Education matters

We all understand the importance of a good education. It is something the judges sitting in the family court understand too. A child’s education is one of the things which people who have parental responsibility for a child can make decisions about, and (if necessary) litigate over.

An interesting recent case showed that a child’s educational opportunities will be prioritised over other considerations when a court has to make a decision about his or her future. This case concerned a 15 year old girl of mixed Mexican and British Bangladeshi heritage who had lived with her mother and elder siblings in England after her parents separated.

In 2010 the mother, the girl, and her two older siblings moved to Mexico with the permission of the court. Once there, the children were initially educated in an English-Spanish bilingual private school, but were moved to a Spanish speaking state school after a year. The girl was apparently unhappy in the Spanish speaking school (English being her first language) and was unable to take the courses she wanted. In July this year, the girl told her mother she was going to spend the night at a friend’s house, but instead, with the practical and financial assistance of her father in England, she crossed the border into the USA and then flew to England.  Her mother didn’t know, let alone agree. The girl informed her mother by Facebook that she was in London and intended to remain there.

The mother then made an application under the Hague Convention for an order that the girl be returned to Mexico, her home country. The Hague Convention (or to give it its full title “The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”) is a multilateral treaty, which regulates which country has the jurisdiction to decide where the child should live, namely the country where the child was habitually resident. It aims to protect children from the harmful effects of abduction across international borders by providing procedures to bring about their prompt return. 93 states worldwide are signatories, so when a child is taken from one signatory state to another, then prompt action before the courts of the country to which they have been taken can secure their return.

When the family court here deals with an application under the Hague Convention it must first determine whether the child was (and remains) habitually resident in the country from which they have been removed (in which case the child must be returned) or whether they have become resident here, in which case there is more discretion.

In the case we are looking at here, the girl was habitually resident in Mexico, and had not lost that habitual residence by virtue of her journey to England. The judge was therefore obliged to order her return unless one of the exceptions set out in the Convention applied – these are very limited but include an objection from the child to being returned if they have attained an age and degree of maturity at which it is appropriate to take account of their views. The objection must be to the country, not to living with the other parent.

The girl in this case objected to being returned to Mexico as she thought her chances of a good education were far better in England. Unfortunately her life with her father and his family since she had returned here had been chaotic. She had witnessed domestic violence in the wider family and her father had evicted her. Unfortunately she had no school place for this new school term and was facing having to drop an academic year. By contrast, her mother had secured her a place in a bilingual school in Mexico on a scholarship basis.

The judge was concerned that the girl would not be able to engage constructively in education in this country if she were not able to live in a settled and secure home. Her difficult circumstances with her father, and the lack of clear schooling options for her in England convinced the judge that her strong desire for a good education would be better served by a return to live a more settled life with her mother and to be educated in a school for which a place was available. He therefore ordered her return to Mexico against her wishes.

In other education-related cases the court has favoured more secular over strictly religious schooling for the greater opportunities it affords to children. It is reassuring to know that the family court will look to what is the best educational outcome for the children it’s concerned with, even if that means disagreeing with the children themselves.

In the meantime, if you would like to talk to us about education, arrangements for children or any other aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam.

Dishonesty – should an agreement stand?

Honesty, both before the courts, and within family law generally, is the bedrock on which justice is built. A good family lawyer will stress to their clients the requirement for absolute transparency in financial disclosure and that dishonesty within evidence put before the court can amount to contempt of court.

In financial proceedings after divorce or dissolution, if one person is found to have deliberately misled the court, then aside from the issue of contempt, an order or agreement approved by the court has the potential to be set aside on the basis of fraud or misrepresentation.

With that in mind, we were pleased to see that a case which has caused alarm amongst family lawyers by appearing to sanction a certain level of dishonesty, is to be considered by the Supreme Court next year.

The former couple in the case, Alison and Charles Sharland were married for 17 years, and have three children. Mr Sharland founded a company called AppSense which provides remote access software to businesses across the globe. He retains a substantial shareholding in the company.

The former spouses reached a settlement whereby the matrimonial assets would be split roughly equally: Mrs Sharland would receive approximately £10.35m in cash and properties, and her husband would have approximately £5.64m. In addition Mr Sharland would retain all of his shares in AppSense but if they were sold, he agreed to pay £4m into a trust for the parties’ disabled child, pay £1.7m to Mrs Sharland and transfer to her a further 30% of the remaining balance.

The trouble was that the settlement was based on the assumption that AppSense was worth between £31.5m and £47.25m, and Mr Sharland’s shares were said to be worth £7million. He had also told the court that there were no immediate plans to float the company. However, shortly after agreement was reached, it emerged that in fact the company was worth significantly more than disclosed (unconfirmed press reports said up to £600m) and that, contrary to Mr Sharland’s evidence during the hearing, an initial public offering was being prepared.

When she found out, Mrs Sharland sought to set aside the agreement that the two of them had made, as neither she nor the court had been aware of these facts when the agreement was reached and then approved. The judge found that Mr Sharland had knowingly concealed information from (and had lied to) the court. However, he refused to set the agreement aside because he said the court would not have made a substantially different order from the agreement that the parties had reached even if it had known the true facts.  In this case, the upshot was that the husband’s dishonesty made no difference to the end result, so there were no grounds to interfere.

Mrs Sharland appealed this decision to the Court of Appeal where two of the three judges sitting upheld the judge’s decision that the order should stand. Like the initial judge, they said that although Mr Sharland’s non-disclosure had been both deliberate and dishonest, in the event it proved not to be “material” to the outcome of the case because Mrs Sharland would have received a similar amount to that agreed upon even if the truth had been known. So she lost the appeal, and was ordered to pay her former husband’s costs – a bitter pill to take when he had been proved to have been dishonest!

Yet one of the judges in the Court of Appeal had disagreed with the other two, saying robustly that the husband’s fraud undermined the whole agreement, and the wife should not be held to it. He was concerned that the court process must be protected from fraud. Being in a minority, his views did not prevail, but he may yet be proven right.

This week we heard that the case will now be examined by the Supreme Court, as it raises a point of law of general public importance. The wife’s case centres around the argument that it is contrary to the basic principles of justice to uphold an agreement entered into on the basis of a fraudulent misrepresentation. The Supreme Court justices will consider several strands of argument, but central to them will be the question of whether fraud will unravel the whole agreement, or whether the judicial argument that the wife would have got the same result with or without the fraud should prevail.

What do you think? Should the court “punish” the husband for his dishonesty by giving a greater share of the wealth to the wife? Should they go back to square one and start the division process again? Should the agreement stand?

This is another massive money case in a world where family justice for the many is concerned with much more basic matters like how two households can be funded out of one. However, were it not for Mrs Sharman’s ability to fund the litigation, the case would not be going to the Supreme Court, and so we would be left with this slightly alarming precedent of deliberate dishonesty going unpunished – the Supreme Court here has an opportunity to state clearly what is, and is not, acceptable before the court. This is important as there is a strong chance that for ordinary people, any dishonesty from their former spouse does affect the final result of financial proceedings, and they are rarely able to fund endless appeals.

Let us hope the Supreme Court gives clear guidance on how to deal with dishonesty for those of us of more modest means.

In the meantime, if you would like to make an appointment to see Gail, Sue, Simon or Adam to discuss any aspect of family law, please give us a ring on 01223 443333.

Divorce basics

September tends to be a busy month for us, with lots of people making initial enquiries about obtaining legal advice in relation to their family circumstances. The press always make much of January being “divorce month”, often even specifying which day (“divorce day”) apparently sees the most new enquiries of family lawyers as people put their New Year resolutions about family life into practice. Sometimes we notice a similar effect in September – perhaps as a nation we now see the new school year as a time of new beginnings as well.  Whatever time of the year you’re reading this, if the possibility of divorce is rearing its head either for you or for a friend, we hope that some more information about the process will be helpful.  At CFLP, our ethos is that the more information you understand about what’s going on, the more in control of the process you’ll feel, which can help relieve some of the trauma.

The first question most people ask us when they come to see us is what grounds they might have for divorce. In law, there is actually only one ground for divorce or dissolution, namely that the marriage or partnership has irretrievably broken down. The confusion comes from the legal need to prove this irretrievable breakdown by reference to a “fact” – one of five reasons for the irretrievable breakdown (4 if you are a same-gender couple). These are

  • Adultery. This technically needs to be the cause of the breakdown of the marriage; rather than something which happened after you separated.   Adultery refers only to sexual intercourse between a consenting man and woman, one or both of whom are already married to other people. Other forms of intimate activity are not sufficient to prove adultery. It is not available as a fact to prove breakdown of a civil partnership, nor a same sex marriage. In terms of proof of adultery, this is usually supplied by the alleged adulterous spouse signing a court form to confirm it is admitted.
  • The unreasonable behaviour of one party. This is the most common basis for a ‘quickie’ divorce, but unfortunately a divorce petition based on behaviour requires several “particulars” or instances to be included, which can have the effect of seeming to put the blame for the end of the relationship squarely onto one party when circumstances may be more complex than that. We are often asked what amounts to unreasonable behaviour. It is subjective, and the bar tends to be set quite low. The courts usually take a realistic attitude, realising that if one party feels strongly enough to issue a divorce petition, the marriage has irretrievably broken down and it would be futile to pretend otherwise. However, the courts of course need to adhere to the law. It is unfortunate that couples are forced to allege bad behaviour when in many cases they have just very sadly drifted apart.
  • Desertion. This is rarely used, as it involves one party having intentionally deserted the other for a period of at least two years. It can only be used if one spouse suddenly walks out, announces they are leaving the other, and does not return. Ususally, another fact is available instead.
  • Two years’ separation with consent of both parties. This is more commonly used than desertion and is a less offensive way to divorce as nobody needs to make allegations against anybody else. However, if you do not want to wait for two years from separation, or are not certain that consent will be unconditionally forthcoming from your spouse then you should take legal advice about whether it is better to proceed using another fact to support an earlier divorce.
  • Five years separation. If a marriage has broken down and the parties have lived apart for a continuous period of five years then either party may petition for divorce regardless of whether the other party consents or not. Only very exceptional circumstances will stop one party from divorcing another after five years’ separation, but it is very unusual to wait this long.

The majority of divorces proceed on the basis of either adultery or unreasonable behaviour, as many couples do not want to wait two years to start proceedings, even if it’s possible to arrange a separation agreement to regulate matters  in the meantime.

The legal system as is stands forces most couples who want to divorce to make allegations of fault and blame against one of them, which can make a distressing process even harder. The legal reasons for the breakdown of the marriage or partnership generally have no bearing on the financial settlement or arrangements for children, which are much more important in terms of the effect on human lives and social policy, and which can be made much more difficult by having to make allegations during the divorce process. We strongly feel this fault-based system should be changed to no-fault divorce/dissolution, which is something for which Resolution have been campaigning for some time.

The government sadly has no real appetite for sorting out divorce law, which has remained largely the same for 40 years despite all the huge social changes during that period. Presumably it is afraid of the likely backlash from certain sectors of the press and public. However, the President of the Family Division has now put his weight behind the campaign so maybe, just maybe, something will happen to make it easier for separating couples.

In the meantime, if you would like to talk to us about separation, divorce or any other aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam.

Consent orders and mental illness

Mental capacity is an interesting issue within the context of family law. Where is the line to be drawn between silly decisions made by a sane person with legal capacity and those made by someone with diminished mental capabilities and thus no legal capacity to make them?

The two ends of the spectrum are fairly clear. Most people are fully functioning and have full legal capacity to make their own decisions. At the other end, where adults suffer from a diagnosed mental illness, or have suffered damage to the brain, which makes them clearly unable to promote their own welfare, then another person can be appointed to look after their interests.

We have written before about how parties who lack capacity to litigate can be represented, so if you’d like more details about that, click here. In summary, an adult does not have mental capacity to litigate if they cannot understand information given to them, cannot retain that information long enough to be able to make a decision, cannot weigh up the information available to make a decision, or cannot communicate their decision. Children are dealt with differently, and are considered as a general rule not to have capacity whilst they are minors, although exceptions do apply.

In family law matters the interests of an incapacitated adult can be represented by someone else under a Lasting Power of Attorney. If that is not possible, for example if someone loses mental capacity without having signed an LPA then their interests will be safeguarded by the Court of Protection which has jurisdiction over the financial affairs, property, and personal welfare of people who lack mental capacity. The Court of Protection appoints Deputies, who can be family members or professionals, to make decisions relating to the affairs of those who lack capacity. If a suitable Deputy cannot be found or appointed, then the Official Solicitor can act as a Deputy.   An Attorney or a Court of Protection Deputy (known collectively as “alternative decision makers”) will represent the person lacking capacity in litigation or alternative dispute resolution.

An interesting issue about mental capacity arose in a recent case which concerned a former wife who was challenging a consent order made in financial remedy proceedings. It is unusual to appeal against a consent order, as by its very nature it reflects an agreement by the people involved about what will happen, which is then sanctioned by a judge to turn it into a binding court order. This woman was challenging the order on the basis that she did not have mental capacity to sign it when she did. According to the case report, she suffers from Bipolar Affective Disorder (also known as manic depression) which fluctuates in severity, allowing her periods of normal functioning and periods where she is hospitalised and sectioned under the Mental Health Act. It’s a fundamental point of law that in order to be binding, agreements must be between people with legal capacity.

After the consent order had been approved by the court, the woman claimed that she had not been in a frame of mind where she could properly have consented to the agreement. Because she lacked capacity, the order should not stand. She tried to appeal the decision of the district judge who had approved the order, who had no notice of her alleged lack of capacity to sign it at the time it was approved.

Interestingly, (for those of us of a legal persuasion at least!) this is the first time that this particular problem has been aired in the courts within a family law arena, so the judge hearing the application for permission to appeal had no binding precedent to go on.

Alongside alleging her lack of capacity to consent to an order at the time she did, the woman also claimed that the agreement was unfair in its terms. However, the unfairness of a consent order is not a valid basis for attempting to overturn it, so the judge found that the only real issue was the alleged lack of capacity. It is normal practice for solicitors to notify the court if there are concerns about their client’s mental capacity, but in this case the wife had dismissed her solicitors and was representing herself when the agreement was signed. She had no safety net.

The judge compared the family law and civil law approaches to capacity. He arrived at the conclusion that an order made on the basis of consent from a party who lacks capacity and is otherwise unrepresented is an order that would be invalid and should be set aside. He considered it was arguable (although not proven at this stage) that the woman lacked capacity at the requisite time, and he therefore gave her permission to proceed with her appeal against the order.

In getting permission to appeal she has cleared only the first hurdle. The challenge she now faces is to prove retrospectively that she lacked mental capacity at the time she signed the agreement. The assumption is that a person has capacity unless there is evidence to the contrary, so the wife must prove her case.

If you have concerns about capacity, or any other family law issues, please make an appointment on 01223 443333 to come in and talk to Adam, Gail, Simon or Sue.