Pressing questions

We are all used to seeing the seemingly endless press coverage of cases affecting families – high profile divorces, battles over money and children, and the inevitable “quickie divorce” for a separating celebrity couple, but have you ever considered how the press get their stories? Did you know that, generally speaking, journalists can sit in the family courts and can report on some of what they hear? We thought we would take a brief look at how and when journalists can sit in the courtroom and what might end up in the papers.

It all changed back in 2009 when the family courts were opened up to the media in order to combat the perceived secrecy under which the courts and judges operated. As part of the process of increasing the transparency of the family justice system, and to improve public confidence in its operation, accredited members of the press can attend family hearings. This applies whether the hearing in question relates to the financial aspects of a divorce or dissolution or in relation to issues directly affecting children.

By “family hearings” we mean hearings held in private in the family court. This includes child arrangements (formerly contact and residence) hearings, care proceedings and financial remedy proceedings on divorce and dissolution. These hearings are private as they are not open to the general public to attend – you need the special dispensation of the judge or a UK Press Card.

Reporters are excluded from certain types of hearings. They cannot attend judicially-assisted conciliation hearings, being financial dispute resolution hearings (FDRs) in financial remedy cases, and first hearing dispute resolution hearings in cases concerning arrangements for children. That is because these hearings are aimed at settling cases, and proceed on a without prejudice basis. Members of the press are also excluded from hearings concerning applications for parental orders (court orders transferring legal rights from the birth mother to the applicants after a surrogacy arrangement) and hearings concerning adoption.

In addition to the general exclusions, it is possible for a judge to prevent the press from attending certain hearings, or from parts of them. Judges can exclude the press from all or part of the proceedings if it is necessary (a) to protect the interests of a child involved in the proceedings, (b) for the safety or protection of a party, a witness, or someone connected with them, or (c) for the orderly conduct of the proceedings. A judge might therefore decide to remove the media from the court room if she considers that a witness would refuse to give evidence with the media present, if the whereabouts of a vulnerable person might be revealed, or if sensitive commercial information could be made public.

Courts have shown reluctance to exclude the press. Most famously, Earl Spencer (brother of the late Princess of Wales) and his former wife tried to have the press excluded from their hearing but Sir James Munby (then Lord Justice Munby, now the President of the Family Division) refused to exclude reporters and allowed them to continue reporting the case. He said that it would be wrong to ban the press from the hearing simply because the former couple were famous – to do so would risk creating one law (of privacy) for the rich and famous, and another (freedom for the press to report) for the rest of us. However, in another case, the press were prevented from reporting on a case involving the child of famous parents as the child’s welfare demanded that there should privacy; each case turns on its own facts and the media’s obsession with celebrity can weigh particularly heavily on the children of high-profile people, so it may be that exceptions to the rule are more common amongst them.

So should you worry, if you’re coming to court on a family matter and don’t want journalists present? Well, in a normal family law case involving a normal family (if such a thing exists) who are in court to sort out arrangements for property or children, it is true that there is a slim chance that a hearing could have the added dimension of a journalist present in the courtroom. However, the chances are slim as media interest in cases that do not features high profile couples is minimal.

Further, there’s not much that they can publish, even if they do come. The rules that allow media representatives into the court do not give them a right to see any documents produced for the court, and there are strict limits on what they can report. Journalists cannot identify adults or children involved in specific cases, they cannot publish details specific to the proceedings, and generally they are limited to reporting as to the court process and the principles by which decisions are made. Breaches of the reporting restrictions amount to contempt of court, which does not tend to be something a journalist covets for her CV.

So, in essence the rules permitting journalists to be in court allow them to report on the court’s workings and reasoning, but not to expose the private lives and identities of parties they encounter there. If you have any concerns about journalists and media coverage in your case, speak to your lawyer in good time.

In the meanwhile, if you have any concerns about the press or any other aspects of family law, please get in touch with us on 01223 443333.

Parents: be involved, be responsible

From today, new legislation comes into effect that is intended to affect the way courts will look at how children of separated parents divide their time.

So for cases starting on or after today in the family court, there is a new presumption which judges must apply: that the involvement of both parents in the life of the child concerned will further their welfare, provided there are no safety concerns. “Involvement” in this context means involvement of some kind, either direct or indirect, but not any particular division of a child’s time. It is most definitely not a presumption for a 50/50 split of childcare or of shared residence. The Ministry of Justice says that the change will encourage parents to be more focused on children’s needs following separation and the role they each play in the child’s life. We hope so.

The change is being brought about by the coming into force of section 11 of the Children and Families Act 2014 (which also deals with a whole range of changes to the private and public spheres of family law – we wrote about it here).

In practice, the change “on the ground” may not be huge, as judges are already well aware that by and large children benefit from having meaningful relationships with both their parents, and the welfare of children has been the court’s paramount concern for decades. Where parents are working out the arrangements for their children after their separation without involvement of the local authority, it is only in extreme circumstances that parents are excluded from their child’s life. So whilst the legislative presumption can be seen as a statement of intent and policy, it may not herald a sea change in the way judges deal with cases.

It is interesting that the one other presumption used in children cases is that of non-intervention, known as the no-order principle. This means that the court should not intervene unless it is in the best interests of the child for it to do so. So it will only make a child arrangements order, or specific issue/prohibited steps order, if the interests of the child require it. Where parents are able to agree arrangements for their children after separation, the court will only rarely make an order, if it considers that the children (not the parents!) are better off with one than without.

So the law about private family arrangements for children now contains a couple of presumptions. It has long been the case that a common sense, child centred approach is the norm when judges have to deal with these disputes. Courts, and indeed lawyers and mediators, often have to remind parents that they do not have “rights over” their children, and that the welfare of the children is paramount.

Common sense took precedence in a recent case, where the President of the family Division, Sir James Munby, made it clear that court resources should not be used to micro-manage parental disputes over the minutiae of childcare arrangements, and that parents must be expected to act with maturity and responsibility concerning their children.

The case serves as a sad reminder of the effect of parental conflict and the inability to work together on children. The boy in this case was only 6 years old and his parents had been litigating bitterly for 4 and a half years. They could not agree on anything, even which platform of Clapham Junction railway station they should use to pass the little boy between them for visits. The court sensibly refused to be drawn into which platform, ticket office or other place should be used, saying that it was a waste of court time to decide such things when mature adults should be able to sort that out themselves. These parents also brought to court a fundamental disagreement on the type of dental treatment their son should have, and the President refused to decide on which parent’s preferred treatment should be allowed to go ahead. He said that to do so would set a precedent for the child’s life with every future disagreement over medical treatment being aired before the court. The parents were left without a judicial decision on dental treatment, meaning that they would have to sort it out themselves. This judgment is a warning to these parents, and to other parents who disagree on everything and try to litigate everything, ignoring the effects their never-ending conflict will have on their child.

This strong decision from the leading judge of the family court may signal a move towards the court refusing to be drawn into arbitrating minor matters of dispute, and limiting itself to more important questions relating to children. That will be a positive step, provided that couples can find other ways of resolving these matters. Mediation and collaborative law can be powerful, less stressful alternatives to court proceedings that enable lasting decisions to be made on the basis of welfare of the children, also taking into account the practical considerations of the adults. They can be used at any point in a dispute; although it is never too late to try, it is rarely too early, either.

If you would like to talk to any of us about any aspect of family law, please get in touch to make an appointment. You can reach us on 01223 443333.

Feeling the need

“Will I be able to manage financially after we divorce?”  “Can I afford a house for myself and the children?”  “How can we afford to live?”  “Will I have to watch every penny?”  These are the sorts of questions which worry most people going through divorce or dissolution.

The principles that guide how judges make decisions in financial divorce and dissolution disputes include the concepts of needs, sharing the fruits of the marital partnership and compensation for lost earnings.  The needs of each person in the family, especially those of the children, will be the most important consideration in the vast majority of cases.  “Needs” can be a trump card which defeats arguments for things like keeping inheritances intact, or for pre-owned assets being excluded from being shared out.  As the needs of the family often dominate cases even where the assets may extend to several million pounds, we thought a look at what exactly amounts to “needs” would be useful.

There are two broad types of need when assessing who should have what proportion of the assets in divorce: capital and income.

Capital needs tend to be for one-off items, and can be satisfied by a lump sum in most cases.  They include needs for housing, furnishing costs, purchasing cars and clearing debts.  Income needs are based on what a household requires to meet ongoing, regular expenditure such as mortgage payments or rent, utility bills, food, clothes and other essentials.

So far, straightforward.  However the problems come when trying to assess, objectively, what someone actually needs.  The House of Lords (now the Supreme Court) has made it clear that needs should be “generously interpreted” where it is possible to be generous.  In big money cases, there have been some interesting outcomes.  For example, in 2011 a husband failed to convince the Court of Appeal to overturn an award to the wife , where she had only one of the couple’s five children still living at home with her, but was found to need a 9 bedroom house worth £2m, plus £75,000 to renovate the property, a further £1.65m lump sum and £75,000 a year in child maintenance.  You can imagine the headlines, but on closer inspection this was in the context of an overall asset pool of £12million and a very long marriage where the family (who had five children in all) had enjoyed a very high standard of living throughout.

Where does this leave those of us without millions in the bank, or elsewhere, when trying to meet needs?  Often there is no room for needs to be “generously interpreted” and more frugality is required from everyone when a marriage or civil partnership ends. The common problem is that one household does not transform into two separate households without some financial tightening of belts and moderation of expectations.

In order for everyone to work out what is fair and what each element of the family needs, both spouses have to set out a summary of their capital and income needs as part of the preparation to make a decision, or ask the court to make one.  This is part of financial disclosure.

On the capital side, if you are going to have to move house, this is likely to involve obtaining information about house prices for properties which would be appropriate.  If funds are tight, you might have to face a shift down in terms of size or quality of property.  A judge will agree that children need four walls and a roof over their heads, but may not agree that the family need a spare bedroom or a detached garage, especially if this impacts on the other parent’s ability to care for the children.  There is also the question of each spouse’s borrowing capacity, to assess how a property purchase can be funded – if you have a mortgage capacity of £X, and a property will cost £Y, then you may have an argument that you need £Z to make up the shortfall.  This is part of the exercise of the process of balancing needs against resources with which your lawyer can help you.

For income needs, you should draw up a list of what you spend each month – a ‘budget’.  This can entail a rather painful and longwinded trawl through bank statements and bills to see exactly what is being spent on utilities, household expenditure, travel costs, clothes, entertainment, children’s activities etc.  It’s an essential part of working out what you actually need to live on, before it is possible to examine how and whether those needs are going to be met from the available resources.  It is possible that some of your spending may not be ‘needed’ in strict legal terms – for example satellite television subscriptions, gym memberships, or foreign holidays, but much depends on the standard of living enjoyed by the family before the separation and what’s available to satisfy the needs set out.

Where there simply isn’t enough to go round, a judge may give only scant regard to what the parties claim their needs are, and simply divide up what limited income and assets there are, leaving both parties to cut their cloth accordingly.  In others, where income is greater, things may legitimately be claimed as needs which would be excluded as luxuries from other cases.

Needs are subjective and vary from family to family.  Where finances do not permit two household to be run at the spending level of the former shared home, needs will come under scrutiny and be pared down to essentials, rather than the “generous interpretation” used in the big money cases.

If you would like to talk to us about needs or any aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam (or, from next month, Tricia!).

The Dishonest Dottore and her Dodgy Divorces

A “conspiracy to pervert the course of justice on an almost industrial scale”. This is not the usual phrase to be found in the opening paragraph of a family law judgment, but then the case of Rapisarda v Colladon was not a usual case. It is quite a story, and one that reveals a fair amount about the workings of the family courts in this country.

First we need to introduce you to the Queen’s Proctor (or King’s Proctor in times of male monarchs). This is the person who represents the Crown in the probate and divorce courts. The Queen’s Proctor may intervene in a divorce suit for the purpose of arguing any question that the court deems expedient, including arguing against a decree nisi being made absolute. He (or she) is most usually involved on receipt of information suggesting that the court has been misled into granting a decree, as was the case here. The issues first came to light earlier this year when the question of whether the saga could be made public was answered in the positive by the President of the Family Division, and the judgment was finally released last week.

In February 2012 an eagle eyed member of court staff at Burnley County Court spotted that two divorces, both involving Italian parties, referred to the same address in Maidenhead, Berkshire. The situation was unusual enough for her to raise the issue with the judge, who thought it was worthy of a little further investigation. When the court looked into it, the address turned out to be a mailbox at a business premises rather than a residential property, and the police became involved.

The police investigation revealed that 179 divorce petitions had been issued in 137 different courts right across the country all using that same address in Maidenhead, with one further petition using a different address. A firm of solicitors in Reading had been unwittingly drawn into the case as their name was used without their knowledge on the affidavits apparently sworn in support of the 180 petitions. It was clear that nobody lived at the mailbox address, meaning the basis of the English court’s jurisdiction over these Italian nationals could not be proven.

The Queen’s Proctor argued that in all 180 cases the divorce proceedings were fraudulent from beginning to end. He argued that each of the divorce decrees, whether nisi or absolute, had been procured by fraudulently claiming that one party or the other was resident in England and Wales when this was not the case, and forging the paperwork.

Behind all these dodgy divorces was someone calling herself Dr Frederica Russo, whom it seemed was attempting to procure English divorces for Italian clients on the false basis of one or other party living here (at the mailbox in Maidenhead). She charged a minimum of €3,750 per couple. The paperwork was either forged or amounted to perjury, with fake affidavits and lies about residence.

In all 180 cases neither party was habitually resident in England, so the court had no jurisdiction to entertain any of the petitions. Where decrees had been pronounced, they had been obtained by fraud perpetrated on the court. So, the President dismissed the petitions which had been presented to court but not yet reached decree nisi stage. In the cases where there had been a decree nisi or a decree absolute pronounced, the decrees were set aside as being void for fraud. This left all 180 couples still married. He made it clear that the fact that one or both parties may have remarried, or even subsequently had a child (as had happened in one case) made no difference to his decision. This leaves some of them in quite a fix.

All of the petitions were based on the parties having apparently been separated for two years and with them both consenting to the divorce. Although not clear from the judgement it seems that the reason for all these Italian couples wanting to use the English courts to obtain a divorce is the requirement under Italian law for a couple to have been separated for 3 years before they can divorce. Also a divorce validly obtained in one country will be recognised in another, so an English divorce is just as effective in Italy as an Italian one, as long as it has been properly obtained.

One of the reasons why the conspiracy was able to go on for so long without being detected is that a petition can be filed in any divorce county court (now the family court) irrespective of the address of either party. So “Dr Russo” spread the divorce petitions widely across a large number of courts, all of whom seemed to have jurisdiction to accept them. There is presently no legal reason why someone living in Maidenhead cannot issue a petition in Llandudno. However, it seems that this facility will soon be curtailed. Handling of divorce petitions will soon be centralised and to quote from the judgment “by this time next year there will be fewer than twenty, possibly as few as a dozen, places at which a divorce petition can be issued.” So one hopes that the courts will not be subject to anything similar in future.

If you would like to talk to us about any aspect of family law, please give us a ring on 01223 443333 to make an appointment to see Gail, Sue, Simon or Adam (or, from next month, Tricia).