's repeated
submissions that great weight should be attached to adult autonomy and
the plans that adults make for future relationships between the child
and the relevant adults. Human emotions are powerful and inconstant.
What the adults look forward to before undertaking the hazards of
conception, birth and the first experience of parenting may prove to be
illusion or fantasy. B and C may have had the desire to create a two
parent lesbian nuclear family completely intact and free from fracture
resulting from contact with the third parent. But such desires may be
essentially selfish and may later insufficiently weigh the welfare and
developing rights of the child that they have created." In other words, it's all about the welfare of the child, not the plans of his/her parents - and there's nothing revolutionary about that now is there?
One thing I found quite encouraging too was the Court's readiness to hear and allow an appeal even though it wasn't seeking a variation of the order itself, merely the reasoning behind it. Sometimes a judge can make the right decision but for the wrong reasons. However, that on its own won't be enough of a reason for appealing the decision. The key point in this case was that using the wrong reasoning was almost inevitably going to lead to complications for the future care of this child. That's why the appeal was both heard and successful.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Tuesday, 20 March 2012
Wednesday, 14 March 2012
Good news - judges like to do the right thing. Edgerton v. Edgerton
There's been one of those odd and complicated divorce cases in the Court of Appeal recently. It's all to do with a husband declaring that a significant part of the family assets, belong to his mate.
First the husband asserted that he owed his friend Mr. Shaikh a shed load of money. Then the story changed - actually Mr. Shaikh and he were in partnership and that a large sum of money and a house were actually partnership assets. Despite the fact that the wife had got an undertaking from the husband that he wouldn't dispose of his interest in various assets, including the "partnership" assets, the husband's friend began an action against the husband, claiming repayment of the debt. Then he discontinued that action and began a separate one, claiming that his partnership with the husband was dissolved and seeking an account of the partnership assets.
Withdrawing legal aid - stupid or what?
So now Mrs. Edgerton faces her first problem. She has legal aid for the divorce proceedings but the partnership action is in the High Court Chancery division. At one stage it is joined with the ancillary relief application but for unexplained reasons this is changed and the hearings are separate. It is not clear why, but she didn't have legal aid for the Chancery action. Legal aid to argue over the property division but no legal aid to decide how much property there is to divide. Penny wise, pound foolish!
As a result, Mrs. Edgerton loses the Chancery action and a large slice of the matrimonial pot looks as if it's going to disappear to the husband's close friend and associate.
However, the judge in the divorce proceedings, somewhat surprisingly, asserts that he isn't bound by the decision of the chancery court as to the partnership action. The order in the chancery action had been by consent between the husband and his friend as the wife's defence of it had been struck out for failure to comply with directions. In other words, the wife had unsurprisingly been out of her depth, she didn't have legal assistance and the husband had taken full advantage of this. As a result, the family judge makes an injunction which effectively prevents the chancery order being implemented, so the husband and his friend appeal against the injunction to the Court of Appeal.
At the Court of Appeal
Now it doesn't require a great deal of legal knowledge to appreciate that the wife's case in relation to the chancery order has problems. There aren't different High Courts - there's just the one and it simply has different divisions. That must and does mean that a decision of one division must bind all the other divisions. That's why in relation to disclosure issues, husbands have tended to go to the Queen's Bench Division for orders rather than the Family Division - the judges have a different approach and can still bind the family judge. So this was an appeal which was bound to succeed and it did.
But the Appeal judges clearly couldn't stand the thought of clear injustice being done. They thought long and hard and came up with a doctrine, based on uncontested facts, which would give the wife a remedy. They then set a timetable with detailed steps which would enable her to access that remedy.
So good news! Judges are hostile to injustice and will exercise their intellects and legal knowledge to secure justice for a litigant wherever possible. All is not yet as bad as it could be.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
First the husband asserted that he owed his friend Mr. Shaikh a shed load of money. Then the story changed - actually Mr. Shaikh and he were in partnership and that a large sum of money and a house were actually partnership assets. Despite the fact that the wife had got an undertaking from the husband that he wouldn't dispose of his interest in various assets, including the "partnership" assets, the husband's friend began an action against the husband, claiming repayment of the debt. Then he discontinued that action and began a separate one, claiming that his partnership with the husband was dissolved and seeking an account of the partnership assets.
Withdrawing legal aid - stupid or what?
So now Mrs. Edgerton faces her first problem. She has legal aid for the divorce proceedings but the partnership action is in the High Court Chancery division. At one stage it is joined with the ancillary relief application but for unexplained reasons this is changed and the hearings are separate. It is not clear why, but she didn't have legal aid for the Chancery action. Legal aid to argue over the property division but no legal aid to decide how much property there is to divide. Penny wise, pound foolish!
As a result, Mrs. Edgerton loses the Chancery action and a large slice of the matrimonial pot looks as if it's going to disappear to the husband's close friend and associate.
However, the judge in the divorce proceedings, somewhat surprisingly, asserts that he isn't bound by the decision of the chancery court as to the partnership action. The order in the chancery action had been by consent between the husband and his friend as the wife's defence of it had been struck out for failure to comply with directions. In other words, the wife had unsurprisingly been out of her depth, she didn't have legal assistance and the husband had taken full advantage of this. As a result, the family judge makes an injunction which effectively prevents the chancery order being implemented, so the husband and his friend appeal against the injunction to the Court of Appeal.
At the Court of Appeal
Now it doesn't require a great deal of legal knowledge to appreciate that the wife's case in relation to the chancery order has problems. There aren't different High Courts - there's just the one and it simply has different divisions. That must and does mean that a decision of one division must bind all the other divisions. That's why in relation to disclosure issues, husbands have tended to go to the Queen's Bench Division for orders rather than the Family Division - the judges have a different approach and can still bind the family judge. So this was an appeal which was bound to succeed and it did.
But the Appeal judges clearly couldn't stand the thought of clear injustice being done. They thought long and hard and came up with a doctrine, based on uncontested facts, which would give the wife a remedy. They then set a timetable with detailed steps which would enable her to access that remedy.
So good news! Judges are hostile to injustice and will exercise their intellects and legal knowledge to secure justice for a litigant wherever possible. All is not yet as bad as it could be.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Wednesday, 7 March 2012
Is this the most sordid ever? Ibuna v. Arroyo
When I first started in law, I dealt exclusively with crime and that was sordid. Then I moved into family and that was more sordid. However, until now I have always maintained that the most sordid work I do is contested probate. What can be worse than arguing over the property of someone who has just died? Well now there's an answer to that - arguing over a dead body!
It seems that Congressman Arroyo was a high profile member of the Philippines legislature. He was resident in both California and the Philippines and was domiciled, unsurprisingly, in the Philippines. In the early 90's he married for the second time but by 2005 that marriage had ended in separation. In 2006, he formed a new relationship with Ms. Ibuna and started annulment proceedings - we need to remember that the Philippines is a largely Catholic nation and annulment is to be preferred to divorce. Mrs. Arroyo litigated against him, securing an order excluding him from their family home in 2006.
In 2009, the Congressman made a will which in broad terms gave Ms. Iguna a life interest in his estate with the remainder going to his three daughters. In January 2012, the Congressman was in London for medical treatment - it seems that he had been ill for some time and had often come to London for treatment. On 26th January, he sadly died. By the time of his death, the annulment proceedings had still not concluded, so technically Mrs. Arroyo was in fact his widow.
So then the arguments really begin and they're all about the corpse! The Congressman's partner was well aware of his wishes for his funeral and other formalities and wished to carry them out. The Congressman's estranged wife was prepared to do the same but with one significant amendment - the Congressman had expressed the wish that the wake should be held at his family home. Mrs. Arroyo wanted to hold it at the former matrimonial home which coincidentally was in the same street. However, the suggestion in evidence was that if the wake took place there, the Congressman's partner of the last five or six years of his life wouldn't be allowed to attend.
As a result of this disagreement, the High Court Chancery Division had to hold two interim hearings and then a whole day hearing. Unsurprisingly, especially given that Mrs. Arroyo didn't participate in the hearing, the decision was to honour the Congressman's designation of his partner as his next of kin, with the support of at least two of his daughters. So by order of the English High Court, one presumes that the wake will now take place at 14, Badjao Street and not at 17, Badjao Street. Another triumph of British Justice, the envy of all the world!
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
It seems that Congressman Arroyo was a high profile member of the Philippines legislature. He was resident in both California and the Philippines and was domiciled, unsurprisingly, in the Philippines. In the early 90's he married for the second time but by 2005 that marriage had ended in separation. In 2006, he formed a new relationship with Ms. Ibuna and started annulment proceedings - we need to remember that the Philippines is a largely Catholic nation and annulment is to be preferred to divorce. Mrs. Arroyo litigated against him, securing an order excluding him from their family home in 2006.
In 2009, the Congressman made a will which in broad terms gave Ms. Iguna a life interest in his estate with the remainder going to his three daughters. In January 2012, the Congressman was in London for medical treatment - it seems that he had been ill for some time and had often come to London for treatment. On 26th January, he sadly died. By the time of his death, the annulment proceedings had still not concluded, so technically Mrs. Arroyo was in fact his widow.
So then the arguments really begin and they're all about the corpse! The Congressman's partner was well aware of his wishes for his funeral and other formalities and wished to carry them out. The Congressman's estranged wife was prepared to do the same but with one significant amendment - the Congressman had expressed the wish that the wake should be held at his family home. Mrs. Arroyo wanted to hold it at the former matrimonial home which coincidentally was in the same street. However, the suggestion in evidence was that if the wake took place there, the Congressman's partner of the last five or six years of his life wouldn't be allowed to attend.
As a result of this disagreement, the High Court Chancery Division had to hold two interim hearings and then a whole day hearing. Unsurprisingly, especially given that Mrs. Arroyo didn't participate in the hearing, the decision was to honour the Congressman's designation of his partner as his next of kin, with the support of at least two of his daughters. So by order of the English High Court, one presumes that the wake will now take place at 14, Badjao Street and not at 17, Badjao Street. Another triumph of British Justice, the envy of all the world!
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Monday, 5 March 2012
Am I the only person to be annoyed by this?
This is simply so sexist! Why do people think that this is an appropriate way to report or campaign on a serious matter?
Women and children could die
Well, what about men? Has this been completely forgotten then? Or perhaps nobody really took any notice of it in the first place!
Men get hurt too
Or this:
Men get killed as well
Or perhaps men dying doesn't really matter. To say that this latest shot in an otherwise worthy campaign is stereotypical would be a crashing understatement. Let's be clear - men deserve and are entitled to the protection of the law every bit as much as women or children. Making men invisible in terms of protection shows a callous disregard for 50% of the population. Quite rightly, that sort of attitude towards women has been pilloried for decades and the sort of overt discrimination which they suffered is at least expressly condemned if it has yet to be entirely eliminated.
Google domestic violence and you will find a plethora of sites discussing violence against women. Now that remains a national scandal and it seems that few of the initiatives of the last 20 years have had much effect in reducing its incidence. However, failing to recognise the existence of male victims and brushing them off as a statistical irrelevance is, I have to say, deeply prejudiced. Perhaps not consciously prejudiced but prejudiced nonetheless. The Lawrence enquiry found the police to be institutionalist racists. Is family law in danger of becoming institutionalised sexists?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Women and children could die
Well, what about men? Has this been completely forgotten then? Or perhaps nobody really took any notice of it in the first place!
Men get hurt too
Or this:
Men get killed as well
Or perhaps men dying doesn't really matter. To say that this latest shot in an otherwise worthy campaign is stereotypical would be a crashing understatement. Let's be clear - men deserve and are entitled to the protection of the law every bit as much as women or children. Making men invisible in terms of protection shows a callous disregard for 50% of the population. Quite rightly, that sort of attitude towards women has been pilloried for decades and the sort of overt discrimination which they suffered is at least expressly condemned if it has yet to be entirely eliminated.
Google domestic violence and you will find a plethora of sites discussing violence against women. Now that remains a national scandal and it seems that few of the initiatives of the last 20 years have had much effect in reducing its incidence. However, failing to recognise the existence of male victims and brushing them off as a statistical irrelevance is, I have to say, deeply prejudiced. Perhaps not consciously prejudiced but prejudiced nonetheless. The Lawrence enquiry found the police to be institutionalist racists. Is family law in danger of becoming institutionalised sexists?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Monday, 20 February 2012
Designer families - can they ever work?
Two recent cases have brought before the courts what you might term designer families. The more recent of these is awaiting a decision of the Court of Appeal, as reported by the Telegraph here:
Lesbian couple and the gay father
and concerns the care of a baby born to one of a lesbian couple, a homosexual friend being the father.
The earlier one, which has been troubling Hedley J for some little time, involves a homosexual couple and a lesbian couple and the care of two little girls whose father is one of the homosexuals.
P and L (1)
P and L (2)
Both these cases involve unconventional families, by which I mean that convention hitherto has meant one father, one mother and their various children. Of course it could be argued that statistically there is now a new, additional convention, namely two separated parents, two step parents and their children by previous relationships and possibly by the current one. However interpreted, they are defined by heterosexual relationships of varying permanence or duration.
Doing family differently
These two cases, however, demonstrate couples who are in settled long term relationships but, being same sex, cannot biologically produce children. Some external input is needed for this to happen and so a rather more planned approach has to be taken. In these two cases, the lesbian couple, when planning to start a family, decided that rather than go down the route of anonymous sperm donor, they wanted to know the father and for the father to have some sort of involvement in the child's life. Where the problems have arisen is that the fathers have a different version of what was agreed or expected.
I can't say that I blame the parties - to insist on reaching a written agreement before arranging the pregnancy seems even more calculating than entering into a prenuptial agreement. What's more, it couldn't be binding in any legal sense because a court being asked to exercise its Children Act powers in relation to such a child can and will only make orders which are in the child's best interests, regardless of what its parents may have previously agreed.
The worst form of equality?
Tragically, it seems that just as with heterosexual parents, same sex parents can also act according to their own preconceptions and wishes and neglect the child's best interests. ML and another v. RW and another, the Hedley J case, seems to have been particularly difficult. Here we have two girls, aged 10 and 6. A lesbian couple of longstanding and in a civil partnership sought a homosexual father for the children they planned. They intended that person to have involvement in their children's lives. They found a homosexual couple, also of longstanding, one of whom would be the biological father of the children. After some years, and the birth of the two children, the relationship between the couples fell apart and as things are now, the person sorting out contact has described the older girl as being very disturbed indeed by how things now are between the adults in her life.
"I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P." (my emphasis).
Equal inability to prioritise a child's needs is not an equality to strive after!
How to plan the new family structure
The judge describes the adults as being intelligent professional people. Perhaps the key part of his first judgment is as follows:
"As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected."
In his second judgment, Hedley J describes the family planning process in these terms: "The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between."
Sadly, contact between the second couple and the older child had, by the time of this hearing, broken down completely. The judge exhorted the adults, " Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role."
In his second judgment he gives guidance to those contemplating and planning an alternative family structure:
"Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties."
And how not to!
You see, what is clear both from this case, and the more recent one reported in the Telegraph, is that alternative families are still trying to force themselves into the mould of traditional families. Hedley J describes the primary parents this way - " they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents."
The case reported in the Telegraph looks very much like a rerun of the Hedley case in some ways. It involves " highly-paid professionals living in central London." The father's counsel has exhorted the court against ""importing traditional or stereotypical models", which shouldn't be too difficult, given Hedley J's comments. By contrast, the mother's counsel is recorded as saying,
"It is right that that agreement was reached; the court has to show more than lipservice to it and must give it considerable weight, otherwise there's no point having such an agreement."
"Notwithstanding their sexuality and that they acknowledge to that extent that they are an 'alternative family', the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family."
"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy."
"Their choice of family life for their child should be respected."
A new and exclusive test for alternative families?
So on the Hedley test, there is a stage to go through in disputes involving alternative family structures which just doesn't exist with the conventional models - what did the parents agree would be the involvement of the various adults?
So here is the key question for debate - to what extent should parents be entitled to plan and determine exactly what family structure should be provided for their children, where they are dependent on an outsider to achieve that family? And how far should an agreement made prior to a child's birth determine the nature and extent of the relationship he/she may have with a biological parent?
For years I have advised clients that there's no such thing as legally binding or final agreement about child care arrangements, as a court will only ever order what is in the child's best interests, when objectively viewed. Do I need to change that advice?
Lesbian couple and the gay father
and concerns the care of a baby born to one of a lesbian couple, a homosexual friend being the father.
The earlier one, which has been troubling Hedley J for some little time, involves a homosexual couple and a lesbian couple and the care of two little girls whose father is one of the homosexuals.
P and L (1)
P and L (2)
Both these cases involve unconventional families, by which I mean that convention hitherto has meant one father, one mother and their various children. Of course it could be argued that statistically there is now a new, additional convention, namely two separated parents, two step parents and their children by previous relationships and possibly by the current one. However interpreted, they are defined by heterosexual relationships of varying permanence or duration.
Doing family differently
These two cases, however, demonstrate couples who are in settled long term relationships but, being same sex, cannot biologically produce children. Some external input is needed for this to happen and so a rather more planned approach has to be taken. In these two cases, the lesbian couple, when planning to start a family, decided that rather than go down the route of anonymous sperm donor, they wanted to know the father and for the father to have some sort of involvement in the child's life. Where the problems have arisen is that the fathers have a different version of what was agreed or expected.
I can't say that I blame the parties - to insist on reaching a written agreement before arranging the pregnancy seems even more calculating than entering into a prenuptial agreement. What's more, it couldn't be binding in any legal sense because a court being asked to exercise its Children Act powers in relation to such a child can and will only make orders which are in the child's best interests, regardless of what its parents may have previously agreed.
The worst form of equality?
Tragically, it seems that just as with heterosexual parents, same sex parents can also act according to their own preconceptions and wishes and neglect the child's best interests. ML and another v. RW and another, the Hedley J case, seems to have been particularly difficult. Here we have two girls, aged 10 and 6. A lesbian couple of longstanding and in a civil partnership sought a homosexual father for the children they planned. They intended that person to have involvement in their children's lives. They found a homosexual couple, also of longstanding, one of whom would be the biological father of the children. After some years, and the birth of the two children, the relationship between the couples fell apart and as things are now, the person sorting out contact has described the older girl as being very disturbed indeed by how things now are between the adults in her life.
"I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P." (my emphasis).
Equal inability to prioritise a child's needs is not an equality to strive after!
How to plan the new family structure
The judge describes the adults as being intelligent professional people. Perhaps the key part of his first judgment is as follows:
"As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected."
In his second judgment, Hedley J describes the family planning process in these terms: "The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between."
Sadly, contact between the second couple and the older child had, by the time of this hearing, broken down completely. The judge exhorted the adults, " Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role."
In his second judgment he gives guidance to those contemplating and planning an alternative family structure:
"Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties."
And how not to!
You see, what is clear both from this case, and the more recent one reported in the Telegraph, is that alternative families are still trying to force themselves into the mould of traditional families. Hedley J describes the primary parents this way - " they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents."
The case reported in the Telegraph looks very much like a rerun of the Hedley case in some ways. It involves " highly-paid professionals living in central London." The father's counsel has exhorted the court against ""importing traditional or stereotypical models", which shouldn't be too difficult, given Hedley J's comments. By contrast, the mother's counsel is recorded as saying,
"It is right that that agreement was reached; the court has to show more than lipservice to it and must give it considerable weight, otherwise there's no point having such an agreement."
"Notwithstanding their sexuality and that they acknowledge to that extent that they are an 'alternative family', the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family."
"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy."
"Their choice of family life for their child should be respected."
A new and exclusive test for alternative families?
So on the Hedley test, there is a stage to go through in disputes involving alternative family structures which just doesn't exist with the conventional models - what did the parents agree would be the involvement of the various adults?
So here is the key question for debate - to what extent should parents be entitled to plan and determine exactly what family structure should be provided for their children, where they are dependent on an outsider to achieve that family? And how far should an agreement made prior to a child's birth determine the nature and extent of the relationship he/she may have with a biological parent?
For years I have advised clients that there's no such thing as legally binding or final agreement about child care arrangements, as a court will only ever order what is in the child's best interests, when objectively viewed. Do I need to change that advice?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Tuesday, 14 February 2012
Now this is genuinely frightening! Lloyds TSB v. Markandan and Uddin
The property market is in the doldrums and the problems which beset lenders find their way inevitably to the doors of the surveyors and solicitors who advise them. However, the Court of Appeal has just handed down judgement in a case against a firm of solicitors which is rather out of the ordinary. It's the case of the fake solicitors! It's the rather shocking tale of a firm of solicitors having its identity stolen.
Deen Solicitors was a legitimate firm in Luton. So far as I can tell, they no longer trade but back in 2007 they certainly did. One of their solicitors was Jagtar S. Dhuphar. In August 2007, someone called Victor Davies presented himself at another firm of solicitors, Markandan and Uddin, in Wanstead, saying that he had agreed to buy a house and was getting a mortgage of close to £750,000 to complete on it. He instructed M & U to act for him and soon they heard from the Holland Park office of Deen Solicitors. Unfortunately, although Deen Solicitors wrote on appropriate letterhead and talked the right language, the firm didn't actually have a Holland Park office - they had been the victims of identity theft! Mr. Dhuphar didn't work in Holland Park and had nothing to do with this correspondence, even though it was purportedly his reference and signature on the letters.
The transaction meandered through to its intended conclusion, which was a planned simultaneous exchange of contracts and completion and this was the first error. If there had been a traditional exchange and completion separated by about a week, in which a deposit had been sent and signed contracts exchanged, perhaps the eventual problem would have been detected - well perhaps, anyway!
You see the true situation was that the owners of the house had no idea that their home was supposedly being sold! They were in America and the house was occupied by tenants.
Now there were various signs which could have made M & U suspicious, not least the fact that their client purportedly made payment of the difference between the purchase price and the mortgage direct to "Deen" and not via themselves. The conspiracy was so brazen that at one stage apparently, someone claiming to be Mr. Dhuphar came to M & U's office for some reason or other - doubtless to add artistic verisimilitude to an otherwise bald and unconvincing narrative, as W S Gilbert might have put it. Suitably lulled, M & U agreed completion by post and, bizarrely, after some unsatisfactory correspondence, sent over £700,000 to "Deen" without receiving even a signed contract, still less an executed transfer.
By the end of September, "Deen" had vanished, having never actually existed of course. Unsurprisingly, the bank's £700,000 plus vanished with it and does not seem to have been seen since.
There are two big worries arising for solicitors as a result. One is the potential for identity theft of solicitors firms where a criminal determinedly fakes a practice. There is huge scope for stealing money as a result and not just by this particular type of mortgage based scam. In fact, this should have been one of the harder frauds to pull off. There were clear warning signs that something was badly amiss, as the Court of Appeal found when dismissing M & U's appeal. However, suppose that those signs had not been present - what then? Suppose that instead of failing to supply the necessary documents, "Deen" had sent through forged documents. The fact is that solicitors are used to dealing with firms from all over the country, especially since the advent of referrers sending work to whichever firm is prepared to pay them a referral fee. It never occurs to us to seek evidence confirming the identity of another firm of solicitors - are we now going to have to?
More troubling is an aside made by the Court in the judgment. " If any such forgeries had duped the purchaser's solicitors, they might also have duped HM Land Registry, and the outcome might have been that purchaser and chargee would have been respectively registered as proprietors of the property and charge. By statutory magic, that would have given them titles to the property and charge respectively, albeit titles vulnerable to claims by the victims of the fraud to have the register rectified against them (see Schedule 4 to the Land Registration Act 2002). Such claims might or might not succeed." (My emphasis). It's this last point which will alarm the public. One would have thought that if documents are nothing more than forgeries, there should be no question about setting aside a transfer, surely? Is it really possible that a more competent fraudster could have deprived the legal owners of their property?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspo.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Deen Solicitors was a legitimate firm in Luton. So far as I can tell, they no longer trade but back in 2007 they certainly did. One of their solicitors was Jagtar S. Dhuphar. In August 2007, someone called Victor Davies presented himself at another firm of solicitors, Markandan and Uddin, in Wanstead, saying that he had agreed to buy a house and was getting a mortgage of close to £750,000 to complete on it. He instructed M & U to act for him and soon they heard from the Holland Park office of Deen Solicitors. Unfortunately, although Deen Solicitors wrote on appropriate letterhead and talked the right language, the firm didn't actually have a Holland Park office - they had been the victims of identity theft! Mr. Dhuphar didn't work in Holland Park and had nothing to do with this correspondence, even though it was purportedly his reference and signature on the letters.
The transaction meandered through to its intended conclusion, which was a planned simultaneous exchange of contracts and completion and this was the first error. If there had been a traditional exchange and completion separated by about a week, in which a deposit had been sent and signed contracts exchanged, perhaps the eventual problem would have been detected - well perhaps, anyway!
You see the true situation was that the owners of the house had no idea that their home was supposedly being sold! They were in America and the house was occupied by tenants.
Now there were various signs which could have made M & U suspicious, not least the fact that their client purportedly made payment of the difference between the purchase price and the mortgage direct to "Deen" and not via themselves. The conspiracy was so brazen that at one stage apparently, someone claiming to be Mr. Dhuphar came to M & U's office for some reason or other - doubtless to add artistic verisimilitude to an otherwise bald and unconvincing narrative, as W S Gilbert might have put it. Suitably lulled, M & U agreed completion by post and, bizarrely, after some unsatisfactory correspondence, sent over £700,000 to "Deen" without receiving even a signed contract, still less an executed transfer.
By the end of September, "Deen" had vanished, having never actually existed of course. Unsurprisingly, the bank's £700,000 plus vanished with it and does not seem to have been seen since.
There are two big worries arising for solicitors as a result. One is the potential for identity theft of solicitors firms where a criminal determinedly fakes a practice. There is huge scope for stealing money as a result and not just by this particular type of mortgage based scam. In fact, this should have been one of the harder frauds to pull off. There were clear warning signs that something was badly amiss, as the Court of Appeal found when dismissing M & U's appeal. However, suppose that those signs had not been present - what then? Suppose that instead of failing to supply the necessary documents, "Deen" had sent through forged documents. The fact is that solicitors are used to dealing with firms from all over the country, especially since the advent of referrers sending work to whichever firm is prepared to pay them a referral fee. It never occurs to us to seek evidence confirming the identity of another firm of solicitors - are we now going to have to?
More troubling is an aside made by the Court in the judgment. " If any such forgeries had duped the purchaser's solicitors, they might also have duped HM Land Registry, and the outcome might have been that purchaser and chargee would have been respectively registered as proprietors of the property and charge. By statutory magic, that would have given them titles to the property and charge respectively, albeit titles vulnerable to claims by the victims of the fraud to have the register rectified against them (see Schedule 4 to the Land Registration Act 2002). Such claims might or might not succeed." (My emphasis). It's this last point which will alarm the public. One would have thought that if documents are nothing more than forgeries, there should be no question about setting aside a transfer, surely? Is it really possible that a more competent fraudster could have deprived the legal owners of their property?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspo.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Thursday, 2 February 2012
Here we go round the mulberry bush
Question - How do you meet your commitment to reduce child poverty in the UK? ("The coalition government has pledged to support families and maintain the goal of ending child poverty in the UK by 2020." BBC report 20 May 2010)
Answer - you charge parents a fee and a percentage in order for them to secure maintenance from absent parents. Simples!
The news from the Commons last night was the reversal of the Lords amendments to the legislation which will mean that applicants for child support to the CSA will have to pay an upfront fee of up to £100 for making the application. There will also be a percentage charge of 9-12% of the maintenance collected. The justification advanced for this is that people should be encouraged to make their own agreements as to the payment of maintenance. The problem with this is that it expresses a profound ignorance of how we came to have the CSA in the first place.
Now for some leading politicians, this ignorance is understandable if not excusable. The first Child Support Act was passed on 25 July 1991. At that time, David Cameron was 24 years old, Nick Clegg was also 24 years old and George Osborne was just 19! However, it's actually Ian Duncan Smith who has responsibility for the Welfare Reform Bill which is intended to enact the present changes and he was 37 in 1991. So why doesn't he remember what was going on then? Sure he was first elected the following year, but wasn't he keeping tabs on the politics of the day? The Act was easily controversial enough to merit consideration and being remembered for future reference.
Before 1991, parents could make their own agreements. They routinely did so. But the Conservative government of the day decided that parental agreements and even court orders, made by consent or otherwise, simply weren't producing enough maintenance and the state was being called upon to make up the shortfall. Hence the CSA and its formulae. Now the Conservative led government of the day has decided that we can safely go back to the old arrangement of people deciding for themselves, with an agency to resolve any disputes. Not so very different from the system which existed prior to 1991, just without the flexibility (or uncertainty!) of the courts.
Would anyone like to start a sweepstake on how long it is before manifest deficiencies become apparent in this brave new world?
POST SCRIPT newbiscuit.com has just blogged about the Welfare Reform Bill - you really need to read it!
newsbiscuit benefit caps
Answer - you charge parents a fee and a percentage in order for them to secure maintenance from absent parents. Simples!
The news from the Commons last night was the reversal of the Lords amendments to the legislation which will mean that applicants for child support to the CSA will have to pay an upfront fee of up to £100 for making the application. There will also be a percentage charge of 9-12% of the maintenance collected. The justification advanced for this is that people should be encouraged to make their own agreements as to the payment of maintenance. The problem with this is that it expresses a profound ignorance of how we came to have the CSA in the first place.
Now for some leading politicians, this ignorance is understandable if not excusable. The first Child Support Act was passed on 25 July 1991. At that time, David Cameron was 24 years old, Nick Clegg was also 24 years old and George Osborne was just 19! However, it's actually Ian Duncan Smith who has responsibility for the Welfare Reform Bill which is intended to enact the present changes and he was 37 in 1991. So why doesn't he remember what was going on then? Sure he was first elected the following year, but wasn't he keeping tabs on the politics of the day? The Act was easily controversial enough to merit consideration and being remembered for future reference.
Before 1991, parents could make their own agreements. They routinely did so. But the Conservative government of the day decided that parental agreements and even court orders, made by consent or otherwise, simply weren't producing enough maintenance and the state was being called upon to make up the shortfall. Hence the CSA and its formulae. Now the Conservative led government of the day has decided that we can safely go back to the old arrangement of people deciding for themselves, with an agency to resolve any disputes. Not so very different from the system which existed prior to 1991, just without the flexibility (or uncertainty!) of the courts.
Would anyone like to start a sweepstake on how long it is before manifest deficiencies become apparent in this brave new world?
POST SCRIPT newbiscuit.com has just blogged about the Welfare Reform Bill - you really need to read it!
newsbiscuit benefit caps
Blog Disclaimer: Nothing in http://www.blogger.com/www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
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