You’re served – via Facebook

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We’re all used to seeing stories in the papers about the social media networking site Facebook’s role in the end of relationships (see eg ‘Facebook a top cause of relationship trouble’, and ‘Facebook cited in a third of splits’). The opportunities offered by the internet to connect with people we used to know, or new people we’d like to get to know, are unparalleled by anything available to previous generations and are often blamed for having a part in the general rise in divorce rates over the last five or ten years. This week, however, Facebook has been in the legal news for a different reason. A High Court judge has ruled that the website could be used to serve court proceedings on a defendant whose physical whereabouts were unknown (see here).

The decision was made in a commercial case concerning an alleged overpayment of commission to brokers, which the investment managers who employed them are seeking to recover. They do not know where one of the employee brokers is, and since proceedings are not valid unless they have been properly served on the defendant to ensure he knows of their existence, the claimants in this case had a problem. What they did know was that the defendant had a Facebook account that was still active, so the judge gave his permission for the proceedings to be served that way.

As the solicitor in the case commented, we live in a society that is more mobile than ever before and people move around cities, countries and continents very easily. The traditional court method of service of proceedings at the defendant’s (or respondent’s), last known address is not always sufficient to ensure that he or she knows about the court hearings and has an opportunity to participate in them. When people’s email addresses and social media accounts move with them, it seems makes sense that the courts will feel comfortable giving permission for proceedings to be served this way if necessary.

It is sometimes difficult to locate a husband, wife, civil partner, father or mother in family proceedings too. Usually, a divorce or dissolution petition or other family court documents will be served by first class post to the respondent’s last known address, either by the court or by the applicant’s solicitor. If the applicant or his solicitor serves the papers, in most cases the rules now require that a ‘certificate of service’ setting out how that was done is available to the court before the next hearing. The court is very keen to see that proceedings are validly served, as it is a fundamental principle of justice that every person should be given the opportunity to participate in proceedings affecting them.

If postal service fails, it is possible to arrange personal service by an investigation agent or by the court bailiff, but this may be particularly difficult if there are no details of a workplace or the whereabouts of family members, or if the respondent is abroad. If these methods have been tried and failed, it is possible to apply for ‘substituted service’, eg by placing an advertisement in a local or national newspaper. If it can be proved that the respondent received the documents, service can be deemed; in extreme cases, the court will dispense with service altogether, but this is rare.

This case gives the first indication from the High Court that the law will consider service by social media as a substitute if postal and personal service have not worked. It remains to be seen how quickly judges in the county courts will embrace this new development, but we do believe that they will, and that it makes sense to do so. Social media are an increasing part of all of our lives, and are a useful communication line to those who travel frequently and widely and may otherwise fail to receive notification of a court hearing, or who may wish to evade it in the hope of derailing proceedings. We suspect social media will become an increasingly important part of the court’s service armoury, and welcome this advance. Let us know what you think.

 

What’s the family court like?

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Going to court on a family matter is inevitably nerve-wracking. For many people, it’s their first experience of walking into a court building at all, and they are uncertain of what to expect. We at CFLP think that forewarned is forearmed, so we thought we’d start a series of FAQs explaining a bit about how the family court does its business.

Family cases are all unique, and if your case is very tricky or high-value then you may find yourself travelling to London for hearings in either the High Court or the Principal Registry of the Family Division (the specialist family county court). However, most family court work is heard at the local city’s county court building. The court building itself tends to be used for mainstream civil cases – usually claims for money – as well as for family cases. A different court, the crown court, is used for serious criminal cases; less difficult cases in all areas of law, including family, are dealt with in the magistrates’ court.

When first entering the court building you will need to go through security who will check your bag similar to an airport security check. Your case number will be listed on the notice board at the entrance and this will say which judge is hearing your case and in which court. If you are not sure the security staff are very friendly and will help you to find where you need to go. Check with your lawyer before to arrange what time and where they would like to meet you.

In the county court, the courtrooms themselves are usually modern rooms containing benches in front of a raised platform, where the judge will sit during the hearing. There are usually some individual rooms available outside the court for you and your lawyer to have private discussions. Be prepared that there may be some delay in getting in to see the judge.

Family cases in the county court are usually heard by district judges (do check with your solicitor if you are not sure what level of judge is hearing your case). There are no juries in family cases (juries are only used in serious criminal trials in the crown court) and the judge alone makes the decision. District judges are lawyers of considerable experience and expertise. In family cases, they do not wear judicial robes. The hearing is often more informal that people expect, although judges command significant respect and the hearing will follow a set course, with each party speaking in a particular order.

In a family case, the person making the application (the applicant) or a solicitor/barrister on their behalf speaks first to tell the judge what they are asking him or her to do. The other person (the respondent) or their legal representative then has a chance to put their case. Often, the judge will ask particular questions of one side or another, taking a more active role in the case than you might expect. In some cases, the judge will hear evidence from both sides and also from any independent or jointly-instructed experts if relevant, before making the decision. Unless the judge is hearing evidence, if you have a lawyer representing you, you are unlikely to have to speak to the judge. Sometimes, if the appointment is a final hearing, the judge will take time to think about and write his or her judgment. In most cases, the judge’s decision is made and communicated before the parties leave the courtroom, although it will take a while to receive the order on paper from the court.

Clients often ask us what they should wear to court. Questions of this sort are difficult to answer: clothing is such a personal thing and one person’s smart suit from M&S is another person’s worst nightmare. We would advise clients to wear something smart-ish and comfortable, and in which they feel themselves. Judges are trained not to judge people on their physical appearances, so the most important thing is for you to feel comfortable and the best ‘you’ you can be.

If you have any questions about family law or the family courts you would like us to address in the blog, do please leave a comment, email us or give us a call and let us know.

 

Costs in financial cases

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…or the Return of the Calderbank letter…

When a couple who are married or in a civil partnership are moving towards a divorce or dissolution, sometimes regrettably the court has to be involved in assessing a fair division of the finances. It is rare that cases go all the way to a trial, but when the two people involved are not able to come to an agreement, obtaining a court order may be the only option. The court process can be long, drawn-out and expensive, and the costs of the procedure can weigh heavily on the family involved. (For more information on the process, click here to download our factsheet.)

Costs have long been a difficult issue in family law. In April 2006, rules came in that enforced a default position that each person would pay their own costs in financial proceedings on divorce. Unlike in other types of litigation, it has since become very rare for the courts to order one person to pay the costs of the other, although there are provisions to enable the family court to make orders for costs in the face of severe bad behaviour by one side during the litigation.

Before the rule change, the courts used a system whereby each side could be penalised in costs if he or she failed to accept a reasonable offer made by the other. The reasonableness of the offer was assessed by the judge after he or she had made the final order. In practice, it worked like this: say the court ordered the husband to pay a lump sum of £100,000 to the wife in final settlement of their financial responsibilities on divorce. After the order was made, the judge would ask the parties or their advocates to make submissions on costs. At that point, if the wife could show a letter containing an offer that she would settle for less, say, £75,000, the judge might make an order that the husband should pay the legal costs that the wife incurred from 21 days after the letter was received. Alternatively, if the husband could prove he had offered the wife £125,000 at an earlier stage – i.e. if the husband had been ordered to pay less than his offer – the wife might be ordered to pay the husband’s costs from that point on.

These offer letters, marked “without prejudice save as to costs”, were called Calderbank letters after the first reported case in which they were approved. Being ‘without prejudice’, neither side could refer to the offers made during the trial itself, but once the court’s decision was made and costs were the only remaining issue, the contents could be revealed to the court.

Solicitors tend to feel that Calderbanks were useful in litigation as they could inject a realism into financial proceedings and give a spouse pause for thought about whether they really would do better than a good and sensible offer. Solicitors know that a carefully constructed offer could change the dynamics of the negotiations and put proper pressure on someone to settle the case at an early stage, as rejecting an offer could lead to paying the other person’s legal costs as well as their own. Fully contested litigation can be truly damaging to the wider family, in emotional as well as in financial terms, and rarely helps parents co-operate about children.

Judges, however, tended to despair that the orders they carefully crafted to ensure each person’s and the children’s needs would be met after divorce could be thrown into chaos by an unexpected liability for costs arising from a Calderbank letter. It was this factor that ultimately led to the demise of Calderbanks and the introduction of the starting point that there should be no order for costs in financial proceedings.

The problem that family lawyers have noted since Calderbanks were abolished is that there is little incentive for some people involved in financial litigation to accept a decent offer from their spouse or civil partner, except to minimise their own costs. Anecdotally more cases are going to trial as there is now little risk of the court making punitive costs orders. With the government now desperate to reduce pressure on the family justice system and encourage people to settle their differences at the end of a relationship without recourse to the court, it appears the ‘no order for costs’ rule may not be considered to be serving the required purpose.

It was no great surprise to us to hear that the reintroduction of Calderbanks is being discussed in certain high-level family justice committees. We at CFLP would like to see them reintroduced as they can be very helpful in promoting settlement in family finance disputes and ensuring that each person is realistic about what might be achieved at trial. As long as each person in the dispute has a sensible legal advisor on board, Calderbanks can do a great deal of good in the process, particularly for future co-parenting arrangements. However, with the increase of litigants in person and the proposed removal of legal aid from family cases, the potential for exploiting a difference in financial and bargaining power may be significant. We would urge judges to use discretion when they consider the final impact of offers on the question of costs, but look forward to new era in court practice on family finance if Calderbanks do come back, in the hope more families will be able to settle their cases without requiring extensive court intervention.

What do you think?  Please leave a comment below of get in touch to let us know.

 

Child Support: Revolt & Revolution

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Last week, the government suffered a defeat in the House of Lords over its plans to introduce a charging structure for parents needing to use the Child Maintenance and Enforcement Commission (CMEC) – previously the Child Support Agency (CSA) – to obtain child maintenance payments for their children. Peers overwhelmingly rejected the idea by a measure of more than 2 to 1. Disappointingly for those who oppose the proposals, the Government swiftly said that it would attempt to overturn this defeat when the Welfare Reform Bill returned to the House of Commons, as it has done today.

CMEC can make assessments of child maintenance and can also act to enforce payments, ensuring that the non-resident parent fulfils the obligation. The Government’s stated aim is to encourage parents to make their own arrangements for child maintenance without using CMEC, ideally through mediation. The system is expensive to run, and has been beset with problems from the start. However, there are some very positive aspects to the child support system, as we intend to explain.

The government’s idea is to make parents who wish to pursue a non-resident parent for child maintenance pay an upfront fee of £100 – or £50 if on benefits – to use CMEC to make an assessment of how much the non-resident payer owes. If the parent needs to use CMEC to collect payments too, the government suggests that CMEC should levy a charge on each maintenance payment before it is received by the carer. The end result of course is that less money goes into the hands of the parent looking after the child. Faced with the fees, the other knock-on effect is likely to be that many fewer parents bother pursuing their former partners in the first place. After the progress made in encouraging parental financial responsibility over the last 20 years, we feel this is a bitter blow to children’s prospects after parental separation.

Critics of the operation of CMEC/CSA – and there are many – have often failed to take into account the huge societal change brought about by the very fact of its existence. A brief history lesson: the CSA was the brainchild of Margaret Thatcher’s government, which saw that the dependency of single parents on welfare benefits could be relieved by imposing inescapable obligations onto the “absent parents” (as those parents who did not live with their children were then termed) to pay maintenance for their children to the parents with care. In keeping with the politics of the time, the scheme was harsh in its operation in the early 1990s, and a lone parent receiving benefits who refused to let the CSA pursue her children’s father without a good reason was stripped of part of her benefits payments. Computer problems, an incredibly complex formula for assessing payments, errors and a perceived failure to tackle difficult cases harmed the CSA’s reputation to the extent that it has recently had to be renamed for a new start (hence CMEC).

But nevertheless, in the nearly 20 years since the Child Support Act 1991 came into effect, there can be no denying that a sea-change has taken place in the attitudes of parents to supporting their children financially after separation.

In the 1980s and before, child maintenance was optional at best. The courts did what they could, when they were required to do so, but there was no suggestion that they had kept pace with the increase in the numbers of lone-parent families since the reform of the divorce laws two decades before. The Child Support Act led to a change in attitudes to the financial burdens of bringing up children. The CSA was ridiculed, but it was also feared. The terror of being sucked into the vortex of the Child Support Agency encouraged people to make financial arrangements where previously they might not have bothered. Children did benefit. As the years have passed and the formula has become more transparent, the agency better organised and the enforcement provisions improved, the idea of child support is stuck deep in the psyche of separating parents. Now, we rarely see parents who do not want to pay towards the expenses of the children they no longer live with; we are much more likely to see parents who take pride in doing so.

The last 20 years have seen other societal changes too with regard to children of separated parents. Children are more likely now to stay in touch with both parents after a separation; shared residence arrangements, backed by flexible working for both partners perhaps, are exponentially more common. Could the CSA be at the root of this too, even in part, we wonder? Although the courts and lawyers are always keen to separate money and contact with children, and rightly so, we cannot deny that those going through separation and divorce often naturally feel that one should be linked to the other. Parents forced to pay may have fought harder to see their children. Parents receiving financial help may have been more inclined to encourage contact with the non-resident parent. It’s a controversial subject, but we wonder if financial and social/emotional responsibility for children may go hand-in-hand more often than we all like to accept, and whether the Child Support Act may have had some part in starting off an era of more involved parenting for many, after separation.

CMEC is far from perfect. It may be expensive to run and bear the scars from 20 years of tinkering. But the idea that each parent is financially responsible for their children even though they may live apart is fundamental to improving prospects for some of the most disadvantaged children, and for the parents who look after them. We urge the government to look at other ways of offsetting the cost burden of the child support system. Also, we humbly suggest that the responsibility for paying any fees should fall not on the parent receiving the child maintenance and looking after the children, but instead on the parent who has to be pursued for payment rather than coming to an agreement in broad accordance with the published guidelines (unless for a good reason, of course).

(You may also like to listen to our Partner Simon Bethel on BBC Radio Cambridgeshire’s morning show last week talking about this issue: here from 1.8.30)

Do you have any experience of the child support system?  What do you think its effect has been, and what do you think of the government’s proposals to charge for using it?