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February 19, 2019
Summary of Resolution and Law Society Briefing on Practical Recommendations in the Circumstances of No Deal on EU Exit

Summary of Resolution and Law Society Briefing on Practical Recommendations in the Circumstances of No Deal on EU Exit

Natasha Isaac, pupil at 1 Crown Office Row, summarises the latest guidance on family law in the case of No Deal Brexit issued by Resolution and the Law Society, with input from David Hodson OBE MCIArb and Daniel Eames. Find out more on the Law Society website here, or members of Resolution can get the guidance here.

  1. If the UK leaves the EU on 29 March 2019 with no deal EU law will immediately cease to apply at 11pm on 29 March 2019. There will be reliance on national and international law, such as the Hague Conventions.
  2. The government is introducing a series of statutory instruments to apply in these circumstances. The Jurisdiction and Judgments (Family)(Amendments etc) (EU exit) Regulations 2019 includes the important, extensive and substantial transitional arrangements.
  3. In general terms an EU member state will not give effect to a UK order made before 29 March 2019 unless the required registration procedure was also concluded before 29 March 2019. This process varies between divorce, finance and children matters.

Divorce

Forum

  1. At the moment where divorce (or similar) proceedings could be brought in England, Wales or another EU member state forum is decided on where proceedings are first lodged.
  2. On leaving with no deal, the lis pendens rule will end and forum cases involving an EU member state will be decided on the basis of forum non conveniens – the ‘close connection’ test as presently prevails in non-EU cases.
  3. Advice from the other country should be taken as it it not known how member states will respond.

Divorce

Jurisdiction

  1. Existing divorce jurisdiction will continue as national law, save that sole domicile would also now be immediately available in all circumstances.

Divorce

Recognition in EU members states

  1. On leaving with no deal roughly half of Eu member states who are signatories to the 1970 Hague Convention are highly likely to recognise divorces in England and Wales. 15 member states are not parties. Practitioners should consider obtaining decree absolute before 29 March 2019. Legal advisers should consider discussion of expediting the proceedings with clients.

Maintenance Orders

  1. Leaving with no deal will mean that the EU Maintenance Regulation comes to an end, but this will be immediately replaced on 1 April by the 2007 Hague Maintenance Convention.
  2. There might therefore be maintenance cases between UK countries which may be more or less beneficial to be commenced before Exit Day; the EU requirements regarding also completing the registration process would not apply intra-UK. This is most likely to be relevant in some Anglo Scottish cases.

Sole Domicile Jurisdiction Financial Applications

  1. Practitioners who have existing, ongoing, sole domicile cases where their client would want to make needs-based claims should give consideration to adjournments until after Exit Day when the court would be able to make needs-based orders.

Pension Sharing

  1. Sometimes this jurisdiction is not available, simply because the parties have no ongoing UK connection apart from the existence of a pension here. Accordingly, reliance is made on Art 7 EU Maintenance Regulation, which provides for a so-called “forum of necessity”. This will cease to be available on Exit Day if there is no deal.

Children

  1. Brussels II allows contact orders and orders for the return of a child to be directly enforced provided there is an Annex III and IV Certificate respectively.
  2. In considering whether to make any expeditious applications before 29 March, practitioners will need to consider the respective substantive laws and procedural requirements under Brussels II and 1996 Hague. This is true in respect of both outgoing and incoming cases from the EU.

Conclusion

  1. Practitioners are likely to receive further updates in this rapidly developing area and must consider their cases individually including advice from lawyers abroad where necessary.
  2. There is limited time before 29 March and practitioners may need to consider expediting proceedings.

 

Natasha Isaac | Divorce and Finance

This article was originally published on the 1 Crown Office Row website.

February 11, 2019
Evicting tenants – When can I evict someone from my house without a court order?

Evicting tenants – When can I evict someone from my house without a court order?

First, an important warning. Under section 1(2) of the Protection from Eviction Act 1977 (“the 1977 Act”) it is a criminal offence for any person to unlawfully deprive (or even attempt to deprive) a residential occupier of any premises of his occupation of those premises. It is a defence for the person charged to prove that they believed and had reasonable cause to believe that the residential occupier had ceased to reside in the premises. Important to repeat – the burden is on the person who carried out the eviction to prove that they believed this and to prove that they had reasonable grounds to believe it.

A person convicted of an offence under section 1(2) of the 1977 Act is potentially liable to an unlimited fine and/or imprisonment for a term not exceeding 6 months, if the case stays in the Magistrates’ Court, or 2 years if it is sent to the Crown Court.

By section 3(1) of the 1977 Act it is unlawful for an owner to enforce a right to recover possession, otherwise than by proceedings in the court, unless the tenancy is an ‘excluded tenancy’.

You may therefore be entitled to take possession without a Court order where the licence or tenancy is an ‘excluded’ one. To be ‘excluded’ it will need to fall within the various categories set out in section 3A of the 1977 Act, which in summary are:

  1. Where under the terms of the licence / tenancy the occupier shares any accommodation with the landlord or licensor and immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part. (section 3A(2))
  2. Where under the terms of the licence / tenancy the occupier shares any accommodation with a member of the family of the landlord or licensor and immediately before the tenancy or licence was granted and also at the time it comes to an end, the member of the family of the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part and immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises in the same building as the shared accommodation and that building is not a purpose-built block of flats. (section 3A(3))
  3. Where the tenancy or licence as granted as a temporary expedient to a person who entered the premises in question or any other premises as a trespasser (whether or not, before the beginning of that tenancy or licence, another tenancy or licence to occupy the premises or any other premises had been granted to him) (section 3A(6)).
  4. Where the tenancy or licence confers a right to occupy for a holiday only (section 3A(7)(a))
  5. Where the tenancy or licence is granted otherwise than for money or money’s worth (section 3A(7)(b))

There are further exceptions for local authorities and others who have provided housing to comply with their obligations under various statutes / for immigration purposes.

It is clear that the requirements for being entitled to evict someone without going to Court are strict and exacting. There will always be a risk of the argument being made that the strict criteria were not met and that the eviction was therefore unlawful.

In sum, it will always be best to err on the side of caution and seek a Court order for possession if you have any doubt that your situation falls within one of the limited exceptions or there is a chance that the tenant is likely to argue that it did not meet the statutory criteria.

If you would like help with a potential possession claim, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.

You can find the Protection from Eviction Act 1977 here: https://www.legislation.gov.uk/ukpga/1977/43.

 

David Lewis-Hall Property

February 8, 2019
Family legal terms explained: Matrimonial

Family legal terms explained: Matrimonial

The legal jargon involved in divorce and financial proceedings can be difficult to understand. We have summarised and explained some of the most frequently used legal terms to help you understand what they mean.

An expert family barrister can help guide you through the process and represent you in court if necessary. If you would like to instruct one of our team of experienced family lawyers, read our simple step-by-step guide then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next.

Ancillary Relief

In England and Wales applications for financial relief following the presentation of a petition for divorce are known as ‘ancillary relief’ under the Matrimonial Causes Act 1973 because these applications are ‘ancillary’ to a divorce petition. In the Family Procedure Rules the term used is ‘financial order’ or ‘financial remedy’. Both terms are routinely used in court.

Clean Break

A clean break means the financial ties between you and your spouse are concluded. Therefore, for example, there would not be an order for ongoing maintenance. In some cases this may involve paying a lump sum to your spouse. Clean break cases might also involve pension sharing orders because the pension split happens as a single percentage-based transfer arrangement once the decree absolute is received by the parties.

Consent Order

A consent order is an order of the court, which was made by agreement between the parties. To make an agreement legally binding, the parties would need to submit it to court for the Judge to consider whether to make it into a consent order.
It is important that such an order is comprehensive. This sort of order will be signed, dated and submitted to the Court so that the Judge can assess whether the agreement constitutes fair and proper financial provision for the parties.
If a consent order is filed without a hearing it should be sent with Form D81 (a statement of information) and Form A for dismissal purposes.

Decree Absolute

Six weeks after the decree nisi has been granted the petitioner can apply for a decree absolute which is the legal document that ends the marriage. If four and a half months have passed since the decree nisi was granted the respondent can apply for decree absolute.

Decree Nisi

This is a request to proceed. The petitioner will fill in a form for the decree nisi, and usually files this with the respondent’s response document. The judge will consider whether there are grounds to grant decree nisi.

Disclosure

Disclosure, and updating disclosure, is the term used for the evidence supplied in respect of your finances – submitted as part of your Form E, and then updated for hearings. This will include bank statements, mortgage statements, details of loans and pensions etc.

FDA

An FDA is a First Directions Appointment in financial proceedings. The purpose of this hearing is to decide what more information (following an exchange of Forms E) the parties and the court needs to make orders. The usual practice is for the parties to arrive early at court for the lawyers to attempt to agree the questionnaires and case management directions to reduce the time spent before the judge.

FDR

This is the second court appointment in financial proceedings. An FDR (Financial Dispute Resolution) hearing is a without prejudice hearing (ie any offer or concession made for or during this hearing, in an attempt to settle a dispute, cannot later be used against the person who made it at the trial). At this appointment the judge may give an indication on some or all of the issues in your case, in order to enable the parties to gain a better understanding of the view a judge might take if on issues if the case went to trial. The FDR is without prejudice which means that if matters cannot be resolved the judge at the FDR is not permitted to be the judge at the final hearing. The judge does not hear evidence at this hearing. It is usual practice for both parties to arrive early to discuss their positions with a view to settlement.

Financial Remedy

This is the term used in the Family Procedure Rules to describe forms of financial relief which can be ordered by the Court. The main rules can be found in Part 9 of the Family Procedure Rules.

Form A

Form A is the Notice of Intention to Proceed with an application for a financial order. You can find a template here. An application costs £225 and you’ll need to send two copies to the court. This is the first form you would file in financial proceedings.

Form E

Form E is a detailed financial statement which you will need to produce and send to the court and the other party before an FDA. You can find a template here.

Form H

Form H is an estimate of legal costs incurred, which is required for each hearing. You can find a template here.

Lump Sum Order

A lump sum order is an order for one person to pay another a lump sum. A lump sum can be paid in instalments.

Mesher Order

This is a court order which governs how the family home will be dealt with after divorce. It allows the sale of the family home to be deferred for a certain length of time or until a specific “trigger” event takes place, such as when the children are 18 or if the resident party has cohabited with a new partner for a certain length of time. This order will decide how the equity will be split between the two parties.

Order for Sale

The court can make an order under the Matrimonial Causes Act 1973 to adjust the parties’ resources to achieve a fair outcome. One of the orders it can make is an order for sale of property. This may be necessary in order to ensure both parties are housed.

Pension Sharing Order

A pension sharing order is an order, which transfers part of a pension pot to the other party. It enables a clean break between the parties as the assets are split immediately. The order will set out how much of the pension will be given to each party as a percentage, and decide who should pay the costs. This order must be made by the court for the pension provider to give effect to it. A pension sharing order will also be filed with Form P1 which sets out the material details of the relevant pension and the arrangement for the percentage to be transferred into.

Petition

The petition is the document that starts the divorce process.

Petitioner

The petitioner is the spouse who writes the ‘petition’ and serves it on the other spouse. The petitioner will send two copies, together with a fee, to the nearest divorce court.

Property Adjustment Order

These orders deal with property rights and are used to transfer property from joint names to one name, or from one name to another. There is no definition of what such property should look like, as long as it is sufficiently identifiable, i.e. ‘property’ does not necessarily mean ‘family home’.

Questionnaire

This is the document both parties may submit if they seek to clarify anything that the other party has, or has not, written in their Form E. The questionnaire will be considered by the Court at the FDA.

Respondent

The respondent is the spouse who receives the petition from the petitioner.

Schedule 1 Cases

Schedule 1 pertains to Schedule 1 of the Children Act 1989. These cases concern financial provision for children. Applications under Schedule 1 can include: top up maintenance, lump sums, carers allowance, transfer/purchase of property, etc.

Section 25 Factors

The Section 25 Factors are what the court looks at to help it decide whether to make an order requested in family proceedings. The court will approach this exercise having regard to all the circumstances in the case. The first consideration will be the welfare of the children of the family and the starting point is provision of accommodation for the children. The overarching objective is fairness – avoiding discrimination between the party who has been the homemaker and the party who has been the breadwinner.
“Section 25” refers to the relevant part of the Matrimonial Causes Act 1973. The factors include matters such as the income, financial obligations and conduct of the parties and the needs of the child. A full list can be found here.

Separation

Legal separation is different to divorce. A separation is when you and your former spouse have stopped living as a couple. A legal separation is the process by which a couple can agree a written document which records their intention to split their assets. Some couples choose to separate instead of divorce because it is cheaper or for other reasons, such as when their religious beliefs do not agree with or allow divorce; or if they have been married for under a year. A separation agreement recorded by the court will not be binding but can be looked at in the event of any dispute. The document filed with the court for a legal separation is the same petition that you would submit if you were getting a divorce, and you will also need to pay a court fee.

Spousal Maintenance

Spousal maintenance is money that is paid by one spouse to the other following a divorce. It is usually paid on a monthly basis either for a defined period or it could be for the remainder of the parties’ life. The amount you receive depends on how much you need to live on, how much income you have and how much you could possibly earn in the future, amongst other factors.

Undertaking

An undertaking is a solemn promise to the court. If you break an undertaking you could be fined or sent to prison. It is as binding as an order of the court.

Natasha Isaac | Divorce and Finance

January 29, 2019
Criminal proceedings part two: Will my case go to the Magistrates’ Court or Crown Court?

Criminal proceedings part two: Will my case go to the Magistrates’ Court or Crown Court?

In the second part of our series on criminal proceedings, we examine the differences between proceedings in the Crown Court and the Magistrates’ Court. Read part one here.

I’m pleading not guilty to an either way offence, should I chose a trial in the Crown Court or stay in the Magistrates’ Court?

Where you have been charged with an offence and wish to plead not guilty, your case will go to a trial. If you are charged with an either way offence, it is possible your trial may take place in either the Magistrates’ Court or the Crown Courts. Where the Magistrates decide that the offence is so serious that the maximum sentence they can pass of 6 months’ imprisonment would be insufficient, the case will be sent to the Crown Court for trial and you will have no say in the matter. However, where the Magistrates decide that their sentencing powers are sufficient (that the relevant offence would be dealt with by a sentence of less than 6 months imprisonment) they can retain the case. In those circumstances you will still have a choice as to whether you stay and have a trial in the Magistrates’ Court (the lower court), or elect to have a trial by jury in the Crown Court. This process is known as electing Crown Court trial.

How do I decide?

The best advice will always be to seek professional legal advice from a qualified practitioner. They can discuss the procedure with you and advise you what would be best in your individual case. There are a number of factors to consider:

1. Who is judging you?

In the lower Court, the Magistrates are the judges of both law and fact. They will hear the evidence, make decisions on the law such as admissibility of specific evidence, and make a decision at the end of your trial as to whether they believe you are guilty or not guilty.

One reason for choosing to stay in the Magistrates’ Court is that the panel of Magistrates is designed to serve as a representative sample of the diverse population, ordinary people who have an understanding of ordinary life. They are guided by a legal advisor who ensures they follow the correct procedures.

As Magistrates are judges of both the law and facts, it is often the case that they will have to see and discuss a piece of evidence over which there are arguments concerning admissibility (whether the evidence is valid). In the event that a piece of evidence is ruled inadmissible, the Magistrates may direct themselves to ignore that evidence, but in practice, it is difficulty to ‘un-see’ something, and this causes concerns for many Defendants. In the Crown Courts, a trial will have a number of preliminary hearings to ensure that the case is ready for trial when the time comes. Matters of admissibility are typically ironed out in advance, and even whether they arise in the trial, it is the judge who makes a decision on whether evidence should go before a jury. If evidence is rule inadmissible, the jury will never see or know of it.

2. Acquittal rates and sentencing powers

The Crown Courts have a much higher rate of Defendants being found Not Guilty than in the Magistrates’ Court. However, while the chances of being acquitted are higher, the chance of receiving a higher sentence on conviction is also much higher. The maximum sentence that can be passed in the Magistrates’ Court for a single offence is 6 months, or a maximum aggregate 12 months for more than one offence, whereas the Crown Courts have greater sentencing powers that can amount to years in prison. An example is theft, tried summarily by Magistrates receives a maximum of 6 months, but tried on indictment in the Crown Court has a maximum of 7 years. Of course, it is unlikely that the maximum sentence in the Crown Court will be passed on a matter that the Magistrates’ Court initially retained jurisdiction on, however, the Magistrates do not have the benefit of having sat through a trial and hearing all the evidence at the time they make the decision on whether to retain jurisdiction.

Note also that while it is the jury who decide whether a Defendant is guilty or not guilty of an offence in the Crown Courts, it is the judge who will pass sentence. The jury will not have regard to any likely sentence that may be passed when reaching their verdicts.

3. The Criminal Standard of Proof

Briefly, this is the standard to which the Prosecution must make the judges of fact (either the Magistrates or the jury) sure of the Defendant’s guilt. This is the same standard regardless of whether you are in the Magistrates’ or the Crown Courts. It is arguably easier to convince a panel of 12 randomly selected people of your innocence, than three lay magistrates who have typically sat on trials before.

 

If you have been charged with an offence and seek specialist advice and representation, our dedicated team of skilled criminal practitioners will be able to assist. To get the best help and advice, contact our clerks via our online contact form or call 01273 810011.

Kayleigh McChambell  | Crime

January 22, 2019
Criminal proceedings part one: The Court system

Criminal proceedings part one: The Court system

Criminal law proceedings can be complex and it is sometimes difficult to know at which stage you might need the services of a legal professional. We have put together a two part series explaining some key aspects of criminal proceedings and how a barrister can help and support you.

What is the Magistrates’ Court?

The Magistrates’ Court is the lowest tier of criminal court in the UK. The ‘judges’ are typically a panel of three Magistrates (also called ‘Justices of the Peace’) who deliberately have no legal qualifications. They are assisted by their court legal advisor. The maximum sentence that can be passed for one offence in the Magistrates’ Court is 6 months, though some offences carry a lesser maximum. In the Magistrates’ Court, it is the Magistrates that hear the evidence and reach a decision in your case.

What is the Crown Court?

The Crown Court is the next highest tier criminal court, typically dealing with much more serious offences attracting prison sentences ranging from 6 months to life imprisonment. Hearings are generally conducted by a single Crown Court Judge who has exceptional legal experience. In the Crown Court, the function of the judge is, amongst other things, to ensure the trial is fair and to rule on matters of law involved. Matters of fact, however, such as deciding whether someone is guilty or not guilty at the end of a trial, are determined by a jury panel of 12 randomly selected members of the public.

Which Court Do I Go To?

Generally speaking, the type of Court is dependent on a number of factors, the most prominent being the type of offence with which you are charged. The first oral hearing (in a court room before a ‘judge’) will always be in the Magistrates’ Court. It is at this stage that a decision is taken as to which court will deal with the rest of the proceedings. If the relevant offence is one which is likely to attract a sentence of more than 6 months, it will be transferred up to the Crown Court for trial (plea of Not Guilty) or sentence (either where there has been a plea of Guilty, or a trial has taken place in the Magistrates’ Court, you have been found guilty and the Magistrates are satisfied that the type of sentence that should be passed is more than 6 months’).

Types of offence

There are three types of offence category: summary only, indictable only, or either-way:

  • Summary Only – These are the least serious matters that can only appear in the Magistrates’ Court*. Matters charged summarily include offences such as minor driving offences and common assault.
  • Indictable Only – These are more serious matters which carry a much higher penalty. As such, they may only be dealt with in the Crown Courts. Offences such as murder or manslaughter are indictable only and carry a maximum life sentence.
  • Either-Way – These are offences which, within themselves, range in severity, and therefore also vary in the sentence that may be imposed. The severity of the offence is determined on the unique facts of each case, and so it is possible that lower end offences will remain in the Magistrates’ Court where the correct sentence would be one of 6 months or less, whereas a more serious version of that offence, attracting a sentence of more than 6 months, will go up to the Crown Courts where the sentencing powers are wider. Theft is an example of an either-way offence, which can attract a maximum 6 months in the Magistrates’ Court, or a maximum 7 years in the Crown Court. Alternately, even where the Magistrates are satisfied they can retain jurisdiction of an either-way case, it is possible for the defendant to elect a jury trial in the Crown Courts. See Part Two: Will my case go to the Magistrates’ Court or Crown Court?

*There are limited circumstances where a summary only matter may be dealt with in the Crown Courts if it can be attached to an indictable or either way offence that is being sent to the Crown (Section 40, Criminal Justice Act 1998).

I have been charged with an offence. What should I do?

It is essential in most cases to obtain legal advice when you are first charged. If you have been charged with an offence and seek specialist advice and representation, our dedicated team of skilled criminal practitioners will be able to assist.

One of our barristers can provide you with exceptional advice on your specific case, what will happen, how to proceed, and what the likely outcome would be. Having professional legal representation at each stage of the process will ensure your best case is put forward and will provide you with the highest chance of securing the best outcome.

To get the best help and advice, contact our clerks via our online contact form or call us on 01273 810011.

Kayleigh McChambell  | Crime

January 17, 2019
Cost of arbitration vs court – Why choose Barrister For Me?

Cost of arbitration vs court – Why choose Barrister For Me?

In the case of family disputes, arbitration is a method of Alternative Dispute Resolution (ADR) whereby you ask a qualified independent third party to make a decision for you and agree to be bound by that decision. Arbitration offers benefits in that you or your legal representative can set out your case and ask questions of the other side without going to court, and a decision will be sent to you in the form of a high quality written judgment. It is much quicker and a lot less expensive than going to court.

One of the most attractive reasons for coming to Barrister For Me is that our fees are transparent and fixed – you always know how much you will have to pay to us before the process begins and there is no risk, as can happen in court proceedings, that those costs spiral out of control.

The other thing that sets us apart is that we are friendly and approachable, and available to you at evenings and weekends to fit in with your schedule.

Your case will be dealt with efficiently and fairly by professionals who are experts in the law relating to children. You can read more about our Arbitrators by clicking on their photos below. If you choose us, your hearing could be listed at a mutually agreed venue or in our building within days or weeks.

Our fees for a complete arbitration are £2,500 (including VAT but excluding any room hire and expert fees). Fees are shared between the parties. If the evidence is already prepared and just one short hearing is required, or if your dispute can be determined by the arbitrator reading a statement from each party, our fees will be lower. These costs are significantly lower than the cost of proceedings through the Family Court, which can exceed £10,000.

The family barristers on this website are able to represent you at arbitrations and you will also see arbitrators who you could choose to determine your dispute. If you would like to appoint a barrister or an arbitrator please contact our clerks for a simple guide to the process and an idea of fees.

Julie Stather MCIArb  | Family Arbitration

January 10, 2019
Family legal terms explained: Children

Family legal terms explained: Children

Family proceedings can be stressful and as well as learning to navigate the legal process there is also a whole set of jargon to understand which can add to your anxiety. You’ll find below some of the most frequently used legal terms with descriptions to help you understand what they mean.

Choosing a barrister who can advise you and represent you in court if necessary is a very important decision. You need to have the utmost trust and confidence in your barrister as they try to make the process as straightforward and stress-free as possible for you.

If you are ready to start the process of instructing a family lawyer, read our simple step-by-step guide then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next.

CAFCASS

CAFCASS is the acronym for the Children and Family Court Advisory Support Service. The organisation represents children in family court cases where required, and produces reports to enable the court to take decisions in the best interests of the children. CAFCASS was formed in 2001 and is sponsored by the Ministry of Justice.

Child Arrangements Orders

A Child Arrangements Order is a type of Section 8 order of the Children Act 1989 (see below). It governs who a child lives with and who a child spends time with. Read more on Child Arrangement Orders.

Child Maintenance

Child maintenance is a sum to be paid, usually monthly, to cover the day to day living expenses of a child. If parties cannot agree they can apply to the statutory child maintenance service (CMS).
Consent Order A consent order is a mechanism which allows parties to make an agreement legally binding, and therefore enforceable. The Court will only make an order where required (see the no order principle below).
This sort of order will be signed and dated and attached to a C100 form. There is no legal requirement to attend mediation before submitting a consent order.

FHDRA

An FHDRA is the First Hearing and Dispute Resolution Appointment in proceedings involving children.

At the FHDRA the court will focus on what the issues between the parties are, and how to progress the case. The court will want to know what the parties are looking for, and why.

Before a FHDRA parties should receive a “schedule 2” letter from CAFCASS, following a telephone call from someone from CAFCASS. CAFCASS is also likely to speak with the parties at court.
Sometimes agreements can be reached at this stage and they can be recorded in a binding court order. This would mean that a case could be finished at this stage. Read more about what to expect at a FHDRA.

No Order Principle

When making an order concerning children the court must be satisfied that making an order is better for the child than not making an order at all.

Prohibited Steps Order

A Prohibited Steps Order (PSO) is a type of Section 8 order (see below) preventing a certain action. A PSO may be made against anyone, regardless of whether they have parental responsibility or are a party to proceedings. PSO’s should not be made in respect of a child who has reached the age of 16 unless there are exceptional circumstances. The order must concern an aspect of parental responsibility.

The order can be made with or without notice to the other parent, in the course of proceedings or on a free-standing application. Making a Prohibited Steps Order without notice is a serious and exceptional action and the Court will consider such an application rigorously. You must have grounds, such as exceptional urgency, to make an application without notice. An absent respondent should be given notice of the application as soon as possible and an order made by the court in these circumstances should be limited in time. Read more on Prohibited Steps Orders.

Schedule 1 Cases

Schedule 1 pertains to Schedule 1 of the Children Act 1989. These cases concern financial provision for children. Applications under Schedule 1 can include: top up maintenance, lump sums, carers allowance, transfer/purchase of property; etc.

Section 8 Orders

Section 8 orders include child arrangements orders, specific issue orders and prohibited steps orders. You can apply for one using Form C100. They are called this because the court’s power to make the order comes from Section 8 of the Children Act 1989.

Specific Issue Order

This is a type of Section 8 order sought to determine a specific question in connection with an aspect of parental responsibility. It can be made on its own or with a child arrangements order but the contents should not be duplicated. They should not be made where the child is in the care of the local authority or where they would deny the High Court the exercise of its inherent jurisdiction. Read more on Specific Issue Orders.

Undertaking

An undertaking is a solemn promise to the court. If you break an undertaking you could be fined or sent to prison. It is as binding as an order of the court.

Welfare

Checklist Section 1(3) of the Children Act 1989 sets out seven criteria for the court to consider when making an order concerning children:

1. the wishes and feelings of the child concerned
2. the child’s physical, emotional and educational needs
3. the likely effect on the child if circumstances changed as a result of the court’s decision
4. the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
5. any harm the child has suffered or may be at risk of suffering
6. the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
7. the powers available to the court

Natasha Isaac | Family and Children

 

January 7, 2019
Arbitration process in Family Law – How does it work?

Arbitration process in Family Law – How does it work?

Children Arbitration is a process where you choose the judge who is to make the decision about your family dispute and agree to be bound by that decision. Whilst going to the Family Court is an option, arbitration offers the same benefits in that you or your legal representative can set out your case and ask questions of the other side, and a decision will be sent to you in the form of a high quality written judgment. The difference in coming to us is that it is much quicker and a lot less expensive than going to court.

The hearing dates are chosen by you. The judge is chosen by you. The arbitration hearings themselves are also far less formal and intimidating than they can be in the Family Court.

Arbitration is not mediation, early neutral evaluation or a legal advice service. It is a legally approved process which resolves your dispute with a sound final decision made by a qualified expert in children law. It’s an alternative dispute resolution service.

The decision of the Arbitrator is called a Determination. It is a written, detailed and reasoned judgment, which is completely independent. The same law must be applied in the arbitration as is applied in the Family Court. The arbitration must also be conducted fairly and properly.
Once you have the Determination, you or your solicitor can make a simple application for a court order in the same terms as the Determination so that you have an enforceable order. You will not normally have to attend a court hearing to get this.

The family barristers on this website are able to represent you at arbitrations and you will also see arbitrators who you could choose to determine your dispute. If you would like to appoint a barrister or an arbitrator please contact our clerks for a simple guide to the process and an idea of fees.

Julie Stather MCIArb  | Family Arbitration

January 3, 2019
What is Parental Responsibility?

What is Parental Responsibility?

Under section 3(1) of the Children Act 1989, Parental Responsibility (‘PR’) is the legal term meaning the rights, powers and authority of an individual concerning a child, as well as the responsibilities and duties of the individual towards that child. Section 2(5) of the Act permits more than one person to have PR for the same child. When a decision needs to be made about a child’s upbringing, such as which school they attend, what religion they may follow, or whether to undertake certain medical treatments, all individuals with Parental Responsibility may have an influence in that decision. However, the wishes and feelings of the child will not be unimportant, and in accordance with their age and understanding will be taken into account when making any decision. An older child’s wishes will have more of an impact on the decision made, given their greater levels of understanding.

How do I obtain Parental Responsibility?

The child’s birth mother will automatically have Parental Responsibility. By virtue of section 2(1) of the 1989 Act, the child’s biological father will have PR if he was married to the mother at the time of the child’s birth. Where the mother and father were not married, the father may still obtain PR in a number of ways, for example being registered on the child’s birth certificate, by court order, or where both the mother and father agree (note, agreement must be evidenced in a specific document, Form C(PRA1), signed and witnessed). The same applies in respect of same sex marriages and civil partnerships. If married or in a civil partnership at the time of the birth, the mother’s partner will also have PR.

The law governing same sex couples has been modified in recent years. Female couples can now include both their names on their child’s birth certificate without needing to register a male sperm donor. Upon registration, both female partners will be considered the legal parents of the child and will both obtain PR as a result. Note that where same sex female couples use a sperm donor, the donor will not be considered the legal parent of the child where the process of artificial insemination is undertaken, but a father who impregnates the mother through sexual intercourse will obtain status as the legal parent. This does not, however, mean that a father with legal status will automatically obtain PR, and the other methods discussed in this article should be explored.

Specific rules are applicable to couples who use a surrogate. In such cases, it will be necessary either to obtain a parental order transferring PR from the surrogate mother to the new parents. An application for such a court order must be made within 6 months of the child’s birth, and the child must have been living with the commissioning parents within that period. Note also that the surrogate mother must consent to the court order for transfer of PR to the commissioning parents.  Alternatively the commissioning parents could adopt the child.

In cases of adoption, where neither partner is the biological parent, the formal court issued adoption order gives the adoptive parents PR over the child, and terminates the PR of the biological parents.

It is possible for persons other than the child’s biological parents to have Parental Responsibility, such as a child’s adoptive parent, step-parent, partners, family members or carers who are in involved in the care of the child, to bring an application to the court for PR.

Unless discharged, PR will run until the child reaches the age of 18.

Can my Parental Responsibility be removed?

It is possible to have PR discharged by making an application to the court. An application may also be made by another person with PR, or by the child in question (where they are mature enough and have sufficient understanding), to have a person’s PR discharged.

When making an order to grant or remove PR, the court must always give consideration to the paramount welfare of the child, and whether it is in the child’s best interest to make the order. However, it should be noted that it is only in very rare circumstances that PR will be removed, and there will need to be a cogent reason and supporting evidence for doing so. It is also possible, though equally rare, to curtail a person’s exercise of PR. It is generally accepted that it is better for the child’s welfare to have both parents retain their full powers under PR, but the court may limit a person’s exercise of powers where, for example, there is risk of harm to the child if the person in question has an influence over their upbringing (see the case of H v A (No.1) [2015] EWFC 58 concerning curtailment of a father’s access to his children’s school reports following imprisonment for offences against the mother).

I’m a surrogate mother, do I have Parental Responsibility?

A surrogate mother is deemed to legally be the child’s birth mother, and therefore has PR. However, it is possible for a surrogate mother to appoint another to be the child’s mother, and obtain a court order deeming that person to have PR.

If Parental Responsibility has become an issue in your case, and you need specialist advice or representation, our dedicated team of skilled family practitioners will be able to assist. To get the best help and advice, contact our clerks using our online form or call 01273 810011.

Kayleigh McChambell  | Family and Children

December 23, 2018
Family Arbitration – New ‘Private Court’ service for Children disputes

Family Arbitration – New ‘Private Court’ service for Children disputes

Most people dread the prospect of going to court to resolve disputes about children. Courts are intimidating places and both the process and the drain on your bank account seem endless. The Children Arbitration Scheme, regulated by the Institute of Family Law Arbitrators (IFLA) is a real alternative. This is how it works and what it can do for you.

You and the person you are in dispute with appoint an arbitrator as your chosen judge to make an independent decision about your disagreement over your children. You can of course go to the Family Court if you prefer, but if you choose to appoint an arbitrator, you can save both time and money.

An arbitrator can help you with disputes about where the children should live, how much time they should spend with parents and other family members, and schooling issues. These are the most common sorts of dispute. Children arbitrators can’t help with care proceedings or applications to take children abroad.

Advantages of arbitration

There are many benefits of asking an arbitrator to resolve your dispute. The fees can be fixed. You choose your own judge, who will be a senior barrister or solicitor specialising in children law and will also be a fully qualified arbitrator accredited and regulated by IFLA. The arbitrator applies the same law as is applied in the Family Court. The hearing will be more relaxed. You can have a lawyer to represent you, but arbitration is perfectly suited for people representing themselves as the formalities of the court do not apply. You can choose which issues you would like the arbitrator to decide. The decision of the arbitrator is intended to be binding because that’s what you will have agreed and appointed the arbitrator for. It’s very difficult to appeal against an arbitrator’s decision, as is the case in the Family Court.

You will get an early hearing date within days or weeks, rather than waiting months to get a court date. The arbitration can be held outside of office hours to suit you at a suitable venue of your choice away from the stressful court environment. You will get a written decision with detailed reasons. The decision will be made and sent out to you within a short time after the hearing, perhaps within a week. At around £2,500, with each side paying just half of that figure, the cost of the service is much less than going to the Family Court, which can be up to and beyond an eye-watering £15,000.

Your case will be heard and decided at just one main hearing lasting no more than one day. If the issue is a simple one, and if the person you are in dispute with agrees, you can each send a written document to the arbitrator instead of attending in person. If the case is more complicated, a planning meeting can be held by telephone or dealt with on paper before the main arbitration. Your arbitration will start at a set time rather than you being kept waiting whilst other cases are dealt with. The arbitrator will know all about your case as he or she will have read the papers that you provide in advance. The whole thing is completely private as the public are not allowed in. Finally, you can apply to the Family Court for an enforceable court order in the same terms as the arbitrator’s decision. The Family Court is very likely to agree to make the order because it’s by consent of the parties and follows a non-court dispute resolution procedure. If you make your application within 4 months of the arbitration, you don’t have to attend a MIAM (mediation), which you normally would have to do if you had made an application to court instead of going to arbitration.

In the Family Court final resolution of disputes can take as long as a year, with many hearings, each incurring sizeable fees for legal representation.

Private Children Arbitration is a long overdue solution to many of the cost and delay problems that are overwhelming those who have had to go to court to resolve their children disputes.

The family barristers on this website are able to represent you at arbitrations and you will also see arbitrators who you could choose to determine your dispute. If you would like to appoint a barrister or an arbitrator please contact our clerks for a simple guide to the process and an idea of fees.

 

Julie Stather MCIArb  | Family Arbitration

December 21, 2018
Housing disputes – when to launch a legal challenge?

Housing disputes – when to launch a legal challenge?

There’s a housing shortage. New homes need to be built. But what are your rights if a developer with planning permission to build 20 homes next door to you wants to build 30 instead? Should you make a legal challenge or use political pressure or organise a public campaign? Legal challenges are expensive and if you lose you can expect to pay the other side’s costs, as well as your own.

To decide whether to mount a legal challenge you need to understand which of your objections are strong and which are weak in law. Trimming the weak objections helps focus on the strong ones. For that you need expert advice.

Often inviting councillors to visit the site to see the issues for themselves is a practical solution. If you plan to make representations to the local planning authority how best can you make them? In writing or in person at a meeting? Or both? If you do go to a meeting, how can you best use the limited time you will have to persuade the planning committee?

The answers to these questions vary from case to case. Neighbours to a development site asked Paul Ashwell these questions recently and using his knowledge of the law and experience of the planning system, he helped them make a plan of action.  Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners.

Paul Ashwell offers expertise across the full range of commercial and property law. If you require his services, please get in touch with our clerks who will be able to put you in contact with him.

By Paul Ashwell | Property

December 14, 2018
What is a Winding up petition?

What is a Winding up petition?

A winding up petition is a request to the court to close down a company [“wind it up”] because it can’t pay its debts. You [“a creditor”] must prove that you are owed at least £750 and the company can’t pay you. The process starts by filling in the correct forms and sending them to the right court with a petition deposit, presently £1,600. What the company does will depend on the state of its finances and whether or not it agrees that it owes you. If your application [“winding up petition”] succeeds the assets of the company are sold, any legal disputes are settled, the company collects the money it is owed and the remaining funds are paid to the creditors. You are one of those creditors. You might get all or some or none of the money you are owed. If your petition fails you will probably be ordered to pay the company’s legal costs.

Paul Ashwell offers expertise across the full range of commercial and property law. If you require his services, please get in touch with our clerks who will be able to put you in contact with him.

By Paul Ashwell | Contracts and Debt Recovery

December 5, 2018
I’ve secretly recorded my ex-partner – will the Family Court listen to it?

I’ve secretly recorded my ex-partner – will the Family Court listen to it?

This post is in respect of applications in private law proceedings and does not relate to recordings of professionals.

The answer is maybe!

As the majority of people in the UK now have access to a smart phone and purchasing a recording device is just an amazon-click away, the issue of secret recording (aka covert recording) is arising more and more frequently in family cases.

You may be tempted to start making recordings if your ex-partner is being abusive towards you or making allegations of abuse against you; for example, at handovers of the children. However, you should be cautious before you start making such recordings because it often reflects badly on parents in Court and doing so may be considered abusive in itself. If you have done so or plan to do so it is highly advisable to discuss this with your solicitor or barrister at the earliest opportunity.

In what circumstances will the Court listen to the recording?

There is no hard and fast rule about whether covert recordings will be admissible in the Family Court and it will depend on the circumstances of the case. The main question will be: is the recording relevant to the issues that the Court is considering? Or is it relevant to the considerations of the child’s welfare? If it is not, then it is unlikely that the Court will agree to hear it.

Other considerations about the admissibility of recording (and what weight the Court attaches to it) will include the following:

  • was it lawfully obtained?
  • it is a complete recording or has it been edited (potentially in a way which is unfavourable to the recorded person)?
  • are there problems in relation to sound and picture quality which mean that it cannot be relied upon or which raise questions as to the authenticity of the recording?

It’s important to note that if the Court does agree to admit the recordings then they may need to be transcribed, which can be costly.

What about recording the children?

It is likely that secret recording of children will be viewed unfavourably by the Courts. In many cases there are allegations about what happens during contact sessions, but if sessions are recorded parents risk being criticised for this very act.

Guidance from previous cases

There is currently no published guidance on the admissibility of covert recordings so we have to look at previous cases for assistance.

In the case of Lancashire CC v Z (Parental Hostility) [2017] EWFC B71 a father had recorded a mother during an argument, and although it          showed the mother’s uncontrolled anger and bad language, the father was also criticised for his part in the argument and for secretly recording it in the first place. In that case, the father was subjected to even more criticism for recording the children, which ultimately resulted in the child being scared that her father had hidden a recording device in one of her toys.

In Re W (minors) [2017] EWFC 80 the judge stated that he considered the father’s covert recording of the mother and children was a ‘deceitful act’ which only undermined trust between the parents.

In M v F [2016] EWFC 29 a father was very harshly criticised for sewing ‘bugs’ into his daughter’s school uniform. The Court agreed to hear the recordings but relied on them as a reason that the child should be removed from her father’s care and live with her mother instead. The fact that the father had made the recordings was taken as evidence that he could not meet his child’s emotional needs.

If covert recordings are an issue in your case our specialist family barristers will be able to advise and represent you. If you would like to contact one of our team, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best suited to your case.

By Vanessa Long | Family and Children

 

November 29, 2018
Case synopsis – Planning objections

Case synopsis – Planning objections

How can you most effectively oppose a planning application that you fear will harm the peace and quiet of your home? Countryside residents were concerned by an application for an application for planning permission to provide hard standing pitches for travellers. They didn’t know which of the things they were worried about were valid planning objections. Paul Ashwell attended an urgent meeting of residents and advised them how best to put their concerns to the local planning authority. Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners.

Paul Ashwell | Property

November 26, 2018
How to instruct a Direct Access Barrister: What is a Barristers’ clerk?

How to instruct a Direct Access Barrister: What is a Barristers’ clerk?

If you are looking to instruct a Direct Access barrister, you will first need to contact a barristers’ clerk – usually a member of a larger team of clerks. This team takes responsibility for administration within chambers (the barristers’ place of work) – keeping diaries up-to-date, calculating and negotiating fees for work carried out and ensuring every member is informed of their commitments.

Whatever your enquiry, when you contact Barrister For Me one of our friendly, helpful clerks will do their utmost to provide you with an efficient service. Once a clerk has either spoken with you, or received your Public Access Enquiry Form from our website, they will contact you in an attempt to drill down into which service you require.

Should you speak to a clerk, they will generally ask you for a short email summarising your instruction, so that it can then be forwarded on directly to the barrister.

Discussing your case: Why do you need a Barrister?

A clerk will have the knowledge and experience to be able to guide you to the barrister within chambers best suited to your case.

It may be that you require a barrister’s advice, or representation at a hearing. At this stage, a clerk will look to identify which barrister can best assist you.

Whilst reviewing a barrister’s availability a clerk will discuss with you the choice of which barristers are available, noting specialisms or any specific time scales, and where necessary provisionally booking time in the barrister’s diary.

Requesting documents from you.

A clerk will then request what are known as case papers from you. Case papers are defined as the papers that evidence your claim. If you are already involved in proceedings, it is crucial for a copy of any previously made Court orders or drafted documents to be sent to chambers. Once received, these papers will be put before a barrister.

Quoting and agreeing a fee.

A clerk, having received your case papers, and having spoken with a Barrister about them, will contact you to agree the fee for the service you require.

Once the fee is agreed, payment methods will be discussed, and a clerk will send you your Public Access Contract. At this stage a clerk will also request a copy of some photographic identification from you.

What is a Public Access Contract?

A clerk will send you your Public Access Contract. This contract is legally binding, and provides you with a written document detailing the work the Barrister will undertake and their terms and conditions for this.

Making payment.

Once you have received your Public Access Contract, and agreed the contents, a clerk will inform you of which payment methods are accepted, (generally either a bank transfer, or chip and pin payment – by phone if necessary). For your first payment, there will be an additional £25 plus VAT administration fee added to the balance owed.

Payment of the Barrister’s fees constitutes your agreement in terms of the contract.

The next steps.

Once payment has been made, the clerk will inform the Barrister, confirm any provisional booking into the Barrister’s diary, and instruct them to start working on your file.

Should you have any further questions, any of our clerks will be happy to help you. You can contact them directly by telephone on 01273 810011 or by email at email@barristerforme.com

November 23, 2018
How to get the best out of your Direct Access Barrister

How to get the best out of your Direct Access Barrister

The aim of this article is to enable you to get the best out of your direct access barrister. Getting the best means being happy with the service you have been given. Here is the step by step to getting there:

1. Choose the right barrister.

Barristers only qualify after rigorous assessment. They are required to keep their skills up to date. You are highly unlikely to get a ‘bad barrister’. The vast majority of barristers are good, but you need to choose the right sort of ‘good’ for you. You may want to rely on a friend’s recommendation but do ask what made that barrister good. Otherwise, barristers’ clerks are the best place to start. Clerks are highly skilled in their own right; they will know their barristers’ strengths and personalities, how that barrister works, and which areas of law the barrister specialises in.

Prepare before you call the clerks: be ready to tell them what your dispute is about and how you would like it handled. Some barristers are skilled in negotiation whilst others take a more combative approach. Be ready to tell the clerks what you want in your barrister. In that initial call you should tell the clerks about court dates or other timescales involved. The clerks will discuss fees with you and can explain why fees vary so much between barristers. The other major resource available to you is the chamber’s website – each barrister will have a full profile which should enable you to make that all important final decision.

2. Preparation, preparation, preparation.

Once you have identified your barrister, ask for a conference in chambers (the name for a Barrister’s offices) or immediately before the hearing if time is an issue. The extent to which your barrister is able to assist you will, to some extent, be determined by how much information the barrister is given. Arriving at a conference with a bag full of unsorted papers will waste valuable time. You should sort your documents into chronological order and separate them into correspondence, documents/evidence, court orders, and finally your own notes. Send a copy of those papers into chambers before your conference.

If you don’t have access to copying facilities the clerks will make a copy for you. Ideally you should prepare a short document for your barrister to accompany your papers. It should tell the barrister what your problem is, the result that you would like to achieve, and provide a short history including efforts made to resolve the problem. If you have specific questions do list those too. You and your barrister can then work through your questions together and come up with a plan of action for your case. By the time you leave your conference you should have a clear understanding of the strengths and any weaknesses in your case, any evidence which you need to collect, and how you and your barrister are going to work together to try to achieve your desired outcome.

3. How to have an effective day at court.

Making the best of a very stressful day at court starts before the day itself. Make sure you have sent everything to your barrister, the court and to the other side on time and do ask them to acknowledge receipt. A couple of days before the hearing it’s helpful to send your barrister an updating email even if it’s just to say that nothing has changed. Arrive at court on time so that you are calm. Most courts have no parking facilities and are in areas where the on-street parking is limited. If you are running late do let the clerks at chambers know.

When you arrive at court you check in at the usher’s desk and your barrister will come and find you. Your barrister will run the case for you at court and guide you through the process. If you have followed steps 1 and 2 above, you have the right barrister for you, that barrister will be fully prepared, and you will be in the best position to achieve your desired outcome.

Your barrister, and the barrister’s clerks, are there to help you through what could be the most stressful time of your life. Help your barrister to help you.

If you need some advice or require representation at an upcoming hearing give the clerks at Barrister For Me a call on 01273 810011 or get in touch using our contact form. They will guide you through the process and help you to make that all important choice of barrister.

By Julie Stather

November 20, 2018
Fact-Finding Hearing FAQs

Fact-Finding Hearing FAQs

If you end up in the Family Court following the breakdown of your relationship you may hear the term ‘Fact-Finding’ being used regarding where your children should live or how their time should be split. This will usually occur where there are allegations of domestic abuse; either because your ex-partner was abusive towards you/your children or you are accused of being abusive.

What is a Fact-Finding hearing?

A Fact-Finding hearing is similar to trial where the Court decides whether the alleged abuse happened or not. At the Fact-Finding hearing the Court will consider all the evidence and make a decision on the balance of probabilities, which means that the Court decides whether it is more likely than not that the allegations happened.

The Court can deal with Fact-Finding at the final hearing i.e. at the same time as it decides the arrangements for the children or it may have a separate Fact-Finding hearing.

How and when does the Court decide if a Fact-Finding hearing is needed?

The Court will usually make this decision at the first hearing. However, it must keep this decision under review and may decide at any hearing that Fact-Finding is necessary. One of the factors the Court will consider when making this decision is whether the allegations are relevant to the arrangements for the children e.g. if abuse occurred it may impact on whether a parents’ contact with a child should be supervised or include overnight stays.

What evidence will be used at the Fact-Finding hearing?

This varies widely depending on the allegations. It is usually necessary to have witness statements from all the parties to proceedings. The parents may also want to rely on the evidence of other people e.g. if they witnessed any of the incidents, were told about them afterwards, or if they can give an alibi.

Parties may also rely on copies of text-messages, emails, photos or any other material which supports their case.

If reports of abuse have been made to the police, doctors, local authorities or other organisations, in some circumstances you can obtain the records. You may require a Court Order to obtain these records so you should raise it with your representative and ask the Court about it at the earliest possible point.

Do I have to give evidence in the hearing?

If you have made allegations of abuse or are accused of abuse you will usually be expected to give evidence in Court. This means that you will take an oath or affirmation swearing to tell the truth and you can be asked questions by the other parent’s legal representative.

Where one or both of the parents are unrepresented, the Court may prevent the parent accused of abuse from asking the other parent questions directly. The Court can also be asked to put up screen so that the parents cannot see each other during the hearing.

If you have a Fact-Finding hearing coming up or you think you may need one in your case our specialist family barristers will be able to advise and represent you.

If you would like to contact one of our team, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best suited to your case.

By Vanessa Long | Family and Children

November 14, 2018
Case Synopsis – Alcohol Licensing

Case Synopsis – Alcohol Licensing

An opportunity for a business can be a threat to neighbours. A guest house in a quiet, leafy residential suburb applied for a premises licence to sell alcohol. Many neighbours were very worried about the use of the garden, potential noise and effect on the values of their properties. They didn’t know how to oppose the application and what they could and couldn’t ask or say. So they clubbed together and asked Paul Ashwell to visit and represent them at the Licensing Committee. He explained the risk of disturbance from the exemptions to the Live Music Act. As a result the Committee put restrictions on the licence to deal with the residents’ reasonable concerns. Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners.

Paul Ashwell | Licensing

November 9, 2018
Neighbour disputes and land ownership – how to get copies of legal documents

Neighbour disputes and land ownership – how to get copies of legal documents

Neighbours can fall out over boundaries. Where was the original boundary? Was it straight? Has a fence or wall been replaced? Is there a hedge or trees on the boundary? Has the boundary moved? Is there a trespass? Restrictive covenants (legal restrictions on the use of land) are another problem. Can my neighbours build another house in their back garden? Can they run a business from home? Can I?

To understand your rights you will need to get the documents showing your land ownership, and your neighbour’s. Ownership of land is called “title”. If you have a mortgagee your bank or building society (your “mortgagee”) may have the title documents.

But whether they do or not a starting point is getting hold of the titles registered at the Land Registry. There are different registers. The property register identifies the property by name or description and location. The proprietorship register shows who the owner (“proprietor”) is. The charges register shows mortgages and restrictive covenants. Also there is the “filed plan” which identifies boundaries with a red line. It is easy and cheap to get copies of these. Just follow this step-by-step guide by Paul Ashwell.

  1. Go to the HM Land Registry website
  2. Enter property name and post code
  3. Click Search
  4. Select Buy Title register and Title plan
  5. Click Purchase
  6. Click Create Account link
  7. Click Agree [terms]
  8. Enter name details,  address details, contact details and Login details.
  9. Click Create Account
  10. Click on link in activation e-mail
  11. Return to Buy Documents page
  12. Click Checkout
  13. Select Payment Page
  14. Enter Card details and Cardholders details
  15. Click Make Payment
  16. Click Continue
  17. On Download documents Select documents and click
  18. Click Save
  19. Click View downloads
  20. Open title documents

Paul Ashwell offers expertise across the full range of commercial and property law, including probate and planning. He is recommended as a Band 1 practitioner by both Chambers & Partners and Legal 500. He lectures frequently on the development of law in his practice areas.

If you require the services of Paul Ashwell to help deal with your neighbour dispute, get in touch with the clerks in our central Brighton office who will be able to put you in contact with him.

Paul Ashwell | Property

November 6, 2018
What is a settlement conference?

What is a settlement conference?

Settlement conferences take place at court during proceedings concerning children. They can take place in public law cases involving local authorities (care proceedings) and in private law cases between individuals.

Settlement conferences were pioneered in Canada over 15 years ago, where all the indications are that they have been a success.  They are now being piloted in several areas in the UK including Liverpool, Devon and Cornwall and Brighton after senior judges, including the former President of the Family Division, looked at innovative ways of minimising delay and costs within the family justice system.

It is an entirely voluntary and consensual process conducted in the presence of the parties’ lawyers with ample opportunity for advice to be given outside the process and for careful reflection by all parties before decisions are made.

During the course of the settlement conference the judge will hear from all parties on a without prejudice, confidential and legally privileged basis. If a settlement conference does not succeed in reaching agreement and there is a subsequent trial nothing disclosed at the settlement conference may be used at the trial which, moreover, will not be heard by the judge who conducted the settlement conference. Where a child is a party the child’s solicitor and/or guardian will ensure that the child’s wishes and feelings are made known.

The ethos of the settlement conference is not to pressure parties to settle but to explore whether the honesty and confidentiality of the process can help to reach common ground.

At any stage, if every party in the case agrees, a judge may refer the case for a settlement conference.  This usually occurs at the IRH (Issues Resolution Hearing) in public law cases and at the FHDRA (First Hearing Dispute Resolution Appointment) in private law proceedings. At all private law settlement conferences, someone from CAFCASS will be there to represent the interests of the child. The expectation is that CAFCASS meet with parties first to see what, if anything, they might be able to achieve.

What can I expect at a settlement conference?

The conference itself is conducted by an allocated trained judge. The purpose is to try to resolve some or all issues or to find creative ways of helping the parties reach an agreement without the need for any further hearings.

After introducing themselves and reminding you of the principles and reasons for settlement conferences, the judge will sit with you and discuss your case directly with you in an informal way to explore the issues which need to be resolved.

The judge usually sits at the same level as parties and parties can be called by their first names. The conference is not as formal as a normal hearing and is designed to put people at ease.

No party or legal representative has to say anything to the judge if he/she does not wish to do so.  Parties will never be separated from their legal representatives who are free to speak at any time but not to argue the case. Publicly funded (legal aid) representatives within ongoing publicly funded cases will also be funded to attend settlement conferences.

All parties will be given the opportunity to reflect or obtain advice from their legal representatives at all stages during the settlement conference.

Although everything said during the settlement conference is confidential to the process of the settlement conference and will not be referred to at hearing, if it is discovered during the process of the settlement conference that a child is at risk of significant harm, the judge will immediately end the conference and take appropriate steps to protect the child.

Any party can withdraw at any time from a settlement conference and this will not prejudice their case or lead to an adverse inference at any time.

The judge will not make the decision but if parties wish the judge can give an indication of what they would do if they were deciding the case.

At the end of the settlement conference some or all of the issues might be agreed. If all of them are agreed, an order can be made if it is needed or the agreement can be recorded. If not everything is agreed, whatever has been agreed will be recorded. In order to resolve the rest of the issues, there will always be the option of a hearing before a different Judge. This judge will make directions for filing of evidence and list for a final hearing (which may already be listed).

Laura Bayley is an experienced Family Law practitioner, who specialises in public and private law cases concerning children.  In private law Laura provides advice and representation in disputes relating to living and contact arrangements for children following the breakdown of relationships, applications to remove children from the jurisdiction and specific issues relating to education, medical procedures and religion.

If you require the services of Laura Bayley to help with your case, get in touch with the clerks in our central Brighton office who will be able to put you in contact with her.

Laura Bayley | Family and Children

 

November 1, 2018
But who gets the dog? – Pet custody in divorce and separation

But who gets the dog? – Pet custody in divorce and separation

On the breakdown of a relationship (whether a marriage or civil partnership or of co-habitation), the focus will usually be on the arrangements for any children of the family and sorting out the finances. Much time, money and effort is often spent arguing about these important things. However, there is nothing in the Children Act 1989 that allows you to apply for ‘custody’ (in common parlance) of the family dog (however much they may be like a child to you!). Similarly, there is no provision when you are completing your financial disclosure (Form E) in financial remedy proceedings to stake a claim to your furry friend (unless perhaps it is a prize winning poodle worth many thousands of pounds). This begs the often asked question of “But who gets custody of the dog?”.

Domestic animals are in fact personal property – in the same way that we can own a laptop, a piece of jewellery or a car. For some items, like a car, there is an official record of the “Registered Keeper”, which while not conclusively proving ownership, is good evidence of who the owner is. However, for most items of personal property there is no such record and therefore other factors will need to be considered to work out their owner.

The main factor will usually be who paid for the pet in the first place. A written contract is likely to be conclusive. However, if the pet was a gift, then factors such as who is the only or main contact at the vet and who pays for the food etc may become relevant.

Importantly, the Court can only declare the owner of the pet – either in a claim in the civil courts or potentially in the family court under the Married Women’s Property Act 1882. It has no power to make orders imposing a shared care arrangement with the dog spending every other weekend and a night in the week with one ‘parent’. If you want to achieve this type of arrangement, then this is best done through mediation.

If you have a pet swan then be careful, all white swans swimming in open and common rivers belong to the Crown by prerogative right (Case of Swans (1592) 7 Co Rep 15b at 16a).

What about puppies or kittens? The general rule is that the young will belong to the owner of the mother until they are sold or given to someone else (interestingly this rule doesn’t apply to cygnets).

If you believe that you are the rightful owner of the family pet, then it may be that you have a valid claim to have that pet returned to you. Conversely, if you have the pet in your possession and are being hassled about it, you could seek a declaration from the Court that you are the rightful owner to head off any claim by your ex-partner.

Finally, couples can avoid these disputes by thinking ahead and including carefully worded provisions in a pre-nuptial agreement or cohabitation agreement as to what is to happen to any pets in the event of relationship breakdown.

If you would like help with a dispute about a family pet, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.

David Lewis-Hall Divorce and Finance

 

October 26, 2018

Kate Richmond speaks to aspiring barristers at the University of Sussex

Kate Richmond was invited by the University of Sussex Aspiring Barristers Society to speak to students yesterday about pursuing a career at the Bar. Kate shared her experiences of the Bar Professional Training Course and the Inns of Court as well as giving students tips on how to make the best choices for them. The talk was then followed by a Q&A session where students asked questions about the vocational stages of qualification and, more generally, about life at the Bar.

The feedback received from the attendees was that they found the talk very informative and inspirational.

Our thanks go to the Society for organising the event.

October 24, 2018
Opposing a lasting power of attorney in the Court of Protection

Opposing a lasting power of attorney in the Court of Protection

Scott Storey recently succeeded in opposing the registration of a lasting power of attorney in the Court of Protection (‘COP’).

Under subsections 22(3) and (4) of the Mental Capacity Act 2005, if the COP is satisfied that the donee of a lasting power of attorney has behaved, is behaving or proposes to behave in a way that contravenes their authority or is not in P’s best interests, the COP may:

  • Direct that an instrument purporting to create the lasting power of attorney is not to be registered; or
  • If P lacks capacity to do so, revoke the instrument or the lasting power of attorney.

The COP is able to take into account a number of factors in determining whether this test is met. In Re J [2011] COPLR Con Vol 716, HHJ Marshall QC noted at paragraph 77 that the COP can consider:

‘… any past behaviour or apparent prospective behaviour by the attorney, but, depending on the circumstances and gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arising if P lacks capacity), to deal with the situation, whether by revoking the power or by taking some other course’

In Re Harcourt [2013] COPLR 69, which concerned a property and affairs lasting power of attorney, Senior Judge Lush held at paragraph 60 that:

‘The factor of magnetic importance in determining what is in Mrs Harcourt’s best interests is that her property and financial affairs should be managed competently, honestly and for her benefit.’

Accordingly, Senior Judge Lush found that the donee was not acting in Mrs Harcourt’s best interests in circumstances where she had, amongst other things, failed to pay care fees on time, had not provided pocket money and had made frequent cash withdrawals.

Scott Storey acts for clients in both health and welfare and property and affairs matters in the Court of Protection. He has experience of cases ranging from deputyship applications to proceedings concerning the Deprivation of Liberty Safeguards.

Scott Storey | Court of Protection

October 23, 2018
Case Synopsis – Wills & home ownership

Case Synopsis – Wills & home ownership

Family agreements can end in tears. Families sometimes make agreements and put them in writing. Years pass and there are uncertainties about whether the agreements are valid and enforceable and what they mean. Paul Ashwell recently advised where a family which had tried to mix together an agreement about ownership of shares in a house with wills and a loan agreement. He was able to give clear advice on whether a court claim would win and who would be ordered to pay the costs. Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners

Paul Ashwell | Wills, Probate and Inheritance

October 15, 2018
How to serve or challenge a Statutory demand

How to serve or challenge a Statutory demand

What is a Statutory Demand?

A statutory demand is a demand for payment by someone who is owed money [called “the creditor”] by an individual or a company. A special form must be used. The form depends on when the debt is payable and whether it is owed by an individual or a company. The usual time limit is 6 years and the demand has to be made or “served” in a special way. When the individual or company that owes you money [the ‘debtor’] receives a statutory demand, they have 21 days to either pay the debt or reach an agreement with you to pay. If they don’t respond, if the debt is large enough, you can apply to the court to bankrupt your debtor [if they are an individual] or wind them up [if they are a company]. The court fees are at present £280 for an individual and £1,600 deposit for a company.

If a demand is made on you and you don’t agree with it you can challenge it and get it “set aside” if you are an individual. A company challenges a statutory demand in a different way by applying to stop the winding up. If you make a demand which is unjustified you can be ordered to pay the debtor’s legal costs.

Paul Ashwell offers expertise across the full range of commercial and property law. If you require his services, please get in touch with our clerks who will be able to put you in contact with him.

By Paul Ashwell | Contracts and Debt Recovery

October 8, 2018
Case Synopsis – Wills, Probate & Inheritance

Case Synopsis – Wills, Probate & Inheritance

What does a will mean? Sometimes families write their own wills. The language they use could mean one thing or another. Even wills drafted by lawyers can be difficult to interpret. A recent case was about who should be counted as living at the date of someone’s death. One solicitor said the will meant one thing, another said it meant something else. Paul Ashwell wrote a formal written opinion which his client could show to the other family members. The dispute settled without even starting a court claim. Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners.

Paul Ashwell | Wills, Probate and Inheritance

October 2, 2018
What is a Non Molestation Order?

What is a Non Molestation Order?

A Non Molestation Order is an order that prevents a person from ‘molesting’ another person.

Person A can apply for an order to prevent Person B, who is connected to them, from molesting them or a child who is connected to them.

‘Molesting’ means behaviour where Person B has been physically violent but can also include intentional harassment including using or threatening violence, intimidation or pestering. The dictionary definition of ‘molestation’ is ‘to cause trouble to; to vex; to annoy; to put to inconvenience’ and can include behaviour by Person B which has an indirect impact on the life of a child.

A Non Molestation Order is an order of the court which contains requirements preventing Person B from certain behaviour set out in the Non Molestation Order.

The types of behaviour that a Non Molestation Order can prevent include:

  • Contacting by telephone, text, email or social media;
  • Using or threatening violence;
  • Intimidating, pestering or harassing;
  • Entering Person A’s home;
  • Damaging Person A’s property;
  • Going to a child’s home or school.

The purpose of a Non Molestation Order is to prevent the behaviour that was leading to Person A or a child being molested.

When a Family Court is considering whether to make a Non Molestation Order it will look at all of the circumstances of the case as well as the need to secure the health, safety and well-being of Person A and any child.

How long does a non molestation order last?

There is no maximum period for a Non Molestation Order but it is likely that a Family Court will make a Non Molestation Order for a specific period.

If Person B does not comply with the requirements in the Non Molestation Order they may have ‘breached’ the Order which is a criminal offence.

Applying for a Non Molestation Order

Person A can apply for a Non Molestation Order by filling out court Form FL404a and sending this to the Family Court along with evidence to support the application. The application will be issued by the Family Court and sent to Person B unless Person A is applying ‘without notice’.

‘Without notice’ means that Person B is not sent the application and does not know about Person A’s application for a Non Molestation Order. The Family Court will consider a without notice application for a Non Molestation Order if there is a risk of significant harm to Person A or a child; or if Person A will be prevented from making an application otherwise; or if Person B is aware of the application but cannot be sent the application.

Applications for Non Molestation Order can be factually sensitive and it is important that all of the relevant circumstances are known to the Family Court when making any order.

Cases about domestic abuse can be difficult both emotionally and technically. The support of a lawyer with specialist experience who can advise and represent you could assist in achieving the outcome you want.

Our Public Access Family Barristers are experienced lawyers and advocates, who can advise you on all aspects of your case and represent you in Court if necessary. Our clerks can discuss your particular needs to make sure you are matched with the barrister best able to support you.

To get in touch with a member of our team, first read our simple step-by-step guide, then our clerks can advise you on your next steps and put you in touch with the family lawyer best able to accommodate your needs.

By Kate Richmond | Family and Children

September 28, 2018
Case synopsis – Divorce & Finance

Case synopsis – Divorce & Finance

Love is a wonderful thing. But it can cloud judgement. A lady came to Direct Access Barrister Paul Ashwell for advice. She had sold a share in her home to her former partner for less than it was worth. She had signed a one-sided agreement about their rights that he had written. A solicitor had given her what should have been independent advice though it wasn’t. The former partner, who had sometimes been violent, sued her. She risked losing her home.

Paul met her and she explained what had happened. He advised her about the court procedure, drafted a court document for her, advised her on what the court would do if the dispute reached a trial, and on the advantages of negotiation. He explained that, although she would need to employ solicitors, he would remain “on-call” if needed. Paul is recommended in the 2019 editions of the leading legal directories Legal 500 and Chambers & Partners.

Paul Ashwell | Divorce and Finance

September 14, 2018
What can Commercial Dispute Mediation be used for?

What can Commercial Dispute Mediation be used for?

Commercial dispute mediation [“CDM”] is a way of resolving commercial disputes as an alternative to taking a claim to court for a judge to decide. It is one of the means of alternative dispute resolution [“ADR”]. Other means of ADR are negotiation and a settlement meeting, which is similar to CDM but without an independent mediator. CDM can take place before any court claim is made but often takes place soon after a court claim is made because then each side will understand what the other’s position is about the dispute. Often a business will not sit down and mediate unless a court claim is actually started or at least about to start. The procedure is that the two sides choose and pay for an independent mediator whose job it is to help them reach agreement, not to decide the dispute. Both sides and their lawyers and the mediator meet for ½ a day or a day and try to reach a written agreement. CDM is far less expensive than going to trial, quicker, less stressful, avoids publicity that can damage reputation and can allow a commercial relationship to continue. It is private and confidential so that if it is not successful a judge cannot be told about what happened at the CDM. About 80% of CDMs result in agreement, either on the day or shortly afterwards.

Paul Ashwell offers expertise across the full range of commercial and property law. If you require his services, please get in touch with our clerks who will be able to put you in contact with him.

By Paul Ashwell | Contracts and Debt Recovery

September 7, 2018
Court of Protection: Deputyship – Scrutiny of Deputies

Court of Protection: Deputyship – Scrutiny of Deputies

When a loved one lacks mental capacity to make their own decisions it can be an incredibly distressing time for members of their family.

The Court of Protection in English law is a superior court of record created under the Mental Capacity Act 2005. This court makes decisions on financial or welfare matters for people who can’t make decisions for themselves (they ‘lack mental capacity’) at the time they need to be made.

This is a complex area of law with complex outcomes – people close to the individual may be assigned as deputies to make decisions on their behalf, and sometimes there may be disagreement between those concerned or a misuse of the responsibilities bestowed.

Abuse of a Deputy’s powers – example

In the case of GM, MJ and JM  [2013] EWHC 2966, the Court heard an application to retrospectively approve gifts already made and expenses of Deputies out of the funds of the protected party (P). It was a highly concerning case that demonstrated the potential for abuse of a deputy’s powers.

The Deputies made gifts to the value of approximately £60,000 to each of themselves (including Rolex and Omega watches and an Alexander McQueen handbag) and a further £50,000-odd to friends and family. ‘Expenses’ that they sought to have approved included the purchase of brand new vehicles e.g. a Mini Countryman, all paid for out of P’s funds. All this, while only allowing P an allowance of £314 a month for her personal expenditure; and refusing to allow her further funds to buy her own clothes, something which she was able to do.

P’s finances were found to be in disarray due to the Deputies actions and the Court removed the Deputies.

This article looks at the restrictions on the powers and the exercise of those powers by deputies with the aim of outlining options for those who are concerned that a deputy may be acting inappropriately and to inform those deputies of the limitations and challenges that may be faced in practice.

Deputyship Order – Scope & Limitations

The starting point for those concerned about the exercise of powers over the affairs of a Protected Party (P) is the Deputyship Order itself.

Where there is no appointment under an LPA (Lasting Power of Attorney – made by the person themselves before they lose mental capacity), and capacity has been lost, an application to the Court of Protection may be necessary in order to deal with P’s affairs.  The Court of Protection has powers to make decisions about P’s property and his personal welfare.

The fundamental principle to be considered in the legal approach is what is in the best interests of P.  What will be in the best interests of P in one case may be a minor factor in another and as such the ‘best interests’ consideration will vary case by case Re Peter Jones [2014] EWCOP 59.

It is important to note that the powers under this framework are qualified throughout the Act by the requirement to consider whether P has capacity to make decisions or certain decisions by his or herself. Whilst someone may not be able to manage certain aspects of their financial affairs, there may be other things that they are perfectly capable of handling – section 20(1):

“A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter”.

The powers granted under a Deputyship order may be prescribed specifically or limited to only certain matters. Indeed, in respect of health and welfare matters, the Court to date remains reluctant to make a Deputyship order or extend the order to include these. Usually such type of decisions cannot be made any one person or at least only one person making such a decision may not be in P’s best interests.

A Deputy can be subject to supervision (there are 4 different types) and may also be required to put down a security bond (a kind of insurance to protect the assets of the protected person) which can be used in the event of a failure to act or a breach of deputyship obligations.

Challenging a Deputyship Appointment & Removal

The process of applying for a deputyship order requires the applicant to serve a copy of the application or to notify those who may have an interest in respect of the application e.g. family members.

Those who are served with the application will also be served with a COP5 form, allowing them to consent or object to the application; if objecting a witness statement in COP24 must be filed. A contested hearing can result but objections are highly unlikely to succeed where a professional Deputy can be appointed. This may not be appropriate where P’s finances are limited but the Court is likely to have little option where parties cannot agree who is to be appointed.

As set out above, the Court has the power to remove Deputies who do not act in accordance with their obligations.

On the face of it however, unless there is an application before the Court of Protection, there does not seem to be a mechanism for individuals to challenge the management of P’s affairs by a Deputy before the Court. There is a heavy reliance therefore on supervision and the risk of losing the security bond.

Challenging the Exercise of Powers conferred on a Deputy

The Office of the Public Guardian (the OPG) is responsible for overseeing deputies and attorney appointed under a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA).  Where an LPA or EPA has not been granted before a person loses capacity, an application for a Deputyship order must be made to the Court of Protection, whether to deal with their financial and/or welfare affairs.

In GM, MJ and JM, the OPG was added as a Respondent in respect of the application to the Court for approval of gifts and payments to the Deputies. The OPG recommended the removal of the Deputies because all of P’s funds could not be accounted for; the gifts and expenses they sought to have approved were extensive and not reflective of P’s wishes; but most importantly for acting in breach of the Code of Practice:

5.23′The decision maker should make sure that all practical means are used to enable and encourage the person to participate as fully as possible in the decision-making process and any action taken as a result, or to help the person improve their ability to participate.’

Changes were introduced to tighten the supervision of deputies and attorneys in 2014, with the requirement for professional deputies to submit annual reports from March 2016. Theses forms also ask the Deputy to set out matters other than financial matters e.g. how many people P has seen on a regular basis other than the person they live with? The OPG also asks professional deputies to submit a breakdown of the costs involved in their care as well as an estimate for the following year.

The misuse of funds or abuse of a Deputy’s position can be reported to the Office of the Public Guardian; a direct application to the Court of Protection is not possible.

Concluding Remarks

Deputyship orders are arrived at with some scrutiny and can have limitations put in place, addressing some concerns of those with an interest in P’s affairs. Hence it is imperative that the Deputyship Order is drafted with some care. As LPAs are not granted by the Court, the initial scrutiny and use of limitation to the powers of attorneys is not available, making Deputyship a preferable option for some.

It is ultimately the Office of the Public Guardian which is tasked with overseeing a system which essentially relies upon both professional and lay deputies acting in good faith. Any omissions or failures of the OPG could also lead to an action for a judicial review of their decision/ handling of the complaint.

As socio-economic factors such as the aging population and declining public funds continue to disproportionately affect requirements it may be that the need for the Court of Protection is greater than ever, requiring an even more radical approach.

If you are looking to the Court of Protection in the case of a loved one who has lost capacity to act for themselves, our highly experienced, specialist barriers will be able to advise you and represent you in the Court of Protection if necessary.

If you would like to contact one of our team, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.

 

By Abha Pandya | Court of Protection

August 28, 2018
Supreme Court rules against the Government on Civil Partnerships

Supreme Court rules against the Government on Civil Partnerships

R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) (Respondent) [2018] UKSC 32

Link to judgment here: Judgment on BAILII (HTML version)

In a unanimous judgment on June 27 2018, the Supreme Court ruled that the current Civil Partnership law was incompatible with Article 14, read in conjunction with Article 8. of the European Convention on Human Rights.  The European Convention is incorporated into UK law by the Human Rights Act 1998.

The Civil Partnership Act 2004, which came into effect on the 5th December 2005, introduced civil partnerships, but they are only available to couples of the same sex. This case was brought by a heterosexual couple who wished to enter into a civil partnership but were refused under s.3 of the Act when they tried to register at Chelsea Town Hall back in October 2004.

Following a Judicial Review, and an appeal to the Court of Appeal, the Supreme Court heard the case in May 2018.  The couple argued that not allowing them to enter into a civil partnership because they were not a same-sex couple was discriminatory.  By the time the case reached the Supreme Court it was accepted that access to civil partnerships falls within the ambit of article 8; that there is a difference in treatment between same sex couples and different sex couples in relation to the availability of civil partnerships; that this difference in treatment is on the ground of sexual orientation, a ground falling within article 14; and that the appellants are in an analogous position to a same sex couple who wish to enter into a civil partnership.  The question for the Court therefore was whether the government could show that unequal treatment of same-sex and different sex couples was justified.

The Court found that the current legislation was discriminatory, as same-sex couples can now enter into same-sex marriages or civil partnership but heterosexual couples cannot enter into civil partnerships. The fact that the Civil Partnership Act 2004 was not repealed when the Marriage (Same Sex Couples) Act 2013 was enacted created the difference in treatment.

The Government is now under considerable pressure to urgently review the law.

The rights granted to a couple under a Civil Partnership (such as pension benefits, inheritance and tax reliefs) mirror those enjoyed by married couples. There are however some differences should the relationship break down and the partnership come to an end.

To end a marriage by divorce you must show that your marriage has ‘irretrievably broken down’. This can be for one of five reasons:

  1. Adultery
  2. Unreasonable Behaviour
  3. Desertion (your spouse has left you)
  4. If you have lived apart for at least 2 years and you both agree to divorce
  5. If you have lived apart for at least 5 years regardless of whether your spouse agrees to divorce

To end a Civil Partnership you require a ‘dissolution order’. It is similar in process to a divorce in that you still need to show that your Civil Partnership has ‘irretrievably broken down’. To do this you can use the reasons listed above for marriage, with the exception of adultery. This is because adultery in law means that your husband or wife has had sexual intercourse with someone of the opposite sex. As Civil Partnerships are only available for those of the same sex (at least for now!), adultery therefore does not apply. However, such sexual infidelity could be characterised as Unreasonable Behaviour for the purposes of dissolution.

If you are considering divorce or dissolution there are many factors to consider, including the division of your finances and who will look after any children you have together and how contact with the children may be arranged.

Ending a marriage or civil partnership can be a stressful and emotional process and disputes may arise in even the most amicable divorce. A barrister will be able to advise you on all aspects of your case and to represent you in Court if necessary. If you are thinking of instructing a lawyer to help proceed with your divorce, you may find it helpful to read our advice on how to choose a divorce lawyer.

Our Public Access Barristers have a wide range of experience of divorce law. To get in touch with a member of our team, read our simple step-by-step guide, then contact our clerks who will put you in touch with the barrister best able to accommodate your needs.

By David Reader | Divorce and Finance

July 31, 2018
A recap on Specific Issue Orders

A recap on Specific Issue Orders

A specific issue order (an SIO) is an order that determines a question in relation to a child’s upbringing where those that hold parental responsibility cannot agree.

In family law cases it is often applied for by one parent against another parent, but an application can be made by anyone who holds parental responsibility for a child (including step-parents and special guardians) and anyone who has a child arrangement order as a person with whom the child should live. Anyone else, including in some cases the child themselves, needs the permission of the court to make an application for an SIO.

An SIO can deal with a wide range of issues. Some examples include:

  • Questions concerning medical treatments (such as whether a child should be given vaccinations or a blood transfusion)
  • How and where a child should go to school (whether they should have a state or private education, which specific school a child should go to)
  • Religion (what religion the child should be brought up into, what religious customs should the child follow, such as circumcision)
  • Changing a child’s name

An SIO must determine an issue that concerns the exercise of parental responsibility, and they cannot be used where a Child Arrangements Order (which determines where a child lives and how much time it spends with each of the parents) would be best placed, an SIO cannot determine where a child should live, for example.

An application for an SIO can be issued either on its own or during the course of other Children Act Proceedings; usually when one parent applies for a Child Arrangements Order.

An application for an SIO is sometimes accompanied by an application for a Prohibited Steps Order (an order which prevents someone from doing something). For example, an SIO may be applied for to return a child from outside the country, along with a Prohibited Steps Order stopping anyone from taking the child away again.

There are some restrictions on making an SIO. They cannot be made in respect of a child in Local Authority Care. Also, an SIO should not be made in respect of any child aged 16 or above, or extend beyond their 16th birthday, unless the circumstances of the case are exceptional. No SIO can have effect beyond the child’s 18th birthday.

When a Court considers making an SIO, the welfare of the child is the paramount consideration and the Court will, at each stage, have regard to the following:

1) the welfare checklist as set out in section 1 of the Children Act 1989,

2) that it must be better for the child for an order to be made than to make no order, and

3) that any delay in deciding matters is contrary to the welfare of the child.

If you need to instruct a family lawyer to help with any aspect of an SIO, read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.

By Matthew WithersFamily and Children

July 25, 2018

Wrongful removal of a child under the Hague Convention

Summary of a recent decision in the High Court.

MK v RP [2018] EWHC 1475 (Fam)

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1475.html

This is an interesting case concerning the interpretation of what is meant by ‘clear and unequivocal consent’ in cases of alleged child abduction and consideration of the defence under Article 13(b) where it  must be established that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Both parents were Israeli. The child, D was 6 years old at the time of the application. The parties agreed that prior to her removal D was habitually resident in Israel. The questions for the court were whether there had been a wrongful removal by D’s mother to the UK, the mother asserting that the father had consented to the child’s removal and whether, in any event, that to return the child to Israel would place the child in an intolerable situation.

The mother claimed that in 2013 the parties registered their divorce at the Rabbinical Court of Jerusalem and that there was an amendment to the divorce petition to allow her to relocate, should she re-marry, without needing to obtain the father’s consent. The mother then applied to the Rabbinical Court of Jerusalem in November 2017 for a declaration that she be permitted to leave the jurisdiction which was granted. The father disputed that the additional clause had been added to the divorce petition but in any event said that the agreement was unenforceable due to there being no jurisdiction over family matters by the Rabbinical Court. He further stated that he was not served with the November 2017 declaration and that the mother did not notify him when she left the country (a fact which was accepted by the mother).

Expert evidence as to the law and procedure in Israel was obtained and the judge accepted the expert view that both translations of the divorcee agreement obtained by each of the parties was unsatisfactory and that his own interpretation was that the paragraph relating to the ‘consent’ was poorly drafted. Furthermore he advised that under Israeli law the permission of the court in Israel is required to relocate a minor and that the Rabbinical Court had no jurisdiction to authorise the removal of a child from the jurisdiction of Israel.

Ultimately the judge concluded that the written divorce agreement itself did not provide the ‘clear and unambiguous consent’ required for an international relocation as asserted by the mother

It was also apparent that once the mother had left Israel she did not tell the father she had moved and he only discovered the information after he issued an application to the family court in the UK. In a subsequent letter to the court the mother asserted that the father would act violently towards her and the child if he were to be given details of the mother’s address and their precise whereabouts.

As to the Article 13(b) defence it was said on mother’s behalf that she and the child would be homeless if they returned to Israel as the mother had given up her tenancy when she relocated to London and was unable to live with family members with the child. Her case was that she and the child would return to destitution even though she said in her statement that if the child was to return to Israel she would be able to live with her parents. The Father also offered undertakings that he would not attend the airport when Mother and the children returned to Israel, would not support any proceedings for the mother’s punishment in respect of the wrongful removal to London, would continue to pay the mother maintenance, would not seek to separate the child from the mother’s care save for periods of agreed contact until the first hearing in the family courts in Israel and would pay the cost of a flight for the child to Israel.

On that basis the judge concluded that the evidence fell far short of establishing, on the balance of probabilities, that the child would be exposed to a ‘grave risk of physical or psychological harm or otherwise place the child in an intolerable situation’. The judge ordered the child’s return to Israel immediately where the mother, should she wish to pursue her application to relocate to London would be required to make an application to the family court in Israel, that being the child’s country of habitual residence.

This is perhaps a helpful reminder that the evidence required to establish that a parent has given ‘clear and unequivocal’ consent to an international relocation should be solid. Where there is doubt about the interpretation or wording of an agreement, clarity should be sought before relocation is attempted. On a practical level any parent seeking to relocate should obtain the other parent’s consent in writing, and, if necessary, via lawyers. It is also a reminder that to satisfy the court that a return to the country of habitual residence would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation clear evidence needs to be provided that this would indeed be the case. Simply being an unsatisfactory situation for the child and relocating parent in returning back to the country of habitual residence after a failed relocation is quite clearly not enough as appeared to be the situation in this case.

By Clare Ciborowska Family and Children

 

July 24, 2018
Cohabitants. What are my rights to financial provision?

Cohabitants. What are my rights to financial provision?

As any family law student knows, the law in England and Wales does not at present afford to those of different sex who have lived together as if they were husband and wife, the same rights to claim financial relief against each other as are afforded to legally married couples during cohabitation or upon divorce or judicial separation. There is no legal right to financial support available to cohabitants of different sex as is the case in Scotland.

Regrettably, many people south of the border still labour under the misapprehension that the relationship of common law husband and wife is a recognised status in law with equivalent rights during the relationship and upon separation to those who are or have been legally married.

Hard cases like Burns v Burns in 1984 abound in the law reports. Notwithstanding a 19 year relationship that outwardly bore the hallmarks of a traditional marriage and having borne and raised two children, Valerie Burns (who had even changed her name by deed poll) was unable to establish a beneficial interest in her erstwhile partner’s property which had been their family home because she was obliged to rely on principles of civil law which did and do not recognise or incorporate the principles of sharing, needs and/or compensation which would have been the case had the parties been married and then divorced.

Whilst later decisions of the higher courts in Oxley v Hiscock [2004] and Stack v Dowden [2007] have helped by enjoining a court to consider the whole course of dealing between the parties in relation to a home when considering claims by a cohabitant under the Trusts of Land and Appointment of Trustees Act 1996 for an interest in the property, the question as to whether the claimant has a beneficial interest rather than its extent, is still decided by applying principles of trusts law or equitable principles such as proprietary estoppel, which often present insuperable evidential difficulties to a claimant.

Despite recommendations from the Law Commission [Law Com No. 307] for change to reflect the growing trend in society towards cohabitation, the support of many members of Parliament and in the legal professions for change, the government has baulked at introducing comprehensive legislation to remedy the injustices that can arise when a different sex relationship of more than a transient nature or duration breaks up permanently.

In such circumstances, if the parties involved are unable to resolve their differences and claims through mediation or other alternative dispute resolution procedures, or have not previously entered into a legally binding cohabitation agreement which can be enforced, they have to resort to the civil law (a patchwork of legal principles) in relation to any claim to property or to limited statutory rights for financial provision in certain situations.

Thus, in the context of the family home, (usually in circumstances where molestation or harassment has occurred) a cohabitant has the right to claim relief for the sole occupation and maintenance of the home previously enjoyed with an erstwhile partner under the Family Law Act 1996. However, the right to such provision (in terms of the discharge of rent, mortgage payments or other outgoings and repairs affecting the dwelling house) can only be of limited duration and can-not exceed 12 months. Unless the needs of minor children can be invoked, no right to any other form of maintenance or ongoing financial support is available to the unmarried cohabitant.

For a different sex couple who object in principle to marriage, change is long overdue but the recent judgment of the Supreme Court in R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) (Respondents) [2018] UKSC 32 given on 27 June in which the court ruled that it was discriminatory to restrict civil partnerships to same sex couples, may mean the government will now move quickly to support the proposed changes to the Civil Partnership Act 2004 by Mr Tim Loughton MP designed to achieve the extension of civil partnerships to different sex couples.

By James King-Smith  | Divorce and Finance

James has been a practising barrister since 1982. He has been specialising in matrimonial and family finance claims for over 15 years and has a particular interest in dealing with financial claims between cohabitees. He has been trained  as a civil and commercial mediator by the ADR group and has acted as mediator in numerous financial disputes between cohabitees. He accepts work in all areas of family financial disputes and is able to conduct mediations in disputes between cohabitees and  private financial dispute resolution appointments in chambers in Brighton or London or elsewhere at the parties’ convenience.

July 18, 2018

What to expect at the First Hearing Dispute Resolution Appointment (FHDRA)

NB. This post is in respect of an application under s. 8 Children Act 1989 and applies to general applications where a party is seeking a live with/spend time with order or a Prohibited Steps or Specific Issue order where there are no particular complicating factors.

In family law, a First Hearing and Dispute Resolution Appointment (FHDRA) is the first court hearing once an application has been made to court. The FHDRA has two main functions; To see if agreement can be reached and a Child Arrangements Order made by agreement or, if this is not possible, to make directions for the gathering of evidence to progress the case towards a Dispute Resolution Appointment and/or final hearing.

Assuming the application has been made on notice (i.e. the application has been served on the other side) then both parties and the court will already have the C100 (application form), possibly a C1A (list of allegations/specific concerns) and a safeguarding letter which will have been prepared by CAFCASS (The Children and Family Court Advisory and Support Service) in advance of the hearing.

An officer of CAFCASS will be present at the FHDRA and will request that both parties meet with them (usually separately) to provide further information so that they may update the court as to the parties’ positions and their own recommendations. They may also encourage agreement to be reached if they consider that this is in the child’s/children’s best interests and there are no safeguarding concerns.

If agreement can be reached then the legal representatives, or the court if neither party is represented, will help the parties in drawing up an agreement or a final order and there will be no further hearings.

If agreement cannot be reached then the following directions may be made:

  • Parties to file witness statements setting out their case.
  • CAFCASS (or the Local Authority if applicable) to file a s. 7 report making recommendations in respect of the application.
  • One or both parties to file a letter from their GP (if there are concerns in respect of physical/mental ill-health which may affect the outcome of the application).
  • A letter to be obtained from the school (to ascertain whether the child’s behaviour/education is affected by one/both parents’ care).
  • Hair strand testing (if there are allegations in respect of alcohol and/or drug misuse).
  • List for Dispute Resolution Appointment/Final Hearing.
  • Both parties to attend the Separated Parents’ Information Programme (SPIP).

There are a number of other directions which may be made but these are the most common, in the author’s experience.

The court is also under a duty to consider, at the earliest opportunity, whether a fact finding hearing will be necessary. Such a hearing will be required where one party makes allegations against the other, which will have a material impact upon the order being sought, and where these allegations are denied.

If the court considers that a fact finding hearing is necessary then they will direct that the person making the allegation(s) files a witness statement and schedule of allegations, along with other evidence in support of the allegation(s), after which the respondent will file a statement in response. The court may also order police disclosure if the police have been involved at any time. The court may list for the next hearing to be a fact finding hearing or direct a further hearing to consider this evidence before deciding on whether to list a fact finding hearing and, if so, when and how long that hearing should take.

The court is under a duty to consider cases justly and proportionately.

The court is also encouraged to consider, at every hearing, whether Alternative Dispute Resolution (i.e. mediation, arbitration, solution focused therapy etc) would be more appropriate than proceeding with the application via the courts.

If you require assistance with any aspect of your case, please follow our simple step-by-step guide then contact our clerks who will put you in touch with the family lawyer best able to help you.

By Eleanor Battie | Family and Children

July 13, 2018

Creating a Culture of Respect in proceedings concerning children

The Sussex Family Justice Quality Circle met on 9th July to discuss what was required to create a culture of respect in proceedings in the Family Court. It was inspired by, an article in Community Care entitled ‘Divisive, demeaning and devoid of feeling: How SW jargon causes problems for families’ and written by Surviving Safeguarding

The discussion was led by Tom Stibbs the Principal Children and Families Social Worker at Brighton and Hove City Council supported by Francis King Lead Practitioner in Brighton, Andrew Pack AKA Suesspiciousminds  and Martin Downs.

The article sought to demonstrate the impact on children and their parents of being subject to Local Authority involvement/proceedings, in particular in respect of the language used and the confusion and bewilderment this can cause.

During the meeting all those in attendance sought to explore the impact of the language used in court practice and paperwork on a day-to-day basis and how we could improve our communication to make the process more easily understood by all involved. The Quality Circle also focused on how we would work toward helping those subject to proceedings to feel more valued, listened to and respected.

Surviving Safeguarding  (who sent a special message to the meeting) referred to the problem for parents when professionals use language, jargon or acronyms that they don’t understand. At worst, the parent may feel a sense of injustice, that decisions will be made about their future and that of their child based on responses to questions/statements they don’t understand.

The article concludes with a plea to “social workers, senior social workers, team managers, conference chairs, independent reviewing officers – any and all health and social care professionals not to use certain terms that are so often used within the family court arena.” These include terms like “contact”, “Siblings”, “placement” and “LAC”.

During the meeting the group discussed other words that cause problems to parents, as well as to many professionals. These included: “Attachment”, “Parentified”, “Shared”, “Verbalised”, “Permanency”, “Insight” and “Implement”. Top of the list, however, was the word “Disclosure” when used to refer to a person making an allegation. Those present were implored not to use this (emotive) word but to replace it with “Account” instead.

Those at the meeting concluded that those who write reports will do so with both the parent and court in mind. Jargon will be avoided and simplicity is key. There was agreement that the tone and language in court documents as well as that used in court (by all present) is really important.

There was recognition that it can be easy to use jargon or complex words as shorthand for difficult concepts and that in an emotional and charged setting sometimes taking the time and making the effort to be courteous and respectful can be overlooked, but that both issues can potentially have a bearing on outcomes and experiences and every effort must and will be made to treat those engaged in court proceedings with courtesy and respect.

The principal of respect is key, as is treating one another politely and with dignity. This applies to all, whether a parent, professional witness, lawyer or the judiciary.

By Eleanor Battie | Family and Children

July 6, 2018
Driving whilst disqualified – Suspending disqualification pending an appeal: the only legal way to drive when disqualified  

Driving whilst disqualified – Suspending disqualification pending an appeal: the only legal way to drive when disqualified  

Having your driving licence taken away can cause huge inconvenience and even severe financial consequences. The magistrates’ court can disqualify a person from driving for a number of reasons:

  • because they have been convicted of an offence which carries a mandatory period of disqualification;
  • have had a discretionary disqualification imposed; or
  • asa result of receiving 12 penalty points in a three year period (and are therefore disqualified as a ‘totter’).

Driving whilst you are disqualified is a separate criminal offence. If convicted of driving whilst disqualified you could face a fine, a community order or imprisonment, in addition to a further period of disqualification.

But what if you feel you have been wrongly convicted of a road traffic offence and are planning on an appeal? Is there a mechanism for keeping your licence until your appeal has been heard?

Driving disqualification – What if there is an appeal?

If you are appealing against the conviction that led to the imposition of a driving ban, or against a sentence which included a ban, the Court has the power to consider suspending the operation of the order disqualifying you from driving whilst you await the hearing of your appeal.

The Court can only consider suspending the operation of an order of disqualification if that order is specifically appealed against, and contained in the notice of appeal.

Filing a notice of appeal does not automatically suspend the order of disqualification. A separate application should be made. This will normally be dealt with at a hearing before the appeal and can either be heard in the sentencing Court (although it does not need to be heard in front of the same bench of magistrates or Judge) or the appeal Court.

The Court may suspend the operation of an order of disqualification if it thinks fit, pending the appeal.

The Court dealing with the application to suspend the operation of an order of disqualification may consider the following:

  • The prospects of appeal (although the Court will not be hearing the appeal itself), including the circumstances of the original sentencing, such as whether you were represented and whether you advanced all potential arguments (such as special reasons or exceptional hardship)
  • The length of time before the appeal will be heard
  • Any specific hardship that the ban will cause in the meantime (either where exceptional hardship will be considered as part of the appeal or more generally)

There is no right of appeal if your ban is not suspended pending appeal, however you may be able to make a further application to the appeal court (or sentencing court, if your first application was heard by the appeal court).

Motoring offences can lead to complex cases, and appeals may involve extremely technical processes. If you feel that advice and legal representation by a skilled criminal barrister would help you, please read our step-by-step guide and then get in touch with our clerks who can discuss your needs with you and then match you with a barrister to assist.

By Matthew Withers  |  Motoring Offences

 

June 26, 2018
Motoring offences – Special Reasons: The argument that could keep you your licence

Motoring offences – Special Reasons: The argument that could keep you your licence

What would losing your driving licence mean to you?

If you’ve been charged with, or are awaiting sentence for a drink driving charge, it’s a question you are very likely to be asking yourself and no doubt worrying about.

Section 34 of the Road Traffic Offenders Act 1988 provides that where someone is convicted of an offence that carries an obligatory disqualification (such as drink driving), the court must disqualify that person for a minimum of 12 months unless the court for special reasons thinks that it is appropriate to order a shorter period of disqualification or to order no disqualification at all.

Therefore, disqualifications from driving following a conviction for drink driving can sometimes be avoided if so-called ‘special reasons’ arguments are advanced, successfully argued and established to the satisfaction of the sentencing court.

What is a special reason?

A special reason is not a defence to a drink driving charge; it’s mitigation to ask the sentencing court to exercise its discretion in not ordering a disqualification.

To be a special reason, it has to be something that is a mitigating or extenuating circumstance, directly connected with the commission of the offence itself and which is in itself capable of properly being taken into consideration by the sentencing court.

There is no exhaustive list of what that mitigating or extenuating circumstance might be, but cases where special reasons have been established include those where:

  • the vehicle was driven as a result of an emergency;
  • the vehicle was driven only a very short distance;
  • cases where alcohol or drugs have been taken inadvertently (such as cases where someone has been spiked).

When the Defence raise an argument of special reasons the sentencing court must carefully consider a number of factors:

  • The reason for driving the vehicle
  • The distance the vehicle was driven
  • The manner in which the vehicle was driven
  • The condition of the vehicle driven
  • Whether or not it was the driver’s intention to drive further
  • The road and traffic conditions at the time the vehicle was driven
  • Finally (and most importantly), the possibility of danger to other road users at the time.

Even if special reasons are established, it is still a matter for the sentencing court to decide whether to use their discretion to not order a disqualification.

The burden is on the defence to establish the special reasons on the balance of probabilities. To successfully do this may include calling evidence, hearing from witnesses, cross-examination and submissions.

Successfully running a special reasons argument is a complex and technical process. If you feel that advice and legal representation by a skilled barrister is likely to improve your chances, then please read our step-by-step guide and then get in touch with the clerks in our Brighton Office who can discuss your needs with you and then match you with a barrister to assist.

By David Reader |  Motoring Offences

June 15, 2018
Breach of covenant in property law – Legal advice: How do I take action?

Breach of covenant in property law – Legal advice: How do I take action?

Covenants are binding agreements or promises to do or not do something. Residential and commercial leases contain many covenants. Freehold property titles of both residential houses and commercial premises may also contain covenants.

What constitutes a breach of covenant?

A landlord might claim a breach of covenant if a tenant alters a flat or shop without permission, or sublets part, or uses it for something which is not allowed, or does not keep it in good repair. The landlord might claim an injunction that the tenant does what he agreed, or stops doing what the agreement forbids him to do. There might be a claim for damages as well. Or the landlord might claim that the breach is so serious that the tenant should lose the lease. A wise tenant, if he does not admit the breach and agree to put it right, should get legal advice quickly.

The most common arguments with freehold property are about breach of “restrictive” covenants. These restrict the use of land, e.g. residential only, or only 2 houses may be built, or an area of land cannot be built on. Who has the right to enforce the covenant is often complicated, something on which specialist legal advice is needed. A special court, the Lands Chamber of the Upper Tribunal, has the power to relax or release restrictive covenants which have been agreed.

Breach of covenant remedies.

If letters don’t solve the problem a claim will start with the “claimant” filing a Claim Form at court. This summarises what he/she wants in a couple of sentences and a solicitor usually does this. The claim is explained fully in “Particulars of Claim” which a specialist property barrister writes, with the information and documents you provide.

The usual remedies are a declaration declaring the legal rights, an injunction to permanently forbid the breach and/or and damages. The court sometimes, even though there is a breach, does not make an injunction to put it right but instead awards damages.

To instruct one of our team of experienced property barristers, read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on who can best help you with your case. 

By Paul Ashwell | Property

June 8, 2018
I am being prevented from having contact with my grandchildren – what can I do?

I am being prevented from having contact with my grandchildren – what can I do?

When relationships break down and children are involved, this can affect the children in a number of ways. Not only can it have an impact the relationship they have with their parents, but also their relationships with members of their extended family.

Family Courts recognise the important role that grandparents often have in the lives of their grandchildren so there is something you can do if a problem arises. The court will usually expect to see that you have tried to reach an agreement before making an application. However, if contact has broken down and you are unable to agree a way forward, you can apply for something called a Child Arrangements Order.

Some people have a right to make this application automatically (for example, a parent, guardian or someone with Parental Responsibility). For others, they first have to ask the court for permission (also referred to as ‘leave’) to make the application. Usually, grandparents have to apply for leave to make an application.

Leave to apply.

When you apply for leave the court will consider things like the nature of the application, your connection with the child as well as any risk that the application you want to make will disrupt the child’s life so much that they would be harmed by it. The court will also consider the merits of your application for a child arrangements order at this stage. You should be aware that the law is slightly different if the child is looked after by the Local Authority.

Importantly, if the court gives you permission to make your application, it does not necessarily mean that your application will be successful but it does mean that you are now entitled to make your application. You can then apply for an order that sets out the time that you spend with the child.

Application for a Child Arrangements Order.

A child arrangements order is an order which defines where the child should live, the time the child should spend with someone or otherwise have contact with them. This does not just mean face-to-face contact but can also include ‘indirect contact’, for example the exchanging of letters, emails or text messages, as well as things like Skype or FaceTime calls.

When making a decision about a Child Arrangements Order, the court’s paramount consideration will be the welfare of the child. When making a decision, the court will consider something called ‘the welfare checklist’ which includes the following things:

  1. the wishes and feelings of the child (considered in light of their age and understanding)
  2. his physical, emotional and educational needs
  3. the likely effect on him of any change in his circumstances
  4. his age, sex, background and any characteristics of his which the court considers relevant
  5. any harm which he has suffered or is at risk of suffering
  6. how capable each of his parents, and any other person in relation to whom the court considers the questions to be relevant, is of meeting his needs.

The court will be assisted by an organisation called CAFCASS (Children and Family Court Advisory and Support Service) who represent children and make recommendations they believe to be in the best interests of the children. A CAFCASS officer will often call you before your hearing to ask questions about your application, or may ask to meet with you at court when you arrive. CAFCASS will then make recommendations to the Judge.

If you require assistance with any aspect of your application, follow our step-by-step guide to contact our clerks who will match you with the barrister who is best able to help you.

By Kirsten Japp | Family and Children

May 22, 2018
What is a Prohibited Steps Order?

What is a Prohibited Steps Order?

A prohibited steps order (a PSO) is an order that prevents a certain type of action from taking place.

In Family cases it is usually applied for by one parent against the other parent, but it can be made against anyone even if that person does not hold parental responsibility for the child and can be made against an individual who is not even a party to the proceedings.

A PSO can deal with a very wide range of issues. Typical examples include to prevent a parent from removing a child from the country or from moving home to another part of the UK. It can be used to prevent the removal of a child from its main home or residence, from the care of the other parent or perhaps, anyone to whom that parent has entrusted a child’s care (for example a Grandparent, or from the child’s school or nursery). It can also be used to prevent a child coming into contact with an individual the Court considers should not have contact with the child or to prevent a change of the child’s surname.

An application for a PSO can be issued either on its own or during the course of other Children Act Proceedings; usually when one parent applies for a Child Arrangements Order (which determines where a child lives and how much time it spends with each of the parents). When an application is issued, notice of the application is usually provided to the other parent by the Applicant unless there are good reasons (usually safety) as to why ‘notice’ should not be given. These will need to be justified by the Applicant at the first hearing.

There are some restrictions on making a PSO. They cannot be made in respect of any child aged 16 or above unless there are exceptional reasons and even then it will not have effect beyond the child’s 18th birthday. Also, a PSO cannot be made in respect of a child in Local Authority care and every PSO order should be time limited.

When a Court considers making a PSO, the welfare of the child is the paramount consideration and the Court will, at each stage, have regard to the following (a) the welfare checklist as set out in S.1 Children Act 1989, (b) that for an application to be successful it must be better for the child for an order to be made than to make no order and (c) that delay in deciding matters is contrary to the welfare of the child.

If you require assistance with any aspect of a PSO, please follow our simple step-by-step guide to contact our clerks who will put you in touch with the family lawyer best able to help you. 

By Bruce Tregoning | Family and Children

May 15, 2018
How to take court action against trespass and/or nuisance. Process and potential remedies.

How to take court action against trespass and/or nuisance. Process and potential remedies.

There are two sorts of trespass. Trespass to land and trespass to the person. Here we are talking about trespass to land, which is unlawful entry on land which someone else owns by going onto it or putting something like a fence on it. There are two sorts of nuisance as well. Here we are looking at private nuisance, not public nuisance. This is unreasonable interference with someone else’s land, for example by noise, or smell or escaping water.

Process and potential remedies.

A claim begins with the “claimant” filing a Claim Form at court. This summarises what he/she wants in a couple of sentences and a solicitor usually does this. The claim is explained fully in “Particulars of Claim” which a specialist property barrister writes, with the information and documents you provide. The “defendant” then “acknowledges service” of the documents they are sent. They can admit the claim or, if they deny it, responded with a “Defence” which puts their case in detail. The case might reach trial in a year’s time. The usual remedies are an injunction to permanently forbid the trespass or nuisance and damages.

If there is urgency, for example because of a leaking pipe from the flat above or stench from rotting rubbish in summer, you can apply for an “interim” or temporary injunction to keep things as they were before until trial. You can apply for this, with a witness statement, when you file the Claim Form. There will then be a court hearing within days, or even within a day if there is danger to life or property.

To instruct one of our team of specialist property barristers, read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on your next steps. 

By Paul Ashwell | Property

May 4, 2018
I am adopting a child: when might I need an adoption lawyer?

I am adopting a child: when might I need an adoption lawyer?

Adopting a child is a momentous and life-changing time filled with both excitement and trepidation. Adoption fundamentally alters the legal relationship your child has with you and the making of an adoption order is one of the most significant orders that can be granted in the Courts of England and Wales.

Adoption orders can be made in a variety of different circumstances: adoption by a stepparent, private adoption (directly with the birth mother), or public adoption (fostering to adopt, i.e. adopting through the local authority) but in each case the Court is concerned with whether making the order is in the child’s best interests taking account of the rest of his or her whole life. It is often the case that prospective adopters represent themselves or, where an adoption agency is responsible for the placement, rely on the local authority who is involved to pursue the case before the Court. However, for many prospective adopters getting legal advice and instructing their own lawyer is absolutely vital.

Instructing a lawyer can help to make sure that you are able to navigate the technical requirements which must be fulfilled to make sure that the application can proceed as smoothly as possible. It can also be reassuring to know that you have access to advice to help guide you through the process of pursuing your order.

Over recent years a number of important cases have emphasised the need for Courts to take great care to make sure that adoption orders are only made where they are necessary. This has led to an increase in the number of adoption order proceedings, which have become fully contested, often involving the child’s birth parents. These can be some of the most difficult cases for the Courts to resolve and can be a challenging and stressful time for prospective adopters. Instructing a lawyer makes sure that you have someone on your side to advise you, reassure you, and represent you in Court.

In the case of adoption proceedings, it is essential to have the utmost trust and confidence in your legal representative and this can be a very personal choice. Our experienced Public Access family Barristers can advise you on all aspects of your case and represent you in Court if necessary.

If you are ready to instruct a family lawyer to help with your adoption, read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will discuss your needs and match you with the barrister best able to support you as you proceed with your plans to adopt.

April 27, 2018
Divorce: Basic steps to getting financial orders

Divorce: Basic steps to getting financial orders

Divorce cases can be extremely complex and emotionally draining. It can be possible to come to an early agreement through mediation or negotiation, but even the most amicable divorce can lead to disputes around finances.

If on divorce the parties cannot agree to share the assets and property from the marriage than one of them will have to apply to the court for financial orders.

The orders that can be applied for are:

  1. an order for maintenance pending the outcome of proceedings
  2. a lump sum order
  3. a secured provision order
  4. a property adjustment order
  5. a periodical payments order
  6. a pension sharing order
  7. a pension attachment order
  8. a pension compensation sharing order
  9. a pension compensation attachment order

The application for financial orders is submitted on a Form A which is available to download or from your local family court office. A fee for submitting the Form A is charged which is currently £255.

Once the application has been processed the court will issue directions for a First Directions Appointment. This sets out the preliminary steps to be taken and a fixed court appointment before a Judge.

This process and the further steps set out below are similar in all cases regardless of the nature and extent of issues, or the value of your assets.

The main procedural steps are:

Full and frank financial disclosure

This is carried out by a series of detailed statements made on a standard form called a Form E, which can also be downloaded or otherwise obtained from the court office. Each party completes one of these forms and exchanges it with the other party. It covers property, bank accounts, pensions, income etc, all supported by documentary proof. Once each party has exchanged their Form E the other party can request further information in the form of a Questionnaire. The judge will consider the questionnaires at the first appointment and direct which questions need to be answered to ensure that the issues are relevant and proportionate to the costs.

First Directions Appointment (FDA).

This is an evidence gathering hearing. If the parties cannot agree the value of assets then the court will consider whether the parties need to instruct an expert to value property, such as a chartered surveyor. If there is a family business or tax issues then an accountant may have to be instructed. The court will also consider whether more information is required on pension assets, if they are available. As stated above the court will also consider the Questionnaires.  The purpose of all this is to ensure, as far as possible, that the court and parties have all the evidence for the Financial Dispute Resolution hearing so that agreement can be reached.

The financial dispute resolution (FDR) hearing.

The purpose of the FDR is to encourage settlement without the need for a final hearing in which the judge will decide the issues on contested evidence. The advantage is that settlement will cost the parties less. The FDR is an opportunity for the parties and their lawyers to negotiate at court and to benefit from the input of the judge. The judge will have seen all the papers, including offers and counter offers exchanged. The hearing will last for approximately one hour. Parties will need to attend court an hour beforehand to facilitate discussions and negotiations. They don’t need to give evidence at this hearing. The judge will listen to legal submissions from both parties. The judge will then give guidance on any matters in dispute and will assist the parties by giving an indication as to the likely order the judge would make if determining the case. Importantly, the judge at the FDR will not be able to conduct the final hearing. This is to encourage open negotiations at the FDR and for the judge to give a view.

The final hearing

The final hearing is the last resort and can be very costly for parties. Both parties will most likely have a barrister to represent them at final hearing, which involves preparation of a trial bundle submitted to court in advance and preparation of legal skeleton arguments. Both parties will be required to give evidence under oath and face questions from the other party’s legal representative. The final decision will be made by the judge with reasons given in a judgment.

How do I instruct a divorce barrister?

Our Public Access Barristers have a wide range of experience of divorce law. They can advise you on all aspects of your case and represent you in Court if necessary.

To get in touch with a member of our team, read our simple step-by-step guide, then contact our clerks who will put you in touch with the family barrister best able to accommodate your needs.

By Nigel Taylor | Divorce and Finance

April 16, 2018
Neighbour disputes – timeline for a court application and how a barrister can help

Neighbour disputes – timeline for a court application and how a barrister can help

Most neighbour disputes are about boundaries, rights of way, trespass and restrictive covenants. They all start the same way with the “claimant” filing a Claim Form at court. This summarises what he/she wants in a couple of sentences and a solicitor usually does this on their behalf. The claim is explained fully in “Particulars of Claim” which a specialist property barrister writes, with the information and documents you provide. The “defendant” then “acknowledges service” of the documents they are sent. They can admit the claim or, if they deny it, responded with a “Defence” which puts their case in detail.

Following this, perhaps a couple of months after the Claim Form is filed, there is a Case Management Conference at court where the judge decides what things each side needs to do and when to prepare the dispute for trial. You brief your barrister to represent you at that Conference. The Judge decides the various steps, exchanging relevant documents and witness statements, arranging expert evidence, and sets dates for each one. Typically those steps could take 6 months.

Then the case will be given a trial date, which depends on when a judge and a courtroom are available, and when the parties and their barristers and witnesses are all available. From start to trial usually takes not less than a year.

Urgent neighbour disputes.

If there is urgency, for example because the neighbour has blocked the vent of your boiler or has locked a gate so that you can’t get your car in or out, you can apply for an “interim” or temporary order. This is an injunction to keep things as they were before until trial. You can apply for this, with a witness statement, when you file the Claim Form. There will then be a court hearing within days, or even within a day if there is danger to life or property.

Our experienced property barristers are able to tackle the most challenging cases. To instruct one of our legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on who can best help you with your dispute. 

By Paul Ashwell | Property

April 6, 2018
How do I restore a dissolved company to the register of companies?

How do I restore a dissolved company to the register of companies?

If your company has been struck off the register of companies, there are various options available to you: 

There are 2 ways of re-instating a company. The easy way is by administrative restoration. You will find the procedure, forms and cost here and a fee, currently £100, is payable to Companies House. 

If you are not eligible for the administrative method (for example because the company was struck off more than 6 years ago) you will need to get a court order to restore the company. The process is short but technical, and at the time of writing, the court fee is £308. You can find further details of the procedure here. 

A Part 8 claim form is issued with a witness statement which must include certain pieces of required information. Evidence of service of the application, any undertakings and the agreed consent order are also filed. The court procedure involves the Registrar of Companies who is represented by the Treasury Solicitor – (whose attendance might require you to pay costs of around £250 or more) – and can involve some negotiation. Information about the company can often be found free of charge at  Companies House. Whilst you may feel confident in tackling the administrative method yourself, our team of experienced commercial lawyers are able to help when an application has to be made to the court – both in drafting papers and representing you in court. 

To get in touch with a member of our Direct Access legal team, first read our simple step-by-step guide, then fill in the online form for our clerks to advise you on your next steps. 

By Paul Ashwell | Contracts and Debt Recovery

 

March 23, 2018
What is a Child Arrangements Order? 

What is a Child Arrangements Order? 

Over recent years the terminology for the orders governing where children live and who they spend time with has changed. What was once ‘Custody’ and ‘Access’ became ‘Residence’ and ‘Contact’ Orders. Since 2014, Contact Orders and Residence Orders have been replaced with Child Arrangements Orders. These orders can be obtained from Family Courts if parents can’t agree on the best arrangements for their children or where one, or both, parents want to have their arrangements set out in a formal Court-approved order. 

Different arrangements can apply in different situations and Courts will always seek to make the best possible decisions for children. The best interests of these children will always be the paramount consideration of the court.  

What type of Child Arrangements Orders are available? 

There is a huge variety of arrangements which can be put in place. Where the most serious concerns arise the time children spend with a parent could be restricted, or provided only in a supervised setting such as a contact centre. At the other end of the spectrum there are cases in which the Court considers that the care of children should be shared between their parents. 

There are two main types of Child Arrangements Order: a “live with” order (which replaced Residence Orders), and a “spends time with” order (which replaced Contact Orders).  

“Live with” orders tend to be made to a parent which whom a child spends most of their time and who may be considered their primary carer. “Spends time with” orders are there to make sure a child is able to see a parent and this might include time at weekends, after school or nursery, or overnight stays. Child Arrangements Orders are also used to set out how children spend their time during school holidays which might involve longer periods of contact. 

With permission from the Court, in appropriate circumstances, it is also possible for Grandparents (or other relatives) to apply for a Child Arrangements Order. This might occur if the grandparent wishes to spend time with their grandchild, or if the child cannot be looked after by their parent it may become necessary for them to live with another relative. These decisions can be put in place through a Child Arrangements Order. 

Legal advice on Child Arrangements Orders 

Cases regarding your children — or grandchildren — can be emotionally charged and the technicalities and procedures can be complicated. Many people feel more comfortable with the support of a lawyer and it’s important to make sure that if you do take this route you choose someone with the specialist experience needed to give you the best possible advice and representation.  

Our Public Access family Barristers are experienced lawyers and advocates, who can advise you on all aspects of your case and represent you in Court. Our clerks can discuss your particular needs to make sure you are matched with the barrister best able to support you as you make arrangements for your children. 

To get in touch with a member of our team, first read our simple step-by-step guide, then our clerks can advise you on your next steps and put you in touch with the family lawyer best able to accommodate your needs. 

By Anita Mehta | Family and Children

 

March 23, 2018

Litigant in Person’s status is clarified by the Supreme Court

Legal professionals and litigants-in-person alike will be interested in the recent Supreme Court decision in Barton v Wright Hassall LLP [2018] UKSC 12 which is likely to affect how litigants-in-person are treated by the court when considering compliance with CPR rules and practice directions.


Background

 The case was brought after Mr Barton, acting in person, purported to serve a claim form and particulars of claim by email on the defendant’s solicitors, Berrymans Lace Mawer, the day before expiry of the four month period allowed in CPR rule 7.5.

Mr Barton had failed to obtain permission prior to service on Berrymans who refused to acknowledge service. The claim form expired unserved and the action became statute-barred.

Mr Barton then applied for an order for retrospective validation of service under CPR rule 6.15(2). In order to succeed he needed to demonstrate a good reason to grant the application.


Decision

 The Supreme Court dismissed the appeal by a majority of three to two. Lord Sumption gave the lead judgment and agreed with the decision of the Court of Appeal below. Lady Hale and Lord Briggs provided a dissenting judgment.


Reasoning

At paragraphs 9 and 10 of his judgment, Lord Sumption set out the main factors to consider when granting retrospective validation of service:

  • Whether the claimant took reasonable steps to serve in accordance with the rules;
  • Whether the defendant or his solicitor knew of the contents of the claim form when it expired;
  • What, if any, prejudice the defendant would suffer from validation of the non-compliant service.

Paragraph 18 of the judgment is particularly useful for those who appear against litigants-in-person where there is purported non-compliance with CPR rules or practice directions.

Paragraph 18 reads:

Dissenting Judgment

The dissenting judgments of Lady Hale and Lord Briggs allowed the appeal considering that Mr Barton’s service fulfilled the purposes of ensuring that the contents of the claim form were brought to the attention of the person to be served and notifying the recipient that the claim has been commenced against the defendant on a particular day.

Lady Hale and Lord Briggs decided that Mr Barton’s circumstances would provide good reason for validation unless there were specific circumstances which swung in the balance against validation (paragraph 38).

However, Lord Briggs stated:

 

Discussion

Lord Sumption’s judgment seems to allow for some leniency towards litigants-in-person when it comes to case management decisions and how hearings are conducted, for example, giving unrepresented parties longer time limits for compliance with case management directions or assisting unrepresented parties to present their evidence during trial. However, when it comes to compliance with CPR rules and practice directions, the clear message is that litigants-in-person should be treated the same as represented parties.

Nevertheless, the message is tempered slightly by the last sentence of paragraph 18 referring to ‘inaccessible or obscure’ CPR rules and practice directions. It is not clear what parts of the CPR are to be considered ‘inaccessible or obscure’ for the purposes of litigants-in-person complying with rules and practice directions but it is assumed that the relevant parts will be identified on a fact-specific, case-by-case basis.

Indeed, both leading and dissenting judgments made tacit admissions that CPR provisions relating to service by email might need to be reconsidered and, to that end, the judgment was referred to the Civil Procedure Rules Committee. Although it could be said that the reference to the Rules Committee is a result of the prevalence of email communication since the rules on service were last considered.

In any event, it is suggested that the starting point for the courts would be to consider any parties’ failure to comply with CPR rules and practice directions without reference to whether a party is represented or not.

Similarly, in the dissenting judgment, Lord Briggs accepts that Mr Barton’s status as a litigant-in-person itself did not provide him with a good reason for the court to grant his application. Accordingly, this would support Lord Sumption’s analysis that CPR rules and practice directions’ failures should not be validated with any reference to parties’ represented or unrepresented status.

Interestingly, the courts may already be taking a tougher approach to compliance given the recent judgment in Reynard v Fox [2018] EWHC 443 (Ch) (08 March 2018) where HHJ Matthews (from paragraph 44) applies the principles in Barton referring to the “unanimous” decision of the Supreme court on the position of litigants-in-person.

Mr Reynard’s claim against the defendant, his former trustee in bankruptcy, for damages for breach of contract and negligence in relation to the conduct of the defendant as such trustee in bankruptcy was struck out under CPR r 3.4(2)(a) for re-litigating issues which were decided in a previous application under section 303 of the Insolvency Act 1986. HHJ Matthews commented, at paragraph 46:

“You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person.”

March 22, 2018

Lauren Godfrey settles multi-million pound company law dispute

Lauren Godfrey settles multi-million claim for alleged breach of directors’ duties and restrictive covenants.  Representing  the departing directors the settlement negotiated by Lauren enables those directors to continue their new business.

Lauren Godfrey | Contracts and Debt Recovery

March 9, 2018
Shareholder disputes – FAQs

Shareholder disputes – FAQs

I’m a minority shareholder in a company. It is being run in a way that is unfair to me. Perhaps I’ve been excluded from management. Maybe business has been diverted to another company. Or my co-director is receiving an excessive salary. What are my shareholder’s rights?  

These are the kind of problems that often arise within “quasi-partnership companies”. These are small, unlisted companies that are like partnerships, with few members and few directors. Our team of commercial barristers have a wealth of experience in dealing with these kinds of issues and can help if you feel you have been a victim of unfair dealings.   

What is the process and who can apply 

Unfair prejudice is assessed using an objective test. A staring point is whether the Articles of Association and any shareholder agreement have been complied with. The procedure is that the member files a petition to the court under section 996 of the Companies Act 2006 and a detailed witness statement which includes all the necessary formal information about the company as well as full evidence about the unfairly prejudicial acts. The Companies (Unfair Prejudice Applications) Proceedings Rules 2009 can be found here and the form the petition takes is shown in the Schedule. Formal information about the company can often be found free of charge at Companies House.   

When it comes to dealing with a claim of unfair prejudice, Section 994 of the Companies Act 2006 gives a special remedy to: 

[1] a “member”, that is, a shareholder who has been usually, not always, registered, 

[2] of a company  being run, or will be run, in a way that is “unfairly prejudicial 

[3] to the interests of himself or herself [and perhaps other members too]. 

So to be clear, this procedure cannot be used by a director who is not a shareholder.  

What resolutions are available?  

This process is time consuming. A court fee, currently £280, is payable in the High Court. At this point, before or after the first hearing, the legal proceedings are often adjourned to give the parties an opportunity to resolve their differences. This is usually achieved by mediation or another method of ADR [Alternative Dispute Resolution]. Everyone has an incentive to sort out the dispute by consent because an actual trial of a petition involves a great deal of preparatory legal work including service of points of claim and points of defence. It is time consuming and expensive. If a trial cannot be avoided, the judge has the widest discretion to impose a suitable solution, which is often (if the prejudice is substantial and there is deadlock) achieved by the compulsory buy-out of the minority shareholding according to a prescribed valuation process. If the company is profitable it is in no-one’s interest to wind it up. 

I would like to begin the process – how do I start?  

The best place to start is usually to have a conference with one of our barristers in which we can discuss what has gone wrong and what the solutions might be. That might be followed up with a letter drafted by the barrister to the majority shareholder explaining what they need to do if a petition is to be avoided. If court proceedings are unavoidable we can draft all the documents and represent you in court. 

To instruct a member of our experienced legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Paul Ashwell | Contracts and Debt Recovery

March 6, 2018

Richard Ager successfully represents Mother accused of parental alienation.

The children, aged 9 and 11, refused to see their father alleging that there had been aggressive behaviour on his part and treating them differently.  The father says the children have been alienated. After a contested hearing the court found the Mother had done all she could to promote contact, that the children were genuinely concerned about their Father’s behaviour and orders him to attend a parenting course as recommended by Social Services and , should the children want it, contact supervised in a contact centre

Richard Ager | Family and Children 

February 28, 2018
What is a Specific Issue Order?

What is a Specific Issue Order?

A Specific Issue Order is made under section 8 of the Children Act 1989 (‘CA 1989’). It can be used to determine questions about a child’s upbringing, for example, where a child should go to school (state or private), to change the child’s name/surname, in relation to medical treatment or in relation to a prospective geographical move for the child. A Specific Issue Order will need to be applied for in the event that a person with parental responsibility is not prepared to give consent and thus the Court needs to determine the issue.

When deciding a Specific Issue order, what does the Court need to consider?

In deciding the issue, the child’s welfare will be the court’s paramount consideration. The court must have regard to the welfare checklist, as set out in CA 1989.

When can a Specific Issue Order not be made?

CA 1989 sets out the circumstances in which the court should not make a Specific Issue Order, including when the child is adopted, in the care of the Local Authority and in any way, which denies to the High Court the exercise of its inherent jurisdiction.

How to apply for a Specific Issue Order:

CA 1989 sets out the categories of applicant who can apply for a Specific Issue Order without obtaining permission from the Court to do so. Any person who is not automatically entitled to apply requires the permission of the court to make such an application.

The applicant must file a Form C100.

The procedure governing an application for a Specific Issue Order is contained within the Family Procedure Rule (FPR 2010) Part 12 and in FPR 2010, Practice Direction 12B.

Note that attendance at a Family Mediation Information and Assessment Meeting (‘MIAM’) is compulsory before an application for a Specific Issue Order can be made. There are exemptions to having to attend a MIAM and the relevant exemption must be confirmed in the Form C100. Where the exemption relates to an allegation of abuse, violence or harm, a form C1A must also be filed.

In the case of a Court Hearing:

A First Hearing Dispute Resolution Hearing Appointment (‘FHDRA’) will be listed and the parties to the application are required to attend. The Specific Issue may be resolved at the FHDRA if agreement can be reached. Otherwise, the case will be listed for a Dispute Resolution Hearing (‘DRH’) and then a final hearing, if required.

If you are in need of legal support to guide you through the steps of having a Specific Issue Order created, our Public Access specialist family barristers can help you with all aspects of your case. Read our simple step-by-step guide, then get in touch with our clerks who will discuss your particular needs and match you with the barrister best able to support you as you make arrangements for your children.

By Camilla WellsFamily and Children

February 23, 2018
What is an order for periodical payments? 

What is an order for periodical payments? 

In terms of divorce and separation, a periodical payment order is the term for spousal maintenance i.e. ongoing (usually monthly) payments made by one party to the other.  The Court has the power to order that periodical payments will commence upon granting of decree for divorce as part of the parties’ financial remedy proceedings.  Prior to that, the Court has the power to order ‘interim maintenance’ or ‘maintenance pending suit’. 

There is not a fixed calculator to guide the amount of spousal maintenance.  Whether the Court makes a periodical payment order and indeed, the level of this maintenance depends on the circumstances of the case.   Fundamentally, when considering an order for periodical payments, the Court will need to determine: 

  • What are the parties’ incomes, or earning capacity; 
  • What does each party need; 

The Court will assess whether the payer has sufficient income to meet their needs, and whether they should make a regular payment to help the other party meet their needs.  The Court will then go on to assess the term of the payments.  They can be short-term orders to assist the weaker party to transition to independence, or long-term if such a transition is not possible.  An order for periodical payments may not extend beyond the joint lives of the parties or the re-marriage of the individual receiving the maintenance.

If you consider that you may be entitled to an order for periodical payments, or you may be liable to pay spousal maintenance, it is worth getting early advice from a lawyer about what a Court would likely order.  The level and term of spousal maintenance is one of the most complex and fraught types of application before the Family Court, and there are many types of financial orders that can be applied for.  

Our specialist Clerks can match you with a family barrister who best fits the demands of your case. Read our simple 4-step guide to instructing a Direct Access Barrister, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Anita Mehta | Divorce and Finance

February 15, 2018
Land ownership disputes: mediation vs court proceedings

Land ownership disputes: mediation vs court proceedings

Land ownership disputes usually happen for one of three reasons:

  1. First, the plans that a seller gives to a buyer are often out of date, do not show fixed things on the ground like gateposts, walls and manhole covers and are too small in scale. Plans filed at the Land Registry at part of an owner’s title usually only show “general boundaries” with thick lines which have a big margin of error.
  2. Second, the ground itself changes. Hedges and trees grow or are cut down, or a new fence or wall is built which cuts a corner or is wider than the original boundary feature.
  3. Third, a neighbour might claim adverse possession, by occupying your land for a long time – here the law is tricky. Disputes about boundaries often turn into claims of trespass by my climbing rose or by your overhanging gutter. Good neighbours become enemies. Their houses become impossible to sell.

A judge, when a claim reaches trial, will define a boundary with the help of expert evidence and it can be marked on the ground and shown on a large scale filed plan. But the costs of going to trial are far out of proportion to the value of the disputed strip of land, which may be only a few inches wide.

Mediation in land ownership disputes

Mediation is always the better choice because the agreement reached can do everything a judge can do, but also do things a judge can’t, such as agreeing a new boundary that is not straight but suits both neighbours – a small-scale land swap. Mediation is quicker, far less stressful and allows neighbours to put the dispute behind them faster. Once agreement is reached and carried out it means that there is no longer a dispute to put potential buyers off  if one neighbour wants to sell. And it is far cheaper.

To get in touch with a member of our Direct Access legal team to assist with your dispute, read our simple step-by-step guide, then fill in the online form for our clerks to advise you on your next steps and put you in touch with an experienced barrister or mediator. 

By Paul Ashwell | Property

February 9, 2018
Freezing orders and seize and search injunctions – what you need to know

Freezing orders and seize and search injunctions – what you need to know

Contract law is complex and multifaceted. Our team of barristers has considerable experience of commercial disputes at all levels and will be able to help you understand and take relevant action on any challenges you might be facing.  

Our overview of freezing orders and search and seize orders reveals some of the complexities.

What are freezing orders and search and seize orders 

Freezing orders and search and seize orders are aggressive and expensive steps in litigation. Some important points to note: 

  • Both orders are injunctions, that is, an order of a judge telling someone to do or not do something.  
  • Refusing to obey an injunction is contempt of court.  

freezing order freezes a person’s assets to prevent them being disposed of, so that they will be available to pay a court judgment. If an injunction is granted, the defendant will be ordered to make a statement disclosing his assets. After the first “without notice” hearing a second, “with notice” hearing will take place within 14 days. The defendant will be present and can say to the judge that the order ought not to have been made at all, or is too wide and should be limited in amount. You can see a specimen order here.  

search and seize order is a very serious and even more aggressive injunction which can only be made in the High Court. These are often carried out early in the morning and commonly known as “dawn raids”. The aim is to preserve evidence or property relevant to court proceedings. The defendant is ordered to let the applicant’s solicitors enter premises, search them for anything named in the order and to take photos and samples. An expert will search computers. Often the defendant will also be ordered to disclose where things are. To obtain a search and seize order you need an extremely strong case at first sight, very serious damage for you, clear evidence of possession of something incriminating, a real possibility of destruction of that thing, and likelihood that the harm caused by the order will be proportionate to the object of the order.  It is extremely time consuming and expensive to prepare to apply for the order and to carry it out. You can find a specimen order here.  

What does the procedure involve?  

The procedure for both is that an application notice with draft order is issued, a fee paid, and an affidavit supporting it is made for the court to consider. This happens at a hearing which takes place without notice to the defendant.  

Full and frank disclosure of all relevant facts is required – and if it is not given, any injunction may not stand. An applicant must give the court an undertaking – or solemn promise – to pay the defendant for any damage caused by the order. If there is not already a legal claim underway the applicant will have to start one immediately and pay a fee depending on the amount claimed. 

What legal expertise is necessary? 

All the drafting of court papers in either of these cases demands specific legal expertise and this is where our team can help. Our barristers, with their considerable experience in these matters, will also be able to represent you in court. And in carrying out these orders you will need experienced solicitors with specialist knowledge whom we can help you to find. 

Our barristers are able to tackle the most challenging commercial cases. To instruct one of our legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Paul Ashwell | Contracts and Debt Recovery

January 26, 2018
How do I find a good divorce lawyer? 

How do I find a good divorce lawyer? 

Divorcing can be a challenging, stressful and emotional process. Each case is unique and though it can be possible to come to an early agreement through mediation or a negotiated settlement, cases can sometimes be more complex and require Court hearings. Even the most amicable divorce may see disputes arise when it comes to resolutions about the things that matter most – your children, your home and your financial security.  

It’s therefore crucial that you find a lawyer who is able to provide you with the support and advice you need and, where necessary, to represent you in Court. The choice of who to instruct is a decision for you alone and it is important to find somebody who you feel comfortable working with in order to get the best possible outcome in your divorce. 

Instructing a family barrister directly 

Many people are not yet aware that it is now possible to instruct a barrister to advise or represent you during your divorce without going through a solicitor first – through what is known as the Public Access Scheme. A Public Access barrister is an expert in their field of law who specialises in advising clients and providing representation for them at Court if necessary. They can also assist in drafting documents, and their Court experience as a specialist advocate gives them the knowledge to help you to understand your options and give you realistic advice about your prospects. Our barristers can also offer you advice on mediation as well as providing the mediation service itself.   

It can often be more practical and cost-effective to let a barrister handle your case directly through this public access scheme, than to use a solicitor.  

Our award-winning, specialist legal Clerks are well placed to help match you with a family barrister who best fits with the demands of your case and you will be able to discuss your particular needs to make sure you find the best lawyer to represent you. You will be able to discuss the work that you require help with and agree fees in advance so that you know where you stand. However, not all cases are suitable to be handled by a Public Access Barrister, in which case we would refer you to a solicitor with the expertise you require. 

How to choose a divorce lawyer

When selecting your barrister, there are a number of things you should bear in mind:  

  • Make sure you choose a specialist in family law. A specialist will have the relevant knowledge and experience to handle your case effectively. They will be up-to-date on changes in the law and recent pertinent rulings. 
  • Ensure you feel comfortable with your barrister. The divorce process could take a number of months or it could take much longer – so it is essential you have the right person supporting you. At the initial consultation, pay attention to whether the barrister listens carefully to your information and concerns, whether you are comfortable opening up to them and whether you feel confident in their abilities. And if you would prefer a male or female barrister to take on your case, make sure you state this when you first speak to the clerk.  
  • Find out what other people are saying about them. Read testimonials from former clients to give you an idea of the barrister’s experience and take into account any relevant legal accreditations. Our practice is graded Tier 2 on the Chambers & Partners Legal 500 list – a prestigious ranking system which provides a clients’ guide to the best law firms in the UK. We’re very proud of this ranking, which underlines the superb reputation of our practice.   
  • Allow plenty of time. Barristers’ diaries get filled up well in advance with court bookings, so approach the lawyer of your choice in good time to allow them to consider your papers and advise you accordingly. This will ensure you are dealing with someone you are comfortable with and confident about, rather than someone who is available to work with you at the last minute.  
  • Ask lots of questions at the initial meeting. A good barrister will appreciate this approach. Ask us about our practice and experience. Think about what you want from your barrister – whether you need mediation, advice on your case, answers to a technical question, or representation in court 

What do I do now 

Choosing a lawyer is a very personal choice. You need to have the utmost trust and confidence in the person advising and/or representing you as they try to make the process as straightforward and stress-free as possible for you. 

If you are ready to start the process of instructing a divorce lawyer, read our simple step-by-step guide then get in touch with our clerks in our central Brighton office who will be able to advise you on what to do next.

By Anita Mehta | Divorce and Finance

January 18, 2018
Bruce Tregoning successfully represents father

Bruce Tregoning successfully represents father

Bruce Tregoning represented a Father against whom 14 allegations of serious abuse (including sexual abuse) against his two children had been made by the mother; necessitating a 4 day fact finding hearing involving several professional witnesses attending Court including a NYAS Caseworker (Guardian). He successfully persuaded the Circuit Judge to dismiss every single allegation made against the Father in the schedule of allegations produced by the mother resulting in no findings being made against the Father and to order at the end of the case, both overnight contact between the children and their father and substantive holiday contact.

Bruce Tregoning | Family and Children

July 24, 2017
Stuart Wright successfully represents HMO landlord

Stuart Wright successfully represents HMO landlord

Stuart Wright successfully represented a HMO landlord in a civil action against him by a former tenant accusing him of harassment, unlawful eviction and failure to comply with the statutory deposit protection requirements.

Stuart Wright was instructed on a direct access basis to represent the landlord at the trial. Following successful cross-examination of the tenant by Mr Wright the claim was dismissed in its entirety, with the County Court Circuit Judge concluding that the tenant was an unsatisfactory witness and that his claim was not a genuine one.

Stuart Wright | Property

 

June 22, 2017
Should matrimonial assets always be shared between the parties on an equal basis?

Should matrimonial assets always be shared between the parties on an equal basis?

What about when the case involves a ‘short marriage’?

The Court of Appeal has recently handed down judgment in the case of Sharp v Sharp [2017] EWCA Civ 408. The lead judgment is by Lord Justice McFarlane who describes the issue to be grappled with as follows:

‘In White v White [2001] 1 AC 596 (‘White’) the House of Lords established what has become a principle that the matrimonial assets of a divorcing couple should normally be shared between them on an equal basis. The present appeal requires this court to consider whether that is inevitably the case where the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and where one of them has been paid very substantial bonuses during their time together. Although the possibility of a relaxation of the sharing principle in such circumstances has been described in earlier cases, this is the first occasion that the point has arisen directly for determination at Court of Appeal level since White and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618 (‘Miller’).’ (see paragraph 1)

The wife was a trader and the husband worked in IT. They initially both had basic salaries of around £100,000pa, but the wife received annual bonuses of around £10 million pounds during the marriage. The marriage lasted for around 6 years, including 18 months of pre-marital cohabitation.

McFarlane LJ considers in depth the relevant legal cases, which is outside the scope of this news article.

McFarlane LJ was clear at paragraph 75 that:
‘Nothing that is said in this judgment is intended in any manner to unsettle the clear understanding that has been reached post-White on the approach that is to be taken to the vast majority of cases. The focus of the present appeal, which is very narrow, is upon whether there is a fringe of cases that may lie outside the equal sharing principle.’

However, the court held that in a case such as this:

‘…fairness may require a reduction from a full 50% share or the exclusion of some property from the 50% calculation.’ (see paragraph 97)

The court limited the husband’s total share to £2 million from a total pot found to be £6.9 million at first instance, but excluded the wife’s liquid capital from being part of the matrimonial assets for equal sharing. The husband received one half of the capital value of the two properties (his share was £1.3 million) and was provided with an additional award amounting to £700,000 to reflect a combination of the following 3 factors:
‘(a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he is to retain; and (c) some share in the assets held by the wife’ (see paragraph 114)

In the writer’s opinion, this case is likely to add to, rather than settle, the on-going discussion about the applicability of cases such as White and Miller to the division of matrimonial assets between the parties in ‘short marriage’ cases.

If you have a case that you would like help with then please use our easy to use ‘enquiry form’ which can be found here.

Further reading:

White v White [2001] 1 AC 596
(http://www.bailii.org/uk/cases/UKHL/2000/54.html)

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618
(http://www.bailii.org/uk/cases/UKHL/2006/24.html)

Sharp v Sharp [2017] EWCA Civ 408 (http://www.bailii.org/ew/cases/EWCA/Civ/2017/408.html)

Daniel Miller has been a practising family barrister since 2005.

He practises in all areas of family law, with a focus on financial remedy cases. He has had extensive exposure to financial remedy cases at all levels, which frequently involve disputed company assets, international issues, and trusts. He accepts work both under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.

May 2, 2017

“Freemen-of-the-land” – Go Directly to Jail (Do Not Pass Go)!

Desperate times can sometimes call for desperate measures. It is therefore not difficult to see why the suggestion that you are not bound by legislation or commercial law may be attractive to someone who has mounting debt problems or is facing eviction from their home. This is essentially what is promised by various groups of people whose theories are all based around the ‘freemen of the land’ movement in North America.

The general claim is that there is a big state conspiracy – between the government, judges, civil servants, lawyers etc – to take away citizens ‘common law rights’. This all starts from the moment your parents registered your birth. Freemen see the birth certificate as a contractual document with the state signing over the legal title of the baby. The suggestion is that there is a distinction between you as a man or woman – John, of the Family Smith – and Mr John Smith who is the legal entity owned by the state.

The suggestion is that if you do not consent to being bound by the law then you will not be bound. This way official demands for payment of fines, to appear in court etc can simply be declined. By following various freeman rituals – e.g. asking the Judge if he or she is on their “oath” / refusing to enter the Court room unless the Judge agrees that your god given rights are intact / producing a birth certificate to be the respondent rather than the man/woman themselves – then the Court will have no jurisdiction over you and the Claim will be dismissed. It sounds like a wonderfully simple way to make all of your problems go away.

The problem is that it is, put simply, nonsense.

In the 2012 case of Meads v. Meads, a Canadian Judge forensically deconstructed and dismissed freemen-style arguments in a detailed 192 page judgment. This is a long read, but essential if you have any doubt that what the Freemen are peddling is anything other than nonsense.

The real problem is that not only will the Freemen arguments not magically make everything better – they may in fact land you in contempt of court – facing imprisonment or at the very least a substantial fine.

For example, in 2015 at Sandwell Magistrates’ Court, an uninsured driver was sentenced to 14 days imprisonment for contempt of court after claiming to be a Freeman-of-the-Land and therefore outside of the jurisdiction of the Court.

Unfortunately, there are no magic cures or silver bullets when it comes to legal problems. There is no substitute for taking early legal advice from a trained professional and being represented by someone who can fight your corner in accordance with the legitimate laws of this land.

Further reading:

Meads v Meads 2012 ABQB 571 (CanLII) https://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html

https://ukhumanrightsblog.com/2012/09/30/freemen-of-the-land-are-parasites-peddling-pseudolegal-nonsense-canadian-judge-fights-back/

https://ukhumanrightsblog.com/2011/11/15/freemen-of-the-dangerous-nonsense/

http://www.birminghammail.co.uk/news/midlands-news/freeman-land-driver-jailed-contempt-10253089

http://www.bbc.co.uk/news/uk-england-merseyside-12668444

http://www.bbc.co.uk/news/magazine-36499750

http://www.eveningnews24.co.uk/news/crime/norfolk-tax-dodger-arrested-after-writing-to-queen-1-745681

April 27, 2017

How to get Title registers and Title plans from the Land Registry

 

In a dispute with a neighbour about a boundary or a right of way you need to look at up-to-date “titles” of your properties. These are the official records of ownership held by the Land Registry. How do you get them? It is easy, as Paul Ashwell explains in this step-by-step guide.

1. Go to the Land Registry via this link

2. Enter property name and post code

3. Click Search

4. Select Buy Title register and Title plan

5. Click Purchase

6. Click Create Account link

7. Click Agree [terms]

8. Enter name details,  address details, contact details and Login details.

9. Click Create Account

10. Click on link in activation e-mail

11. Return to Buy Documents page

12. Click Checkout

13. Select Payment Page

14. Enter Card details and Cardholders details

15. Click Make Payment

16. Click Continue

17. On Download documents Select documents and click

18 Click Save

19. Click View downloads

20. Open title documents

 

Paul Ashwell | Property

July 8, 2016
£11 million Ferrari dispute resolved

£11 million Ferrari dispute resolved

Simon Sinnatt and David Lewis-Hall represented a car collector in dispute over £11million 1954 classic Ferrari.

Simon and David were instructed to represent renowned car collector Mr Christopher Gardner at the 3 week trial in the Commercial Court set to start on the 18th April 2016.  The case concerned the purchase of a 1954 Ferrari 375 Plus by American billionaire Mr Les Wexner at an auction held by Bonhams at the June 2014 Goodwood Festival of Speed. The car is one of only four of its type which remain in existence.

The car was previously owned by Mr Karl Kleve, an Ohio car collector, but the chassis was stolen from him in 1989 and found its way to Belgium. Mr Jacques Swaters bought the chassis in 1990 and restored the car to its former glory.  A title dispute arose between Mr Kleve and Mr Swaters, which was continued by their respective heirs.  Mr Gardner subsequently became involved in the dispute.

The car found its way to the Bonhams auction as a result of a purported settlement agreement between the parties fighting over ownership of the car.  Mr Wexner sought to rescind his contracts with Bonhams and the sellers, alleging that he had been misled.

A number of different claims were issued and joined together, resulting in proceedings involving 8 parties and a trial bundle running to over 60 lever arch files, to determine the fate of the car and destination of the proceeds of sale.

Simon and David were instructed as Public Access Barristers representing Mr Gardner in the negotiations between the parties who were represented by leading firms of solicitors Jones Day and Mischon de Reya and magic circle Chambers Brick Court and Blackstone.  Settlement of all claims was achieved.

Read news article here.

 

March 17, 2016

Clients who have switched to using a Direct Access barrister share their experiences of the benefits of going straight to a barrister. Here, Paul Himple, Managing Director, Go-Legal-HR Limited, shares his experience.

March 17, 2016

Clients who have switched to using a Direct Access barrister share their experiences of the benefits of going straight to a barrister. Here, Susie Mercer, Director, Romsey World of Water, shares her experience.

March 17, 2016

Clients who have switched to using a Direct Access barrister share their experiences of the benefits of going straight to a barrister. Here, Nic Allen, Director Avon Estates Ltd, shares his experience.

March 17, 2016

Small business owners can benefit from using a Direct Access barrister for legal support. Here, Joe Leach, Owner, Cowshed Recording Studio, shares his experience.

 

 
June 16, 2015

Paul Ashwell persuades judge to give landlord possession of a mobile home

A landlord let a mobile home on an Assured Shorthold Tenancy. He got into difficulty with the formalities of a claim for possession. Paul Ashwell persuaded the judge that the tenants had suffered no disadvantage and possession was ordered.

Paul Ashwell | Property

June 12, 2015

Bruce Tregoning successfully persuades Judge to accept continuation of Court proceedings brought by a father contrary to child’s best interests

Bruce Tregoning acted in a difficult case where he successfully persuaded the Judge to accept that the continuation of proceedings was contrary to the child’s best interests despite a CAFCASS Officer’s report that recommended an assessment by a child and adolescent psychiatrist was required. The Court also found the continuation of proceedings was contrary to the child’s best interests in circumstances where the Father was contesting matters but had failed to attend Court at the final hearing despite being given notice and the Final Hearing being delayed.

Bruce Tregoning | Family and Children

June 11, 2015

Matthew Heywood makes successful argument on Appeal ensuring client keeps his driving Licence

A Barrister for me client was charged with speeding and was at risk of losing his licence due to the amount of points on it. However, he denied ever receiving a Notice of Intended Prosecution which eventually was fatal to the prosecution case. Matthew Heywood successfully argued on appeal that s.1 of the Road Traffic Offenders Act applied and the conviction should be quashed. The Crown Court allowed the appeal and the conviction was quashed and the client kept his driving licence.

June 11, 2015

Matthew Heywood successful in a legal argument ensuring client keeps his driving licence

A barrister for me client was allegedly caught using a mobile phone whilst driving and risked losing his licence. Matthew Heywood was successful in a legal argument which resulted in the court dismissing the charge. The client was awarded his costs.

May 19, 2015

Exceptional hardship successfully argued

Christine Henson successfully argued exceptional hardship for motorcyclist speeding 94 in 70mph zone including roadwork restrictions of 40mph. Due to other points on his licence would have been automatically disqualified unless he proved exceptional hardship. He has kept his licence.

May 19, 2015

Timothy Bergin assists father achieve Parental Responsibility

Case was listed for a fact-finding in respect of cross allegations of domestic violence Timothy Bergin acted for a father. The mother was opposed to parental responsibility and direct contact. On basis of limited admissions made by father, the Court were content not to proceed with fact finding hearing The Court  Ordered parental responsibility to the father and direct contact once father had engaged onto the Living Without Violence Programme.

Timothy BerginFamily and Children

May 14, 2015

Christopher Rice obtains family law act injunction and occupation order

Family law act injunction and occupation order. Issued by client in person with support from Worth Domestic Violence project – client not eligible for public funding.  Husband was unpleasant controlling man. Two children, one with significant needs. Anticipated fully contested case. A compromise was reached which allowed the wife to return to the family matrimonial home allowing the husband some time to vacate.

Christopher Rice | Family and Children

May 14, 2015

Paul Ashwell advises in Company dispute

An entrepreneur sold his shares in a media company with instalments of the seven figure purchase price being paid over a number of years. There was a dispute about the tax treatment by the company of payment of instalments, the calculation of the balance in his director’s loan account and the conduct of the company pending the final payment. Both company law and tax expertise were needed. The way forward was resolved in a round table meeting with the barrister, a forensic account whom chambers had recommended and the entrepreneur’s legal advisor from abroad.

Paul Ashwell | Contracts and Debt Recovery

March 2, 2015

Richard Ager and Clare Ciborowska appointed as Associates of the University of Sussex

In recognition of their contributions to the training and education of social workers we are pleased to announce that Richard Ager and Clare Ciborowska of Barrister For Me have been appointed Associates of the School of Social Work and Social Care at the University of Sussex. This builds on our many links with the University and reflects the valuable input made by these barristers in these fast changing and demanding times.

 

March 1, 2015

Ghulam Hussain: Rest in Peace

With great sadness we announce that Ghulam Hussain died suddenly and unexpectedly of a heart attack on Friday, 13 February.

His funeral took place at a mosque in Leeds on Sunday 15 February and his colleagues at Barrister For Me have expressed their sincere condolences to his wife, Rachel. An informal gathering was held at Chambers in memory of a much loved friend and colleague with the intention that a more formal memorial event will be held later for all who knew him and worked with him to pay their respects.

February 28, 2015

Anita Mehta writes the article: Schedule 1 to The Children Act 1989: Not Just for Wags

Family Law barrister Anita Mehta, a member of Barrister For Me, recently had an article published in Family Law Week arguing that Schedule 1 to the Children Act 1989 applications should not be regarded solely as the domain of footballers’ girlfriends or the extremely wealthy but as an influential tool for meeting children’s needs in a wide variety of cases.

Click here to read the article.

Anita Mehta | Family and Children