This week I had the opportunity to attend a conference in relation to a children matter. Unfortunately, when couples separate, issues in respect of the children arise. Such matters are fraught with emotion and can be particularly hard to resolve. Ultimately, there are many ways to parent children and views often conflict.

A regular consequence of such disputes is that the children will be detrimentally affected. The Court recognises that this is the case and the very principles that guide the Courts, illustrate the point further. The key underlying principle, contained in Section 1(1) of the Children Act 1989 is that when a Court determines any question with respect to:

1. The upbringing of the child; or
2. The administration of a child’s property or the application of any income arising from it,

The child’s welfare shall be the Court’s primary consideration.

The Children Act then refers the Court to Section 1(3) to the ‘Welfare Checklist’ of which the Court must have regard to when exercising its powers to make a Section 8 Order, such as contact. Ultimately, the Order made must be in the best interests of the child. However, as one can easily imagine, what is in the best interests of the child/children will differ dramatically from parent to parent and possible even from Court to Court. There is an abundance of case law available to the Court to further assist their decisions in respect of each of the factors contained within the Welfare Checklist. However, I chose today to focus on Section 1(3)(a) Wishes and feelings of the child.  Indeed, the case that I was working on today did exactly that.

The age of the child is most obviously an important aspect of this factor; however it is not the only aspect to be considered. We all know that sometimes children are wiser beyond their years and sometimes they are extremely immature. All children differ and so the wording of Section 1(3)(a) guides Judges to consider the wishes of the child in light of their age and understanding. The Court will, alongside considering the child’s maturity, also take into account the likelihood that they have been influenced by the other parties.

It must be noted, that although the children’s wishes can be influential they are not decisive. The weight to be attached to what the children want will be at the Court’s discretion and will not always take precedence. This is because, unfortunately, the child may not have the requisite maturity or life experience to know what is in their best interests. I know that there were many times when I was younger, that I thought I knew what was best for me but was proved wrong by my mother, teachers and the like.

For example, in Re C (A Minor) (Care: Child’s Wishes) [1993] 1FLR 832 it was held that a 13 year old girl was too young to make decisions as to who she would live with. In this case, she wished to live with her father but the Court decided that the burden of making decisions about her future was too large. However, this case can then be contrasted with Re S (Contact: Children’s views) [2002] 1 FLR 1156 the wishes of children who were aged between 12 and 16 were all respected, when the Court was faced with the task of deciding upon contact.

What becomes clear from the case law, is that each case must be judged on its own merits. The Children Act 1989 and in particular, the Welfare Checklist affords the Court’s with wide discretion. This can often infuriate clients as there are unfortunately no certainties. What is in the best interest of the child is not always clear and as such, can be a matter of opinion. On the other hand, sometimes it is abundantly clear. However, the Court will only make an Order if to do so is in the best interest of the child that would be subject to it. This is another principle of the Children Act 1989, namely, the ‘no order’ principle.

Unfortunately, I believe that the wishes of the children involved in the case I was working on, will hold little weight as they were too young to fully understand the situation. That being said, I do believe that children’s voices matter. Children are often more astute than we think! It is very unlikely that there will ever be a uniformed method of deciding what is in the best interests of a child and I am sure that the case law in respect of the children’s wishes will continue to grow …… and also conflict! I would be interested to know the readers perspective. Should children be able to decide who they should live with? How much contact they have with the absent parent? Or is that simply too much for a child to have to decide?

Baroness Hale has recently shown her support to the calls for the introduction of a no fault divorce in England and Wales, and she is not alone! Many practitioners have also expressed that they would favour a no fault divorce process. It seems that it is the general consensus that the move would be a ‘common sense approach’ to take.

As it stands, to obtain a divorce, in the absence of being separated for 2 years, a petitioner would have to cite either adultery or unreasonable behaviour as the reason for the breakdown of their marriage. I personally believe that no fault divorces could have the potential to remove a degree of acrimony from the proceedings. Unfortunately, the particulars of behaviour in fault based petitions can often enflame the atmosphere between the parties which inevitably has an effect on how the future proceedings in relation to the finances and/or children are conducted. Perhaps removing the blame element would encourage parties to remain amicable and work together towards reaching agreements.

Indeed, Resolution have commented and stated that the introduction may reduce the likelihood of cases litigating. They suggested that it may also “facilitate a constructive focus on future arrangements and responsibility in the best interests of any children”. They went on to say that a no fault divorce would be beneficial in other way as it would allow “parties should be free to achieve financial certainty quicker than they do now”.

However, on the other hand, it has been argued that the introduction of a no fault based divorce may have the potential to increase the numbers of people divorcing. At present, the importance of the sanctity of marriage is reflected by the law. Parties cannot divorce in the first year of marriage and must thereafter wait two years or otherwise rely on adultery or unreasonable behaviour. It may be the case that removing the fault element would somehow dilute the significance placed on marriage by making divorce to readily accessible.

That being said, the reality is somewhat juxtaposed to the underlying principles of the law. People who are not able to obtain a divorce on a mutual footing (2 years separation with consent) either end up living separately and waiting for those two years to pass or decide to one of the fault based facts, when they otherwise would not have done so. One must bear in mind, that just because people are not divorced…. It doesn’t mean they will stay together.

I would be interested to see what you, the readers, think. After considering the potential effects of removing the blame, I believe that costs would be saved, court appearances reduced and relationships given the chance to remain amicable!

This week I attended a meeting where the client was seeking advice in relation to a Prenuptial Agreement (PNA’s). Taking a detailed note in client meetings is an integral part of a trainee’s role. The note enables the solicitor to manage the case effectively and attending the meeting certainly aids my learning and understanding of the law as I am able to see everything I learnt at university and on the LPC put into practice. This week that was prenuptial agreements.

So… what is a prenuptial agreement exactly? A prenuptial agreement is a contract which is entered into by the parties either contemplating or in preparation of an upcoming marriage. The agreement details what will happen to their individual assets in the event that the marriage breaks down. Most PNA’s will concentrate on the protection and regulation of assets, but they can also dictate the jurisdiction of the financial proceedings, should they occur.

I thought that I would, therefore, use this blog post to inform you all about the quasi contractual nature of PNA’s and how the Courts decide what degree of weight should be attached to the agreement. Are they worth the paper that they are written on?

The case of Radmacher v Garantino 2010 was a landmark case in the history of English divorce law. Prior to Radmacher, PNA’s had been viewed as somewhat opposing to public policy. PNA’s are not subject to any statutory guidance, however, the ruling in Radmacher resulted in the PNA’s being given effect so long as they were entered into freely and where both parties intended for the agreement to have legal effect and had a full appreciation of the consequences of entering into the agreement. That being said, the jurisdiction of the Court is unfettered and as such, varying factors can either enhance or lessen the weight that the Court will attach to the PNA as part of ‘all the circumstances of the case’ within the meaning of Section 25 (1) MCA 1973. However, the Court must also use its discretion to ensure that it would not be unfair to hold one to the agreement. It should be noted that it is clear that the Courts are now a lot more willing to attach the suitable weight to the PNA.

The judgement in Radmacher gave definitive guidance as to the treatment of PNA’s in proceedings for ancillary relief following a divorce. The case law that has since developed reveals what some practitioners would consider to be a move towards enforceability.

In the case of B v S, Mostyn J summarised the principles (as he interpreted them) that had emerged from Radmacher. To see the full summary can be found here.

However, the principles are as follows. A Court will give effect to a PNA if:

1. It is entered into freely by each party with a full appreciation of its implications;
2. There has not been a material lack of disclosure;
3. It should be entered into with no element of duress, fraud or misrepresentation;
4. There was no exploitation of a dominant position;
5. The agreement doesn’t prejudice the position of any children of the family;
6. The agreement is fair and does not leave one party in a position of real need;

However, it was also noted in the judgement that there must be a consideration by the Courts for the respect of individual autonomy and allowing married couples to decide what happens to their assets following divorce.

We are now 5 years on from the case of Radmacher and it is likely that the case law in this area will continue to develop. It is inevitable that many will view the outcome of Radmacher as desirable. Divorce law in England and Wales is discretionary and is thus uncertain. It is likely that people will view the ruling as a way to battle the uncertainties and protect their financial position. The underlying aim of the ruling in Radmacher was to give greater sovereignty to the parties to a marriage in deciding how to distribute their property following the unfortunate breakdown of their marriage. However, the case law suggests that the courts will carry on approaching PNA’s on a case by case basis with the needs of the parties and the fairness of the agreement being the salient consideration in the Court’s decision whether to uphold the agreement.

There is a notable move towards giving PNA’s the contractual status they are subject to in other jurisdictions. It would seem that the PNA’s have been afforded a quasi-contractual nature at present and my guess is that they will continue to gain popularity due to the new readiness to uphold them. That being said, the Court cannot be precluded from exercising its jurisdiction in financial matters and I for one don’t think that is likely to change any time soon.

My reasons for considering a career in the law may not be as inspirational as some. The idea was first put into my head by several of my teachers at secondary school commenting that my argumentative nature would suit the profession. This opinion was echoed by my family members and I am sure my long suffering fiancée wouldn’t disagree either.

I decided to explore this career option during my year 10 work experience. I spent two weeks at a firm in my hometown and thoroughly enjoyed my time there. Although the work was not overly legal I gained a real insight into how a practice runs on a day-to-day basis and, from then on, a legal career was my focus.

My path toward family law

I studied my LLB at Keele Univeristy and the three years flew by. Before I knew it, it was April 2012 and I was about to sit my finals. At this point, I honestly hadn’t given a massive amount of thought to training contracts. I had managed to secure a place on the LPC to start September 2012 but, after a lot of thought and consideration, decided that it would be best to defer the LPC for a year. This would give me the chance to earn some money to help pay for the LPC and to re-motivate myself. Third year really took its toll on my enthusiasm for the law!

My reason for not applying for training contracts was simply that I didn’t know what I wanted. There are so many different firm structures and areas of law that I didn’t see how I could tie myself down or make a decision without knowing more about what was out there. The law you learn at University is very different to the LPC or practice. It wasn’t until my year out working that I started to get more of an idea of the kind of solicitor I wanted to be. It was more a process of elimination than a ‘eureka moment’ but with each different area of law I experienced I could definitively say that it wasn’t for me.

Throughout University I was drawn to Family Law, choosing modules which complimented this area. However, it wasn’t until I started the LPC that I truly realised that this was the area for me.

When I first started the LPC..

I didn’t know what to expect. I had been told so many contradictory things by former LPC students. The jump from studying my LLB to the LPC was huge; the style of work, teaching and learning is completely different. It was no longer about how much case law you can regurgitate and so much more to do with your application of the law to facts. I was relieved, although it was an extremely intense nine months. I really felt like I was becoming a legal professional. I felt so much more prepared for starting a job in the legal sector than I did when I started.

It was during the second term of my LPC that I decided family law would be my focus. I took the family law module and I finally found a subject where everything made complete sense! All the other LPC subjects had been fairly easy to study but Family Law just clicked. This now meant that I could really focus my attention on the right kind of firm and I found that my applications had improved one hundred fold! It is so much easier to convince someone that you are right for their firm when you truly believe in what you are saying!

My transition into trainee life was fairly straightforward and quick.

I finished the LPC in June 2014 and started a job at a legal aid firm immediately. During my time there, I saw the advertisement for a trainee position at Stowe Family Law and sent my CV and a covering letter off, no application forms with trick questions. I was called for an interview shortly after and then attended the Harrogate office for a trial against another candidate and within a month I started.

Throughout my whole trial I questioned everything I did, even things that were second nature to me in my previous job. I think that is just the nature of the sector. We are taught from the moment that we start our LLBs, even before that when we are applying to universities, that we have to be the best.

If you were a larger fish in small pond, like I was at secondary school, it is quite an adjustment being surrounded by thousands of people just as clever and just as experienced as you are. I found that I got into the habit of constantly comparing myself to those around me. What I had learnt by the time I got my training contract though, was that this is pointless. Landing a training contract can be just as much to do with luck as ability. I very easily could have missed the advertisement for my training contract, or had a job not conveniently around the corner and not been able to sneak off for my interview in my lunch break.

What differentiates one law student from another is very often minimal and sometimes it can just come down to timing of applications or advertisements. Many law firms won’t just look at experience and ability but will look at your personality. Finding a trainee that will not only fit in with colleagues but will also fit in with the firm ethos is important to employers. They want to find a candidate that they know will approach things in the same way they would, so it is important to research firms’ reputations. If they are known to take an aggressive approach, it’s important to ask yourself whether this is the type of solicitor you want and can be. Work experience is an excellent way of gauging what a firm is like as a website will only show you so much. Actually spending a week in the environment will often show you whether you would be a good fit.

The most important thing to do though is persevere. Not many of my LPC class had training contracts when we started the LPC and I know many now that still don’t have them. It’s very hard not to give up and I had many wobbles along the way but as soon as I had a clear vision in my head of what I wanted it all became a lot easier. I was more motivated, I had more focus on what  I was aiming for and more importantly I had the confidence that it was the right move for me.