A week in family law: Divorce reform, troubled families and a judicial reprimand

Another fairly quiet week in family law. Perhaps there is something else going on. Whatever, I have found these three stories.

Firstly, as I reported here yesterday, new research published by the Nuffield Foundation argues that the proposal by the Ministry of Justice (‘MoJ’) for no-fault divorce is fully consistent with international trends. Indeed, the report finds there is an international trend away from requiring any ground at all. Sounds good to me. The report examines what lessons can be drawn from the experience of divorce law reform in eight comparable jurisdictions: Austrailia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden, and finds that there is an international trend towards recognition that a divorce must be granted where one of both parties insists that the marriage is over. The aim of the report is to explore how divorce procedures that are similar to that being proposed here work in practice in other jurisdictions, to inform the MoJ’s policy process as it unfolds. The MoJ says that it will announce how it intends to reform the legal requirements for divorce ‘very soon’, so whether the report will actually make any difference at this late stage is a moot point. Nevertheless, as I said, the report makes fascinating reading.

And next a little bit of good news, or so it would seem. It has been reported that the Government’s Troubled Families Programme has reduced the number of children in care. Troubled Families is a programme of targeted intervention for families with multiple problems, including crime, anti-social behaviour, truancy, unemployment, mental health problems and domestic abuse. Local authorities identify ‘troubled families’ in their area and usually assign a key worker to act as a single point of contact. Central Government pays local authorities by results for each family that meet set criteria or move into continuous employment. £448 million was allocated to the first phase of the programme, which ran from 2012 to 2015. Local authorities worked with around 120,000 families, and ‘turned around’ 99%. However the independent evaluation of the programme found no evidence that the programme had made any significant impact across its key objectives. The second phase of the programme was launched in 2015, with £920 million allocated to help an additional 400,000 families. The second phase will run until 2020. New analysis of the 2015-2020 programme in a report from the Ministry of Housing, Communities and Local Government suggests that the programme is cutting numbers of children in care by up to a third. The analysis compares families involved in the scheme to a control group which was not given the specialist help. The report states that: “The most striking finding is that the programme appears to have reduced the proportion of looked-after children”, adding: “2.5 per cent of the comparison group were looked after compared with 1.7 per cent of the programme group, a 32 per cent difference for this cohort at 19 to 24 months after joining the programme. The impact on those on the programme is likely to have huge benefits to children’s lives, contributes to managing children’s social care pressures and provides significant savings.” Whether all of this is as good as it sounds, I’m not sure.

And lastly, I have often wondered what makes anyone want to be a family court judge, in these days when the majority of litigants coming before them are unrepresented. No disrespect to litigants in person, but they must make the job of the judge more difficult, and at times more frustrating, particularly when the judicial workload is so high. It therefore comes as no surprise to see that a family court judge has been reprimanded by the Judicial Conduct Investigations Office (‘JCIO’) for speaking to an unrepresented party in a family case “in a sarcastic and condescending manner”, and banging her hand on her desk in frustration during a hearing. The judge expressed regret, but the JCIO decided that her behaviour “failed to demonstrate the standards expected of a judicial office holder”, and issued her with formal advice. Obviously there is no excuse for this behaviour, but perhaps we should spare a thought once in a while for the pressure that our judges are now having to work under.

Have a good weekend.

The post A week in family law: Divorce reform, troubled families and a judicial reprimand appeared first on Stowe Family Law.


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Author: John Bolch

Geysers

Old Faithful

Fragile spectacles

Last summer my family and I took a vacation that included a visit to Yellowstone National Park, famous for its wildlife and extensive hydrothermal features. We ogled the stunningly beautiful Grand Prismatic Spring, walked past smelly mud pots, and delighted in the gorgeous formations of the Mammoth Hot Springs. But the highlight of the visit was the chance to get close to some of the incredible geysers that Yellowstone is known for, including Steamboat Geyser (the world’s tallest active geyser) and the relatively punctual Old Faithful.

Plumbing the Depths

Geysers are quite unique among geological formations, the product of extremely rare circumstances. For a geyser to become active and stable, four conditions must be met. The first thing required is a geothermal heat source, most often provided by underground volcanic activity. Second, there must be a reservoir of water available. Third, a geyser requires a certain kind of rock, most often silica-rich rocks such as rhyolite or ignimbrite. This type of rock, when exposed to water, can develop the pressure- and water-tight seal that is necessary for the proper functioning of a geyser. The fourth requirement is a constriction in the geyser formation near the surface, which allows pressure to build up below it until the geyser erupts.

When only some of these conditions are met, other phenomena occur, such as hot springs (heat, water, and rock, but no constriction), fumaroles (steam vents that do not have enough water to erupt), and mud pots (fumaroles that emerge into a wet environment, creating mud at the surface). However, if all the necessary conditions occur simultaneously, a geyser may form and remain active over long periods of time.

The life cycle of a geyser begins when water seeps into the ground from the surface (because of rain) or from underground reservoirs, eventually sinking deep enough to reach a layer of hot rock. This water is slowly heated and gathers at the bottom of the geyser channel, while colder water enters the channel from above, and sits on top of the warmer water. The pressure of the cold water prevents the warm water from boiling, although it continues to become super-heated. When the pressure becomes too great, the hot water turns to steam and pushes the colder water out of the channel. This reduces the pressure further, producing even more steam. This whole cycle can take 500 years, which means the water rushing from a geyser today may have fallen as rain during the 16th century.

Geyser Downfalls

Old Faithful is one of the most famous geysers in the world, getting its name from its consistent schedule; it erupts on average every 91 minutes. Every geyser has its own schedule, based on its unique conditions, but this schedule is not set in stone (as it were) because geysers, including Old Faithful, are vulnerable to changes in the environment that may affect their activity. Even slight changes to the water supply or the rock formation can adversely affect the fragile balance of a geyser. Some are caused by natural processes, such as volcanic activity, but increasingly, geysers are threatened by human interference.

It is estimated that there are only 1,000 geysers in the world, half of which exist in the geyser-perfect environment of Yellowstone. Other countries with large numbers of geysers concentrated in a single area are Iceland, Russia, Chile, and New Zealand, and individual geysers exist in Peru, Bolivia, Mexico, Dominica, the Azores, Kenya, and Japan. One of the greatest threats to geysers is the diversion of their underground water sources, most often in connection with the creation of geothermal power plants. Such is the case in New Zealand, where the Wairakei geyser field on its North Island was devastated by the creation of a nearby power plant in 1958.

Of course, geysers can become dormant for many reasons, and their fragility is part of their rarity; it takes a lot to create a geyser, and just as much to keep it going. They are truly scientific marvels, and worthy of being protected as much as possible, not only for their entertainment value, but for what they tell us about long-term geological processes. Although it’s thrilling to stand next to Old Faithful while it erupts, it’s even more thrilling to imagine that this spectacle has been 500 years in the making.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on November 29, 2006.


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Author: Morgen Jahnke

World Water Day

Woman gets clean drinking water

It’s 2019, and almost a quarter of the human beings on Earth do not have safe, clean drinking water. It’s true in much of Africa and Asia, and it’s also true in Flint, Michigan. You know, solar power and Wi-Fi and educational opportunities and a thousand other things are super important too, but they all pale in comparison to the basic human need for water. And so the United Nations has declared March 22 World Water Day, a day to learn about the deficiencies in the worldwide water supply and what actions we can take to help address them.

Image credit: Public domain, via Pixnio


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Author: Joe Kissell

Report comparing divorce laws in other jurisdictions makes fascinating reading

The Nuffield Foundation has published a report presenting the findings of a project to explore the legal and procedural details of the divorce process in selected other jurisdictions. The report is designed to inform the current Ministry of Justice (‘MoJ’) consultation on reform of the ground for divorce and dissolution in England & Wales.

As the report explains, the MoJ is proposing that the sole ground for divorce of irretrievable breakdown should be evidenced by a new notification system or waiting period. The report examines what lessons can be drawn from the experience of notification and/or separation-based divorce in eight comparable jurisdictions: Australia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden.

Having never really studied divorce law in other jurisdictions, I find the report quite fascinating, both in terms of how similar different jurisdictions are in some respects, and how different they are in other respects. Overall, though, the report makes the important finding that jurisdictions are converging “towards recognition that a divorce must be granted where one or both parties insists that the marriage is over and away from scrutiny of a decision to divorce according to objective standards.” This is surely excellent news for the people of the countries/states concerned and, as the report says, indicates that the MoJ’s proposal to remove fault is fully consistent with international trends.

The report looks at various aspects of divorce law and procedure in the various jurisdictions, ranging from the grounds of divorce, through the different parts of the process, to whether the divorce can be opposed, and a number of other details.

The centrepiece of the report is a tabular summary of the law and procedure in England and Wales (at present) and the eight other jurisdictions. This sets out in an easy to read form all of the aspects mentioned above. To pick out a couple of the interesting facts at random, we find that most of the other jurisdictions have not had major reforms for almost as long as we have here (suggesting that we are rather behind the times), that Spain, Sweden and Finland do not have any grounds for divorce (and no available defences), and that in all countries/states save for England and Wales and Germany the court must approve or determine child arrangements before the divorce goes through (this was also the case here until 2014).

The report then examines various aspects of the divorce law and procedure in the different jurisdictions, and sets out possible implications for the MoJ to consider when deciding exactly what form our new divorce system should take.

I won’t comment on all of the points here, as I have not given detailed consideration to all of the various details of any new system. However, I do find the following points interesting:

  1. That there is a trend away from requiring any ground for divorce at all. Here, it is expected that we will keep irretrievable breakdown as the ground for divorce, but do we even need that? As the report says, in Spain, Sweden and Finland divorce is a right and, in the absence of a divorce ground, no proof is required.
  2. Most other countries do not have our two-part divorce process (decree nisi and decree absolute). Do we really need this?
  3. Our proposed six month notification period is in line with many other jurisdictions. As I have mentioned before, I wonder whether that is too long, although I don’t expect the MoJ/government to agree to a shorter period.
  4. The report says that in some jurisdictions defence of the marriage remains possible in theory, but is futile in practice. Quite. No jurisdiction has a specific provision to allow a respondent to register their wish to remain married. This must be the right way.
  5. Lastly, the report finds that a specific provision on the minimum duration of marriage is relatively unusual. Here, we have a bar on divorce petitions within one year of the marriage, and the government is proposing that that be kept. But is it really necessary? Clearly, other countries/states think not. After all, it is quite possible (and not unheard of) for the parties to a marriage to realise very soon after the wedding that they have made a mistake. Why should they be forced to lose one year of their lives because of a mistake?

Ok, I’ll leave it there. For further details, you can find the full report here.

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Author: John Bolch

Rent-a-Dog

A playful dog on a beach

Canine company by the hour

On my last trip to Costa Rica, I was walking along the beach in a small town on the Atlantic coast that’s best known as a hot spot for surfing. There were a number of dogs playing on the beach—catching sticks and Frisbees, sniffing the tourists, and generally having a good time. The dogs may have been strays, or they may have belonged to local residents—the people playing with them did not appear to be their owners. But in any case, the dogs were apparently healthy, friendly, and well cared-for. I’ve always liked dogs, though for a variety of reasons I can’t see myself owning one. Still, that afternoon on the beach, I was thinking that it would be great to have a dog to play with for just a few hours, and that some enterprising person ought to set up a little dog-rental business there to cater to people such as myself who could not bring their own dogs to this remote location.

I filed this idea away in the back of my head along with all the other goofy and implausible notions I’ve come up with over the years. And then one day, I read an article in a local newspaper about a growing trend at luxury hotels and resorts around the world: free (or inexpensive) loaner dogs for the guests. Maybe my idea wasn’t so goofy after all. A few web searches turned up a number of businesses that loan or rent dogs for short periods of time—often, though not always, as a way for tourists to have canine companionship away from home. This idea seemed to have legs, so I thought it merited a bit more research.

BYOD

Although it seems a bit crude to compare rental dogs with rental cars, the concepts are similar at least in the sense that someone else is responsible for major care and maintenance. I’d never expect to rent a car for a weekend and then be asked to take it in for an oil change or a tune-up; and when borrowing or renting a dog, you don’t worry about grooming, bathing, or veterinary care. But these factors are rarely the major attraction to potential renters. Some people like having a dog with them as a way of breaking the ice when meeting other humans (a role dogs perform nearly as well as babies). In other cases, it’s simply a matter of wanting company, a hiking companion, or a playmate. Either way, the availability of loaner dogs is increasingly becoming a competitive advantage for hotels in areas where guests like to spend a lot of time outdoors.

Dog lovers on vacation may be the most visible niche market for rent-a-dog services, but there are numerous other examples. Specially trained guard dogs and hunting dogs are available in some areas for people who are unable to care for such animals year-round but need their special services on occasion. And in some Asian cities, such as Tokyo and Hong Kong, where it’s extremely difficult to find dog-friendly housing, rental services enable people to spend quality time with dogs.

Increasingly, animal shelters and pet stores are using dog rental (or loans) as a way of encouraging adoptions: people borrow pets for a few days, become attached to them, and decide to keep them. Conversely, many people who rent dogs do so in order to make sure the animals will fit into their households and lifestyles before making a permanent commitment. If you’ve lived with a dog for a week and find that it doesn’t get along with your other pets, bothers the neighbors with its barking, or causes a severe allergic reaction, it’s nice to know that you can return the dog with no leash attached, so to speak.

Barking Mad

Many people, not surprisingly, think rent-a-dog programs are an atrociously bad idea. I’ve frequently read complaints to the effect that a dog is a living being, not an inanimate object like a car or a library book that can be passed from owner to owner without any ethical difficulty. Critics of dog-rental services worry that renters may not be trustworthy, that being handled by many different people can create stress and confusion for the dogs, and that dogs who are frequently rented out may have difficulty bonding with their owners. Some people go so far as to say that if you’re not willing to undertake the responsibility of full-time dog ownership, you have no business becoming a short-term steward either.

I certainly agree that dogs should not be loaned or rented out haphazardly; owners have an obligation to ensure that potential borrowers or renters can safely and responsibly care for the dog. But many owners hire dog walkers or dog sitters, or place their dogs in kennels when they’re out of town, so I think there’s a reasonable precedent for giving someone else temporary care of a dog—though, of course, some dogs are more amenable to this sort of lifestyle than others. Arguably, dogs may benefit from increased exercise and socialization with humans, as long as the rental periods are not too long or too frequent.

I have not yet found any programs that rent pets other than dogs. As a cat owner, I think cats would tend to be temperamentally ill-suited to such drastic changes. On the other hand, I certainly enjoy visiting bookstores where cats are available to sit on the laps of browsers. So here’s my idea: an internet café where you can rent a computer with a mouse for $10 an hour, or a computer with a cat for $15. Bring your own lap.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on November 23, 2004.

Image credit: Bruce Emmerling [CC BY-SA 4.0], via Wikimedia Commons


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Author: Joe Kissell

World Poetry Day

Handwritten copy of "Poetry" (later published as "To the Muse") by Philadelphia poet, Florence Earle Coates.

UNESCO declared March 21 to be World Poetry Day back in 1999, and who am I to argue with the United Nations? It’s a day meant to promote the writing, reading, reciting, teaching, and preservation of poetry, so go generate or consume some lovely words today. I’m one of those uncouth souls who think poetry ought to actually rhyme, or at least have some meaningful rhythm. (I know, so gauche, right?) That prejudice aside, here’s a pro tip: taking an ordinary prose sentence and adding arbitrary line breaks and indentation doesn’t make it poetry, even though a lot of what’s sold as poetry is precisely that. You have to put some work into those words, people. At least give it a solid effort today.

Image credit: Florence Earle Coates [Public domain], via Wikimedia Commons


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Author: Joe Kissell

In re Marriage of C.T. and R.B.

(California Court of Appeal) – Reversed a child custody order on the basis that it was not supported by the evidence. The order would have changed primary physical custody from the mother in California to the father in Arkansas.


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Mediation is more than a tick-box exercise

Having just recently completed my re-accreditation with the Family Mediation Council as an accredited Family Mediator, I noted with interest an article in The Times yesterday titled: Divorce lawyers should stop treating mediation as a box-ticking exercise.

I totally agree with the author. Sadly, family lawyers are not actively encouraging and promoting dispute resolution options such as mediation.

My experience from carrying out initial assessment meetings with potential mediation clients that have been referred by their solicitor is that they do not always come to the meeting with an open mind. Instead, they have been told by their solicitor that they just need to show up, get the mediator to sign off the form and then get onto the court case; reducing mediation to a tick box exercise.

This is disheartening. As family lawyers, we have a duty to our clients to give them unbiased advice on all options (depending upon the circumstances), to encourage and promote out of court dispute resolution, where appropriate. This approach is far more cost effective and will allow for a smarter, more dignified divorce/separation.

Some family lawyers are not putting their clients’ needs first but are instead, protecting their own income stream. It’s plain and simple: every case that is converted into a mediation matter is potentially one less litigation case for the lawyer, thus a decrease in fee income.

This is a great shame. Using mediation helps separated couples to make their own informed decisions as to what is best for them, their children and families. It reduces conflict, avoids court proceedings, is quicker and much more cost-effective. Most importantly, it allows for ongoing communication between the separating couple, which is vital. Mediation is child focused and looks at the impact of all possible resolutions on the children of the family.  Although not suitable and safe in every case, its use in family law should be championed and not dismissed.

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Author: Sushma Kotecha