Monthly Archives: December 2013

29th March 2014, save the date: The Marriage (Same Sex Couples) Act 2013.

7022101483_93a9ab73af_mToday has been a hectic day here in Harrogate. My job list has piled higher and higher, but luckily I got through most of it, a couple of non-urgent jobs will roll over until tomorrow morning. As I took a few minutes out to grab a bite to eat I browsed my twitter feed and came across a BBC News Article: Same Sex Weddings to Begin in March. This is welcome news and a step in the right direction for marriage equality.

On the 17th July 2013 the Marriage (Same Sex Couples) Act 2013 received Royal Assent allowing Same Sex Couples to marry legally within England and Wales. Same Sex Couples will now be allowed to get married from the 29 March 2014. In addition when Section 9 of the Act comes into force anyone who is registered in a civil partnership will be able to convert that partnership into a marriage. Ben Summerskill, chief executive of gay rights campaign group Stonewall, told the BBC that ‘this historic step will mean that, for the first time, every gay person in England and Wales will finally enjoy exactly the same rights as their heterosexual friends and family.’ Anyone wishing to marry on or soon after the 29th of March 2014 will need to give formal notice by the 13th March 2014. As of June 2014 same sex weddings in British consulates and armed forces bases overseas will be possible. Equality in marriage has been long overdue with the Civil Partnership Act 2004 only going a small way to bridge the gap.

The BBC News Article ends with ‘Equal marriage brings us one step closer to that day: the day when no one will question whether a marriage is between a man and a woman, a man and a man, or a woman and a woman. Their only question will be ‘where am I going to find a decent hat?’ Well crack on! You haven’t got long. March 29 will be here before you know it.’ A sentiment I whole heartedly agree with.

Marriage (Same Sex Couples) Act 2013:

BBC News Article, Same-sex weddings to begin in March:

Telegraph, The long walk to gay marriage in the UK isn’t over yet:

A quick summary of the effect of the act can be found here:

The Hague Convention and Re KL (A Child) [2013] EWCA Civ 865

3320757411_21924f04fa_mSo after my long weekend I am back and I feel more tired than I did on Thursday, I suppose packing in two weeks’ worth of activities into 4 days will do that to you. With Christmas just round the corner I suppose I will only get busier.  Talking of busy I walked in to the office this morning to be met by a jam packed day, hence why I am writing posting this somewhat latter than normal.

Over my long weekend I read the judgement that was handed down by the Supreme Court in the case of Re KL (A Child) [2013] EWCA Civ 865. The main question in this case, according Lady Hale (, was ‘how should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) which is later over-turned on appeal?’.

The facts of the case, in summary, are as follows: K is a young seven year old boy, born on the 7th August 2006 in Texas. He is a citizen of the United States of America. His father is a US national of Ghanaian origin, and his mother is a Ghanaian national currently based in the UK. They married in Texas in December 2005, where they lived until their divorce in 2008. In July 2008 the mother and child moved to England and remained there until February 2010, at which point the father was granted custody of the child. Along with custody the father was granted the right to designate the child’s place of residence by the Texas courts. However in August 2011, the mother started abduction proceedings in the Texas Federal Court alleging that the child had been habitually resident in England in March 2010 and that by acting upon the Texan court order the father was wrongfully retaining him in Texas. She obtained an order on the 10th August 2011 which required the father to immediately hand over the child and his passport. The father complied with the order on the 12th August 2011, the child and the mother subsequently travelled to England on the 14thAugust 2011. The father successfully appealed this order in July 2012. The mother then tried to appeal this, but her appeal was rejected and on the 29th August the Texan court made an order that required the mother to return the child to his father. The mother did not abide by the order and refused to return the child. The father thus issued an application for the return of the child in the UK courts under The Hague Convention on 9 August 2012 and then a further application in September 2012. Sir Peter Singer gave judgment in January 2013 dismissing both the father’s applications. The father then applied to the Court of Appeal, who dismissed his appeal on the 16th July 2013. The father was then given permission to appeal to the Supreme Court, and this is where we stood on the 4th of December 2013. The case had been heard and judgment was awaited.

Lady Hale upheld the appeal and stated that she would ‘order the return of the child to San Antonio forthwith on the basis of the undertakings offered by his father. But should the mother choose not to avail herself of the opportunity to return with her son, the order for his return will stand.’ The undertakings offered by the father being that he would enable the mother to live in Texas, separately from him, and allow the shared care of their son between them.

In her summing up Lady Hale stated that, ‘The crucial factor.. is that this is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. For as long as the Texan order remains in force, his mother is most unlikely to allow, let alone to encourage, him to spend his vacations in America with his father. Whilst conflicting orders remain in force, he is effectively denied access to his country of origin. Nor has his mother been exactly enthusiastic about contact here. The best chance that K has of developing a proper relationship with both his parents, and with the country whose nationality he holds, is for the Texas court to consider where his best interests lie in the long term. It is necessary to restore the synthesis between the two jurisdictions, which the mother’s actions have distorted. Despite the passage of time, there is not the slightest reason to consider that K would suffer any significant harm by returning to Texas on the basis proposed by the father. Indeed, the mother did not defend the Convention proceedings on the basis either of his objections or of a risk of harm should he be returned (although she did suggest that he had been settled here so long that to return would place him in an intolerable situation). Had it not been for our decision on habitual residence – which I accept that courts in some jurisdictions might consider debateable, it would have been our duty to return K to Texas under the Convention.’

This case was an appeal of the case of DL v EL [2013] EWCA Civ 865, a write up of which can be found here:

The full judgement can be read here:

Christmas Crackers and a Changing World

XmasSo today is the morning after our work Christmas night out. The night consisted of presents, Christmas crackers (I now have enough golf tees to set up a shop!!), a lot of food, and some funky cocktails. It was a fabulous night but I am sure I speak for all of us and say that a lot of coffee is going to be consumed today.

Right, back to business, today I am going to fill you all in on the recent update and modification of the Children and Families Bill. It was recently announced that children in care, in England, will be able to remain with their foster families until their 21st birthday. Currently, children in care have to leave their foster families at 18 years old, but this may be set to change.

The government has announced that it will spend £40m over the next three years to fund this plan. It should be introduced during the third reading of the Children and Families Bill next year. See, we have something exciting to look forward to past Christmas and New Year.

The reason behind the proposed change is that children at 18 years old are not fully prepared to leave care. The statistics show that the average age for young people who are not in care to leave home is between 24 and 27.

Children in care have stated that during the run up to their 18th birthday was not fun and games. This was clearly because after their birthday they would have to leave their foster family. I personally cannot imagine what that must be like. Therefore, allowing children to remain with their foster family seems like a perfectly sensible proposal.  Currently, a number of local authorities already offer the opportunity for children to remain with their foster family but this is limited by the little financial support they receive. Therefore, with this new proposal and the funding by the government, it will allow children to leave foster care once they are ready, rather than when they are told to by the council.

The Who Cares Trust, which campaigns to support children and young people in care, stated that this change represented the “most significant reform to the support children in care are given in a generation.”  This new proposal is certainly something for us to keep our eyes on and is sure seen to be another proposal that is paving the way for change in the family sector.

I feel like in addition to this update on family law news I also want to mention a man who dedicated his entire life to change. I am sure all of you know of Nelson Mandela, a truly inspirational man and one of the greatest pursuers of change.  He changed the world’s attitude towards equality and changed the history of South Africa. His story is one that shall never be forgotten and his life of dedication is one that inspires us all to strive for a better world.

“Education is the most powerful weapon which you can use to change the world.” – Nelson Mandela (1918-2013)

And with that I bid you all farewell.

International Liaison Judge and Lord Justice Thorpe.

4177519542_2e3307c179_mIn 1998 at the De Ruwenberg Seminar for Judges on the international protection of children, in the Netherlands, Lord Justice Mathew Thorpe first proposed the creation of an international network of judges. This network would involve one or more members of the judiciary being elected within each of the Contracting States of the Hague Convention. These judiciary would then act as a channel of communication between the Contacting States. They would liaise with their national Central Authorities, with other judges within their own jurisdictions and with judges in other Contracting States on international matters. Initially these matters would fall under the Hague Convention 1980, but it was envisaged that the scope of the matters the network would cover would grow incrementally over the years.

At present the International Network of Liaison Judges is made up of approximately 68 judges from 46 jurisdictions across the world. Further a European Judicial Network was created in 2002. ‘With the advent of the Regulation Brussels II Revised in March 2005, the Commission has recognised the importance of direct judicial communication and therefore the need to adapt the EJN (European Judicial Network) to cater for cross-border family proceedings. Accordingly Brussels’ meetings of the EJN are now periodically constituted with a purely family law agenda.’ (The Work of the Head of International Family Law, Lord Justice Thorpe). Lord Justice Thorpe’s article, published by Family Law Weekly in 2006 is an interesting read. It gives an insight into the establishment and expansion of the International Network of Judges and the role of the Head of International Family law, a position he occupied for some eight years. Lord Justice Thorpe was the International Liaison Judge for England & Wales until he retired on the 31st July 2013, replacing him now is Lady Justice Black.

The International Network of Judges allows a judge within one state to communicate with another state via their liaison judge. The Liaison Judge will then contact the Liaison Judge for the appropriate jurisdiction, if there is one. The liaison judge within the jurisdiction under question will then answer any questions they can or liaise with the appropriate judges within their jurisdiction in order to formulate a response. The parties within the case are kept updated continuously.

The jurisdictions of England & Wales and the Netherlands have gone one step further and created offices dedicated to dealing with difficulties in international cases. The Head of these offices is generally the elected International Liaison Judge for the appropriate jurisdiction. The offices filter enquires and deal with individuals from their own jurisdiction who wish to speak directly to a judge within any of the other jurisdictions or vice versa.

In 2005 Lord Justice Thorpe was appointed as the Head of International Family Justice for England and Wales. The position was created by the Lord Chief Justice Woolf and the Lord Chancellor in January 2005. The post was created in reaction to the steady and continued growth in international family law, something that has continued growing at an ever increasing rate. According to the Office of the Head of International Family Justice for England and Wales Annual Report of the 1st January 2012 to the 31st December 2012, the International Family Justice office is ‘a centre of expertise and helpdesk for general enquiries in the field of international family law for the judiciary and practitioners in this jurisdiction and overseas. Its main role is to support and facilitate cross-border judicial collaboration and direct judicial communication and to enhance the expertise necessary for handling the large numbers of cases relating to aspects of private international law.’ The Report goes on the state that ‘since the Office’s establishment, practitioners, judges, litigants, charities, government officials and others, from the UK and abroad, have requested its assistance year on year. 2011 saw a 96% increase in requests on 2010. 2012 [continued] the trend. 2012… [requests exceeded] what was estimated in the 2011 Annual Report. This is mirrored in terms of jurisdictions the Office has dealt with. 2012 saw the Office receive requests concerning disputes relating to 71 jurisdictions, a 40% increase on 2011. Of those 71 jurisdictions, the Office was able to offer meaningful assistance in relation to 46 of them (c.65%).’

It is obvious that the offices and the networks are facing increasing demand and this is only likely to grow as transnational migration, marriage and family life increase. We would all love to start over in the sun and as more and more of us choose to do just this, the more the law, the legal systems and the jurisdictions need to adapt. The International Network of Judges appears to work well in confronting the issues of transnational communication and it will hopefully go on to develop. Arguably the next step could be to create an international database of cases which are currently proceeding in each jurisdiction, the database being open to all courts and judges within the jurisdictions. This would then allow judges to quickly access information on whether a case is proceeding within another jurisdiction and could greatly assist in arguments relating to jurisdictional and transnational legal issues.

And with that my working day has come to an end, the wind is howling outside, hurtling down the chimney and into our office, luckily the heating is keeping us warm. Not so luckily I have to venture outside in a few minutes to run to the train station. I have a four day weekend ahead, however, so I can’t complain. In my absence I am sure Charlotte and Becca will be keeping you suitably entertained and informed.

The Annual Report of the Office of the Head of International Family Justice for England and Wales of the 1st January 2012 to the 31st December 2012 can be found here:

The Work of the Head of International Family Law by Lord Justice Thorpe can be found here:

Another article of interest is, The Judges’ Newsletter on International Child Protection vol. XV / autumn 2009 – Special Focus, Theme 2, P. Lortie, which can be found here:

Photo by jbachman01 via Flickr under a Creative Commons license

Contact orders

Charlotte blog picYesterday, I was speaking with a friend who has tried endlessly, and to no avail, to have contact with her father. It appears that despite his actions, she wishes to have a relationship with him simply because he is her dad. So, it got me thinking about contact orders. Working at the firm, I have seen many people requesting contact orders so that they can maintain a relationship with their child/children, after the breakdown of their relationship. However, after talking with my friend, I started thinking ‘if only she could have imposed a contact over her father’! This is (unfortunately for her), not possible, so today I thought I would tell you all about contact orders, namely, what they are and what they do.

The effect of a contact order: –

As well as dealing with whom the child should live, the court must also consider whether the child should have regular meetings with their other parent (the contact parent), or indeed with other relatives or family friends. The hope is that regular meetings will enable the child to continue his or her relationship with both parents, and both sides of the family. As it is often stated, ‘parenthood is for life’, and thus the fact that the parents have separated should not affect their relationship with the child.

However, it is sometimes the case that following a bitter separation, the resident parent may be deeply opposed to the child seeing the other parent. This is particularly so if the resident parent finds a new partner and wishes to form a new family. On the other hand, the contact parent will seek to do all that he/she can to retain contact with the child and make the most of the contact permitted. Furthermore, it becomes evident that contact applications are often very bitterly disputed.

I have already seen many cases like at Stowe Family Law. But should the law be able to force a parent to have contact with a child, a young child who may wish to see their parent but the parent does not wish to see them?

As it stands the law has not yet directly addressed the question of whether the non-residential parent can be required to have contact with the child. If the evidence is clear that the child would benefit from regular contact with the non-residential father, but the father does not wish to have contact, can be compelled? It appears not. Thorpe LJ in Re (A child) explicitly denied that a parent could be ordered to spend time with a child against the parent’s wishes.

I think that this is a sensible interpretation of the boundaries and definition of a contact order. After all, the Children Act 1989 states that the welfare of the child must be of paramount concern and it would is in all likelihood going to be counter-productive to compel a reluctant parent to see a child!

A contact order only provides that the resident parent will make the child/children available for contact, leaving the onus on the resident parent. A contact order, ordering a non-resident parent to see their child would thus, most likely, be impossible to enforce. So why prolong the suffering?

As in all cases involving children, the law must have make decisions depending on what is in the best interests of the child. Although my friend is an adult now, and thus does not fall within the ambit of the Children Act 1989, I would still question whether it would be in her best interests to see her father?  I believe that a parent who clearly wishes to have no involvement in their child’s life, who is then forced to, may not be in the right mind to look after the child, making the contact detrimental  and thus not in their best interest.

Just some food for thought as I bid you all farewell until next week!

Image by Photochiel





An update on Litigants in Person: have the legal aid cuts really worked?

5569362270_3ed84c55a2_mSome of you may remember from my previous blog on the subject as of Monday 1st April 2013 the Legal Services Commission was replaced by the Legal Aid Agency, and the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 took effect. My previous post explained the effect this would have on the system, in short legal aid would only be available in  public family law regarding protection of children; private family law with evidence of child abuse; child abduction representation of children in private family cases; legal advice in support of mediation; domestic violence injunction cases; and forced marriage protection orders: a drastic change from the legal aid available pre-1st April 2013. These cuts have led to the predicted rise of litigants in person, as those on low incomes fight in private family law cases to resolve both their divorce and child matters. The Legal Aid cuts haven’t stopped the need these people have to gain divorces and resolve their issues in regard to their children.

In January 2012 Grania Langdon-Down wrote an article for The Law Society Gazette entitled, ‘Litigants in person could struggle to secure access to justice’. Within this article the author talked of the prospect of a huge increase in litigants fighting their cases themselves, something which should surely have been within the minds of those who passed the LASPO 2012. The Law Society Gazette goes on to quote The Civil Justice Council, who stated that ‘It is hard to overstate just how difficult it can be – for the person, for the court and for other parties – when someone self-represents.’ Following on from this the article quotes District Judge Nick Crichton, who sits in the Inner London Family Proceedings Court, ‘‘Where do I start?’ he says. ‘We are getting more and more people coming to court in private law cases without the benefit of sensible, structured legal advice, wanting to spill blood on the court carpet. Angry with each other, they shout across the court, they refuse to listen when you try to calm them down and it is very difficult to find a solution that they will go away and work with. The government wants people to stay out of court but it is very difficult to get people to mediate when they are still very angry and haven’t had the benefit of decent legal advice. These cases take an inordinate amount of time, which is having a knock-on effect on public law cases getting before a judge.’’

In June 2013 BBC’s Radio 4’s Law in Action investigated what, after just a few months of the legal aid cuts, had changed. Rebekah Wilson, a family barrister from Tooks Chambers in London, told BBC Radio 4 that she “recently had a case involving a four-year-old and a six-year-old where the four-year-old was being kept by his father after contact as and when he pleased…The four-year-old was very unsure about where he lived and who he lived with. Prior to 1 April the mother could have got legal aid but now she probably doesn’t get it.” Furthermore, Cathy Barton, a family lawyer from Somerset, stated that ‘she recently turned away a woman who said she had been raped by her partner, and who wanted legal advice regarding the breakdown of her relationship, because she didn’t have medical proof that she had been abused. ‘For us to have to send her away and say come back with some medical evidence was just entirely contrary to all of our beliefs and ways of working,” says Ms Barton. “She hasn’t come back to us yet.” The problem, if nothing else, being that individuals such as the rape victim above often have no access to money and ‘a doctor’s letter costs about £50, a memorandum of conviction £60 and a police disclosure £75.’ Sadly, these are not the only cases of this kind seen by family lawyers on a daily basis now.

The Ministry of Justice recently produced statistics which showed that the number of litigants attending out-of-court sessions in order to resolve their issues has fallen by a massive 47% since the legal aid cuts. Why? Arguably because these litigants are no longer attending solicitor’s offices and being directed toward mediation, many litigants have no knowledge that this out-of-court settlement even applies to them. This evidence completely contradicts the justifications put forward by ministers in support of the cuts: that the cuts would reduce pressure on the courts, reduce confrontation between litigants and save the taxpayer money. The exact opposite appears to be occurring.

The Ministry of Justice’s Annual Report and Accounts for 2012-2013 showed an underspend of approaching £57million across the board in Legal Aid. The argument that legal aid cost too much appears to be somewhat flawed and as ‘Chris Grayling, the justice secretary,… prepares to defend his changes to the justice system in front of parliament’s joint human rights committee, the shadow justice secretary, Sadiq Khan, said the government was wrong to claim legal aid cost too much.’ (The Guardian, ‘Legal aid cuts criticised after underspend’)

In response to the cuts and the predicted rise in litigants in person on the 19th April 2013 the Law Society produced guidance for ‘all solicitors who may need to deal with litigants in person (LiPs) as part of their work’, which outlined ‘the issues that [a solicitor] should take into account [when dealing] with LiPs, including managing any conflict between [their] duties to the court and duties to [their] client, and other areas of sensitivity.’ But it would appear that such guidance isn’t enough. Ryder LJ, when giving judgement in C (A Child) & Anor v KH, stated that ‘the case presents a salutary lesson to us all to put in place procedures and practices which can accommodate litigants in person who do not know the rules and practice directions of the court.’

It would appear that the effects of the legal aid cuts are heating up and those opposed to them are becoming more and more restless with critics of the cuts forcing ‘an emergency meeting of the Law Society to consider a no confidence motion in the profession’s leadership.’ (The Guardian, ‘Critics of legal aid cuts force Law Society vote’). This will be an ongoing battle and the outcome cannot be predicted, but for now litigants in person will continue to rise and the courts will continue to struggle under the strain of accommodating these individuals as best they can.

If you are interested in reading any of the articles or papers referred to above, please find below links to each page:

The Law Society Gazette:

BBC Radio 4’s Law in Action:

The Ministry of Justice’s Annual Report and Accounts for 2012-2013:

The Guardian, ‘Legal aid cuts criticised after underspend’:

The Law Society’s Litigant in Person Guidance:

Need for procedures which assist litigants in person, Ryder LJ:

The Guardian, Critics of legal aid cuts force Law Society vote:

Photo by acute_tomato via Flickr under a Creative Commons license

Can divorce be predicted by the push of a button?

4182825445_a5289472f4_mToday has somewhat flown by and before I knew it I was looking outside to be met with darkness, only broken by the lights of the library across the road. I have had a bit of a mixture of a day with work coming in from a variety of cases some new and some ongoing, but all interesting. As I took a few minutes out whilst eating my lunch this afternoon I came across an article published by the Las Vegas Guardian Express entitled ‘Marriage Success Means Trusting Your Gut, Says Scientific Research.’ This article explores a piece of research published in the Journal of Science which took more than 100 couples and proceeded to study their gut instincts toward their partners. The researchers wanted to know the individuals subconscious thoughts about their partners, they wanted to get passed the façade of the happily married couple and delve deep into the underlying thoughts and feelings.

The researchers took each party to the couple in to a room where they were confronted with two buttons: ‘Good’ and ‘Bad’. Words were then flashed across the screen that corresponded to one of the two buttons, for instance ‘Pain’ would initiate the pressing of the ‘Bad’ button. The reaction time to the stimuli was recorded. Following this the researchers flashed photographs of the individual’s partner across the screen. The results that ensued were interesting: according to the Las Vegas Guardian Express, ‘what researchers were able to find was that if positive feelings were present they would trigger, by the quick glimpse of their partner, a faster reaction time to the “good” words and a slower reaction to the “bad” words. The same would be evident in reverse if the triggered feelings were not as pleasant. In the latter circumstances, statistics showed that after four years the marriages would have already been heading in the wrong direction, if not already resulted in divorce. Researchers were able to find quite conclusively that the gut feelings were trustworthy enough to dictate the success of a marriage.’

The Las Vegas Guardian express goes on to write, ‘Florida State University’s head psychology professor Jim McNulty was able to theorize from these results that this doesn’t necessarily mean that newlyweds secretly don’t love each other as much as they think they do, but it will impact how they handle difficult situations. The positive emotions that a couple will hopefully subconsciously have for each other may be that binding thread that will keep them together and able to overcome the challenges that arise in every marriage.’

An interesting question is posed: is the likelihood of a particular couples divorce able to be predicted by such a test? It seems a little too simplistic to conclude that one could simply press a few buttons and find out whether they are with the right person, almost like those adverts you see where you are asked to text your name and your partners name in order to see if you are a suitable match. But this psychological experiment has long been used and established and the research in some ways appears to speak for itself. However a word of caution McNulty goes on to say that ‘The test itself still needs some work before it can be used on an individual circumstance and could lead couples in the wrong direction; however, truly having that internal discussion could do more good than people might think.’ Gut instincts may be a component to a successful marriage, but they are not the only thing a relationship needs. Positive emotions may help couples to overcome hurdles together, but then arguably it would depend on the hurdle and on a number of other factors including the individual personalities, beliefs and understandings of each party. I have to admit I have not been able to read the full research paper, and so cannot comment full on the intricacies of the research undertaken. Whether divorce can be predicted by the push of a button is yet to be seen, it seems a somewhat one-size fits all argument, but it is an intriguing idea. For now I think that divorce and the emotions involved are a little more complex.

Having read the article I go back to my work and my cases. I believe it is difficult to say why exactly a marriage breaks down, every case I see is different. Every individual I see is different, they have different ideals, beliefs, experiences and lives. It is the ability to understand this and to work with the client that makes a great lawyer. Science may well be able to tell us definitively one day why a marriage breaks down, but I don’t think that a one-size fits all approach will ever truly reflect the intricacies of marriage and divorce.

To view the Las Vegas Guardian Express article please visit:!

Photo by atduskgreg via Flickr under a Creative Commons license