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.

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Author: John Bolch

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.

 

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Author: John Bolch

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

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

Using a forensic accountant in a divorce

Ending a marriage is trying time. It is difficult, emotional and challenging. A spouse is likely devastated that the marriage has failed, and now they are bombarded with all the divorce issues that must be sorted out and resolved. It can take much time and effort to reach a final resolution, making it imperative to understand the process and how best to move through it. This could require the usage of experts, as these professionals could provide input and assistance with obtaining a fair divorce settlement agreement.

The usage of financial experts could be extremely beneficial for some divorcing spouses. While some divorces are straightforward when it comes to splitting property and assets, others are more complex. In order to address these complexities, a forensic accountant could help with many calculations throughout the process.

Forensic accounting can help establish what money is assessed for alimony and child support payments. It can also establish what is considered marital property and what is not. It can also determine liabilities and discover hidden assets. When it comes to obtaining a clear financial picture, especially in a high asset dissolution, a forensic accountant can discover what assets are included in a divorce, even when a spouse has gone through the effort of hiding funds in another country or under the name of another person.

Even in matters where assets are not hidden and there is no unknown income, a forensic accountant can help find inconsistencies. This can help any errors made when collecting financial information. These experts can even help make sense of everything for a spouse. Divorce can get emotional, high conflict and confusing. One should understand how the potential agreements could impact them in the long run. This is especially true in cases where a spouse owns a business.

There are many working parts in a divorce, and it is important that divorcing spouses understand how to work through the process the best that they can. Arriving at a fair settlement is ideal; however, the way one gets there can look different from one couple to the next. Thus, hiring a financial expert may be beneficial.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

Ministry of Justice announces grants to support domestic abuse victims

Last Thursday the Ministry of Justice announced that it has awarded a grant of just under £900,000 to two organisations to help them provide support for victims of domestic abuse in family courts. The grant is part of the package of support for victims of domestic abuse who are going through family court proceedings announced by the government in its response to the domestic abuse consultation in January.

The details of the grant are as follows.

The money will go to two organisations who provide in-court support to vulnerable victims: the Personal Support Unit (‘PSU’) charity and the Citizens Advice Witness Service (I will explain more about both of these in a moment).

We are told that the “PSU will be using the funding to invest in further training of their staff and volunteers and to share learnings on best practice with a range of family justice stakeholders.” As for Citizens Advice, they “will be using the funding to extend their current Witness Service to selected family courts to provide information and practical and emotional support to victims before, during and after the day of the hearing.” The crucial detail is that:

“The funding runs from January 2019 through to 31 March 2020, and will allow Citizens Advice to provide these services in up to 12 family courts across England and PSU in 24 courts across England and Wales.”

OK, so let’s look at all of this a little more closely.

The PSU actually has its origins in family proceedings. As the ‘About Us’ page on its website tells us:

“In 2001, Lady Diane Copisarow OBE supported an unrepresented person through a divorce proceeding. Under great stress, the individual faced a confusing court system and uncertainty about appearing before a judge. This motivated Lady Copisarow to help establish the PSU to meet the human, non-legal, needs of people attending court alone.”

Back on its Home Page the PSU says:

“Every year thousands of people find themselves facing the battle of their life in court, alone and without help. They have to represent themselves in cases of divorce, contact with children, or eviction from their homes. Under distressing circumstances they must navigate a complex legal system, often against professional representation on the other side.

“In times of austerity the reduced availability of legal aid has meant that thousands more people face the civil and family courts alone. Their access to justice is at risk, as they feel overwhelmed and struggle to represent themselves effectively in court.”

All, of course, extremely commendable, although also very sad that such a service is now so necessary, thanks to the government depriving the less well off in society of legal representation by decimating legal aid.

But wait a moment. I’m probably missing something here, but isn’t legal aid supposed to be still available for victims of domestic abuse? Domestic abuse victims should still have representation. Why, then, is the government providing money for a charity whose purpose is to support unrepresented litigants?

Moving on to Citizens Advice, my understanding is that their Witness Service currently only supports witnesses in criminal proceedings. As the announcement explained, the grant will be used to extend this support to selected family courts.

Which brings me to my next point. As the announcement makes clear, not all victims of domestic abuse will be benefitting (directly or indirectly) from this money. The money will allow the PSU to provide its services in 24 family courts across England and Wales, and will allow Citizens Advice to provide its services in a maximum of just 12 family courts. So if you are a victim of domestic abuse, it will just be pot luck as to whether you will be able to access these services.

My last point about all of this may sound a little ungrateful. However, when one compares it to the £350 million annual savings from the legal aid cuts, £900,000, whilst helpful, is a mere drop in the ocean (and will it be extended beyond March next year?). The government may like to look generous in handing out funding like this, but the reality is exactly the opposite.

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Author: John Bolch

Name Tags

Electronic name tag

Hello, my name is Joe

One day I received a package in the mail from a company I’d never heard of. Inside was a black T-shirt with the words “Joe’s Shirt” in huge, bold white letters. There could be no doubt that it was for me, but I certainly didn’t order it. I looked on the packing slip and found the name of the person who ordered it—an acquaintance of mine who would not ordinarily buy me clothing. I tried to remember if there might perhaps be some favor he was repaying or an inside joke we had shared, but I drew a blank. I sent him a note that said, “Thanks for the lovely theft-proof shirt, but…what’s the occasion?” He replied, “I saw it in a catalog and died laughing. I decided that you simply MUST own one.” That’s good enough for me.

As it happens, I’m a fan of name tags from way back. I usually try to have tags around when I throw a party, and Morgen and I even passed them out to guests at our wedding. Some people don’t understand why they should use them, and others decide to write in a nickname, alias, or silly comment. But to me, name tags seem like a simple and straightforward solution to the common problem of forgetting—or being unable to determine—someone else’s name.

Name that…Name

It can be uncomfortable to interact with people whose names you don’t know, especially if you see them regularly at work, school, or church. And for most people, a single mention of someone’s name is insufficient to imprint it on their memory. I can’t count the number of times I’ve been introduced to someone, or heard an introduction during a meeting of some kind, and then later forgotten the name or gotten the person confused with someone else. And every time someone comes up to me and says, “John, isn’t it—or Jim?” I know they’ve had the same experience.

This is not a trivial problem. Even if you’re a gregarious person who freely introduces yourself to everyone you meet, and even if you are blessed with a perfect memory, there’s no guarantee that everyone will remember your name. Whether it makes any difference to know someone’s name depends a great deal on the social context. If your job is selling popcorn at a cinema, arguably there’s little value (or even negative value) to learning the names of each of your customers; that would only slow down every transaction. But for situations in which you’re likely to encounter a person over and over again, a name is probably the most useful piece of information you can have about someone.

Meetings, conferences, and seminars are of course the places where you’ll most likely see people wearing name tags. I attend a fair number of tech conferences, where attendees are usually given name badges that hang around the neck. I’m always amused at these shows when I shake hands with someone I know casually but haven’t seen for a year. Instead of being met with eye contact, I watch the person’s eyes linger on my solar plexus for a second before bouncing up to my face. But I don’t mind, because I do the same thing; it helps ease a great deal of awkwardness, as appearances change and memories fade.

A man by the name of Scott Ginsberg made a significant stir in the media around 1999 when he started wearing a name tag that says “Scott” all day, every day—and even to bed. (He’s still at it, nearly two decades later, and earned a place in the Guinness Book of World Records for his accomplishment.) During college he wore a name tag at a convention and decided to keep it on afterward just to see what would happen. He found that he met more people, and those he met were friendlier to him. He also found that it made him friendlier and more approachable; there’s a subtle psychological pressure to smile more, to be more outgoing and polite, when you know people know your name. His experiment was so successful that he began wearing name tags all the time, and even wrote a series of books about his experiences, starting with Hello, My Name Is Scott: Wearing Nametags for a Friendlier Society. Scott says he’ll wear name tags to the grave—literally—he even had a name tag tattooed onto his chest!

First, Last, or Other

This may be an unfair oversimplification, but I think most people unconsciously divide the world into “people I have some sort of relationship with” and “other.” My own experience is that I tend not to take people in the “other” category as seriously; if I don’t make eye contact, or am not especially polite, it somehow doesn’t really matter. (I notice this especially when I’m in someone else’s “other” category.) When I know someone’s name, though, it makes that person seem like more of a human being, more deserving of respect and genuine interaction; this seems to be equally true when other people know my name.

Retail stores understand this principle. When you walk into a supermarket or clothing store and see employees wearing name tags, it’s not only a signal that this person knows where to find things and can answer questions; that need could be met by a generic tag that says, “I work here.” A name tag goes a step further by making the employee more approachable—this is Amanda, not “Gap salesperson.”

A Joe by Any Other Name

But customers should get to wear name tags too, at least in stores where clerks are expected to address the customer by name. Unfortunately, clerks usually don’t find out my name until the very end of the transaction when they read it off a screen after I’ve swiped a loyalty card or payment card, so the only time they can use it is as I’m leaving: “Thank you for shopping at Old Navy, Mr. [pause] Kissell.” But more often than not they mispronounce my name, and besides, using my surname doesn’t have the right effect, because that’s not how I like to be addressed. I’m not “Mr. Kissell,” and I’m definitely not “Mr. Kiss-SELL.” I’m not “Joseph,” either, except in waiting rooms or when my mother is angry at me. And only people who knew me when I was in diapers would ever call me “Joey.” I always prefer to be called “Joe.” But with only a credit card, driver’s license, or passport to go by, a stranger has no way to know that.

A couple of years ago at a conference, I saw a guy wearing a green LED name tag with a scrolling display that showed his name and various social media handles. I thought that was brilliant, and told him so. I also said I had to own one of those—were they available in purple? He said he was pretty sure they were. Sure enough, I eventually found one (they were hard to find at the time and are even harder to find now, sorry). It came with Windows-only software on a 3-inch CD, so it took quite a bit of doing to program it using my Mac, but I eventually did, and now I have an eye-catching way to tell people not only my name but also how to contact me (or whatever else I want to say). It’s pretty cool.

If name tags are such a great idea, why doesn’t everyone wear one all the time? Personally, I don’t think that’s such a bad idea, and if everyone did it, it wouldn’t seem goofy. But the usual objection is one of privacy, or at least anonymity. Some people simply don’t want others knowing who they are, and don’t want to give an opening for strangers to start a conversation. That’s fair enough, I suppose, in a crowd or on the street—or if you’re a secret agent, say, or a superhero. But for most people in most situations, I suspect the social benefits of knowing each other’s names would outweigh the inconveniences.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on July 22, 2003, and again in a slightly revised form on January 12, 2005.


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Author: Joe Kissell

National Pound Cake Day

A pound cake

Pound cake, for those who are unfamiliar with it, is the world’s simplest cake recipe: you simply mix a pound each of flour, sugar, butter, and eggs, pour it in a loaf pan, and bake. To be sure, a lot of people in North America are unaccustomed to weighing dry ingredients like flour and sugar, but everyone should have a decent kitchen scale. Regardless, eggs are kind of a weird ingredient to specify by weight, because their weight depends on their size (it’ll take about 6–8 eggs to make a pound). Of course, it doesn’t really matter if you use a pound of each ingredient; the point is to use equal amounts by weight. (Hence the French term for pound cake, quatre-quarts, or “four quarters.”) Although that recipe will get you a serviceable cake, it’s not a very interesting cake, so pound cakes often have added flavors, toppings, and whatnot. But if you want the closest thing you can find to a foolproof cake recipe, today’s the day to try your hand at a pound cake.

Image credit: Foodista [CC BY 2.0], via Flickr


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Author: Joe Kissell