Nottingham Family Law Associates

Social workers forced to return twin babies to their parents - Nottingham Post Article 15th June 2010

CITY social workers have been ordered to return twin baby boys to their parents after a judge ruled they should not have been taken away.

The boys were taken from their mother in hospital soon after their premature birth.

A Nottingham County Court judge made an interim care order in favour of Nottingham City Council authorising their transfer to temporary foster care.

But top family judge Lord Justice Thorpe said the move was unjustified.

He said there had been "no welfare concerns" brought up about the parents' ability to raise the boys "on a day-to-day basis".

And he said the reasons given for separating the twins from their parents "do not begin to meet the high threshold set by the authorities of this court".

Lord Justice Thorpe was sitting at London's Appeal Court with the President of the Family Division, Sir Nicholas Wall, and Mr Justice Hedley.

He said the county court judge had focused on the risk of the boys suffering "emotional harm" in their parents' care.

He said there were "historic" concerns about the parents' care of their older children, they had both striven to prove their parental skills and there was "no doubt as to their ability to care for the twins on a day-to-day basis".

The ruling means the boys must be returned to their parents as soon as practically possible, although a court hearing set for the autumn will decide their long-term future.

With the help of expert parental counselling, the couple hope to prove their long-term ability to raise their boys - who were born prematurely but are now in good health.

The ruling prompted loud sighs of relief from mother and father - both in their 20s - who later hugged their lawyers in gratitude.

The father said he was overjoyed by the court's decision, declaring himself "sick with relief".

Divorce Coaching

Those of us who have been through the divorce process know how stressful and harrowing it can be. You become heavily reliant on friends and family and at times use your solicitor as a sound bite and, at other times, you do not know which way to turn. It is likely that you will receive differing advice from a number of sources and the very people that you thought would help you often cause more confusion. Sometimes you will end up blaming the very people who you hoped would be able to help you. The difficulty is that many people are not trained in the one area that you need the most support. One of the most important issues in a divorce is being able to cope with your emotions and being able to make decisions yourself, thereby rebuilding your confidence and self esteem. Divorce is like a bereavement, you may have lived with one person for many years, confided in him or her as your best friend and all of a sudden you are on your own, having to deal with negative emotions such as guilt, blame, anger, rejection and fear. These emotions can and often do lead to low self esteem. You become reliant upon others to help you through the process and understandably so. It takes anywhere between 17 and 24 months for a person to readjust after a divorce. This is where a Divorce Coach can help assure clients. We often find that when we see clients, negative emotions cause problems in digesting information, making decisions and looking to the future. Whilst we do not expect miracles, we are acutely aware of the benefits that a Divorce Coach can bring to the legal process not only in respect of emotional adjustment but in saving costs and ensuring that clients remain as focused as possible in achieving their preferred outcome.

We have links with a number of Divorce Coaches with whom we work and who assist our clients in renewing their confidence, exploring new possibilities assisting clients to view matters objectively and make informed decisions. Telephone coaching is available in addition to face to face appointments.

If the benefit is gaining confidence, reducing the emotional stress of divorce and saving legal costs, then the message is clear. Divorce Coaches can help.

Time for Reform

With the ever increasing scrutiny of the Family Justice system by the media, has the time now arrived for a major overhaul of Family Law.

Whilst there are many aspects of Family Law that are commendable and work towards bettering children's lives, for example, the clear understanding that it is in a child's best interests to maintain a relationship with both parents and the recent legislation in respect of Forced Marriages, there are many areas which are now arguably outdated and do not properly take into account current family values. One of the areas which is coming under closer scrutiny is the criteria which relate to financial settlements upon divorce.

We are living in a society where divorce is the norm and marriage is on the decrease. More people are choosing to co-habit, but no political party has shown any particular enthusiasm for regulating the law in respect of co-habitees. This is despite the fact that there is such legislation in several other countries and many people must be wondering why a person's legal rights are so different after a 10 year marriage compared to a 10 year co-habitation, especially where children are involved.

To compare the legal position of a separating and divorcing couple makes interesting reading. Under the Matrimonial legislation, the court will generally give priority to the needs of the main carer of the children to include housing and financial support. The court will take into account factors such as unequal earning capacity, the health of either party, the duration of the marriage, the ages of the parties and, only if there is a surplus after needs are taken into account, the respective contributions of each party.

The law relating to co-habitation is significantly different. First, the court takes into account the fact that any jointly owned property should be shared equally, and other than for child maintenance, the incomes of each party cannot be shared. Further, if there are children involved, the court has the power to settle property upon one party during the children's minority, but only until the children reach adulthood. It is possible that the intentions of the parties during the relationship can be brought into account, but when this is not in writing, it is very difficult to prove. The duration of the relationship has little relevance, neither does the ages of the parties. The contributions made by each party is the main factor taken into account by the court and, unless the assets are considerable, needs have little or no relevance to the decision made by the court.

Whilst there is now some change in the way courts are approaching cases, e.g. by attaching more importance to pre-nuptial and post-nuptial agreements, it is not the role of the courts to make new law, but rather to apply the existing law. In so doing, there is little doubt that the wide discretion given to the courts in applying Matrimonial Law has lead to ever increasing litigation, delay and costs. The Matrimonial Causes Act 1973 which defines the law in relation to finances upon marital breakdown is now some 37 years old. At that time, marriage was the norm, co-habitation (at least with children) was unusual and there was a very clear expectation that when parties entered into marriage, it was for life. The law has always been traditionally slow in adapting to changes in social mores and as there is little empirical evidence to suggest that marriages are achieving better solutions for families and children than co-habitation, the question is now "when" rather than "if".

The catalyst to any change should be the reform of Matrimonial Law.

In the same way that the Children Act 1989 creates a presumption that it is in the interests of a child to maintain a relationship with both parents and that contact should therefore take place, a similar presumption now needs to apply in respect of Matrimonial Law. Scottish Law has already covered this point in part by limiting the length of any maintenance orders in favour of a spouse and other jurisdictions provide for "a starting point" for the division of matrimonial assets. Whilst, in recent years, the law has developed in this country to provide a starting point for the equal division of assets, needs will always trump contributions in low to middle asset cases and therefore equal distribution is uncommon in such cases.

So what can be constructively changed to improve outcomes for families upon divorce? First, the provision that the standard of living enjoyed by the parties during the marriage is relevant to needs, should have very limited application and only in respect of cases where assets exceed needs. Secondly, there needs to be a clear definition of needs to include a party's need for housing, income and provision upon retirement in low to middle asset cases. Thirdly, the fact that a party may be entitled to maintenance from the other party for life is now outdated and unrealistic, as we are no longer living in an age where one party works and the other party stays at home.

There needs to be greater emphasis on an equal distribution of the matrimonial assets. After all, if the parties enter into a marriage knowing that what they acquire jointly will be shared equally, greater attention is likely to be paid by the parties to acquiring joint assets rather than the individual spouse accumulating wealth. To do otherwise, raises a presumption that the non-owning spouse should be financially protected after the breakdown of the marriage whereas most people would now generally agree that the vast majority of marriages are now entered into on an equal and more realistic basis. The antiquated and anarchistic procedure whereby any agreement reached by the parties has to be approved by the Judge before it comes into effect, is a further example of the paternalistic nature of Matrimonial Law which has little application in a free and democratic society.

With the above proposals having been put into effect, there then needs to be an assimilation of the law relating to both marriages and co-habitation where children are involved.

Last, but not least, there should be closer case management of family cases, to include continuity of judiciary both in respect of any children and financial proceedings. The procedure in respect of financial cases should be more transparent. For example, the Financial Dispute Resolution Hearing takes place on a without prejudice basis which means that if either party does not accept the indication of the Judge, the Judge who has conduct of the final hearing cannot be made aware of the previous Judge's views on the case. This not only gives the parties a "second bite of the cherry", but it very much leaves the Judge who has conduct of the final hearing in the dark. The same Judge should therefore have conduct of both the Financial Dispute Resolution Hearing and the Final Hearing. After all, in cases involving the removal of a child by the state, the same Judge should, and often does, have conduct of both the Issues Resolution Hearing and the Final Hearing and is encouraged to give a view at the Issues Resolution Hearing and limit the issues for Final Hearing. As few would disagree that the removal of a child is likely to have a more profound and long lasting effect upon a parent than an order providing for the distribution of matrimonial assets, there seems to be little rationale for this disparity.

There needs to be an Early Intervention Programme relating to all aspects of family breakdown where children are involved. Quite often, the harm suffered by children during the early stages of family breakdown is at its worst and, in most cases, where court intervention is required, the delay of weeks and sometimes months before the children's position can be stabilised can be easily remedied by Judges identifying the issues and making orders at an early stage of the family breakdown. In a society where litigation is becoming more common, a greater use of alternative dispute processes such as Mediation and Collaborative Law need to be employed. Clear expectations upon the parties need to be expressed by the courts at an early stage of the case and, as a result, we should see savings both in respect of emotional distress, legal costs and court time.

There needs to be a general acknowledgement that the Family Justice System is not flawless. We as human beings are all being subjected to performance reviews. The Family Justice System should be no different. There should therefore be statistical evidence collated as to the number of residence/contact orders, the numbers of spousal maintenance orders, and as to how assets are being distributed in the various courts in England and Wales. To do so, will achieve a more consistent approach in judicial orders and where there is a significant disparity in one particular area, there is every reason that such disparity should be fully investigated and reported to the public.

Without an overhaul of the law, we are only likely to find more distress, worse outcomes and further widespread public disillusionment of the Family Justice system. No future government can afford such an outcome and action should therefore be taken sooner rather than later. To do otherwise, is only likely to result in trial by the Media and we are all aware of the damaging effects that the Media can have upon people's personal lives, particularly at times of high emotion and distress.

New "friendly" divorces. Nottingham Evening Post article 6th April 2010

To read the article about collaborative law and how it works click here

Nottingham office celebrate move

On 19th March, NFLA moved from their three floor premises over Caffe Nero on Angel Row into Albion House on Canal Street. The new offices are closer to the bus and train stations as well as the courts, and more importantly ARE ON THE GROUND FLOOR of the building! This makes it easier for clients with small children and/or buggies, and also for the staff - some of whom are now joining a gym to compensate for no more stairs!!!

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