The thirtieth anniversary of the Children Act

Incredible how time flies. I remember as if it were yesterday when the Children Act was passed, attending various seminars to familiarise myself with its provisions (the main provisions of the Act did not come into force until 1991). In the following thirty years the Act has gained a familiarity, amongst not just family lawyers but also many non-lawyers, in a way that I don’t think many other statutes have. It has even spawned its own novel and film, the latter being reviewed here by Naheed Taj, Managing Partner of Stowe Family Law’s reading office, last September.

What was so special about the Act?

The Act might now be remembered, at least amongst those private law practitioners who are old enough, primarily for doing away with the outdated terminology of ‘custody’ and ‘access’, replacing them with ‘residence’ and ‘contact’ (and, later, with ‘child arrangements orders’). But the Act was about much more than that. As Professor Jo Delahunty QC (see below) explains:

“The Children Act 1989 embodied a change in philosophy by making the child’s welfare the courts ‘paramount’ concern, moving away from the concept of parental rights towards the right of the child. It embraced the idea of shared parental rights and responsibilities and that children are best cared for within their families but not at the expense of suffering avoidable significant harm.”

As that quote suggests, the Act brought together both private and public children law ‘under the same roof’ (the child must have been found to have suffered, or be likely to suffer, ‘significant harm’ before a care order can be made). Thus, whether the court is considering how to resolve a dispute between parents over arrangements for their child, or whether a child should be removed from the parents by the state, the same basic principles apply. By section 1 of the Act the welfare of the child is the court’s ‘paramount consideration’, to be determined by reference to the ‘welfare checklist’ set out in section 1(3).

Accordingly, the law is now ‘child centric’: when considering a question in relation to a child’s upbringing we no longer talk of a parent’s rights in relation to the child, but rather about what is best for the child. This is a lesson that, sadly, many parents have still not learned, despite the length of time that the Children Act has been with us – we still regularly come across parents seeking to enforce their ‘parental rights’.

Perhaps somewhat confusingly, as the above quote also suggests, the Act brought in the new concept of “parental responsibility”, which it defines as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” But in this context “rights” really mean something else. They are not to do with what may benefit the parent (if I may put it that way), but rather about the parent looking after the interests of the child, for example by choosing which school the child should attend. In other words, hold on to the concept of “responsibility”, rather than “rights”.

So the Act really changed the landscape when it came to dealing with children issues, and that new landscape has now been with us for nearly thirty years. But what of the future?

Recently Professor Jo Delahunty QC, who is one of the UK’s leading barristers specialising in cases concerned with families and children, and who was appointed Gresham Professor of Law in the summer of 2016, asked the important question: is the Act still fit for purpose?

The question was asked at a lecture given by Professor Delahunty for Gresham College on the 31st of January. You can watch a recording of the lecture here, and if you have an interest in the subject then I strongly recommend that you do (a more detailed PDF transcript is also available). I won’t give the game away by telling you the Professor’s answer to the question, but I will say that the journey she takes us on is both enlightening (including going into a lot more detail about the provisions of the Act, and the rationale behind them) and thought-provoking.

Of course, the Act does not stand alone, as Professor Delahunty makes clear. In particular, there is the issue of the destruction of legal aid for private law cases, which has changed things so dramatically in recent years. No matter how good the legislation may be, if parents do not have access to proper legal advice (and, if necessary, representation), then the law is never likely to operate optimally and, for some parents who decide it is too much for them to go to court without a lawyer, it may not even operate at all.

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Author: John Bolch

Court of Appeal confirms that third party cannot be ordered to pay lump sum

It’s not an unusual scenario: a party to financial remedy proceedings does not have the means to pay a lump sum to the other party, but has the ‘benefit’ of funds belonging to a third party. In such circumstances, it can obviously be tempting to seek an order that the third party pay the lump sum. However, as we shall see, this is simply not possible, as the court has no power to order lump sum payments against third parties.

The situation arose in the recent case Wodehouse v Wodehouse. The facts of the case, very briefly, were that the parties were married in 1992, the marriage came to an end in 2011, and the parties were divorced in 2015.

When the financial remedies claim went before the Deputy District Judge the parties were, to use the words of Lady Justice King, “in a parlous state financially.” The wife had had two hip replacement operations and was unable to carry on her previous employment, and the husband had just been made bankrupt (for the second time) and was also unable to work. There were no assets of any significant value save for the husband’s police pension, and the wife was responsible for a £97,000 debt, being the negative equity on the former matrimonial home when it was repossessed by the mortgagee (the husband was not liable for his share of the mortgage shortfall because of his bankruptcy).

The husband, however, was a beneficiary under the terms of two family Trusts (he is one of four sons of the late John Wodehouse, the 4th Earl of Kimberley). Without going into the details (OK, simplifying things quite considerably!), the Deputy District Judge ordered the husband to pay to the wife a lump sum of £138,500, essentially representing debts that the husband had accrued during the marriage, in default of which he ordered that one of the Trusts should pay the lump sum (or the balance of it), from the husband’s interest in the Trust. The husband appealed against this order (it is not clear whether the Trust also appealed, but it was not represented before the Court of Appeal).

The Deputy District Judge also made a pension sharing order, dividing the husband’s pension equally between the husband and the wife (the husband also appealed against this order, but his appeal was dismissed).

The matter ended up in the Court of Appeal. However, the wife’s representative conceded that the lump sum order could not stand, as the court did not have jurisdiction to make such an order against a third party. The lump sum order was therefore discharged.

Which still left the wife with the £97,000 debt. She could have sought a rehearing, but she indicated that she could not face the prospect of further litigation. Accordingly, that was the end of the matter.

Giving a judgment concurring with the leading judgment of Lady Justice King, the President of the Family Division Sir Andrew McFarlane made a noteworthy point:

“Unfortunately, for the reasons that my Lady has so clearly explained, this case did not receive an adjudication which met with the requirements of the law relating to financial relief. In short terms, the Deputy District Judge made an order which was simply not open for the court to make. I hope that this decision is evidence of the value of creating a Financial Remedies Court – which is currently being piloted – so that only judges who are recognised for their knowledge of, and experience in, financial remedies cases following divorce will, in the future, sit on cases of this type.”

This may not seem entirely fair to the Deputy District Judge (after all, what judge never makes a mistake?), but the President does have a point. It is, of course, one of the primary aims of the new Financial Remedies Courts that they be manned by specialist judges, rather than the present position whereby financial remedy claims may be deal with by judges who have never practised family law. Hopefully, therefore, the incidence of judicial error will be considerably reduced, once the new courts go country-wide.

You can read the full report of the Court of Appeal’s judgment in Wodehouse here.

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Author: John Bolch

Kitty Genovese Syndrome

Kitty Genovese

The problem of the guilty bystander

On March 13, 1964, a New York City woman named Catherine “Kitty” Genovese was raped and stabbed to death as she returned home from work late at night. According to a newspaper report published shortly thereafter, 38 people had witnessed some or all of the attack, which took place in two or three distinct episodes over a period of about a half hour—and yet no one did anything to stop it; no one even reported it to the police until the woman was already dead. Although the murder itself was horrific, the nation was even more outraged that so many people who could have helped seemingly displayed callous indifference. And so the failure of bystanders to intervene became known as “Kitty Genovese Syndrome”—or, sometimes, just “Genovese Syndrome” or “Genovese Effect.” Social psychologists sometimes call it the “bystander effect.”

Later analysis of the Genovese case would show that the media misrepresented the facts somewhat. It’s not as though 38 people stood calmly watching a brutal murder in broad daylight and simply went on about their business. This attack happened in the middle of the night when it was dark, most people were in bed, and no one had a clear view of the entire event. Some of the witnesses, for example, had merely heard yelling and thought it might have been nothing more than an argument. At least one person apparently did call the police immediately, but without realizing that the woman had actually been stabbed—so the police didn’t respond with any urgency. And perhaps, even if an ambulance had arrived five minutes after the initial attack, Kitty Genovese would still have died. Finally, there’s evidence to suggest that someone fabricated the number 38 and that the actual number of people who might have seen or heard part of the crime was somewhere between two and seven. So it’s plausible, at least, that this particular case was not an example of apathetic bystanders—and that Kitty Genovese Syndrome is a bit of a misnomer.

But it hardly matters what you call it or whether this single tragedy could have been mitigated. The bystander effect, by whatever name, is a very real and common occurrence.

The Victim and the Bystander

I’ve experienced it myself—both as a victim and as a bystander. In the late 1990s on my first trip to Costa Rica, I was walking alone in downtown San Jose. It was still light out, and I was in an area with plenty of pedestrian traffic. As I turned a corner, I noticed a group of young men gathered around an older man who was lying on the sidewalk. My first impression is that the old man was ill or injured and they were trying to help him. As I got closer, I saw that they were actually going through his pockets. My instincts said I should try to help the man, not run, so I kept walking toward them. But the next thing I knew, the young men jumped me. One squeezed his arm around my throat, making it impossible to breathe or call for help. The rest of them took my watch, wallet, passport, and anything else of value they could find. I felt pretty sure at the time that I was going to die. But then they threw me down in the gutter and ran away. When I finally staggered to my feet, dazed and bruised, I looked around and saw lots of people walking down the street—maybe glancing curiously at me, but otherwise seemingly indifferent. The muggers clearly had known they could count on the public not to get involved.

I managed to convince a couple of people to help me, and they pointed out some police standing about a block away. The police searched the area and found my passport, hotel key, and a couple of other items (though not, of course, my money). Then they drove me back to my hotel. I was extremely shaken up, and had to make several phone calls—to Morgen (my girlfriend at the time), to my mom, and to the bank to cancel my stolen credit cards. My room didn’t have a phone, so I called from the lobby. While I was on the phone, the desk clerk called out to me for help. “That woman just stole my leather jacket and ran out!” she said. So I put down the phone, ran out of the hotel and down the street, confronted the thief, and retrieved the stolen jacket. In retrospect, I can hardly believe I did that. Even having been through what I’d just experienced, I am not normally one to get involved. I think the reason I did was that the clerk asked me personally and specifically for help.

The Pot and the Kettle

In the years since, I’ve encountered a few other situations in which I might have been able to help someone in trouble, but didn’t. When I see or hear something happening—or possibly happening—I feel confused, afraid, frustrated. Maybe I don’t understand what’s really going on. Maybe the person isn’t in danger at all. Can I do anything about it if they are? What about my own safety? Surely one of these other bystanders is better qualified to help. Surely someone else has called the police. And then, having stood there doing nothing while everyone else was thinking the same thing, I feel tremendous guilt. By my inaction, I’ve just experienced the Kitty Genovese Syndrome.

As I’d discovered in that San Jose hotel lobby—and earlier, just after I was mugged—crowds of people are much less likely to intervene than individuals, especially if those individuals are asked directly for help. This is the crux of Kitty Genovese Syndrome: a kind of mutual buck-passing that occurs within a group when no one emerges automatically as the “right” person to help. Everyone assumes that someone else will be the one to help. Although fear for one’s safety often plays a part, that fear shouldn’t prevent someone from, say, making a phone call. No one, of course, wants the inconvenience of being dragged into someone else’s problem. But I think nearly all of us would be willing to endure some inconvenience to save a person’s life. What makes Kitty Genovese Syndrome so insidious is that the apparent strength in numbers is actually a weakness that discourages any individual from taking on personal responsibility to intervene.

International Bystanders

When I saw the film Hotel Rwanda, I left the theater very upset. The genocide in the early 1990s that left 800,000 Rwandans dead occurred with very little intervention from either those within Rwanda or the international community—a profound example, as several commentators have pointed out, of Kitty Genovese Syndrome. I simply couldn’t fathom that anyone could know what was going on and do nothing. And yet, paradoxically, I can imagine no other response—with so many other people in the world, surely this must be someone else’s problem. Someone wiser, more powerful, or closer to the situation. What could I have done anyway? I have my own problems. But then, so does everyone else.

There’s no cure for this problem. Even knowing about this effect as I do, chances are, I’ll someday be an unhelpful bystander once again. But just maybe I’ll have the presence of mind to realize that the person best qualified to help is the one willing to take action in the face of confusion and doubt.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on March 29, 2005.


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Author: Joe Kissell

National Good Samaritan Day

'The Good Samaritan' by David Teniers the younger after Francesco Bassano

On this date in 1964, Kitty Genovese was murdered and even though multiple people witnessed the attack, no one took enough action to save the woman’s life. And so today, on the anniversary of that terrible event, we call attention to the temptation not to get involved in someone else’s tragedy. One day, that someone could be you, and you’d be grateful for the help of a stranger who was willing to take a risk or inconvenience themself to save your life. Remember the parable of the Good Samaritan—today and every day—and be a neighbor to someone in need.


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Author: Joe Kissell

Restaurant Style Chicken Chop Suey with Bok Choy and Mushrooms Recipe — Gluten Free, Allergy Friendly, Easy

I have had a really emotionally rough and draining past few days, and today I just felt like what I needed was some Chinese food takeout. Self care is important to me, and with such a strong desire for it, I would have gone to get some, only I was already running late and didn’t have time to stop off someplace that had Chinese food takeout.
Since I anyhow was going to the grocery store, I


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Author: Penniless Parenting

How to Find Legal Help When You Can’t Afford a Lawyer

Going through divorce, I am lucky to have a lawyer through legal aid that is really wonderful, but I know how expensive lawyers can be. Here’s some ideas from a reader on what to do if you can’t a lawyer.

Lamentably, there are times in life when things don’t go according to plan. Many times that involves lawsuits. It’s inadvisable to take on legal business without a lawyer. What do you


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Author: Penniless Parenting

Deal or no deal: The impact of Brexit on divorce & family law

Whilst the government continues to argue about the size of the Brexit ‘divorce bill’ the potential impact remains unclear. And with no workable plan to address the significant problems that will arise in the family law legal system, it is a time of uncertainty for all family lawyers and their clients.

Sarah Snow, Partner at our London Victoria office joins us on the blog to look at the potential impact of Brexit and divorce.

MPs are set to vote again tonight on Mrs May’s Brexit deal. Will the three new documents, which form part of the divorce, be enough to push her deal through parliament? With the EU making it clear there will be no more concessions, the stakes have never been higher.

As a family law practitioner, I am concerned about the potential impact on family law and my clients.

Our society today is a global one, with more and more families living internationally with different nationalities, dynamics and structures. This is reflected in the diverse cases we represent at the London Victoria office where we frequently work on matters of European cross-border disputes between parties concerning finances and children.

It is arguable that Britain’s decisions to leave the EU in 2016 was in part, brought about by the EU’s overreaching legislative aims with a global agenda.

However, it is wrong to suggest that no good has come from the UK’s membership within the EU, particularly in relation to family legislation. EU law has proved to provide greater certainty for separating families in the following areas:

  • Recognition of divorce within other EU countries
  • Recognition of children law within other EU countries
  • Expedited child abduction proceedings
  • Recognition and enforcement of maintenance orders within EU countries.

The Law Society guidance published on a no-deal Brexit on family law in October 2018 highlighted that EU treaties will cease to apply with immediate effect in the event of no deal Brexit and co-operation between the UK and EU will end.

The ceasing of EU treaties will directly impact on many families currently relying on EU legislation to enforce orders abroad, recognition of divorce proceedings which may either originate in the UK or another EU country, or at worst the return of abducted children.

No deal will also lead to a reliance on international law, such as The Hague Convention.

When advising my clients, I ask them to consider the impact of Brexit when considering where and when and to issue proceedings, recognition of foreign orders and applications for maintenance enforcement before March 29.

The true extent of Brexit’s impact on family law is not yet known.  Time will tell.

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Author: Sarah Snow

Mr Justice Mostyn explains the changing rationale behind spousal maintenance

Whilst you may not agree with everything that Mr Justice Mostyn says (and you will not be alone), it is always good to listen to him (or to read his words, as the case may be). The other day the Courts and Tribunals Judiciary website published the text of a speech given by him at the Devon and Somerset Law Society last October, and it does not disappoint.

The subject of the speech was spousal maintenance, and specifically: “Where did it come from, where is it now, and where is it going?” Mr Justice Mostyn answers these questions by tracing the history of spousal maintenance from 1857 (when secular divorce arrived) to the present day.

The pre-present day section of the speech is quite fascinating, but obviously the present day rationale behind spousal maintenance will be of more interest to readers of this blog. All I want to mention about the ‘old days’ is that, as Mr Justice Mostyn explains, the courts were then very much the ‘keepers of morals’ when it came to spousal maintenance, as demonstrated by a 1905 case in which the judge said that when considering whether to make a spousal maintenance order, and if so how much it should be for, “the Court should endeavour to promote virtue and morality and to discourage vice and immorality”. Thus, for example, an innocent wife would be granted maintenance, and a guilty wife (for example, because she had committed adultery) would not.

Thankfully, those days are now long behind us. Now, as Mr Justice Mostyn also explains, the most common rationale for imposing the obligation for one spouse to maintain the other into the future is to meet needs which the relationship has generated. For this reason, he says: “the factors of duration of marriage and the birth of children are so important. It is hard to see how a relationship has generated needs in the case of a short childless marriage, although this is not impossible.” The classic example of relationship-generated needs is where the wife gives up her career to bring up the family.

He goes on to address the topical point of why in our system, unlike others, spousal maintenance is not always for a limited period, and can last for the rest of the recipient’s life. The answer is that in some cases, such as where the wife has given up a lucrative career, the loss is irrecoverable. “For many women”, he says, “the marriage is the defining economic event of their whole lives and the decisions made in it may well reverberate for many years after its ending.”

Mr Justice Mostyn then goes on to set out his own summary of the relevant principles behind spousal maintenance, given by him in the 2014 case SS v NS (at paragraph 46). These principles, he says, seem to have withstood the test of time, and they should, I think, be compulsory reading for anyone with an interest in the subject.

But those principles do not go into detail regarding the assessment of the quantum of need. Mr Justice Mostyn points out that in three different recent cases the needs of the wife have been assessed at £25 million, £62 million, and the remarkable sum of £224 million. As he quite rightly says:

“Plainly “needs” does not mean needs. It is a term of art. Obviously, no-one actually needs £25m, or £62m, or £224m for accommodation and sustenance. The main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise.”

OK, like Mr Justice Mostyn I will end by returning to that morality point. Incredibly, as he explains, that moral outlook in relation to family law matters still exists in some quarters, despite being thoroughly dealt with by Sir James Munby, former President of the Family Division, who said:

“Judges are no longer custos morum [‘keepers of morals’] of the people, and if they are they have to take the people’s customs as they find them, not as they or others might wish them to be. Once upon a time, as we have seen, the perceived function of the judges was to promote virtue and discourage vice and immorality. I doubt one would now hear that from the judicial Bench. Today, surely, the judicial task is to assess matters by the standards of reasonable men and, of course, women.”

If you want to read the full speech (and I recommend that you do), you can find a link to it here.

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Author: John Bolch

Bossaball

A Bossaball game

The game with bounce

I once played on a volleyball team and enjoyed it greatly; that is, except for the bruises on my forearms caused by excessive bumping, the aches in my jammed fingers from setting the ball, and the scrapes on my knees from my unsuccessful attempts to keep the ball off the floor. I’ve always thought I’d like to try beach volleyball for that reason, since sand seems much more forgiving than concrete, and the mood is often more casual than serious.

A few years ago I discovered yet another option that could fulfill my need for fun, safety, and team cooperation. The relatively new sport of Bossaball is played on a court consisting of inflatable panels, trampolines, and a net, and combines aspects of volleyball, soccer (or football, as it’s known outside North America), gymnastics, and the Brazilian martial art of capoeira.

Blame it on the Bossaball-a

Contrary to what its name might suggest, Bossaball was developed in Spain and Belgium, although it takes inspiration from Brazilian music, beach culture, and sport. The word bossa, which is sometimes translated as gusto, style, flair, or attitude in Portuguese, is commonly associated with Bossa Nova, a samba-influenced type of music first pioneered by Brazilian musicians Antônio Carlos Jobim, Vinícius de Moraes, and João Gilberto in the late 1950s.

The name Bossaball, therefore, is fitting since music is a major component of how the game is played. In fact, the person overseeing the game is called the “samba referee,” and not only makes calls, but serves as the Master of Ceremonies and provides musical accompaniment to the action going on with the help of a whistle, microphone, percussion instruments, and a DJ set.

The Girl from Trampolina

The basic goal in Bossaball is to get the ball to touch the ground on your opponent’s side of the net, as in volleyball, and to win points based on where the ball lands. The most coveted target is the round trampoline directly in front of the net, which earns a team three points, and if the ball hits the inflatable panels around the trampoline, one point is scored. More points are scored if the ball is delivered by “soccer touch” (not using arms or hands). No points are scored if the ball lands on the rings around the trampoline, and the game continues after that.

Teams consist of four players, with one player stationed on the trampoline in the middle, and the other players flanking him or her (teams are often mixed-gender). Five touches are allowed on each side before the ball must go over the net; only one touch with the hands per player, and two if the player uses his head or feet instead. Teammates not on the trampoline work to position the ball so that the middle player can spike it over the net, either by hand or by executing a flip and kicking the ball to the other side.

Inflated Expectations

Watching the game in action on YouTube reminded me of how much fun I had as a kid jumping and doing flips on trampolines and bouncing around inside those inflatable play houses often found at amusement parks. The players dove, flipped, and jumped in cushioned comfort, and seemed to be having a great time. I felt an immediate urge to join in.

Unfortunately, while the game has gotten more popular in many parts of the world, including Europe and South America, it hasn’t yet caught on in North America. I don’t know if there are any plans to bring Bossaball to North America, but until that happens, I’ll have to settle for volleyball—and make sure I have a good supply of bandages and iodine before I head out on the court.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on March 28, 2007.


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Author: Morgen Jahnke