Author Archives: Becca Shenkin

Who we are

The Stowe Family Law trainee blog has been going for a couple of months now, so it’s about time we talk a little bit more about our three aspiring solicitors and contributors Zoe, Becca and Hayley.

Hayley Crossman

Our newest contributor Hayley Crossman studied Spanish at the University of Leeds. She also spent a year in Alcala de Henares on the outskirts of Madrid where she studied Spanish language , literature and modules in Spanish law. Hayley then went on to complete her Graduate Diploma in Law at the College of Law in York and is currently studying for her Masters in Childcare Law and Practice at Keele University. Hayley gained an interest in family law whilst working for the Children’s Workforce Development Council and the private family law team at the Department for Education. And when not working, she’s out training for her next marathon or baking.

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Zoe White graduated from the University of London with a BA in English Literature in 2010, and went on to the University of Glasgow for an MA. She was then awarded a Graduate Diploma in Law (with a distinction) from the University of Staffordshire and followed to complete her Legal Practice Course at BPP Law School in Manchester (with a distinction in Family Law). While studying for her Graduate Diploma in Law she wrote a paper on An evaluation of the system of child protection in the UK in light of cases such as ‘Baby P’ and ‘Climbie’.

And when Zoe isn’t at the office she’s reading a book, enjoying a long run or working on her martial arts skills.

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Becca Shenkin read law at the University of Leeds. As well as working, she is currently studying for the Legal Practice Course at the University of Law in Manchester. Outside of work and university, Becca volunteers for an organisation which helps children whose parents are going through a divorce, allowing her to see the effects of divorce on children. As part of her LPC she is also able to undertake pro bono work at the Legal Advice Clinic.

Mediation- yay or nay?

cakeThe Children and Families Bill 2013, which is aimed to be completed this year, has recently been modified. The government has stated that they are introducing major changes which are designed to ensure that future separating parents and couples will first consider using mediation to resolve the issues surrounding divorce and separation; rather than going to court.

The Family Justice Minister, Simon Hughes said that “mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontation and stressful experience of going to court.”

The proposed new law seeks to change the process so that a person who wants to apply for a court order about a children or financial matter must first attend a mediation information and assessment meeting (MIAM).

Mediation is the process of an impartial third person assisting couples considering divorce to make arrangements, communicate better, reduce conflict and reach their own joint decisions.

Mediation, on the whole, is a good step forward.  Mediation encourages couples to attempt to settle their disputes as amicably as possible, outside of the adversarial process.

However, I am going to play devil’s advocate (as that’s what we aspiring lawyers like to do best). Is mediation a miracle solution? I suggest not. Robert Dingwall completed a study where he compared those who had attended mediation and those who had not about how they felt about the process. Those who completed mediation were “quite positive” about their experience. This contrasts with those who used a solicitor who were “more positive” and “attached great value” to having a partisan to help them during negotiations.

Yet, mediation can arguably deal with issues surrounding divorce in the least damaging a way as possible for children. And at the end of the day, when children are involved, it is their best interests that should be taken into account.

One main criticism of mediation was that it was unfair to use in a situation where there had been allegations of domestic violence. However, in the new proposals by the government, exemptions will apply where there is evidence of domestic abuse.

Mediation is also a cheaper option than going to court and so the government believes it should be encouraged. So as the title of this blog says: mediation, yay or nay? Evidently the government thinks “yay.” However, mediation is not for everyone and so it will be interesting to see how the new reforms work in practice.

But before I go, I just want to update you all on a very recent case about a woman who sued her solicitors for failing to advise her that divorce would end her marriage. I must say (reluctantly) that I first came across this news on the daily mail (I know, I know- guilty as charged) and did not think it was in fact actually true. But behold, it is. The case, Mulcahy v Castles Solicitors [2013] EWCA Civ 1686, was about a claim against the firm of solicitors on the basis that the claimant should have been advised to pursue judicial separation proceedings and not divorce proceedings. The claim was rejected.  For further information on the case: http://www.familylawweek.co.uk/site.aspx?i=ed126709. For everybody’s benefit I am just going to clarify that, yes, if a couple do divorce their marriage ends as well.

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Medical Consent and Refusal Cases

 

StethoscopeI guess I should start with a Happy New Year to you all, and wish you all the best for 2014. I am back in the office after a lovely wee holiday back in Scotland and it is time to buckle down and get back to work. As soon as I arrived into the office today I was handed a brief that I had to compile for counsel and, oh my, it is a big one. So my day is off to a flying start.

While I was back at home my best friend asked me for some help with her essay for university. Now I am no expert, but I didn’t see how I was going to be able to help a medical student with an essay, until she told me that she needed some advice about the law surrounding child law cases in relation to consent and refusal of medical treatment. Well, she certainty came to the right person, and I immediately went ruffling through my child law notes from last year to help her.

This area of law concerning children’s rights in medical cases is somewhat complex and the leading case in this area is Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112. This case concerned a mother who sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to a girl (in this case her daughter) under the age of sixteen without her parent’s consent or knowledge.  The declaration was refused and it was held that as long as the child is Gillick competent then she can consent herself. Lord Scarman stated that capacity does not turn on age, but whether the individual has “sufficient understanding and intelligence to enable her to understand what is being proposed.”

This would seem quite simple- child consents to treatment; child allowed treatment, child refuses treatment; child not given treatment, as long as the child in question is Gillick competent.  Essentially, the words “simple” and “the law” are never seen in the same sentence and so this little outline is not the case.

For instance, in Re R [1991] 4 AII ER 177, a 15 year old girl refused antipsychotic treatment for a mental illness. The child, at the time of refusal, was deemed to be rational, yet the local authority applied for wardship under which the treatment could be administered without the girl’s consent.  The girl was deemed incompetent by the High Court judge, and the Court of Appeal upheld this ruling.  Lord Donaldson stated that there was a distinct difference between capacity to consent and capacity to refuse treatment. He stated that although consent of either the competent child or parents would suffice, in relation to refusal – only refusal of both would be valid (in this case the local authority were in place of the parents).  This decision contradicts the interpretations of Gillick, where it was assumed that the refusal of a competent minor would be equally as valid as a minor’s consent to treatment.

This is just one of the many cases where a child’s refusal of treatment has been overridden by the court, another example is Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 3 WLR 758.

Therefore, the line is blurred when it comes to determining if a child, who may be Gillick competent, can refuse treatment. However, it must be noted that the court will always act in the best interests of the child.

It can even be the case, where a child is too young to consent to treatment and her parents refuse treatment that the court can overrule the parents’ decision. This recently occurred in Re TM (medical treatment) [2013] EWHC 4103 which concerned a 7 year old child who was born prematurely and had cerebral palsy and other medical and developmental complications. Due to the problems she suffered, she underwent a gastrostomy for the purposes of hydration and nutrition. The first PICC (catheter for these purposes) had to be removed due to infection and the parents became resistant to it happening again and to consequent procedures being performed by the hospital.  A without notice application was made to the court to allow a second PICC. The judge granted a declaration that it would in the child’s best interest for a further PICC to be inserted. In this case, the court was able to overrule the decision of parents regarding consent to medical treatment.

Children’s participation in health care decision-making is encouraged; however there is a lack of clarity as to whether competent refusal or the best interests of the child should prevail. This could arguably be extended to the refusal of parents where the child is too young to make an informed decision.

What do you think? Should a competent child be able to refuse medical treatment?

And my best friend just called to tell me that she “hates how law has no clear answer.” And with that, I bid her good luck.

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Are you happier if you divorce?

secret to marriageIt is officially two days until Christmas, and I have jetted off home, back to bonnie wee Scotland for the festivities. But before I went, at Stowe Family Law LLP there was work still to be done.

On Friday I became best friends with Excel. No, seriously: we have formed some sort of bond. I am now a pro at making asset schedules and budget summaries.

An asset schedule is essentially a breakdown of all the relevant assets that the couple has, such as property, money in the bank and other miscellaneous assets such as cars, life polices, jewellery et al.

All these assets must be entered into the spreadsheet to give a grand total of the all assets owned by the husband, the wife and joint property assets. Then liabilities must be entered and deducted from the total assets. In addition to this, income has to be inserted into the schedule. Ta da! Now you have an asset schedule, which will become part of the client’s file for court proceedings.

I have also been thinking about Zoe’s recent blog post about marriage. Zoe has written about research showing that married couples live longer and are happier and healthier. This all seems to come to light at this time of year, when cynically it has been said that many couples seem to divorce after the Christmas period. And this is where I come in. I recently wrote a thesis on reforms in divorce law and discovered, like Zoe, that the breakdown of marriage can lead to a rise of social problems such as crime, substance abuse and, for children, declining academic performance. This would then suggest that in fact those who are married are happier and healthier.

However, I would like to provide a different take on this. What about if those couples who divorce are actually happier? There are positive perceptions associated with divorce: adults find fulfilment and children are able to develop successfully, surrounded by dynamic family forms. Divorce, arguably, can be viewed as a “second chance for happiness.” (Paul Amato).  Essentially, people who are healthier and happier in a marriage, have to have a happy marriage. But there are arguably couples in a marital relationship who are not happy and divorce can provide the happiness they need.

This should not be taken to mean that divorce is a simple, carefree process. It is evidently stressful and traumatic. However people do recover and sometimes become happier down the road.  My thesis explored the different coping mechanisms of divorcees and how psychologically people do recover and are able to reconstruct their lives and build on the “self.”

In other words: people can be happy in marriages, but divorce can also provide individuals with happiness. Then again, this conclusion is based on statistics, and we all know what people say about them…

Anyway, I am off and back home for the holidays. I look forward to returning to the Stowe Family Law LLP – Diary of a Trainee blog in the New Year.

Image credit: Lel4nd.

A Festive Update of my time at Stowe Family Law

wreathOn my way to work this morning there were a good five different Christmas songs playing on the radio, which certainly put me in a festive mood.  We have a beautiful wreath on our office door and I know that Christmas time is just around the corner. Mulled wine, Santa and Christmas songs – what more can you ask for? (Probably not the two stone that I am going to put on over the festive period, but that is just the price you have to pay).

Anyway, even though Christmas seems not so far away, as a LPC student, and although I have technically “finished for Christmas”, I still have exams next week. Honestly, after university no-one wishes for more exams but in order to become a solicitor this is exactly the route you have to take.  So, today I thought I would give you all a wee update on my first few months at Stowe Family Law, the LPC and well generally moving to Manchester.

As I did my degree in Leeds and wanted to study my LPC at the University of Law, Manchester seemed like the most fitting city.  And, I sure am happy that I have moved here. Firstly, the Christmas markets are huge compared to Leeds and so I am very spoiled for choice.  But the real test of living, working and studying here is the juggling of time I have to manage. As a lawyer, time management and organisation is essential and studying for my LPC and working at Stowe Family Law, I have certainly learnt how to utilise my time.  The thing is, even though my peers on my course are astonished at how I manage to prepare my work for university while having a job, I feel it actually works in my favour.

Let’s take one of my exams next week: solicitor’s accounts (I am sure Zoe can recall the horror of this). I have learned far more about the reality of the nature of this exam. This is because recently Laura, a solicitor at the Wilmslow office, taught me how to complete a Form H (I must say she is a very good teacher).  A Form H is essentially an accumulation of the costs incurred by the party before a FDR (Financial Dispute Resolution). I will not go into grave detail about a Form H as Zoe has written a great article explaining what it is, which can be found here:  http://www.stowefamilylawllp.com/2013/11/21/whats-in-a-form-h/

But what I will tell you, is that in order to gather the detail to place in a Form H, a solicitor has to look at the ledger accounts of the client. It is these ledger accounts that give me nightmares about my solicitor’s accounts exam. It is these ledgers that I have had countless workshops at university on, so that I can understand how client money is spent and how law firms record the accounting of this money.  Preparing my first Form H really put these learning aspects into practice and made the whole nightmare of solicitor’s accounts less scary. So, even though at every available moment I seem to be doing work for university, working at Stowe Family Law has certainly made the understanding of the practical aspects of the course a whole lot easier.I have been able to learn a lot more than my peers and have been able to witness the practicalities of what I am learning on the LPC. Yes, it is hard working and studying. But do I regret it? Not a bit.  I am already excited ( yes, I know) about the prospect of studying Family Law on the LPC because if I get asked to produce a Form E- I will know exactly what I am doing ( and I must say a major thank you to Nastassia Burton and Laura Guillon- my teachers in all of this).

And with that, I wish you all a fabulous weekend!

P.S Wish me luck for my exams!!!

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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.

Paving the way to equality for parents

nuclearOn my way to work this morning I was listening to the radio and heard that the government has committed to introducing a year of shared leave for new parents by April 2015. This means both fathers and mothers. Revolutionary? Well, certainly a step in the right direction (I would say).

Essentially this new arrangement will mean that the current existing 52 weeks of maternity leave, other than the first two weeks which are specifically for a new mother’s recovery, will be shared between parents. This will be replacing the current system, which was introduced in April 2011, whereby mothers and fathers are able to share some of the existing 52 weeks’ leave with the father being able to take up to 6 months of this, after their child is 20 weeks old. However, in the old system, any child leave can only be taken as one single block. The new arrangement would essentially mean that this “single block” problem is diminished. Mothers and fathers will be able to share the remaining 50 weeks between them as they like by taking the leave in turns, in different blocks if needed.

Equalities Minister Jo Swinson outlined a scenario where a mother would be happy to return to work for “four or five weeks” to assist during busy periods such as Christmas time (similar to how this is the busiest period for elves who have to work for Santa). However, if a mother was to do this, then she would lose all her maternity rights from this point onwards. The new arrangement would fix this.

Businesses will have to agree any proposed pattern of time off and will be able to retain the right to insist the time to be confined to a continuous block with no more than two subsequent changes.

Nick Clegg has stated that “Women deserve the right to pursue their goals and not feel they have to choose between having a successful career or having a baby,” And, don’t we all agree with that? I would say, that the way society is moulded has meant that women feel they have to choose between a career and a family. This clearly should not be the case and these new reforms should be welcomed. Obviously, one of the main drawbacks and restraints ofd the new arrangement is that many couples may not be able to afford to take the leave. Arguably, if the arrangement was paired with better pay then it may be more attractive. However, on the face of it, providing mothers and fathers with more flexibility in the workforce when they want to start a family is definitely the way forward.

This new arrangement would give fathers a better opportunity to be involved in their baby’s first few months. It cannot be denied that the traditional nuclear family where the mother is the homemaker and the father is the breadwinner is still the norm. The idea of shared parental leave should be welcomed. Because essentially, why not? Who wants to be conforming to the past with the traditional nuclear family ideal? This type of change is good and provides for more flexibility. And as Nick Clegg says, “there shouldn’t’ be a one size fits all approach”- each family is different and this scheme caters for a lot of different families.

And on that note, it’s a wrap at Stowe Family Law today. Hope you all have a lovely weekend and bring December in, in style!!

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It is not just about the gift of the gab

megaphoneToday is one of those days when you wish you could wear a onesie to work. It is freezing outside but on the plus side I was able to attend a client meeting today and have already started to liaise with that client.

The matter involves preparing my first Form E, which to all those non-aspiring family lawyers is probably not that exciting. But for me, I cannot wait to jump right in and start it. I will not go into detail about Form E’s as Zoe has written a fabulous blog post about her first time preparing a Form E, which can be found here: http://www.stowefamilylawllp.com/2013/09/22/41/.

However, what I will start to talk to you about is client contact. One of the main reasons why I wanted to start a career in family law was because of the amount of client contact I thought I would be able to have. From witnessing the solicitors I work with I can tell that there is certainly a large amount of client contact. Since I am only a paralegal I did not expect to have as much client contact as I have had so far. And this is why I am loving working for Stowe Family Law. I am embracing the opportunities I have to communicate with clients and when the prospect arises to attend client meetings I am ecstatic.

Clearly in a family law firm the importance of client contact is heightened. It is what occurs almost daily in such a firm- emails, phone calls and meetings with clients. It seems to never stop. And this is what is so great about a family law firm.

However, lawyers have to possess certain skills when communicating with clients.  It is not just about having the required legal knowledge to be able to advise clients but being able to possess particular interpersonal skills. It is essential to be able to use appropriate communication methods when conversing with clients. Solicitors’ should not use legal jargon when speaking to clients and must be able to explain matters clearly, concisely and comprehensively. As much as I love talking (I was one of those that always got told off at school for chatting too much); it is quite different when it comes to a meeting with a client. It is a certain skill to be able to conduct a competent interview and I know that I have lots to learn. Although what is certainly helping me is the fact that I am able to attend client meetings with the solicitors in the firm and so I am learning new tips every day.

I must say that attending client’s meetings should certainly help me with my LPC interviewing exam in the next few weeks. If I am able to perform like any of the solicitors’ here- I should pass with flying colours.

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Mulled wine and FDRs

RingsUSEAs I take off my big winter coat I am excited for the day ahead, and equally excited to have escaped the cold breeze outside. Today is another freezing and dark morning, signs that winter is well and truly arriving. I am sure that I am not built for this climate!

I can see the German Market making its annual appearance across the street from our office. I love having a look round each year…and how perfect that I am now working across from it. I suppose the taste of mulled wine and warm pretzels will help to make this winter weather bearable!

But I’m not always making my way to the office. Last week I was fortunate enough to accompany one of the partners to court for an FDR hearing. FDR is a commonly used acronym for the Financial Dispute Resolution hearing. Although I have done my fair share of work experience in the family law field, I had never attended an FDR and I found the process extremely interesting. In the previous week I had read through the case and its complexities and was thus eager to see how the day would pan out.

An FDR is a meeting held in a court and partly with a judge present. The parties involved in the dispute are under an obligation to try to reach an agreement, it is in simple terms a negotiation process. The purpose of FDR hearings is to somehow assist those involved to settle their disputes, in addition avoiding the huge expense of a court trial. If the parties can forge an agreement at the hearing they also avoid the stress which comes with a potential trial.

An FDR is commonly used in matrimonial cases but can also be used to settle financial matters regarding the children of unmarried couples. Before an FDR, the parties exchange disclosure of their finances in a Form E, something which I have come into contact with regularly at the firm. The Form E, in addition to valuations and expert evidence, is collected before the hearing in the hope that the parties will arrive with full knowledge of each other’s finances. The properties involved and information about any other relevant issues relevant to the dispute. This ensures that the solicitors, barristers and clients are in the best position to make arrangements for the future. The instructed barristers negotiate with one another at the hearing, but only agreeing upon an issue when given express consent from the client. A judge can also be seen at the listed time of the hearing, at this point the judge is available to give ‘an indication’ as to what they would order if in the position off deciding the case. This can be particularly useful in concentrating the parties minds on the strengths and weaknesses of their case, thus aiding the negotiations.

Fortunately my first experience of an FDR was a pleasant one, with the parties settling without the need for a judge. We had reached an agreement and it felt very satisfying. I was fascinated by the process and enjoyed seeing the instructed barrister at work. I took great pride knowing that I was working for such a prestigious firm and that we had been able to secure the best possible arrangements for our client.

As I sit at my desk to record the attendance notes of the hearing, the tasks for the day have begun to pile up. I am now in the warmth, hot chocolate in hand and ready to get to work. I look forward to telling you more about the family law profession and my days spent at Stowe Family Law.

To read more about FDR hearings see  http://www.marilynstowe.co.uk/2011/06/28/the-fdr-hearing-and-the-first-appointment-what-you-need-to-know/

 

 

Cohabitation Rights

House of Parliament 08.11.13USEToday I have been thinking about cohabitants as the Office of National Statistics recently released information which reveals the increasing rise of cohabiting couples in the UK.  The number of cohabiting couples increased from 2.2 million in 2003 to 2.9 million in 2013. Further, the number of dependent children living in opposite sex cohabiting couple families rose from 1.4 million to 1.9 million over the same period.

Many of us have the misconceived perception that cohabiting couples enjoy the same rights on the breakdown of their relationship as married couples. In fact, this is not the case and many cohabiting couples are unaware that the law provides little assistance to them on the breakdown of their relationship. Whereas when a marriage breaks down, a spouse can have claims concerning the likes of child maintenance, property and pension rights. But, what about cohabiting couples?

Well, since I am from Scotland I feel that I should start with the Scottish case of Gow v Grant [2012]. This produced a landmark judgement providing additional rights for cohabitants on the breakdown of their relationship. The case was based on the Family Law (Scotland) Act 2006, section 28, which allows a cohabitant to apply to the court for financial provision where the cohabitation ends otherwise than by death of one of the cohabitants.  Mrs Gow was able to claim financial relief from Mr Grant as she was able to prove that she had suffered economic disadvantage from the cohabitation. Lady Hale stated that the law in Scotland is commendable as it does not “impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship….English and Welsh cohabitants and their children deserve no less.”  Well said Lady Hale.  And she is correct, English and Welsh cohabitants deserve their rights to be protected on breakdown of their relationship and that is exactly what is occurring in Parliament now. The Cohabitation Rights Bill 2013-2014 had its first reading in the House of Lords at the beginning of October. This Bill, which I am advocating, will provide cohabitants with additional rights and this is clearly needed when one looks at the increasing numbers of cohabitants in England and Wales.

The Bill, which can be viewed on the Parliament website: http://www.publications.parliament.uk/pa/bills/lbill/2013-2014/0049/14049.pdf gives an idea of the rights that cohabitants will receive.  This will mainly be a “financial settlement order” which can include a lump sum, transfer of property, property settlements, sale of property and a pension sharing order. Further, there is an “opt out” provision for those cohabitants who do not wish to be able to claim for a financial settlement order.  The Bill also intends to change the law on intestacy to include qualifying cohabitants. However, I know from my studies that a Bill at its first stage in Parliament will most likely be extremely varied by the time it, if it even does, reaches Royal Assent and so I will be keeping my eye on the progress of this bill and will be sure you update you all on it.