Monday, 25 September 2017

Bach Commission recommends bringing range of family law cases back into civil legal aid

Commission advocates a new Right to Justice Act

In its final report the Bach Commission, which is supported by the Labour Party leadership and the Fabian Society,  calls on the government and other political parties to ensure minimum standards on access to justice are upheld through a new Right to Justice Act. The report will form part of the Labour Party's policy review.

The Commission, which has heard from more than 100 individuals and organisations over the past two years, has found that that cuts to legal aid have created a two-tier justice system where the poorest go without representation or advice.

The proposed Right to Justice Act will:
  • Codify our existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford
  • Establish a set of principles that guide interpretation of this new right
  • Establish a new body called the Justice Commission to monitor and enforce this new right.
To make the act a reality, the commission also sets out an immediate action plan for the government to: widen the scope of legal aid, with a focus on early legal help; reform the eligibility requirements for legal aid; replace the Legal Aid Agency with an independent body; and improve the public's understanding of the law.

In respect of family law, the Commission recommends: 
  • The government restores legal aid for early legal help to pre-LASPO levels for all social welfare law and family law.
  • All matters concerning legal support for children should be brought back within the scope of civil legal aid.
  • Family law cases with the following characteristics should brought back into the scope of civil legal aid, with respect to representation in court:
a) representation in particularly sensitive areas of private family law (such as cases in which the primary care of a child is in dispute)
b) cases involving an application to remove a child from the jurisdiction
c) cases where there is local authority involvement in private law children proceedings
d) cases in which an allegation is made which is so serious it would be unjust not to provide legal representation to defend it
e) cases where the question of whether a child should have any contact with a parent or grandparent is in dispute
f) cases where a court determines expertise is necessary to decide a family case in the best interests of the child, but where the non-legally aided party is not in a position to pay a contribution towards that expertise.
  • The exceptional case funding scheme has manifestly failed, and needs urgent review and reform.
  • To read the report click here

Monday, 18 September 2017

CPS to issue first-ever guidance for prosecutors on handling male victims of sexual and domestic abuse

Olivia Rudgard, social affairs correspondent at The Telegraph informs us that there is now
guidance for dealing with male victims of abuse will be sent to prosecutors for the first time as the CPS says they need specific protection in the same way as LGBT and black and ethnic minority people.

Previously there had been no specialised guidance for prosecutors on dealing with male victims of crimes such as rape, sexual abuse and domestic violence.

Prosecutors hope the new documents will tackle attitudes which stop men coming forward for fear that they will be ignored and have their masculinity ridiculed.

While it says men have always been given equal footing with other victims, the document is the first time the CPS has directly addressed their issues.

It plans to update case studies and guidance to challenge myths and stereotypes and include the details of services which provide support for male victims.

Prosecutors will be sent information about the different issues faced by male victims, including the fact that boys are more likely to be sexually abused by "authority figures", while girls are more likely to be targeted by family members.

Boys who have experienced childhood abuse also tend to come forward at a younger average age of 13, compared to 16 for girls.

Forced-marriage and honour-based violence affects men too, the guidance will add, as they can be blamed for the behaviour of women or for not being masculine enough.

A spokesman said the CPS had "previously looked to develop guidance and information on issues
such as teenage relationship abuse, same sex abuse and older victim abuse.

For more information click here

Tuesday, 12 September 2017

Increase in care cases has created a crisis, agrees Lord Chief Justice

Lord Thomas’s final report reviews family court developments over last year
In his final annual report as Lord Chief Justice, Lord Thomas has agreed with the President of the Family Division, Sir James Munby, that the increase in care cases at a time of static judicial resources has created a crisis. 

In Section 6 of his report, devoted to family justice, he notes that between January and November 2016, the year-on-year increase in care cases averaged 20% on top of a similar scale of increase in 2015. Whilst the beginning of 2017 saw the rate of increase slowing, the trend is still upwards. There were 5,051 new public law applications in January to March 2017, up 5% on the equivalent quarter in 2016. Average case duration is beginning to move up again after a long and sustained fall, it now stands at 28 weeks after several quarters hovering around 27 weeks. 

The Lord Chief Justice notes the leading role taken by the judiciary in seeking means of controlling the rise in public law cases through the pilot of settlement conferences and its support of other initiatives such as PAUSEcurrently being piloted by LIFT which seek to tackle the problems which drive families into public law proceedings.

Lord Thomas states that an amended Practice Direction 12J is expected to come into force during this month.

He also notes that a protocol is currently being developed to promote closer co-operation between the judges of the Family Courts of England and Wales and their colleagues in Scotland. The protocol will cover a number of issues of mutual interest including how to approach care cases with a cross-jurisdictional element. It is hoped that, in time, the provisions of the protocol will be further developed and extended to support co-operation on care cases across the whole of the UK.
For more information click here

Monday, 4 September 2017

Can I buy a house for my mum to live in rent-free?

An article in today's Guardian caught my eye, there are so many of us who would like to help their relatives, but (understandably) are unsure about whose advice to follow. It reads:-

Q My mum is 52 and lives on her own on a low income in the north of England. I rent and work in London and am fortunate enough to be on a fairly good income. My mum, however, is struggling, so two years ago I started covering her mortgage payments. She has approximately £90,000 equity in her home and an outstanding mortgage of £50,000. She earns only £18,000 a year.

Given that I am already covering the mortgage payments I am considering buying the house and letting her live in it rent free. The benefit being that she can then release the equity and pay off her credit cards and enjoy some of her hard-earned money.

Should we buy as joint tenants or tenants in common?

I live in a rented flat and don’t currently have a mortgage, so this would be my first mortgage. I have no immediate plans to buy a place for myself, although may consider buying in or around London with my partner in a few years.

I would really love to remove the financial burden from my mum, knowing she could then have a nest egg to enjoy.

I have been speaking to a financial adviser who has advised me that I cannot purchase mum’s house and let her live in it as I won’t be living there myself, and that I can’t get a buy-to-let mortgage as she is a close relative. But otherwise he hasn’t been very helpful and I’m not sure whether he is giving me sound advice.

I have been doing my own research but information is very hard to understand and I read conflicting things.

A Your financial adviser is right to say you can’t take out a residential mortgage for a property in which you won’t be living. He is also right – up to a point – that you can’t take out a conventional buy-to-let mortgage because you would be letting to a close relative.

But according to independent mortgage adviser Niche Advice, if you were already a homeowner it might be possible to take out what is referred to as a regulated or consumer buy-to-let mortgage. These allow applications for such mortgages to be assessed according to the same strict affordability rules set by the Financial Conduct Authority (FCA) for residential mortgages if the property is to be let to a close relative.

The FCA defines “close relative” as a spouse, civil partner, mother, father, brother, sister, child, grandparent or grandchild. (So in theory you could take out a standard buy-to-let mortgage if you planned to let to a cousin, uncle, aunt, nephew or niece.)

Should I renegotiate my offer price after survey points to problems?

With standard buy-to-let mortgages taken out purely for business purposes, which are not regulated by the FCA, applications can be assessed by looking at rental income alone. Typically, if you have a sufficiently large deposit and the rent can cover the mortgage repayment by 125% your application will be accepted.

According to Niche Advice, however, the “key driver” of the two lenders that offer regulated buy-to-let mortgage is applicants’ affordability rather than rental income, and they are likely to insist the mortgage is repayment rather than interest-only, in line with the rules for residential mortgages.

In addition, to be eligible for a regulated buy-to-let mortgage Niche Advice says the key criteria are:

• a minimum income of £25,000 excluding state pension and other benefits

• a deposit of 40%, all of which must come from you

• you must be an owner-occupier rather than renting yourself

• an ability to cover the buy-to-let mortgage out of earned income

• rental coverage of 125% of the mortgage payment.

Given these criteria, it seems unlikely that a regulated buy-to-let mortgage is an option for
you to buy your mother’s home. There may be a small silver lining in that cloud in that, if you
were able to take out a mortgage to buy your mother’s home and something happened to you that
meant you were unable to keep up repayments on it, you mother could be made homeless if the
property had to be sold.

For the full article click here

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.