Nottingham Family Law Associates

Recent NFLA case - contempt

Slade v Slade [2009] EWCA Civ 748

Here the wife gave an undertaking, following divorce and residence proceedings, that she would not harrass or pester the husband or encourage others to do so. The husband applied for a committal order on the basis of six allegations of contempt; these included, setting fire to his motorcycle and causing other damage to his home; sending 117 text messages; creating a direct bank account debit and making false allegations about him to the benefits agency. At earlier criminal proceedings the wife was put on probation for 12 months for the offence of malicious damage to the motorcycle. The civil judge found the six allegations proved and sentenced the wife to 18 months imprisonment for the motorcycle contempt, 21 months for the text messages and a range of prison terms for the further contempts. These were to be served concurrently and resulted in a sentence of 21 months. The wife appealed against that sentence on the basis it was excessive.

In allowing the appeal and reducing the contemnor's sentence to six months in total, the Court of Appeal held that the true principle, reflected in s.3(7) and (8) of the Protection from Harassment Act 1997, was that conduct should not be punished twice. The second court should not so much reflect "the prior sentence" in its judgment as decline to sentence for such of the conduct as had already been the subject of punishment in the criminal court. The judge had been right to conclude that the overall sentencing exercise in relation to the six contempts in principle demanded a series of immediate terms, all to be served concurrently. He was entitled to assess the gravity of the conduct however the 21 month sentence for the text message contempt was grossly excessive, the harassment was non-violent and not even face to face.

Wellingborough office celebrate new premises

When the Wellingborough office opened in February 2008 we expected it to be successful, but the volume of business took us by surprise. In March 2009 we moved from a serviced office in the Wellingborough Innovation Centre to bigger premises on Church Street, Wellingborough. The business has continued to grow at an unprecedented rate, and in order to accommodate additional team members we have today moved again into a three storey building on Sheep Street.

Celebrity chef trying to serve up a change in the future of divorce cases

The celebrity chef Marco Pierre White may be about to change the way in which some divorce cases are fought in the future.

White recently won a landmark ruling which allows him to pursue damages against his estranged wife and her lawyers, Withers LLP, for the way in which they obtained personal papers belonging to him in order to use the information against him in court. It has been alleged by White that his soon to be ex-wife, Mati, unlawfully intercepted numerous documents including an important commercial contract from P & O as well as a personal letter from his estranged daughter Letty in order to prove that he was not fully disclosing his true financial position. This information was then passed onto her lawyers for use in the divorce proceedings.

Following the Hildebrand case in 1992 the practice of using documents found by way of legitimate means has been widely accepted in the English courts. The courts will generally allow evidence contained within such documents to be admitted, sometimes even when they have been improperly obtained, because there is an overriding duty on parties in family financial litigation to provide full and frank disclosure of their financial situation. It is therefore in the courts interest to generally allow the admission of such evidence in order to gain a more accurate picture of a party's finances, thereby foiling any secretive spouses.

However, Mr White has been able to successfully argue that the interception of documents by Mati, and the subsequent concealment from him, went beyond the practice allowed under Hildebrand. White argued that Mati not only incepted the documents unlawfully but that she then retained them to give to her lawyers rather than copying the documents before presenting them to him, as is the perhaps controversial yet more established practice. The situation appears to have been further compounded by the fact that Withers LLP took their time over disclosing the documents, which numbered 42 in total, to Mr White and his representatives. This was a view shared by the Court of Appeal who have recently found that White should be allowed to pursue damages against Withers LLP. The case is to proceed by way of High Court trial later this year.

This ruling may well affect the way in which estranged couples now prepare for the inevitable financial disputes arising from Divorce proceedings. Parties to Divorce proceedings must be aware that although they are allowed to take photocopies of documents found they must not use any type of force or deception to obtain them and that these must be disclosed to the other side as soon as is practicable. Parties therefore going through the divorce process would be advised to exercise caution with their personal documents especially those kept via online products or PC based material and should always consult a solicitor specialising in family law for guidance on this subject.

Sunday Times article 15th June

A SECOND case has emerged of a woman who has had her children taken away from her and been prevented from objecting because she was judged "too stupid" by the authorities.
Lawyers acting for the 24-year-old from Nottingham, who has had two daughters adopted, say she has since shown herself far brighter than was believed when the original judgment was made.
But it is now too late for her to go back to court for the return of her children.
Last month, The Sunday Times reported a similar case of a mother deemed too unintelligent to care for her child.

The plight of the women has highlighted the role of the official solicitor, the state lawyer appointed to represent them, but who declined to contest either case.
New figures show that hundreds of parents have had the official solicitor, currently Alastair Pitblado, imposed.
Since January 2006 his department has been brought in to represent 588 parents deemed to "lack the mental capacity" to instruct lawyers in cases where their children faced the possibility of adoption.
Last month The Sunday Times highlighted the case of Rachel, also a 24-year-old from Nottingham, who is taking her legal challenge to the European Court of Human Rights after her three-year-old daughter was ordered to be adopted because she was ruled not to be intelligent enough to care for her.
In the latest case the mother's two daughters were both adopted in 2006 after a health worker noticed that her living conditions were unsatisfactory.
Before the case was finalised in court, however, it was decided that the woman lacked the intelligence to instruct her own lawyer, which led to the official solicitor being brought in. A psychologist's report gave her a low IQ but said her learning disability would improve in time.
The mother insisted that she wanted to keep her girls but the official solicitor said she did not have a case at the time and did not contest the adoptions on her behalf.
Her solicitor, Simon Leach, who runs Nottingham Family Law Associates, said: "I would have liked her to have given evidence, or certainly have someone speak on her behalf, so it could be explained at length why she should keep her children. But the system would not allow it.
"At that time she had little or no understanding of what her children needed but she was very loving of her children and still is.
"But I sat down with her last week and she was using words she could never have used before. It was clear to me that her level of understanding had improved considerably."
Leach said there were still question marks over whether she would be able to care properly for the girls but since the adoption had already happened the issue could no longer be addressed. "It's too late now," he said. He added that his firm had been involved in up to 20 cases in which their clients were handed over to the official solicitor.
The official solicitor typically declines to contest any final care orders.
Leach said this was because the system did not allow the official solicitor to do so.
He said: "I think the official solicitor should be able to put a case. It's not just about justice, it's about justice being seen to be done."

posted by NFLA | 12:58 PM | 0 comments

Thursday, June 18, 2009

Case report in Nottingham Evening Post 17 June 2009

A LAWYER is calling for a review of the way people with learning disabilities are treated after a second Nottingham woman had her children removed because social workers decided she was not intelligent enough to care for them.
The Post has already reported on the case of Rachel Pullen, 24, whose daughter was taken into care soon after being born.
However, solicitor Simon Leach, of Nottingham Family Law Associates, says another 24-year-old woman was recently prevented from objecting to her daughters' adoption because of her low IQ.
Mr Leach, who has been assisting the unnamed 24-year-old in the so-called stupid mum case, said the final hearing was held last week - and although he was impressed by how the woman's understanding had developed, it was too late to make any difference to the adoption.
Mr Leach said: "The issue is whether or not these parents are identified at an early enough stage, and whether there is enough input from Nottingham City Council to offer them support which they need to improve upon their level of understanding."

Ms Pullen is continuing her court battle to prevent her daughter being adopted. Last week Nottingham City Council was granted a permanent injunction by Family Division judge Mr Justice Hedley banning publication of the name of her daughter, her present or future whereabouts, or the names of the present or any future carers.
Ms Pullen has contact with her daughter once a month. She said as she left court: "Social workers tell me she will be adopted within three months, but I have been given contact with her for the next six months.
"She calls asks why she can't live with me. They have said I lack parenting skills and would not be able to take her to the doctor. But it is hard to keep track of their excuses. I will continue to fight the adoption and am taking my case to the European Court of Justice."
Ms Pullen is being assisted by Liberal Democrat MP John Hemming, who has raised the case in Parliament. He said there were various applications pending to stop the adoption.
"The argument they used to take [her daughter] away in the first place was that she was ill and Rachel was so stupid she was incapable of taking her to the doctor or looking after her," said Mr Hemming. He said he believed that argument was "complete rubbish and ludicrous".
He added: "The Family Justice system is on trial here. The expert claimed that Rachel had learning difficulties, and that has been proved to be wrong."
A spokesman for Nottingham City Council said they were not able to comment on individual cases.

posted by NFLA | 3:01 PM | 0 comments

Monday, June 8, 2009
Saturday opening June 2009

On 6th June 2009 we are pleased to launch our Saturday morning surgery, offering free advice on matrimonial, divorce, finance, residence and contact matters in our Nottingham office. The office will be open from 9.00 am to 1.00 pm every week. No appointment is necessary, but if you think you may qualify for legal aid, please bring in proof of income obtained within the last 28 days.

posted by NFLA | 7:44 AM | 0 comments