Northern Irish Pensions & Greater Rights for Unmarried Couples

William Leonard “Lenny” McMullan and Denise Brewster had lived together in Co Londonderry, Northern Ireland, for 10 years. In common with many this day and age, they had bought a house together, but were unmarried. However, they became engaged on Christmas Eve 2009. Tragically, Mr McMullan died two days later. He was survived by Ms Brewster, and declared intestate.

Prior to his death, Mr McMullan had been working for Translink, the Northern Ireland bus and train service, and had worked there for nearly 15 years. During that time he had been paying into the local government pension scheme under Translink. Local government administered the scheme, in line with regulations – including the one most scrutinised in the proceedings, the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) (2009) (SI 2009/32) (the 2009 Regulations). From when the Regulations came into force in April 2009, a cohabiting unmarried surviving partner became eligible – for the first time – to receive payments of a survivor’s pension.

However, in order to qualify as a recipient of a survivor’s pension, the unmarried partner had to be nominated as the recipient by filling out a form. It is understood that no such form was found by the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC: the local government body responsible for administering the public service pension scheme) in Mr McMullan’s case. Ms Brewster remained convinced that such a form had been completed in her favour. The subsequent legal proceedings adopted the stance that such a form had not been completed.

Ms Brewster sought a Judicial Review of NILGOSC’s decision not to award her a survivor’s pension. She cited that (4) “the absolute requirement of nomination imposed on unmarried partners as a condition of eligibility for a survivor’s pension under the 2009 regulations constitutes unlawful discrimination contrary to Article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), when read in conjunction with Article 1 … ECHR.”

At first instance, Treacy J found in favour of Ms Brewster in 2012. However, appeal followed appeal – and the case found its way from Londonderry to London. It was heard by the Supreme Court, where Lord Kerr (the Northern Irish Judge on the Bench, and former Lord Chief Justice of Northern Ireland) delivered a short verdict, with the other four Judges in agreement.

Lord Kerr

In his 26 page verdict, Lord Kerr dwells a great deal on the case history, and the history and reasoning behind the 2009 Regulations. However, armed with that, and details of comparable Scottish and English Regulations, he returns to Ms Brewster, as he tries to explain the need for the nomination form:

32. It has been said that [the form’s] purpose was not to permit a scheme member to prevent, for vindictive reasons, his cohabiting partner from receiving a survivor’s benefit, although, on its face, it certainly had that potential. If that was not its purpose, what then was it? [The Department of the Environment for Northern Ireland] DENI adopted Higgins LJ’s characterisation of the purpose of the scheme to be “to permit some cohabitants in certain defined circumstances to obtain the same pension provision as those who are married or in a civil partnership” – para 17 of his judgment. DENI expressly disavowed the legitimate aim of the regulations which Treacy J had identified viz to facilitate entitlement without discrimination on grounds of status …. at Para 54 of his judgment:

“The aim or underlying objective of this aspect of the pension scheme is to place unmarried, stable, long-term partners in a similar position to married couples and those in a civil partnership to facilitate entitlement to a pension without discrimination on the grounds of status.”

33. DENI’s repudiation of the judge’s description of the aim of the regulations (in so far as they relate to the treatment of surviving unmarried partners of scheme members) is, to say the least, surprising. It is especially so in light of DENI’s proper – but inevitable – acceptance that the provision of a survivor benefit under the scheme engages A1P1 of ECHR and that the appellant’s status, as a person who was in a cohabiting relationship other than a marriage or a civil partnership at the time of her partner’s death, is a relevant status for the purposes of article 14 ECHR.

Having expressed his legal view seemingly in support of such rights for unmarried couples, Lord Kerr found no practical reason for the nomination form. Moving rapidly through many cases from page 18 onwards, with his well known Irish wit and firmness, Lord Kerr proceeds to dismantle the case advanced by NILGOSC and DENI. In his arguments, Lord Kerr returns repeatedly to the same principle, namely that it (34) “surely must be the case that the regulations were geared to eliminate unwarranted differences of treatment between married or civil partner survivors on the one hand and, on the other hand, those unmarried long term partners who were in a stable relationship with the [pension] scheme member before death.” He further questions the policy behind the nomination form, before turning to proportionality:

(67) … I consider that the objective of the particular provisions in the 2009 Regulations which are involved here must have been to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member. To suggest that, in furtherance of that objective, a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellant’s article 14 right is, at least, highly questionable. Be that as it may, I consider that there is no rational connection between the objective and the imposition of the nomination requirement.

Inevitably, Ms Brewster’s appeal was allowed, and she was awarded a survivor’s pension. A point to note here is that Ms Brewster is 42: the litigation has been concerned throughout with future pension rights for her. Interestingly, liberal Lady Hale, well known for attempting to champion the rights of unmarried couples when in the Family Division, did not give the leading verdict. However, she was on the panel that heard the case, and doubtless gave her full approval to the decision, following her views expressed in the comparable cases of Stack v Dowden [2007] UKHL17 and Jones v Kernott [2011] UKSC53. It was left to the fiesty Irish former Lord Chief Justice to make further legal history in advancing the rights of unmarried couples.

Denise Brewster

Despite being a case ostentatiously centred on Human Rights and discrimination – the verdict grants further recognition and rights to unmarried couples, and will be a significant leading case in that regard for years to come.

Although many local government pension schemes have since been overhauled in this regard, the verdict could still have some practical impact in this regard. Once a long term relationship has been satisfactorily legally established (in most cases, with the couple having to prove a stable relationship for longer than two years and were financially interdependent by having a joint bank account or similar), unmarried cohabitating partners will now automatically be enrolled into local government pension schemes.

It is less about the pension schemes – but more about the rights of unmarried couples. For many years, an increasing trend socially has been the rise of unmarried couples in long term, stable relationships. The late, legendary journalist A A Gill is a good example, as he was in a relationship with editor Nicola Formby (aka The Blonde in his articles) from 1995 until his death in 2016. Such households and even families are increasingly commonplace in British society, with such a trend only continuing to rise. However, such couples still have virtually no legal rights or recognition. Unlike several other jurisdictions (such as several provinces in Canada), UK law remains resolutely anchored in the past here. Under UK law, such couples are barely recognised, let alone afforded the same rights and protections as (either straight or gay) married couples.

It is about time, in 2017, that unmarried couples begin to be legally recognised. Times have changed: two people no longer need to exchange vows and rings to affirm their commitment to each other, and to start a family or household. It is a small gesture, but automatic acceptance for survivor’s pension rights is the first step towards such a legal change.

It is still uncertain whether the verdict will apply retroactively: that issue is for other, ongoing, litigation. What is certain is that An Application by Denise Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8 will secure greater rights for unmarried couples in the future.

04

03 2017

Immigration & Families: Reform Needed

The recent EU referendum saw immigration be placed front and centre of the debate. Setting aside all the hyperbole and rhetoric, what was little discussed or mentioned is that families risk being torn apart and separated by current British immigration rules and laws.

Those rules and laws are complex and vague at the same time. For the time being (until an exit is successfully completed), spouses and dependents of EU nations enjoy full and free movement around the 28 (soon to be 27) EU nations. There is no problem there – for now.

The issue is with nationals from other nations, and their spouses and families. The rules refer to such people as Third Country Nationals (TCN), as a reflection of their non EU status. Current UK law can, and indeed does, tear families apart. Families with members here in the UK can risk deportation and separation ax those rules are applied and enforcement. Although officials and the courts are merely applying current UK law – to those affected it can seem unfair and arbitrary. Further, some families can be deported en masse, or alternatively just see one or two members returns to their home nation. For those families thus affected, it is hard to work out which of those is more hurtful and painful.

For those TCN’s with EU partners, spouses or families residing in another EU nation, the rules can be even more complicated and bewildering – and at times unfair. Directive 2004/38/EC of the European Parliament sets out the rights of EEA nationals to move and reside freely in all EEA and EU countries other than their home country – this also applies to their relatives and families, EU or TCN. In the UK, this Directive has been put into domestic law through the Immigration (European Economic Area) Regulations (2006).

Further, Article 45 (the freedom of movement of workers), and Article 56 (the freedom to provide services) of the Treaty on the Functioning of the European Union (“the Treaty”) set out that, in order to make Articles 45 & 56 effective, a right of residence should be granted to the TCN spouse of EEA nationals. Additionally, Article 20 of the Treaty confers European Union citizenship on all people holding citizenship of a member country. Therefore, any TCN parents of children who are EU citizens derive a right of residence in the EU under Article 20.

As such, the TCN spouse of, or family ofan,  EU national can reside and work freely in the UK. The complication arises when considering the TCN spouse of a British national. The rules here are set out in Appendix FM of the Immigration Rules (“AppFM”).

The provisions of AppFM require that the British national needs to demonstrate they would be able to offer adequate support and accommodation to their TCN partner, and also that the couple have earnings of at least £18,600. Alternatively, the couple must have cash savings of £62,500 for at least the first six months.

Although obviously and evidently unfair, the High Court in MM v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) held in July 2013 that the arduous  financial requirements in AppFM were not unlawfully discriminatory. However, the High Court did fund that such AppFM rules were an unfair and disproportionate interference with “genuine spousal relationships”. Therefore, the Rules infringed the right to family life under Article 8 of both relevant British and EU legislation. The Court made five reccommendations to the Home Office (at p 124), the main recommendation being that the minimum income threshold should be closer to £13,400.

Returning to the UK much more recently, the Referendum saw immigration and the idea of ‘taking control of our borders’ used as a mere device to entice voters. Both Leave and Remain failed to realise that many families can be, and will be, impacted upon by the very policies that both were freely and casually discussing in efforts to gain some up on the other side.

Instead of getting one up on each other, both sides failed to use one word – fairness. Instead of taking control of borders, or controlling the flow of migrants – how about adopting a fairer immigration policy and doctrine? After all, one of the basic principles of British law is that it is based on an inherent sense of fairness and justice when assessing the claims of rival parties. Why applies for equity and criminal law should surely apply to immigration law.

Under the current system, that is clearly not the case. A system that allows families to be separated and kept apart can not be described as fair. A system which gives wildly varying decisions on similar immigration appeals and cases can not be described as fair. The result of the infamous appeals and counter appeals in the Case of N will go down in judicial history as one of the harshest, most unfair, judgements ever. Indeed, Britian has come under criticism from European human rights watchdogs over its immigration polices – notably the Fast Track system. Reform is seemingly clearly needed.

The Leave campaign was very vocal in its desire to reform immigration – sadly for all the wrong reasons. However, they were indeed correct that current UK immigration rules and laws do need reform. That is not so much as to control and restrict immigration – but rather so that the system can be made into a more fair and humane system.

It is those unfair rules and laws that are having such an impact upon TCN’s in the UK. Families are being separated, and are living and growing up apart, as a result. In a nation and government that champions family values and the family as an entity, there is surely something slightly hypocritical here.

As the UK begins the laborious process of disentangling itself from the EU, including the principle of free movement of people – immigration, and related laws, will be a part of the discussions held. Whilst the nature of future rules concerning EU nationals are considered – thought and consideration should also be given to rules surrounding TCN’s during this time.

25

06 2016

Child Custody & Jurisdiction – And Madonna

Pop icon Madonna recently finished a world tour, ending in Australia – and at the same time part of an international court case the other side of the world.

There has been ongoing litigation between Madonna and her ex husband Guy Ritchie, concerning their son Rocco (now 15). Rocco had lived with Madonna in New York until last year. Whilst mother and son were in Europe in 2015, he abruptly left her to visit his father and  He then moved in with his father and step – mother, model Jacqui Ainsley, in London. He subsequently stayed, and started school in the UK.

Madonna started custody proceedings in New York, where she obtained a court ruling ordering Rocco’s return to America. With that court order ignored, the singer, 57, started custody proceedings in the UK, just before embarking on her world tour.

Her application before the High Court was under the Hague Convention on the Civil Aspects of International Child Abduction (1983), usually shortened to “The Hague Convention.” The main focus of the Convention concerns international child custody  disputes, with the basis for the Convention being seeking to return a child to their “country of habitual residence,” to effect such a return, and to resolve such international custody disputes. Under the Convention, a child can be wrongfully removed to, or retained in, a foreign country. In the family court filing, Madonna has accused Guy Ritchie of “illegally retaining” the teenager in a country that is not his “country of habitual residence.”

The vast majority of child and family legislation and cases are ultimately concerned with the welfare of the children involved, and in “the best interests of the child.” Intriguingly, the Hague Convention is one of the very few statutory instruments that does not put the best interests of the child first. Jurisdiction is the key issue, with the Convention an international treaty concerned about where the jurisdiction of the family courts of one country ends, and the jurisdiction of the family courts of another country start where child custody is concerned.

A similar international custody battle came before the UK Supreme Court in 2013- KL (A Child) [2013] UKSC75, as commented on this site previously.

In that case, US & UK custody proceedings were also disputed. The USAF Lt Col father wanted KL to be returned to Texas. Indeed, there was an American court order ordering just that, of which the British mother was in breach. KL had stayed on in the UK after a visit – similar to Rocco. Before the UK Supreme Court, Lady Hale instructed KL’s return to Texas, in accordance with the US court order.

KL’s case hinged on the definition of what the Hague Convention term ‘habitual residence’ meant. The Hague Convention is unfortunately slightly vague in this regard – and Lady Hale, whilst providing some clarity, was still not forthcoming with a precise legal definition. In her verdict, she relied on the principles set out by the Supreme Court previously in A v A [2013] UKSC 60, and in line with the verdict of the Court of Justice of the EU (CJEU) in Mercredi v Chaffe [2012] Fam 22.

Stability was considered to be a factor in determining habitual residence, as was parental intention, and conflicting places of birth and residence. Utilising what legal guidance and framework there is in this regard, and also matters of (legal) nationality, it was (eventually) determined by Lady Hale that Texas was KL’s habitual residence. As such, KL, a son of Texas, was ordered to be returned to Texas, and for the matter to be resolved there. Both habitual residence, and jurisdiction, were determined to be Texas.

For Madonna, by contrast, habitual residence is not the key issue – but jurisdiction is. In her subsequent court request, she asked to end her custody battle before the High Court. She wanted to resume the hearings in New York, where she and Rocco could be considered “habitually resident” – and where there is already a court order for Rocco’s return (similar to KL).

In March, Mr Justice MacDonald ruled that Madonna’s English custody proceedings could be ended. Jurisdiction of the case will be transferred to New York, with hearings expected to resume in June.

Both KL and Madonna made their respective claims utilising – in part – the Hague Convention. Both cases show that, in international custody cases, habitual residency and jurisdiction are very much interlinked and connected. Both cases also show that defining a child’s home nation and nationality, are also similarly interconnected. Both cases also show that, whatever might be the case in law and legal terms – emotionally and morally all those concepts are very hard to determine in reality. The Hague Convention itself is here very helpful in that it is an internationally and legally binding treaty for custody cases. The Hague Convention is also unhelpful in that it fails to adequately determined the exact nature of those legal principles.

As such, national courts are often left to settle those disputes, and to try and define those principles. Whilst there is inevitable scope for conflict – in many cases, such as in both cases here, there is surprising consensus from both nations involved.

Another consensus was provided by the American and British judges hearing Madonna’s transatlantic custody cases. In New York,  State Supreme Court Justice Deborah Kaplan in her verdict implored the parents to reach an amicable solution, stating that “no one is disrupting his household other than the inability of the parents to reach a resolution.”

“If [the parents] cannot resolve this matter then eventually the court will.” She went on to berate both parents for using the courts to remove the dispute, and urged both to take “this tremendous pressure” off their son, stating that “frankly, both parties here have chosen to live their lives in a very public way, and may welcome the exposure, but the child has not … I urge them to consider what is the best interests of their son – which may be to remove him from the spotlight.”

Mr Justice Alister MacDonald in London echoed these sentiments, urging both parties to reach an “amicable settlement [to this] highly unfortunate and deeply regrettable [family dispute].” In handing down his verdict ending the London litigation, he again called for an amicable resolution, stating that “at the root of these proceedings… is a temporary breakdown in trust… For all the media coverage, comment and analysis, this is a case born out of circumstances that arise for countless separated parents the world over… I renew, one final time, my plea for the parents to seek, and to find, an amicable resolution to the dispute between them.”

Setting aside jurisdiction and habitual residence – amicable resolution seems to be the key phrase and legal concept here.

25

03 2016

Court Fees Rise Again: An Unwelcome Gift from 2015

Economic austerity and budget cuts imposed by No11 have made themselves felt across the Civil Service, and in all government departments. Her Majesty’s Court Service (HMCS), in line with central government, was no exception, and had to make budgetary savings. As such, 2015 saw yet another round of court fee rises proposed by the Ministry of Justice (MoJ), particularly for civil and family cases.

The announcement was made in the middle of 2015. The end of 2015, and the beginning of the New Year, saw the fee rise take effect. Inevitably, many in the legal sector, and many commentators have criticised the move; indeed, rising court fees could see many denials of justice yet again in the Family Division. Since he took charge, head of the Family Division Sir James Munby has repeatedly expressed his anger (sometimes for the record in open court) regarding family law funding, and such matters. This will merely serve to make things much worse in that regard- and will probably make Sir James even angrier.

Prior to the announcement being made public in July 2015, the then Courts Minister Shailesh Vara MP (Con- NW Cambridgeshire) outlined the fees increase in a letter to the Chairman of the Justice Select Committee Robert Neill MP (Con- Bromley & Chislehurst). In the letter, and the subsequent announcement, it was set out that from the end of 2015 married couples seeking a divorce will have to pay £550 for a civil court hearing in England and Wales.

In 2013, the MoJ announced plans to raise civil court fees from £410 to £750, an increase of over 80%. However, after “carefully considering” the many concerns raised in consultations, that increase was reduced to a mere £140- making the new cost of seeking a divorce hearing £550 in 2016.

The fees rises did not just affect the family courts. 2015 saw the Coalition government announce a range of proposed court fee rises. Amongst others, they included raising making a general application in a civil court from £50 to £100, with contested applications in civil court proceedings rising from £155 to £255 (excepting cases involving injunctions for protection from harassment or violence). Cases involving issuing a money claim also saw steep increases, depending on the value of the money claim sought.

The proposals met with great criticism from judges across the legal spectrum, and others. However, a decision “not to introduce daily hearing fees for commercial cases and not to impose extremely high court fees for very high value commercial claims” was welcomed. The rise in fees (particularly in issuing money claims) moved senior judges, led by Lord Chief Justice Lord Thomas of Cwmgiedd, to express their fears in a letter that such high fees could drive work away from British lawyers. According to Lord Thomas and others “to illustrate this, the fees proposed are 25 to 100 times greater than those payable in New York. A real concern will be uncertainty over future fee increases and the possible imposition of daily hearing charges putting major litigators off London, particularly as commercial cases can take years to develop.”

The embattled Courts Minister and Justice Secretary at the time seemed to heed little those warnings. Instead in their responses, the cited the money both saved and made by the MoJ, and their on-going desire to improve the court system and litigation for those using the courts system. Cutting courts costs was also another factor mentioned by both.

The Election of 2015 saw the MoJ in a consultation over some of the fees. Both Mr Vara and Mr Grayling were replaced after the Election- but their work lived on. When the consultation closed, most of the proposals remained the same- and came into force by the end of the year. By the end of the consultation, many immigration and asylum cases had also seen fees for hearings, appeals and other applications rise dramatically.

With more and more marriages ending, the divorce courts are getting busier. With those fees already raised in 2013, now a divorce- already time consuming and expensive- is set to become more costly in 2016.

It is part of unintentionally slowly reducing access to justice. Civil rights and justice campaigners have long fought about access to justice for all (a key democratic right) amidst rising fees across the board, closing courts (with more closures to come), and a reduction in legal aid.

The MoJ has long held that such fees increases are necessary, and will actually help to ensure that the wealthy pay more, as opposed to the vulnerable and les well off. Further, the MoJ considers that the high fees will deter all but serious litigants form bringing a case, resulting in freeing up court time, and alternative resolution to legal disputes being found. There is undoubtedly a great deal of sense and truth in that; the rising fees will prevent and deter people from going to court. With all the delays, and so many hearings and not enough time or space for hearings, this could be an advantage. Already, families and other litigants are being pushed to arbitration, mediation and settlement as opposed to court. This is overall to the benefit of all concerned, and the court officials. The rising fees will only increase that pressure to mediate instead – which is only to the benefit of all parties in a divorce.

 

Whatever the benefit, whatever the ease of the burden of the court – it is still a travesty that justice is increasingly becoming unavailable to the majority of the British public. Whatever the logic and sense behind the court fee rise- justice should be freely accessible to all who desire it.

18

01 2016

A ‘Landmark’ Verdict – But Little Change to Wills & Probate

In British law, there is an old legal principle, enshrined in equity and probate, that you can leave your estate to whoever you want. How you choose to dispose of your estate is a personal freedom, and absolutely you private and personal choice.

Following recent laws and recent legal decisions- seemingly, that is not so any more.

Setting aside intestacy, and the provisions of Acts such as the Inheritance (Provision for Family and Dependants) Act (1975), the Court of Appeal recently awarded a £164,000 legacy to a woman who had been disinherited by her mother.

In 1978, Heather Jackson walked out of her family home to be with her boyfriend. She later married the boyfriend in question- and was disowned by her mother, a single parent following the death of Mr Jackson a few months prior to the birth of their only daughter. There were some efforts made over the years regarding reconciliation- but those efforts came to nothing. In 2002, Mrs Melita Jackson made her last will and testament, in which she disinherited her only daughter, and left the bulk of her £486,000 estate to the RSPCA, RSPB and the Blue Cross animal charities instead. There was a supplementary letter explaining at emotional length why her daughter was being disinherited, in favour of charities which Mrs Jackson had little connection to.

Mrs Jackson died in 2004. In 2007, her daughter, now mother of five Heather Ilott,54, contested the Will under the Inheritance (Provision for Family and Dependants) Act (1975). She claimed that she had been “unreasonably” excluded from her mother’s will, and was awarded £50,000. Upon challenging the verdict, and asking for a greater share, the High Court reversed the initial decision. That High Court decision was overturned by the Court of Appeal in 2011.

Subsequently, Mrs Ilott again tried to get a larger share of her late mother’s estate. In 2014, before the High Court, Mrs Justice Parker ruled that the previous decision that £50,000 was an appropriate legacy could not “be said to be wrong”. Once again before the Court of Appeal, in July 2015 Lady Justice Arden stated that Mrs Jackson had been “unreasonable, capricious and harsh”, and ruled that Mrs Ilott should receive the bulk of the estate.

The court mainly found that Mrs Jackson had left “no reasonable provision” for her (estranged) daughter. The verdict overturns legal principles that uphold the right to choose exactly who you leave your estate to, and how much of your estate is left to your beneficiaries. Such personal freedom and choice is the basis of many principles of law and democracy in the UK. As such, it is a very surprising verdict, which many probate practitioners are slightly uneasy at; after all, it is binding legal precedent now, and could upset many wills and estate and probate arrangements.

Although the judiciary, and therefore this legal verdict, are fiercely independent of state interference or actions, the verdict is but one example of the state taking a closer look at probate. Recent years have seen a great deal of state interference, control, updating and related of wills, inheritance and probate matters. On-going debates, discussions and disagreements over a mansion tax, and public (vote winning?) alterations to inheritance taxes aside, the latest example was the coming into force of the Inheritance & Trustees Powers Act (2014), which brought interesting reforms to probate.

The verdict (and perhaps the interference) is worrying, as it indicates state interference in a private and personal matters, that has long enjoyed the cloak of privacy that equity and probate rules and principles have allowed. Indeed, the law has long upheld the personal and private nature of wills, testaments, legacies, etc. After all, people are perfectly entitled to leave what they want to whoever they want. People are perfectly entitled to write others out of their wills, and to disinherit their close relatives. As morally dubious, and as unfair and wrong as that may or may not be, people have the absolute legal right to do so. Whether they chose to exercise such a right is up to them- it is their choice, not that of the state.

Following on from that verdict, people estate planning and considering their wills, along with their lawyers and probate practitioners need to be extra careful, lest they fall foul of the same legal reasoning as the High Court recently showed. The key matter arising from Mrs Ilott’s legal victory is that it needs to be fully explained why an adult child is being disinherited, as simply and unemotionally as possible. Further, lawyers need to pay greater attention to the financial situations of adult children when drawing up wills, and in disinheriting adult children on the instructions of their clients. After this verdict, potentially it is easier for wills to be challenged under the Inheritance (Provision for Family and Dependants) Act (1975).

When writing a will, or estate planning, obviously probate lawyers need to act in accordance with law. It is worth bearing in mind that equity (under which many principles concerning wills, trusts and probate derive) has a long and famous heritage of interpreting that law rather loosely, and trying to forge its own way. Cases such as T Choithram International SA v Pagarani [2000] UKPC46 illustrate this point perfectly.

Although this recent verdict in favour of Mrs Ilott may be against established equity and probate wisdom and practice- past case law indicates that equity has its own, unique way of asserting and establishing the “fairness” which so characterises that branch of law. With such fairness one of equity’s guiding principles, the courts will probably still be upholding the principle of personal choice when estate planning, using whatever methods that the Court of Appeal has still left open and unchallenged.

02

09 2015

Getting Started With A Potential Divorce

Everything you need to know about getting started with a potential divorce in Arizona – courtesy of the Scottsdale divorce attorneys at Canterbury Law Group.

While filing for a divorce in Arizona, you most probably think about many aspects of your divorce. For instance, you might be worried about child custody, whether the court will grant your marriage dissolution request, spousal maintenance and how property will be divided between you and your spouse among others. If you are unfamiliar with major facts regarding divorce and all that surrounds it in Arizona, you are likely to make mistakes that will haunt you later.

According to a 2009 report by the American Community Survey, Arizona is among the 14 states with divorce rates that are higher than the national average. In 2008, 10.8 out of 1,000 men and 11.9 out of 1,000 women had divorced. Following are some facts that you should know before filing for marriage dissolution petition in Arizona:

Domicile 

Before you file for a divorce, one of the spouses in a marriage just need to have been living in Arizona for a minimum of 90 days. Marriage dissolution must be done in the state where the petitioner lives. After the petition has been filed, the spouses wait for a period of 60 days. The court does not consider marital misconduct when determining a divorce petition in Arizona.

Assets and debts 

Being a community-property state, both spouses are responsible for assets and debts that are accumulated at the time of their marriage. However, this depends on circumstances and facts that are special to your marriage dissolution petition. For instance, inherited property and gifts belong solely to the receiving spouse unless they are transmuted into community property via the actions of the receiving partner in a marriage.

Time 

Usually, the divorce process takes at least 60 days from the moment the petition is filed and the opposing party receives a notification pursuant to the law. In typical cases, divorce takes between six and nine months. Again, this depends on circumstances and facts that are special to your case.

Health insurance 

A preliminary injunction is issued immediately after filing a petition to dissolve a marriage. This bars the removal of one spouse by the other from the health insurance. The injunction lasts until a final divorce decree is entered.

Alimony or spousal maintenance

Whether the court will require you to pay or to receive alimony depends on circumstances and facts pertaining your case. The type of maintenance that you will receive or pay also varies depending on the circumstances and facts that are special to your case. For instance, the court can ask you to pay or to receive temporary alimony, lump sum alimony or monthly alimony. This depends on factors like spouses’ finances, physical and emotional health of the partners in the dissolved marriage, age, the duration that the marriage lasted, and the living standard of the spouses at the time of the marriage. The time that one spouse may be awarded the alimony so that they can receive education or retrain to be self-sufficient also determines the type and amount of alimony that a spouse is required to pay or allowed to receive.

Last name 

If after marriage the wife took the surname of the husband, she can have her former or maiden name restored during divorce.

Cost 

The divorce filing fee for a petitioner is approximately $223.00. The responding party usually pays about $154.00. However, these fees vary and they do not include the process service fee that is usually required. If you hire a divorce lawyer, the cost of your divorce will depend on circumstances and facts that are special to your case.

Child or children custody 

Currently, custody is a legal decision-making. The new language became law in January 2013 and it gives both spouses the responsibility of making a joint legal decision.

How often you will be seeing your children after the divorce is impossible to determine before the case is determined. However, the new parenting law aims at maximizing the time that both parents have to see their children. This encourages joint parenting while forbidding the court from providing preferential treatment to one parent on the basis of the gender of the child or the parent.

Note that some of these facts might vary with time. It is therefore advisable that you seek help of a divorce lawyer if you are planning to file a marriage dissolution petition in Arizona.

11

08 2015

Schools Get New Duties Under New Anti Terror Laws

From July 1st, under the terms of the Counter Terrorism & Security Act (2015), schools are being put on the front line of the fight against extremism, and will be legally and duty bound to act towards preventing radicalisation amongst children.

Recent months have seen families, and school aged children, travelling to Syria to join IS. Further, recent years have seen the emergence of native born British young men and women becoming radicalised and choosing the path of extremism.

The intelligence services and police have worked wonders in preventing further 7/7 style attacks. However, even they have had to admit in recent years to the problems they face in countering radicalisation. Further, various government agencies and think tanks have all agreed as to the necessity to prevent young, native British born people from turning to extremist beliefs. That is preferable to constantly being on the alert for terror attacks.

In this subtle but significant shift in anti-terrorist strategy, suddenly the intelligence community is taking a back foot. Now, local communities, local community groups, youth groups, religious centres and leaders, are key players in the on-going struggle against extremism and terrorism. Instead of the central anti-terrorist police- the local community officer is suddenly key in watching for the signs of radicalisation, and tackling the issue at source.

Such a change now also includes schools. As of the academic year commencing in September, teachers and school staff will find themselves playing an important role against extremism. Under the terms of the Counter Terrorism & Security Act, schools will have a legal duty to “prevent people from being drawn into terrorism… [which] includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit.”

Teachers, leaders and school staff will have to, amongst others, make assessments of “the risk of children being drawn into terrorism”. Schools also have to ensure that pupils cannot get access to extremist material online. To that end, there will be training for teachers and school staff to identify those children at risk, and to challenge extremist ideology.

The reaction from schools and head teachers has been mixed. Although quietly supportive, few have been vocally in favour of the new laws and plans. Quoting from a statement released by National Association of Head Teachers leader Russell Hobby, “schools are not experts in this field, they are not part of our security apparatus – in fact their relationship with families depends on their not being part of it… [Schools] cannot police our borders or monitor the internet at large.” According to Mr Hobby, teachers and schools will also worry as to whether they are meant to carry out “some kind of active surveillance on pupils at risk.”

Many parents will understandably be quite concerned. Will their school be snooping on their children? The answer (for now) appears to be no. However under the law, teachers will be legally bound to look for the signs of radicalisation, and to address the issue. That could involve the police, or other agencies.

Further, many are concerned that the very principal of free speech will be undermined. In an atmosphere where pupils know that expressing such opinions or even discussing it could involve a chat with local authorities, that freedom of expression would indirectly be under threat.

Additionally, many in education, strongly support and value academic debate and discussion. Engaging pupils by discussing difficult subjects, having classes that deal with both sides of an issue, introducing different sides to touchy subjects, and having pupils engage with a viewpoint that is not necessarily their own, is seen by many teachers as important in teaching. In recent years, political correctness and a desire to offend or upset no one has severely impacted upon such principles of education. Teachers fear that their ability to involve a class in such debate will be compromised further in the light of such legislation.

Critics of the legislation also point out what every parent knows; schoolchildren and teenagers are experts at working the system to their advantage. If they know that expressing such views will get them in trouble- then they will learn to keep quiet, and to act like they conform. Their beliefs will be hidden, and their activities and research will be conducted in secret. As such, it will be harder to detect those young people who might be radicalised- until it is too late. If such views are openly expressed and acknowledged, then there is plenty of scope and opportunity for action to be taken.

Another criticism levelled is that many young people today rely on social media and the internet. They could be exposed to radical material at any place or time- not necessarily at school. The new law hardly tackles that issue.

For all its flaws, the legislation is another way for the government to tackle domestic extremism. With the rise of IS, that is still a very clear danger. The change in approach is also significant. Whilst the intelligence services are still fighting terrorism, and tackling extremist plots – local communities now have more chance than ever to make their contribution to such efforts. Although schemes such as Prevent have been running for several years now, greater emphasis has now being put on countering radicalisation and stopping young people from slowly drifting towards extremism, hopefully those plots will never be formed in the first place. However, many point out a lack of coherence and credibility in current efforts to tackle radicalisation. Such efforts are relatively new and time will be needed to fully assess how useful such schemes are and to make alterations and adjustments where necessary. The first step in tackling the issue has been made; often that first step is the hardest.

In a school system already under stress and pressure from local education authorities, central government, school governors and parents alike, it is but another burden to put on teachers and the education system. Although well intentioned, greater emphasis should be put on better resources in classes, smaller class sizes, promoting ethnic tolerance, and sports and other extracurricular activities.

Above all, a greater emphasis should be put on old fashioned teaching in the classroom. Less ‘teaching to exams’, less league tables, less core subjects and key curricula- and a greater emphasis on teachers being able to teach and to educate, lead and inspire the next generation.

That is the real problem that families, children and communities face. Instead of tackling suspected extremist views- teachers should have the power to address firmly unruly classroom behaviour. Although extremism is dangerous- a failing education system that values league tables over a child’s development is a bigger problem to society as a whole.

17

07 2015

New Intestacy Rules: One Small Step For Probate, But No Giant Leap

After a long period of consultation, the Inheritance & Trustees Powers Act (ITPA) came into force in October 2014.

A key matter for ITPA was resolving issues of intestacy. That is defined as someone dying without a will, or a defective one. There are currently rules in place to dispose of a person’s property in the event of someone dying without a valid will, and being declared intestate- that has now been revised.

Although by and large the rules have not altered- some points of detail have. Under the former rules- if the deceased left both a surviving spouse and children, they received a Statutory Legacy of £250, 000 and the deceased’s personal chattels. The rest of the estate was divided in half, with 50% going to the children, and 50% to the surviving spouse on a life interest trust.

Under the new rules in ITPA, the surviving spouse receives the Statutory Legacy (as before), and the personal chattels-and the 50% of the estate outright. The surviving children (or descendants) receive the remaining 50% of the estate on statutory life interest trusts, accruing interest at the rate set by the Bank of England on the date of death.

Such reform and clarity is welcome to probate. However, what about second or third marriages, or cohabitation? The Commission stage did address the last point- but that is not mentioned in ITPA, nor are any provisions made for cohabiting couples. That itself is slightly worrying.

Office of National Statistics (ONS) figures indicate that the amount of people in stable, long term relationships living together (but not married) has doubled since 1996, being at 2.9 million in 2012. The same figures showed a rise from 7% to 15% of those aged 35 to 44 who cohabit. Those numbers were from 2012; recent trends, and social changes, mean that those numbers have only risen. Sadly, the law has yet to change with the times. Currently, the legal provisions of Kernott v Jones [2011] and Stack v Dowden [2007] are the only provisos the unmarried couples have- which even senior judges admit are not sufficient enough.

Similarly, divorce is no longer received with the stigma that it once was. More and more marriages collapse in today’s society. Consequently, it is becoming increasingly commonplace for people to remarry, and to have two or three ex-spouses. Once again, the provisions in ITPA fail to address this point either. Under ITPA, the surviving spouse gets 50% of the estate of someone who dies intestate. There is little or nothing mentioned regarding any other ex-spouses who might very well have claims to the estate.

Quite clearly, the new Act missed a point here. When the Act was being considered and debated, there was an opportunity to address such issues. There was also an opportunity to bring some aspects of probate law from the medieval era firmly into the 21st century. It is to be regretted that that opportunity was missed. Indeed, the law regarding probate and intestacy is clarified, and altered- but the new law still does not reflect modern society. After only a few months in force, there are already issues or problems that will arise, and give rise to legal actions surrounding intestacy.

ITPA also addressed other probate matters- such as legal definitions. ITPA gave a new meaning to the term ‘personal chattel.’ Previously, a personal chattel was defined in the Administration of Estates Act (1925), in s55(x) as an individual’s personal property, that was moveable- and with a lot of archaic references to different types of said moveable property. Antiques, furniture, objects of sentimental value and similar were all considered personal chattel- but not real estate, investments, objects used or business or similar.

Under ITPA, that has now changed. Section 3 of ITPA amends the 1925 Act’s definition, and defines personal chattels as

“Tangible movable property other than any such property which consists of money or securities for money, or property used at the death of the intestate solely or mainly for business purposes, or was held at the death of the intestate solely as an investment.”

The new definition is clearly greater in scope, and wider. Section 3 encompasses more (and modern) types of property. Indeed, the nature of the ‘property’ is (deliberately?) not specified- which is both a help and a hindrance when determining matters of probate. Further, gifts of wine collections, stamp collections, and comparable were considered personal chattels (sic) could be gifted. Now, such things can only be considered chattels (sic) gifts if they were not held just as an investment. Even non-lawyers can at once spot problems with that. Many things will appreciate in value over time, whether deliberately invested or not. Consequently, this matter of investment could potentially give rise to yet more legal proceedings under probate.

A point to note is the key date of October 1st 2014. Wills signed and sworn before that date will continue to use the old definition of personal chattels. Wills signed and sworn on or after that date will use the new definition.

Another change to probate law was made in the form of amendments to the Inheritance (Provisions for Family & Dependants) Act (1975) (IPFDA) noteably concerning joint tenants and dependants.

Regarding dependents, the ‘balance sheet’ test concerning mutual dependency has essentially been removed. ITPA amends Section 1 (3) of the 1975 Act, and states that there is no longer any need for it to be shown that the deceased contributed more to a relationship of dependency than the applicant did. There are further amendments to Section 3 of the 1975 Act, which makes it easier to make a claim if the applicant was being maintained by the decesased immediately prior to death.

Other aspects of IPDFA also have minor alterations- such as Section 9, which deals with joint tenancies. The (amended) Section 9 now provides (amongst other things) that any increase in value if property between death and any probate hearings will be taken into account. Further, if there was a joint tenancy, then probate courts now have greater discretion when it comes to sharing assets and property.

Such changes essentially give probate courts more discretion and leeway when adjudicating such cases. Removing the restrictions faced in such courts can only be welcome, in that probate courts will now be able to hand down verdicts that better reflect the facts of each individual case. However, given that greater discretion and leeway, judges will have to take greater care and attention. As such, intestacy cases could become lengthier and more complex. Also, such judicial discretion could lead the way to more appeals. ITPA does assist intestacy cases in  its reforms of IPDFA- but also makes the compexities of probate cases more complex.

ITPA also makes a very bold move- in that it moves away from the traditional family unit. Under ITPA, a claim under IPDFA can be made by a claimant who was treated as a child by the decesased and their family unit, but who may not be a relative of the deceased by blood or marriage. With that provison, ITPA boldy moves probate and family law squarely into the 21st century, and reflects the fact that the family unit of 2014 is not necessarily a married, heterosexual couple with two children. That amendment of the 1975 Act reflects the fact that modern families might be unmarried, divorced, adopted, or anything in between. As such, it a wonderfully welcome provision.

With its bold provisions, ITPA begins to consider that the modern family has changed. However, similar to Stack v Dowden and Kernott v Jones– it is insufficient. Whilst the provisions of ITPA are bold, and move probate rules out of the Victorian and Edwardian era, it is but a small step fprward. ITPA was a great opportunity to modernise and reform probate law thatvwas sadly missed.  More reform is needed in family law, and probate law, before the modern fsmily unit, and modern probate issues, are fully reprsented and codified in law.

Although bold and weak at the same time, ITPA [2014] is the first small step. Reform and change in law is brought about by many such small steps.

20

06 2015

The General Election & the Family

Political statements and posturing have shown that the upcoming General Election is about many things. The major parties have stated that the General Election is about increasing Britain’s economic recovery and prosperity, about building a better Britain, and about addressing social inequality. “Fairness” has been a popular and topical word used by many prospective MP’s seeking to return to Westminster.

General Election favourites themes have included the EU, immigration and the NHS. For Nigel Farage and UKIP, all the three issues are seemingly the same. For the other parties, they are three distinct issues which overlap in parts. The smaller regional parties, following the Scottish Referendum of 2014, have also given rise to the prospect of constitutional reform regarding devolution or federalisation after May 7th. Social inequality and public spending are also key areas for all politicians to discuss over the next few weeks.

An area of British life that had not been mentioned in recent months is the family. Under the ‘new’ Conservatives elected in 2010, Prime Minister David Cameron set out his ideas of a ‘Big Society’, with plans for social inclusion and cohesion and greater emphasis put on the family. Further to that, the Coalition government set out plans to ensure that legislation and regulations enacted were all ‘family friendly.’ Recently, most Conservative literature or speeches contain little or no reference to the Big Society or the family.

This election is about many things, including tacking the housing problem- but not about family. It is admitted by all parties that the youth of today have bad prospects, and little future or opportunity. Shortcomings of the education system, securing employment, starting a family, even getting a foot on the property ladder, are all becoming harder and harder for the youth of today in Britain. More and more young people are staying at home longer (some well into their 30’s), or returning home after university. Increasingly, finding a job, let alone starting a career, are becoming harder and harder. This very question was asked as the historic seven way leader’s debate- and was answered in the traditional doublespeak of all politicians by the seven party leaders. Aside from great sympathy for the plight of Britain’s young, no party has seemingly any valid plans on how to tackle those issues.

The elderly is also a concern for the election. With people living longer, and palliative care improving, it is an important social, political and economic issue to be addressed. Most of the political parties have reaffirmed their current package of support and tax relief for the elderly- but have yet to set out a valid comprehensive package to protect the elderly. Along with that, arises the matter of pensions. Although given little attention by many in power, the simple fact is that this current generation of pensioners could very well be the last to actually receive a state pension.

That very matter of pensions is part of the elephant in the election voting booth- public spending. It is a simple fact that public money is needed for more and more, and will probably become less and less. Public services and policies will need to be cut, or significantly reduced, over the next Parliament. No figure standing for election wants to admit that openly. Instead, all the major parties are making financial promises to protect this policy, safeguard that department, and to lavish public money on a whole variety of projects.

The simple question, neatly avoided every time it is raised, is where they will get the money to fund such public spending. A further sinister question avoided is as to what public services or initiatives will be cut over the next Parliament? It is unwelcome, but further public cuts are highly likely to be needed. Indeed, it was just such harsh austerity measures which have greatly aided in the overall economic recovery that the UK has seen. Such recovery has made the UK one of the most thriving economies in the EU, and has won praise recently from International Monetary Fund (IMF) head Christine Lagarde. To an extent, the various party policies will dictate which public services (such as benefits) will be cut, and which will be saved (aside from the NHS). As such, this election is to and extent about what public services will be saved.

This election is about many things- but not about the family. Or is it?

All of the major political issues being dissected by politicians and pundits are central to British family life. Education and having the best chance and opportunity in life are of concern to parents. Grandparents want to know that they will have the state and medical care and support that he need as they get older. Every family wants to be reassured that they will be able to get the healthcare that their particular family members need. Public spending, will impact every family in more ways than one. Affordable housing and economic prosperity will also affect the average family, as family members advance in life, and face new work, financial or family rated challenges.

As such, although about every issue other than families- this general Election is ultimately concerned with the British family. Whatever party is in power after May 7th will set in motion public spending and other policies which will impact upon family life for several generations. Those MP’s should therefore be careful as to what they agree upon, and vote for in the next Parliament- just as the British public, with the family and local community in mind, should be careful of what political party they will vote for in May.

17

04 2015

British Justice and the LAA in the Dock: D (A Child) No 2

The shocking matter of D (A Child) [2014] EWFC 39 have served to highlight grave deficiencies in the British judicial system, and raised the question of legal representation. Since a verdict was handed down in late 2014, there have been developments, and further hearings in the matter.

The bare facts need no repeating, and are laid out in the previous post- http://www.closertolaw.com/family-law/no-adequate-representation-da-child/. Essentially, the parents have learning disabilities; consequently, their child has been taken away from them. The parents cannot appeal that decision, or fight the matter, due to lack of money (private or public) for legal representation. In the previous case, Family Division President Sir James Munby was most eloquent and furious at this. The case was originally a simple matter of care orders and child placement; however, due to the issue of funding and representation, the case has now become a case concerning legal rights and funding. Further, the case raises a key matter of democracy and justice; namely, the vital importance of adequate legal representation. Indeed, a lack of legal representation is a potential breach of Article 6 of the ECHR.

At the last hearing, after expressing his anger, Judge Munby effectively threw down the gauntlet to the various state agencies, by ordering that public funding for the parents would have to come from somewhere. Following that, the Legal Aid Agency (LAA) soon issued emergency certificates of limited funding to the parents (mostly for the prior hearings), and came to an agreement as regards such funding following reassessing the father’s means.

The matter was settled, but definitely not resolved. Late 2014 saw yet another hearing before Sir James Munby; a verdict was then handed down in January 2015. In his verdict in D (A Child) No 2 [2015] EWFC 2, Sir James once again unashamedly had the opportunity to voice his heartfelt opinions on the whole matter.

He starts by summarising the case so far. After reaching the point after his earlier verdict, he mentions the temporary solution from the LAA, before mentioning correspondence he has received from other interested agencies. It is evident from the quotes from that correspondence that the case is by no means an isolated one; there are many families with parents diagnosed with learning difficulties in similar legal situation. As such, it becomes evident that the D (A Child) litigation will become a leading authority. Knowing that he is creating such legal precedent seemingly does little to deter Sir James in his damning speech. Additionally, a matter that he raises indirectly in both verdicts is the simple fact that the state created the current situation- and is either unwilling or unable to resolve it. That also incurs Sir James’ wrath as he sets out his legal precedent.

That point and the whole unfairness of the case (contrary to the inherent British legal principle of innate fairness) is emphasised by the judge’s verdict. For the most part, the judge merely summarises the case history, merely outlining the case, and adding a lengthy case chronology (20 or so pages in a 30 page verdict). That, however, is more powerful than any carefully reasoned assessment and verdict.

However, at p11, Sir James does offer some opinion and insight. A key point is raised at 11 (ii)

“D was removed from his parents on 25 April 2014 (see Re D, para 6). Because of the ongoing delays in obtaining legal aid, the final hearing will not take place until 9 February 2015… Whatever the administrative excuses, the human reality is that a little boy has been separated from his parents pending a final decision for far too long – and for a period which is manifestly excessive not least bearing in mind… the 26-week period now mandated by section 32(1) of the Children Act 1989 as amended by the Children and Families Act 2014.”

Here, the point of unconscionable delay is raised. Such delay is always held up as a direct barrier to justice- and is contrary to Articles 6 & 8 of the ECHR. Indeed, in some cases too lengthy an unconscionable delay is considered as Wednesbury unreasonable- in other words, as scope for a judicial review. That having been tried previously earlier in the litigation, a second attempt might now be received more favourably.

Resuming his summary, the case appeared before Sir James again (November and then December) prior to his verdict in January. By that time, the legal aid had finally fallen into place, as mentioned earlier. Moreover, as Sir James describes the labyrinthine case history, the actions of the LAA become very confusing; the LAA has essentially been tying itself up in knots, and making the matter more onerous than it already is.

At this stage, however, the matter of legal aid funding has been dealt with- as Sir James admits at p.19. As such, he again admits there is little for him to rule upon as the matter is seemingly resolved; “in the circumstances… it is better that I say nothing…. There is, however, one matter to which I must refer.”

“That matter” is that Sir James is wholly dissatisfied- and is further concerned as to whether there will be legal aid or for the final case hearing (which would actually be concerning D and the care orders).

(20)[There] is, as yet, no assurance that legal aid will be in place for the final hearing. This causes me some disquiet….Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:

“To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”

A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.

(21)  This is a case about three human beings. It is a case which raises the most profound issues for each of these three people. The outcome will affect each of them for the rest of their lives. Even those of us who spend our lives in the family courts can have but a dim awareness of the agony these parents must be going through as they wait, and wait, and wait, and wait, to learn whether or not their child is to be returned to them. Yet for much of the time since their son was taken from them – for far too much of that time – the focus of the proceedings has had to be on the issue of funding, which has indeed been the primary focus of the last three hearings. The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.

Sir James comes full circle – bringing the case back to what it should be about, the welfare and future of the family in question. The case was finally heard in February. The verdict has yet to be handed down or released as regards the final decision and care orders.

In his closing paragraph, Sir James Munby asks a question as to whether this is the best the Family Court can do. Quite clearly, it is not. It is a highly unsatisfactory state of affairs, and shows a family that has been badly hurt and damaged by the British legal system. The issue of lack of representation is starkly raised in the whole litigation- and is a stark warming of what is to come, as there is less and less public funding for more and more such cases. More and more families will go through the family courts without adequate representation as public funding is cut further.

Adequate legal representation is a key principle of British justice- a denial of which, as here, flies in the face of the basic, centuries old principles of British justice. However, in Sir James Munby, the principle and rule of law has a stubborn champion, and a judge determined to ensure that justice and fairness is done- whatever the cost.

Is it the best that the Family Court can do? Absolutely not. However, Sir James’ final question is a wakeup call to the state legal agencies, and needs answering. As well as a practical question for the parties concerned in D (A Child) – it is a philosophical question for the family courts, and the British legal system at large, amidst the looming spectre of further public funding cuts.

10

03 2015