Wednesday, 16 August 2017

DIY divorce form could lead to more adultery accusations, lawyers warn

 A new "DIY" divorce form designed to speed up the process could lead to thousands more people being accused of adultery, lawyers warn.

The new form, which was introduced on Monday, prominently includes a dedicated section for a petitioner to fill in the details of "the person your partner committed adultery with".

Anyone named on the form becomes party to the case and receives a letter letting them know why - leading to the possibility that many more people could receive documents telling them they have been accused of adultery.

Applicants do not have to name the person they believe tempted their partner to stray - but experts are concerned that many more could fill in the section either through misunderstanding or deliberately, to get back at their former partner

.Laura Guillon, an associate at law firm Hall Brown, said: "The idea is to try and make the process more user-friendly, because the court is inundated with people representing themselves.

"Without the benefit of advice we could get more people naming co-respondents, because they don't understand that they don't have to."

Previously the section for their name and address was at the bottom of the form in a section called "service details".

The term "adultery" was not used in this section, which instead described the person only as a "co-respondent".

Nigel Shepherd, chairman of family law group Resolution, said clients sometimes had to be "talked out of" naming their partner's new girlfriend or boyfriend.

"Sometimes people say 'I'd like to name her - it's her fault, or his fault'", he said.

The new paperwork is meant to make divorce an easier process for the rising number of people who do not hire a lawyer to manage it for them.

According to the most recent figures adultery was cited as the reason in 12,148 divorce cases in 2015.

Figures show that one in three petitions for divorce is now filed without legal advice, meaning thousands of people will be filling out the forms without guidance.

Previously the form included arcane legal language and references to statute but it is now set out more clearly with guidance for applicants.

It also contains more questions which can be answered through tick-boxes.

Experts say it is a step towards “digital divorce” which will eventually see couples able to manage the process entirely through filling in online forms.

But the change could also lead to legal and administrative delays as those who have been accused of tempting a married person to stray protest their innocence, causing an increase in "defended" divorces.

Rosie Schumm, partner in family law at law firm Forsters, said the section could have been written with "more thought" to avoid the issue.

"I think when people are filling this form out on automatic pilot that may mean that they are putting in more details than they used to," she said.

But, she added, the form brought other benefits, including an option for a petitioner to ask that their address be hidden from their former partner, which will help victims of domestic abuse who do not want to disclose where they are.

Mr Shepherd said Resolution would “petition quite strongly for change” if there was an increase in adultery accusations as a result of the new form, which he said was otherwise simpler and easier to use.

A Ministry of Justice spokesman said: “It has always been possible for a petitioner to name the person they believe their spouse has committed adultery with on divorce application forms.

“As set out in the previous form, and more clearly in the new form, there is obviously no obligation to do so. This is a relevant part of divorce proceedings."

For more information click here

Friday, 28 July 2017

Tribunal Fees in the Supreme Court:

In perhaps the most important judgment in employment law of the last fifty years, a seven-person Supreme Court has found that the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 (Fees Order) prevents access to justice and is unlawful.

The immediate consequence is that the Fees Order is quashed, so that as of today fees cease to be payable for claims in the employment tribunal (ET) and appeals to the EAT, and fees paid in the past must be reimbursed. But the judgment is of much wider constitutional significance, underlining the high degree of protection given to access to justice by the common law and clarifying the principles which will be used to scrutinise impediments to that fundamental constitutional right.

The lawfulness of the Fees Order was challenged by UNISON, supported by the interveners, the Equality and Human Rights Commission. UNISON lost in two Divisional Court hearings below, and in the Court of Appeal.

Lord Reed gave the principal judgment with which all other SCJs agree. He first outlined the operation of the Fees Order and empirical evidence relevant to its effect – including the low level of most ET awards, the poor record of enforcement, and the dramatic impact of the Fees Order on the number of claims (and especially on low value claims). After noting that the Order had made a much less significant contribution to tribunal costs than expected, had failed to deter unmeritorious claims, and did not appear to have improved the proportion of cases which had settled through ACAS, Lord Reed turned to the issue which lay at the heart of the case – the importance of the constitutional right of access to the courts, as an essential element of the rule of law.

Lord Reed’s analysis is noteworthy in at least two respects: first, because he begins not with Article 6 EHRC but with the common law; second, because he emphasises that unimpeded access to the courts is a benefit to the public and not just to the parties themselves:

“Without [access to the courts], laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not provide a public service like any other”

Contrary to these fundamental principles, the government’s consultation papers had assumed that the justice system was only of value to “users” of the system.

Citing a letter written by a Lord Chancellor “of a previous generation”, Magna Carta, Sir Edward Coke, Blackstone and common law authorities on the rights of every citizen to unimpeded access to the court, Lord Reed concluded that the Fees Order would be unlawful if there was a “real risk” that it would effectively prevent persons from having access to justice. Alternatively, it will be unlawful if the degree of intrusion goes beyond what is justified by the objectives of the relevant provision – a test analogous to the proportionality test under the ECHR.

As to the first principle, Lord Reed concluded that the Fees Order did effectively prevent access to justice. The evidence showed that the fees were not set at a level that everyone could afford. This included: the sharp and sustained drop in the number of claims; the estimate in the recent Review that 10% of claimants did not bring proceedings because they could not afford the fees; and the hypothetical examples presented in evidence by Unison, of how fees impacted on claimants in low to middle incomes. The existence of the exceptional power of remission, which was exercised only about 51 times from July 2015 until December 2016, was no answer to this picture: the problem was systemic.

A number of other factors reinforced this conclusion. The fees were set at a level which rendered it futile or irrational to bring smaller claims. For example, no sensible person would pay a fee of £390 to bring a claim of £500 unless he was virtually certain to succeed, that he would be reimbursed his fees and that the award would be satisfied in full. But success can rarely be guaranteed, and only half of successful claimants receive payment in full. Little wonder that the statistics show that fees deter especially claims for low sums.

Turning to the second principle, Lord Reed concluded that it too was breached: fees were not justified as a necessary intrusion on the right of access to courts.  The Government had not produced evidence to show why the fees had been set at the level they had, and had falsely assumed that the higher the fee, the higher the revenue (an assumption which contradicted “elementary economics and plain common sense” because the optimal price depends on the elasticity of demand). Nor had the Government shown that fees met the other objectives for their introduction, such as deterring weak claims. Finally, the Government had also failed to consider the public benefits flowing from the enforcement of rights conferred by Parliament.

Lord Reed supported his analysis of the common law by reference to the EU principles of effectiveness and effective judicial protection, and the case-law on Article 6 ECHR. These two jurisdictions now chime together, and require that any restriction on access to the courts must pursue a legitimate aim and be proportionate to the aim. Here, the Court of Appeal erred in assuming that the only question was whether it was impossible to pay fees in practice. Rather, the Strasbourg case-law showed that other factors were relevant to proportionality, including whether fees were proportionate to the sums at stake. In light of his conclusions based on the common law, Lord Reed considered that the Fees Order also imposed disproportionate restrictions for the purpose of EU law.

It followed, according to Lord Reed, that the Fees Order was unlawful under both domestic and EU law, and “since it had that effect as soon as it was made, it was therefore unlawful ab initio and must be quashed”.

Agreeing with Lord Reed’s analysis of the right of access to a court, Lady Hale also held that the Fees Order was indirectly discriminatory against those with a protected characteristic. The parties accepted that the Fees Order had a disparate impact upon women, so that the question was whether it was justified as a proportionate means of achieving a legitimate aim. Lady Hale, relying on similar reasoning to Lord Reed held that the treatment was not justified.

The short-term consequences of the judgment are that with immediate effect fees are no longer payable for claims before the ET or appeals to the EAT and, in accordance with an undertaking given by the Lord Chancellor to the courts below, all fees which were paid in the past must be reimbursed. The long-term consequence is that the Supreme Court has given the strongest possible endorsement to the fundamental public importance of access to justice, meaning that future restrictions of all kinds (and not just financial barriers) on access to the courts will be subjected to the closest scrutiny in accordance with the principles set out by Lord Reed.

Michael Ford QC, Mark Whitcombe and Spencer Keen were instructed by the Intervener, the Equality and Human Rights Commission (Rosemary Lloyd and Mike Young)
Read The Guardian's article by clicking here

Ex-wife begs judges to end her 16-year divorce battle with ‘evasive’ airline pilot

The ex-wife of a millionaire pilot who is locked in Britain’s longest divorce battle has pleaded with senior judges to end the “ghastly” 16-year legal fight.

Viki Maughan, 50, and her former partner, Richard Wilmot, 62, have been fighting over money since they split in 2001, with Mr Wilmot claiming that  her daughter had been fathered by another man.

Mr Wilmot, an ex-British Airways captain, is “absolutely convinced” he is not the father. He accuses his ex-wife of fabricating evidence to try to extract maintenance payments from him.

Ms Maughan says he needs to “accept reality”. At the Court of Appeal, she asked judges to order Mr Wilmot to honour their 2001 divorce settlement.

Her barrister, Jonathan Swift, told the court: “A significant air of reality needs to descend in this case.” He said his client has a “sincere wish that this court should dispose of this matter with as many restraining directions as possible, so it may never be resurrected again”.

Lady Justice Black, Lord Justice Sales and Lord Justice Moylan heard the couple lived in an £800,000 country home, Hartley Oast, in Cranbrook, Kent, before they split in the late Nineties.

Mr Wilmot, who flies for Turkish Airlines, has remarried and lives in an £800,000 country house in Alcombe, Somerset. He also has a £500,000 18th-century listed house in Dunster, Somerset, and a property in Kirk Michael on the Isle of Man, the court heard.

He argues that £390,000 he has paid to Ms Maughan since their divorce was “obtained by fraud”, claiming that a 2000 DNA test — which concluded he was the father — is invalid and that the child’s birth certificate was a forgery.

He has now gone to the Appeal Court, asking the judges to block Ms Maughan’s claims for more money under the 2001 settlement. As well as not paying maintenance, he has also been accused by Ms Vaughan of being “evasive” and trying to dodge court papers.

 esterday, he said he had not properly received court documents by email as he could only access “slow internet” abroad. Nicholas Bowen QC, for Mr Wilmot, said: “He only comes back to the UK for a few weekends a year. He is based in the air, all over the world.”

He did not want to receive documents at his Somerset home because he “didn’t want to be pursued by this ghastly case” and sought to protect his new wife “from the wreckage of the past”.

“He therefore told his wife that if anything turns up at Alcombe, just send it back,” said Mr Bowen.

At an earlier hearing, a judge told Mr Wilmot that the case “could bankrupt you”, as he could face years of maintenance back payments as well as a hefty costs bill if he lost. The Appeal Court  judges have reserved their decision on Mr Wilmot’s appeal until a later date.

Tuesday, 18 July 2017

Outdated law of wills ‘needs overhaul’ to reflect modern world

The outdated law of wills needs an overhaul according to the Law Commission.

The independent body say that Victorian laws, out of step with the modern world, are failing to protect the vulnerable – and not allowing others to distribute their possessions after their death.

The Law Commission says that an estimated 40 per cent of adults die intestate each year and it is thought that the laws could be discouraging people from making a will. 

As a result, the Law Commission is consulting on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.

The Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.

In a new consultation paper, the Law Commission proposes:
  • Giving the court power to recognise a will in cases where the formality rules have not been followed but the will-maker has made clear their intentions.
  • An overhaul of the rules protecting those making a will from being unduly influenced by another person.
  • Applying the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a will.
  • Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.
  • Giving the Lord Chancellor power to make provision for electronic wills.
  • Lowering the age at which people are able to make a will from 18 to 16 years old.
The paper also asks whether the rule that marriage revokes a will should be retained or abolished.

Law Commissioner Professor Nick Hopkins said:
"Making a will and passing on your possessions after you've died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether.

"Even when it's obvious what someone wanted, if they haven't followed the strict rules, courts can't act on it. And conditions which affect decision-making – like dementia – aren't properly accounted for in the law.

"That's not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people's last wishes."

For more information, click here

Monday, 19 June 2017

Financial proceedings to be 'de-linked' from divorce

Monidipa Fouzder of The Law Society writes, divorce and its financial consequences are to be
administratively separated in a move that is expected to save family solicitors weeks of delay.

Financial proceedings will be 'administratively de-linked' from divorce proceedings across courts nationally on 19 June following a
successful pilot, family division president Sir James Munby and HM Courts & Tribunals Service
deputy chief executive Kevin Sadler said, in a letter published today.

The administrative de-linking was piloted at the south west regional divorce centre in
Southampton last month.

Munby and Sadler said that the pilot achieved its aim of introducing a more streamlined process,
reducing by up to two weeks the delays experienced by court users as files are transferred
between courts.

Days before the pilot began, Munby and Sadler told family division liaison judges that the
centralisation of divorce and dissolution proceedings into 11 specialist divorce centres in 2015
had 'shone a spotlight on the way in which related financial applications are dealt with and it
is clear that this process can and should be improved'.

Currently, if a contested financial application is made, the whole proceedings are transferred
to a local court. The pilot administratively de-linked financial proceedings from divorce so that
the main divorce proceedings remained in the specialist centre; staff and judiciary at the local
hearing centres worked independently on the contested financial proceedings. Consent applications
remained at the divorce centres.

A separate financial remedy file, with the same case number as the divorce proceedings, was
created at the local hearing centre. HMCTS staff ensured the dates on any decree nisi or decree
absolute were highlighted on the file.

Munby, in his latest View from the President's Chambers, said the time had come for a 'complete
de-linking' of divorce and money, started and pursued by separate processes. However, he
acknowledged the timeline for ancillary relief would be determined by the progress of the

However, Roe warned: 'On a wider note, whilst the president noted in his [latest update] that
only a minority of divorce cases give rise to a money claim, it is important for parties,
particularly litigants in person, to be aware of the implications that there may be by leaving
financial aspects unresolved, without a consent order dismissing potential claims.'

Roe cited the Supreme Court's 2015 decision in Wyatt v Vince, which allowed a former wife to
proceed with her financial remedy application several years after divorce.

Family law group Resolution also welcomed today's news. 'Any steps that reduce delay and make
the administration of family proceedings more efficient must be encouraged. This is just one
example of how quite simple changes can make a difference in practice,' it said.

The latest development does not affect the substantive law relating to divorce or financial
remedy proceedings, Resolution added.

For more information click here

Friday, 19 May 2017

Three Girls, a chilling finale put the legal system in the dock

The Telegraph today reviews the final episode of the harrowing story of the Rochade Child Abuse case.
There was no catharsis or closure in the concluding episode of Three Girls, Nicole Taylor’s gripping, damning dramatisation of the Rochdale child grooming scandal. If anything, the sense of injustice reverberated stronger than ever as the final credits revealed whistle-blowing child welfare worker Sara Rowbotham (Maxine Peake) had been quietly scapegoated – and ultimately made redundant – after exposing the authorities’s endemic indifference towards the trafficking of vulnerable teenagers.

Ending on a downtempo note was a courageous gesture from a series that has neither flinched from nor wallowed in the horrors chronicled on screen. A glibber drama would have seized the Hollywood conclusion that beckoned after rape victims Ruby Bowen (Liv Hill) and Holly Winshaw (Molly Windsor) bravely testified by video link regarding their abuse and the accused were duly found guilty. Fade to black and the whole affair would have been wrapped up with a shiny bow.
But it was in its gently devastating coda that Three Girls landed its hardest punches. While the sex offenders cultivating and preying upon the young women were obviously monsters, the facile villainy of the legal system was also placed in the dock. The mendacity – all verified by official sources – was in places breathtaking.

When Ruby’s older sister Amber (Ria Zmitrowicz) was judged an unreliable witness, the prosecution discreetly listed her as a defendant alongside the men standing trial so that her evidence would be placed before the jury anyway. She would only be made aware of the fact when child services, noting she had been prosecuted for sex offences, tried to take her infant away.
The court-room scenes were grim and riveting, with Holly refusing to be cowed by a parade of smug, preening defence barristers. A chilling insight was also offered into the mindset of the assailants – something about which Three Girls had until now proved oddly incurious.

In the witness stand, Holly’s rapist “Daddy” (a unnervingly indignant Simon Nagra) embarked on a rant about the white community’s attitudes towards sex and appropriate behavior of young women. White people, he shouted, trained girls in “drinking and sex” from a young age. Even when confronted with evidence of his crimes, he couldn’t see he had done wrong.
Racial divisions stoked by the cases were sensitively touched upon, too. Far-right extremists chanted and waved placards outside court; later at a town hall meeting, members of the Pakistani community complained they were being collectively held accountable for the crimes of a few. This was the stagiest sequence of the three hours – but a necessary acknowledgment of the tensions framing the prosecutions and their aftermath.
Peake, so devastating in parts one and two, was more peripheral in the final hour as her character receded somewhat. However, there were absorbing turns by Paul Kaye as Holly’s emotionally tortured father and, especially, by Hill and Winshaw as Ruby and Holly.

The outcome of their cases is already known. But the suspense was nonetheless excruciating as they blinked their way through the tears and the defence's inference that they were glorified prostitutes vindictively trying to restore their reputations.

Amid the darkness of the subject matter and the web of official incompetence, their courage was a beacon burning brightly.

To read more click here

Friday, 21 April 2017

Child victims of sexual abuse in families let down by system

An article in yesterday's Guardian informs us that the Children’s commissioner for England
catalogs series of failings and calls for urgent changes to services provided.
Child victims of sexual abuse within families are being let down by the system, the children’s commissioner for England has said.
Young people are often left to report the abuse themselves when the authorities fail to pick up on signs, a report by the commissioner’s office found.
Even after their experiences are disclosed, investigations into sexual offences against children tend to take an average of 100 days longer than those against adults, it said.
Victims also often face long waits for therapy, and many are blocked from having counselling in the run-up to their court cases.
Abuse within family environments is thought to make up two-thirds of all child sexual abuse, and as few as one in eight victims come to the attention of authorities, previous research by the commissioner’s office found.
Some survivors have now described feeling abandoned after telling their families about the trauma they had suffered, and in powerful testimonies they spoke of their frustrations at a lack of support.
The commissioner’s office released three reports on Thursday, looking at how child sexual abuse is investigated, the role of schools in preventing it and things to be learned from survivors.
One 19-year-old woman said giving video evidence about the abuse she suffered was “like it’s going on again, the whole thing’s happening again”.
In partnership with the NSPCC, researchers from the University of Bedfordshire spoke to young people aged between five and 19 about their experiences of abuse within a family setting.
Using information from the Home Office and Crown Prosecution Service, the commissioner’s office also found that a rise in the reporting of sexual offences was placing a strain on the justice system.
Many teachers feel confident they are able to recognise the signs of abuse, but schools do not always fulfil their potential roles in preventing incidents by educating children about seeking help, one of the reports said.
The commissioner, Anne Longfield, called for urgent changes to the system and looked to the approach in Iceland, where child victims are offered specific services to deal with their trauma.
“It is clear from this research and the heart-breaking stories told by young people within it, that many child sexual abuse victims are being let down by the system,” she said.
“Professionals remain dedicated to supporting the victims of abuse, but urgent changes need to be made to the way it is reported, the role of schools in preventing it and the criminal justice process in child sexual abuse cases.
“The Icelandic ‘Barnahaus’ approach, where services ranging from medical examination to therapy are provided to victims under one roof, has been proven to be successful in overcoming some of these hurdles and I hope it will be trialled in England.”
Dr Camille Warrington from the University of Bedfordshire and lead author of the Making Noise report, said: “We know that child sexual abuse flourishes in cultures of silence.
“Undertaking the Making Noise research project highlighted only too well children’s own appetite and ability to help break that silence.
“It also emphasises the need for us as adults and professionals to improve the way we listen to and talk with children to prevent and respond to abuse - and the benefits that come from doing so.”
Barnardo’s chief executive, Javed Khan, called for compulsory lessons in schools to include topics such as sexting, consent and online grooming.
He said children should be assigned an independent advocate to help them navigate the court system when their abusers are brought to trial.
“We hear every day how much children and young people at risk of, or who have experienced, sexual abuse need and benefit from our specialist services, but we know many more need our help too,” he said.
For more information click here