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Matrimonial & Family Law Specialists

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Conduct and Unreasonable Behaviour in Civil Litigation

The general principle, and indeed the general perception in civil litigation cases is that the unsuccessful party pays the costs of the successful party - ie loser pays winner.

However, the court always retains its discretion where costs are concerned, and where a party ( claimant OR defendant ) has been seen as behaving unreasonably, then costs can be reduced or increased accordingly.

Judges may deem the following types of behaviour from a claimant or defendant as unreasonable:

  • Pulling out of a case at the last minute when there has been no change in the circumstances;
  • The pursuit of a case which is both unsupportable and speculative - ie unlikely to get the intended outcome;
  • Pressing a case which is essentially hopeless with an ulterior motive of embarrassing or inconveniencing the opposite party;
  • Causing adjournments by not turning up at a hearing without a reasonable excuse
  • Making a dishonest claim
  • Ignoring a reasonable offer to settle in advance of the hearing

Such behaviour is a matter of fact and degree, but must be quite serious to attract an order for costs. For example, the court's discretion has been exercised with regard to costs in situations where one party has refused, without having a legitimate excuse, to engage in an alternative dispute resolution process (ADR).There have been cases in which despite a party being awarded costs, that party has had the amount reduced due to their refusal to attempt to settle under mediation.

Mediation is seen as having advantages over the court process - such as providing litigants with a wider range of solutions: an apology, an explanation or the possibility of continuing an existing professional or business relationship. It is also important to note that, if a party unreasonably believes its case to be watertight, then that is no justification for refusing mediation - whilst if it can be shown that the party reasonably believed the case to be watertight, then this could be sufficient justification for refusal to mediate!!

The above can sound very complex, however what is important to bear in mind is that practitioners and clients alike must be aware that when they go down the road of suing another party, their conduct throughout the case will be noted and may be relevant to the costs awarded at the end, whatever the actual legal outcome from the litigation procedure.

By Claire Clark on 15 Apr 2013

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Family Courts feeling the strain...

Much has been made of the plans to launch a National Crime Agency through the Crime and Courts Bill currently going through Parliament. The creation of a single family court is also a part of this Bill however, and could have just as great an impact, albeit unintentionally.

There is already an expected increase in the number of litigants in person - that is, members of the public who choose to represent themselves during the legal process rather than use a legal professional - due to the recent removal of legal aid for family law cases.

The family law sector has speculated greatly on how this withdrawal of legal aid (with effect from the first of this month ) will impact throughout - and its effect is expected to be felt in the courts as well as in private law practices in England and Wales. Not only will many law firms who undertake legal aid work find themselves with potentially much less work and fewer clients, it is expected that the court system will find itself inundated with people unable to afford representation who decide to go it alone.

This is an issue we have mentioned in earlier blogs here at Vines, and only time will tell how this situation will pan out. However, with more individuals going through a process of which they are at best unsure and at worst totally ignorant, this will certainly slow down the divorce process while due process is explained to all parties.

There are also plans afoot for HM Courts & Tribunal Service (HMCTS) to create a single London family court within the building which houses the Principal Registry of the Family Division - thus reducing the number of family courts from 32 to 25, and the number of district judges at the principal registry from 20 to 12. Whilst these plans have not been finalised, the combination of these reductions along with the legal aid changes is seen as increasing the strain on the family courts system.

This topic has been widely debated in the media, and in one publication was described as a 'perfect storm' for family courts. The current financial climate is no doubt coming to bear on the situation too. All in all, a challenging time for family law and its practitioners.

By Claire Clark on 9 Apr 2013

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Budget Reforms...

Much has been made of the Chancellor's recent childcare reforms in the Budget. The headlines read "£200m for low-income families" , the main message being that working families are to benefit from reforms which will see tax relief meet at least 85% of their childcare bills.

With 20% tax relief on the first £6, 000 of childcare costs for each child, this could initially be seen as a triumph for working families and support for mothers to return to work. However, the Resolution Foundation think-tank has analysed how this will play out in practice, and it seems that Osborne's generosity is to be directed more at those in the  'squeezed' middle rather than the truly low-paid families who are most in need.

The new Universal Credit system to be rolled out nationwide from October 2013 is the new regime for those looking for work or on a low income - it heralds the gradual phasing-out of the existing benefits system, with the aim of making claimants and their families more independent. Various working -age benefits will be streamlined into one single payment,  and most claimants will manage their claims and accounts online.

A minority of working families claiming Universal Credit will actually be eligible for the new 85% rate of childcare support - whilst 564, 000 families will benefit from the 85% rate of childcare costs, it transpires that 900, 000 families will remain at the current rate of 70% for childcare costs. This occurs when one or both partners does not earn enough to pay income tax. Part-time workers will similarly miss out.

The Government is clearly trying to help families struggling with their childcare bills, but it does appear to be unfair that less than a third of families with children under five within Universal Credit will actually feel any benefit from these measures - even more so as families with a combined income of up to £300,000 will qualify for some childcare vouchers under this new legislation.

The Resolution Foundation believes that the proposed Budget changes will cause a 2-tier system to develop within the Universal Credit spectrum and this view would seem to be a realistic one. George Osborne's Budget, whilst appearing to be providing encouragement and assistance to working families, is in reality leaving a considerable tranche of families on low pay without any further help into the workplace.

By Claire Clark on 3 Apr 2013

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Children and Families Bill Cont.......

Following on from our blog of 12 February 2013 highlighting the publication of the new Children and Families Bill, we can now look in more depth at the practical effects on modern family life which may result from this legislation.

Under this Bill, maternity leave can be used by the father instead of the mother, shared between the two or actually taken by both parents together. Although fathers have, since April  of last year, been technically able to share maternity leave from five months after the birth, there has not been a great take-up of this. However, now this shared leave can be taken from 2 weeks until 12 months following the birth, it may impact on the way in which today's joint income, working couples plan the first year of family life to benefit their children, their careers and their lifestyle.

The above aspects have been much-documented in the press, but it will be a question of seeing how this legislation both shapes family life and reflects the needs of modern families.

Whilst it has long been in the 'spirit' of the law to recognise a child's best interests in the event of family breakdown, the new Bill provides statutory recognition of the benefit to the child of both parents remaining involved in that child's life - with the usual exception being if that child is at any risk of harm in such a scenario.

A single 'child's arrangement order' will replace 'residence' and 'contact' orders - this is a document which will state where the children live and how much time will be spent with the other parent. This should be a beneficial development all round, as it avoids the need to use terms such as 'contact' or 'residence', which can be emotive terms for the parents involved.

Whilst there is no mention in the bill of actual 'shared parenting' - a term which has been bandied about of late - there can be no doubt as to the thinking behind it, that the increasingly hands-on role of fathers in our society should be maintained in the event of a separation.

There are several positive developments regarding flexible working - which will ensure employers must be careful to avoid discriminating against fathers when flexible hours are requested, for example. The rights of expectant parents having a child through surrogacy have also been considered, and brought into line as regards time off for ante-natal appointments and statutory adoption leave and pay, and of course the shared parental leave and pay outlined above.

The much-mentioned work/life balance is clearly an issue which has been addressed by this legislation, and it is reflected in the changes to both family and employment law in creating flexibility for modern-day families.

By Claire Clark on 20 Mar 2013

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Proposed changes to the crime of 'wilful neglect' to children

Proposed changes to the crime of 'wilful neglect' to children

The cross-bench peer, Baroness Elizabeth Butler-Sloss, has been working on an amendment to the draft Crime and Courts Bill currently being examined by MP's.

The retired senior judege  and former President of the Family Division of the High Court has been involved with the charity Action for Children in defining the broader crime of 'maltreatment' to replace the current legal concept of 'wilful neglect'.

'Wilful neglect' dates originally back to the Victorian poor laws. It is a crime in which  it must be shown that a responsible adult has assaulted or abandoned a child, or exposed a child to injury or suffering.

The new definition of 'maltreatment' would include harm to a child's "physical, intellectual, emotional, social or behavioural development".

Dame Clare Tickell, head of the Action for Children charity, emphasised the need for a law which would give children the necessary protection, and described the proposed  reforms as a 'straightforward and crucial step'.

There have been a number of cases in which authorities have been seen as not stepping in early enough to protect children in their care - most notably the shocking Baby P case. Last year, Action for Children produced a report which found that a high percentage of social workers and police officers felt unable to get involved in suspected cases of abuse and neglect of children. The proposed new law of maltreatment is aimed at helping those children.

By Claire Clark on 27 Feb 2013

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Children and Families Bill - Legislation for the way we live and work today.

Children and Families Bill - Legislation for the way we live and work today.

This week sees the publication of The Children and Families Bill, which promises to significantly reform parental leave, and to alter the way the most vulnerable children in society are protected. Reforms to adoption and family justice are to be made, with the role of Children's Commissioner to be reinforced.

Couples are to be able to share parental leave from work following the birth of a child - as long as the maximum of 52 weeks in total is observed, mothers and fathers will be allowed to take turns, take time off together or mix and match the way in which the leave is taken. The Department of Education has stated its belief that this is the best way to get mothers back into work quicker if they so choose, enabling fathers to play a greater role in bringing up their children and creating a necessary greater flexibility within the workplace.

Reforming adoption law through changes to the Children Act 1989 and Children and Adoption Act 2002 are intended to speed up the process of children being placed in a loving home, and the educational interests of children in care are highlighted by the creation of  a 'virtual school head' for each local authority. This is to keep focus on the educational standards for children in care, as it is currently felt they are not improving  fast enough.

The family justice system sees additions to the Children's Act 1989, with a presumption in favour of shared parenting being included. The government wishes to remove delays, and keep children's best interests uppermost in the decision-making process.Child arrangement orders are to replace contact and residence orders.

Business Minister Jo Swinson commented that this Bill will provide for the work/life balance necessary in the 21st Century.

By Claire Clark on 12 Feb 2013

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Groundbreaking judgement on "Donor Dads" highlights need for documentation at the outset.

The recent case involving three couples who were all friends - two lesbian couples and one gay couple - has resulted in two sperm donor fathers being given leave to apply for contact with their  biological children, despite there being no legal relationship between those parents and their offspring.

One of the gay men was a biological father to both the children of one lesbian couple, whilst the other gay man was the biological father of the other lesbian couple's child. The sperm donations were made informally, with no recourse to solicitors nor anything put in writing. At the point at which the fathers requested more contact with their children, the friendship began to deteriorate.

The fathers of the children concerned applied for leave to apply for both contact and residence. Mr Justice Baker in Re G;Re Z, allowed leave for the fathers to apply for contact under Section 8 of the Children Act 1989, emphasised the importance in future cases of considering the contact the parents had had to date with their biological children - in this case, the adults concerned were all friends and the children had met the individuals on many occasions. The person's connection to the child and the disruption which might be caused by their introduction into the child's life must be considered.

Leave for the fathers to apply for residence was not granted, and Mr Justice Baker also said that the right to respect for 'private and family life' under Article 8 of the European Convention on Human Rights should be protected by future legal decisions.

The obvious conclusion to this case, and one which was drawn by the solicitor acting for one of the mothers, is that it is vital to formalise any type of sperm donation with legal advice and documentation. However, there is no doubting the enormity of this decision, and many donors  must now be feeling that the way is open for them to at least attempt contact with their biological offspring through the legal precedent set by this case.

By Claire Clark on 5 Feb 2013

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People behaving badly!

People behaving badly - Not what you might think when it comes to the financial nitty-gritty of a divorce or separation!

When discussing how a judge or the law in general will view an individual's behaviour during their marriage, we have all heard comments such as: "She's the one who moved out, she won't have a leg to stand on in court" and "He was seeing someone else, the judge will definitely be on my side".

Many myths abound as to what constitutes conduct to be taken into account when the financial details are being hammered out, and you will hear people speak with utter conviction about how someone will come out of their divorce proceedings with either nothing or everything, but the reality is very far from the common perception.

What you may well perceive to be behaviour which a judge would take into account is often far from relevant. The fact is that a for a judge to consider someone's conduct, it is necessary for that conduct to be so grave that it would be otherwise unfair to ignore it.

Whilst it is quite common knowledge that the two main legal grounds for divorce are unreasonable behaviour and adultery, neither of these two is relevant in themselves when a financial settlement is being finalised.

We have experience of one individual who, whilst receiving the monthly amounts from his wife to pay for the mortgage on the marital home, did not actually pay the mortgage with this money. The ultimate result of this was that the house was repossessed. Despite such conduct, the judge dismissed this as irrelevant when settling the finances of the case between them.

By contrast, one party to a divorce deliberately flooded the upstairs of the family home, causing thousands of pounds' worth of damage, and this was considered relevant. In another case, one party gambled the majority of the couple's money and assets away, a factor which was also taken into account.

It can be seen from the examples above though, that there is no actual definition of "conduct" for the purposes of financial settlements following a divorce or separation.

Take advantage of our 30-minute free consultation to meet us and get an overview of your options, don't rely on hearsay or other people's experience of divorce.

By Claire Clark on 16 Jan 2013

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Litigants In Person - We ignore them at our peril.

Whilst the concept of individuals/ businesses representing themselves in our legal system is not a new one, it is becoming an issue which as professionals we are unwise to ignore.

A combination of a pressured financial situation, along with the well-documented reduction of Legal Aid ( especially in the family area of law ), has led to a noticeable increase of litigants-in-person.

When faced with mounting costs, people increasingly feel that they have no option other than to attempt to do a lawyer's job themselves. Whilst someone will know the facts of their own individual case undoubtedly better than anyone else though, this does not necessarily equip them for the legal process.

We here at Vines Legal have had reports of people feeling completely - and understandably - out of their depth when faced with courtroom etiquette, dealing directly with other barristers and when trying to understand a whole system in an impossibly short space of time.The legal jargon alone can be enough to alienate someone not in the know!

Attempting to come to terms with everything necessary for self-representation can be so consuming that it negates whatever the individual is actually trying to achieve. To avoid greater disillusionment with the judicial system in this country, and indeed any further damage to its credibility with the public in general, the legal profession needs to consider this growing problem.

There are no straightforward answers to the issues highlighted above. Perhaps the most helpful thing we as lawyers can do is commit to being as direct and to-the-point as possible on behalf of our clients. To get straight to the heart of the legal matter, avoiding time-wasting and legal "treading of water " and give the very best and most pertinent service to our clients.

Before you make any individual or commercial decisions to go it alone, it is surely worth a discussion with those qualified to give you an indication of where that will lead you.

By Claire Clark on 14 Jan 2013

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New Brooms Sweep Clean for 2013

Early this month saw  "the day we're most likely to file for divorce" - it's actually becoming something of a cliche every year now, isn't it?!

However, as with all cliches, it does have some foundation - as we mentioned in our blog in December, people do put off that initial meeting with a solicitor prior to Christmas. Naturally, the idea of upheaval is never a welcome one, and people do not want to rock the boat during what is a traditional time for family.

What about the aftermath though? Once the tree and the tinsel come down, the presents have lost their novelty and the children are finally back at school and in a routine, that's the point at which we find new clients making their first appointment with us.

Faced with the prospect of another year in an unhappy domestic situation, people do take that plunge in January, and decide that this is one Resolution they are determined to keep. As always at Vines Legal, we offer that initial free 30-minute consultation which enables us to briefly assess your situation and offer you an outline of your options.

Should you decide that 2013 is the year things are going to change for you, contact us and take that first step to your new future. It is never an easy decision, but sometimes that first appointment can be the most difficult to arrange. We understand that, and we do not urge you into any decisions unless you are ready for them. Our legal team is here to listen, and to assess your position - any further progress is then most definitely in your hands.

By Claire Clark on 10 Jan 2013

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