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National Dentist’s Day

Woman patient at dentist

Today is National Dentist’s Day. Or possibly National Dentists Day, or maybe even National Dentists’ Day. It’s unclear. In any case, it’s a day honoring dentists, and you can celebrate it, I suppose, by making an appointment for your twice-yearly checkup.

It can hardly be a coincidence that today is also National Oreo Cookie Day. I assume dentists love cookies and other sweets because, you know, more business. So chow down on your favorite chocolate sandwich cookie (namely, Newman-O’s) but be sure to brush and floss afterward!

Image credit: PxHere


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Author: Joe Kissell

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Procedure where permission required to make children application

I have often mentioned here orders made under section 91(14) of the Children Act, which prohibit a party from making a further application in relation to their children, without the permission of the court. Such orders are normally made when that party has made multiple applications, and the court considers that it would be best (for the children in particular) to restrict any further applications, usually for a set period of time.

To go into a little more detail, if the party against whom such an order has been made wishes to apply to the court for an order, for example a child arrangements order, they must first apply to the court for leave (or permission) to make the application. Permission will only be granted if the court considers that there is a need for the case to be looked at again.

But strangely there is no set procedure that the court should follow if the party against whom a s.91(14) order has been made applies for permission to make an application. In particular, should the other party have a say in whether permission should be granted? This was one of the issues to be determined in the recent case P & N (Section 91(14): Application for Permission To Apply: Appeal).

The relevant facts in the case were that proceedings in relation to the parties’ two children, now aged 8 and 6, had been ongoing pretty well since 2013, shortly after the parties separated. I won’t go into details, but we are told that in the course of the litigation “dozens of court orders, multiple evidential hearings, and ultimately hundreds of pages of evidential material” were generated.

In January 2015 the court, unusually, made an order that the father should have no contact, direct or indirect, with the children. Within months the father made a second application for a child arrangements order. That application was dismissed in July 2016, when the court made the s.91(14) order, prohibiting the father from making a further application for an order in respect of the children, without obtaining the prior permission of the court. The order was expressed to last for a period of 3 years. The order recited that the father had acted “inappropriately throughout the court hearing to include using foul and extremely abusive language towards counsel for the mother and towards the judge”, that the father did not desist from using foul language when warned of the risk of contempt, and “that he had to be removed from the court by security staff”. The judge making the order recorded that “unless and until the father engages the services of a medical/therapeutic or child care professional in dealing with the issues” then any application made by the father for leave to issue a child arrangements application was likely to be unsuccessful.

After July 2016 the father made several further applications, and his second application for permission was allowed in July 2018. The judge had dealt with the application without notice to the mother. The mother was then notified of the outcome, and she sought to appeal, on the grounds that the judge was wrong to grant the father’s application without hearing from her, or receiving her representations. Her appeal went before Mr Justice Cobb in the High Court.

Mr Justice Cobb allowed the appeal. I will only deal with the procedural aspect.

Mr Justice Cobb considered that the judge had used the wrong procedure. Having decided on the papers that the father’s application was not hopeless, and that he had established a prima face case, he should have afforded the mother the opportunity to make representations on that application. Even if, strictly speaking, the procedure that the judge had followed was not irregular, on the facts of the case, it was wrong not to have given the mother the opportunity to respond to the application. Amongst those facts were that the proceedings had a long and ‘toxic’ history, and “very considerable caution should therefore have been exercised” before re-igniting that litigation; and that there was no evidence (other than the word of the father) that the father had addressed the issues recorded by the judge when the s.91(14) order was made.

In the circumstances the case was remitted for re-hearing of the father’s permission application, on notice to the mother.

You can read Mr Justice Cobb’s full judgment here.

The post Procedure where permission required to make children application appeared first on Stowe Family Law.


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Author: John Bolch

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Private FDRs: a good idea, but sadly not for all

I had a brief exchange on Twitter the other day with a certain eminent family lawyer, who was extolling the virtues of private Financial Dispute Resolution Appointments, or ‘private FDRs’ for short. As we will see in a moment, private FDRs are in the news at the moment (my Twitter exchange may not have been a coincidence), and therefore I thought I would devote a post to them, despite having written about them here in passing previously.

For those who don’t know, an FDR is a hearing that will usually take place fairly early in the progress of a financial remedies application. As I said in a previous post, it is ‘designed to enable the parties, with the assistance of the judge, to identify and seek to resolve the real issues in the case, at a time and in a manner intended to limit the overall financial cost for the parties, to reduce delay in resolving the case and to lessen the emotional and practical strain on the family of continuing litigation.’ In other words, it is an attempt to settle the case by agreement, with the assistance of the judge.

The FDR idea is not limited to financial remedy cases. A similar hearing takes place within the procedure for private children applications. There, the hearing is called a ‘First Hearing Dispute Resolution Appointment (‘FHDRA’). As the name suggests, a primary purpose of the FHDRA is to see if the dispute can be resolved by agreement, usually with the assistance of a Cafcass officer.

So what is a ‘private FDR’? Well, instead of being held by a judge in court, it is held before a specialist family lawyer, usually in their office or chambers, upon the agreement of the parties, who pay for the lawyer’s services.

As I said earlier, private FDRs are in the news at the moment, and their primary advantage over court-based FDRs was explained by an article in The Telegraph last Saturday. Now, I haven’t read the whole article (for which registration is required), but the (slightly misleading) headline read: “Long court delays lead to boom in private divorces”. Of course, there is no such thing as a private divorce (yet, at least!) – what the article was referring to was private FDRs, as it explained in its second paragraph:

“Increasing numbers are paying for both financial dispute resolution (FDR), in which a retired judge gives an indication of the eventual outcome, and arbitration, which is quicker, more personalised and deemed more civilised than attending court.”

I understand that private FHDRAs are also a thing, in proceedings relating to arrangements for children.

So what we have here, as that eminent family lawyer said, is the “privatisation of family justice”. She found private FDRs to be helpful for clients, comprising “the right blend of self-determination & firm quasi-judicial steer”. I asked her how much they cost. She did not give a figure, only saying that: “It varies; and obviously to be counter-balanced against the cost of having a court-based FDR”. The latter point is true, but only of course if you are paying to be represented at court. My guess is that the cost of private FDRs goes into four figures, putting them out of the reach of litigants of modest means.

Now, we all know that the family courts are facing huge issues, with the upsurge in the number of private law applications, the proliferation of litigants in person and the reduction in resources. Delays are a real problem for all litigants.

Anything that offers litigants a way to have their cases dealt with more quickly must be welcomed. And if, as anecdotal evidence I have seen suggests, private FDRs have a higher settlement rate than court-based FDRs, then that is also a very good thing.

But of course it is not all good news. Private FDRs, private FHDRAs and arbitration (for both financial and children issues) all come at a cost. Litigants on benefits and low incomes are priced out of these innovations, and left to put up with the problems that the better off avoid. Along with the lack of legal aid representation they are another example of our two-tier family justice system, in which the level of service you can get is determined by your means.

I’m sorry, but that is not the kind of family justice system I want to see.

 

The post Private FDRs: a good idea, but sadly not for all appeared first on Stowe Family Law.


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Author: John Bolch

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Caleta Valdés

Caleta Valdés

Defying continental drift

The Argentinean portion of Patagonia comprises five provinces, of which the northernmost one is known as Chubut. You have to fly about two hours southwest from Buenos Aires to get there, yet it’s still over 1,000km (about 600 miles) from the tip of the continent—just barely into Patagonia when you consider its overall scale. This impossibly dry, windy, and desolate area is as far south as Paul Theroux got in The Old Patagonian Express. He felt he was nowhere, and it was here that he experienced his much-quoted epiphany that nowhere is a place. Although I was to discover a much more varied and inviting landscape a few days later as we traveled deeper into Patagonia during a trip there in 2004, I have fond memories of the quiet, empty, and rugged steppes of Chubut.

Wonders Around Every Corner

Our guide had arranged for us to spend an entire day visiting one of the region’s most popular areas, Peninsula Valdés, a provincial park that is home to more wildlife than you can shake a camera at. This peninsula is really more like a large island connected to the mainland by a narrow isthmus. In certain seasons—though not when we were there—whale watching is the peninsula’s big industry, as migrating southern right whales and orcas frequent the waters just off the coast. We did see plenty of elephant seals and sea lions and a variety of birds, not to mention an astonishing number of sheep. But the thing I found most interesting on Peninsula Valdés was the view from a rest stop.

We had been driving for quite some time through an endless expanse of Nowhere on our way from Somewhere to Somewhere Else. We had a schedule to keep, but we could afford perhaps 15 minutes for a quick rest stop. As we pulled into a restaurant’s parking lot, our guide mentioned that if we walked down this trail to the right, we could see (still more) elephant seals; if we took the trail to the left, we’d be able to see a most unusual sight known as Caleta Valdés, or Valdés Creek. The left-hand trail was a 15-minute round trip, which meant that we were supposed to choose between using the restrooms and beholding a natural wonder. I opted for a hasty restroom visit and a jog down the trail on the left.

Catching the Drift

What we saw from an overlook at the end of the trail was a long, thin strip of land—basically an overgrown sandbar—running parallel to the coast. At the far end, about 30km (20 miles) north, this strip of silt is connected to the peninsula. Here, at the southern end, is the only inlet to the so-called creek—a channel about 150m (500 feet) wide. A couple of decades ago, the channel was 600m (2000 feet) wide, but it’s been shrinking ever so slowly. The strip of land that separates the creek from the ocean, known as a coastal cord, tends to trap a bit of sediment every time the tide goes out. For years, observers have predicted that it will close up entirely “any day now.” They were saying that back in 2004 when I visited, but (based on the most recent satellite images I could find) it hasn’t closed up yet. If it ever does, and if no other outlet forms, Caleta Valdés will change from a creek to a salt lake. Given the shallowness of that lake and the area’s extremely low humidity, it could dry out completely in several more years. But for all I know, this geological feature could persist indefinitely.

In any case, this accumulation of silt makes Caleta Valdés the only spot on the continent where the coastline is growing; everywhere else it’s either being eroded slowly away or receding due to rising ocean levels. It’s almost as though this little strip of land is thumbing its nose at continental drift, growing out toward the east as the whole continent slips slowly westward. This small wonder was well worth an abbreviated rest stop.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on January 25, 2005.


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Author: Joe Kissell

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National Absinthe Day

Absinthe tasting

Yes, I know, today is also Mardi Gras. But if you’re going to be preparing for the start of Lent with excessive intake of food and alcohol, you should choose the right drink. And absinthe makes the heart grow fonder. If it causes you to hallucinate or burns your tongue, you’re doing it wrong. No theatrics are required, just an ounce of greenish liquid distilled from a mixture of plants that includes wormwood, plus some ice water and maybe a wee bit of sugar. It’s like pastis, only better.

Image credit: Ed Schipul [CC BY-SA 2.0], via Flickr


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Author: Joe Kissell