Family Law Week publishes an interesting article this week on the recent case of Grubb v Grubb which concerns an appeal against the granting of an occupation order ousting a husband from the matrimonial home. The article appears here and the transcript here. I am going to take a slightly different slant on that case than the author on FLW, who is critical of the decision of the Court of Appeal to uphold the occupation order and who suggests that the case has significance for occupation order applications without allegations of violence, a significant which he fears is in danger of passing unnoticed.

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Under s33 FLA 1996 the court has a discretion to make an occupation order even in the absence of significant harm. In exercising that discretion s33(6) directs the court to consider all the circumstances including:

(a) the housing needs and housing resources of each of the parties and of any relevant child;

(b) the financial resources of each of the parties;

(c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and

(d) the conduct of the parties in relation to each other and otherwise.

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The only relevance of significant harm in an application for an occupation order is that, where the court considers that the Applicant or a relevant child might suffer significant harm if no order were made, then the so-called ‘balance of harm’ test set out in s33(7) comes into play. That creates a potential obligation to make an order, rather than a mere discretion. An applicant for an occupation order may seek to make out his case either by satisfying s33(6) or s33(7)  (or both). The Grubb case was not argued under s33(7). Looked at in that light, we can see that insofar as the Grubb case is an example of an occupation order being made in the absence of any significant harm, it is not groundbreaking.

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An occupation order is of course quite separate from a non-molestation order - although they often co-exist. It may be trite to say it, but a non-molestation order deals with prohibiting acts of violence or harassment whilst an occupation order regulates the occupation of the home. Whilst there has to be a good reason to oust a party from their home there do not necessarily have to be grounds for a non-molestation order in order for an occupation order to be made. There is in fact no reference to violence or harassment in s33, although of course such behaviour would fall under ‘all the circumstances’ or ‘conduct’ or ’significant harm’. It is a mistake to think that one can oust only a violent partner, although very clearly violence or harassment are very likely to form a main plank of the grounds for many an application and it may be difficult to justify an ouster in the absence of such conduct – depending of course on the facts.

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The transcript of judgment bears further reading. Although there are a number of specific findings relating to the Husband’s conduct upon which the court of first instance relied when granting the occupation order, it is clear from the full judgment that there was a significant course of conduct of oppressive behaviour on the part of the husband which the wife experienced as putting her under unbearable pressure whilst the family all remained within the one property.

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And yet the article characterises an occupation order as a ’domestic violence remedy’ and queries whether this is really the kind of situation that it was intended to apply to. The suggestion made in the article is that a party ‘need not cite very much by way of conduct’ to justify an occupation order, and it seems to be said that cases of this kind are not what such a ‘domestic violence remedy’ was intended to cure. The writer of the article seems to me to fail to properly appreciate the extent of the Husband’s conduct as described in the judgment (and indeed the medical evidence which demonstrated the impact it was having upon the Wife), and in doing so seems (perhaps unintentionally) to minimise the significance of the non-violent conduct. In my view non-violent conduct of the kind described in the transcript falls fairly and squarely within most working definitions of domestic abuse that professionals in the field would use – which may range from controlling behaviour and mental or verbal abuse to physical attacks.

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I think that this is very much a case turning on its own facts. It may be unusual for occupation orders to be made in cases where the parties are wealthy, but that is precisely why the particular mix of factors is unlikely to be often repeated – for what the court was required to consider was whether to permit the toxic and harmful situation at home to continue in circumstances where an exercise of the court’s discretion in favour of the wife would not cause the Husband significant hardship. More often than not there is only one property and an ouster will mean the ousted party sleeping in the car or sofa surfing. There is a difficult balance to strike in such cases and often the lesser evil is leaving the parties in situ, albeit in very unpleasant circumstances. In this case the court could cure the impact of the husband’s ongoing conduct on the wife and children without causing any serious detriment or harm to him.

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Characteristic of this case was the fact that the wife did not seek to exaggerate the seriousness of the conduct of the Husband by asserting any s33(7) significant harm, and nor did she seek necessarily to oust the husband if alternative accomodation were provided by him for herself and the children. The Husband had within his control the parties substantial financial resources and had it within his power to make this happen without the need for him to leave. Had the application been for the husband to be excluded from his own home for reasons outwith his control and without recourse to suitable accomodation to meet his own needs, the outcome no doubt would have been very different, and properly so.

I’ve been browsing newspapers and recent judgments this evening (yes, for fun on a Friday night). Lawyers don’t come out of it too well so far:

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At the bar we have reports of a £34,000,000 discrimination claim by one barrister against three QCs and a senior clerk. In a story that resembles stereotypical ideas and tv drama representations of the bar in too many ways to make comfortable reading for the rest of us in the profession, an Indian born barrister is claiming that her senior clerk and chambers discriminated against her in terms of the allocation of work and recovery of fees. The heads of chambers are named personally as individual defendants, and two of the three were allegedly too distracted by their affairs with the senior clerk to effectively deal with the claims of ongoing discrimination (Heads of Chambers being ultimately responsible for equal ops in chambers). I don’t know what area of practice the Claimant in this case was in before leaving the bar in 2006 but if one assumes her 34 mil claim is primarily based on loss of earnings I think we can safely rule out the possibility that she was a member of the family bar. £1m a year for the rest of her working life? Nice work if you can get it love. Who KNOWS how much more entertaining yet excrutiating detail will come from the Employment Tribunal before this sorry mess is resolved? One thing is for sure it isn’t going to do much for our reputation as a profession.

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The Times’ Lawyer of the Week piece has sparked fierce debate in our household about whether or not an alleged rapist whose conviction has been quashed should be able to sue the alleged rape victim for malicious prosecution. And it was whilst searching (unsuccessfully) on Baiili for the judgment (in which the Court of Appeal apparently ruled that such an attack was contrary to public policy)* that I came across the next course in our menu:

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Withers LLP are being sued by Marco Pierre White for damages in respect of an assortment of unusual tortious acts. If you ARE the kind of person who likes to read judgments on a Friday night I have to commend this to you. It is a magical combination of sordid celebrity intrigue and really interesting and novel legal questions, mostly explored in some detail and then abandoned without resolution as is often the way with an appeal against a strike out (I am put in mind of a small child momentarily turning a small wondrous object in his hand before casting it aside to rush to another more fascinating item). The appeal was successful. Mr White’s claim proceeds.

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To summarise brutally: Marco Pierre White sues his ex wife’s matrimonial solicitors for allegedly advising his wife to wrongfully intercept and retain documents and for themselves retaining those documents. The judgment opens up an enormously complex legal hinterland which is the interplay between family and civil law and the applicability of torts such as trespass to goods and conversion to actions which have long been to some extent sanctioned if not approved by family courts in the course of family proceedings. For the non-lawyers amongst us, the question is whether taking your exes documents to prove they are hiding the money for your divorce, and keeping hold of those documents is something which can put you at risk of having to pay damages to your ex, even though the family court would let you use them. What this judgment tells us is that it might just do that, but you’ll have to wait until the trial, and maybe you’ll have to wait for another case to get as far as the court of appeal for a full set of answers. Celebrity bunfighting, lawyers squirming in the witness box, and grave and weighty questions of public policy: great recipe Marco. It does make it rather difficult to advise clients in financial proceedings with any degree of certainty.

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Judge John Deed? Pah. You couldn’t make this stuff up.

* can anyone tell me where to find this?

Short piece on ‘Today’ on Tues morning about costs in civil cases. I switched on as a clip of Lord Justice Judge opining about the state of civil justice was part way through. Evan Davis moved onto an interview with Bridget Prentice. Oh goody, I thought as I drove to court, something relevant to my line of work and NOT about banks. What struck me though was the complete failure of the piece to distinguish between court fees and legal costs. Unusually for Evan, who is pretty much always on the ball and whose faux naive questions make me chuckle, it sounded as if Evan himself had no appreciation of the distinction between legal costs and court fees (which are piffling in comparison to legal costs, at least unless you are a local authority issuing care proceedings). This was made worse by the fact that Bridget Prentice, in response to a question about ‘legal costs’, asserted that a low income claimant would know prior to issue that they would be able to be protected against paying these. It was apparent to a lawyer that she was talking about remission of court issue fees on a means tested basis but non-lawyers could have been forgiven for thinking that there was no risk of a costs order being made against a low income claimant, which of course is very much NOT accurate. Not helpful.

Did anyone else listen to this? Was it as confusing as I thought it was, or was I simply too distracted by the traffic on the M5 to listen properly to what was being said?

The Government announced its decision in respect of the family legal aid fee reforms on Wednesday this week. As a result of me seeming to have to do ever increasing amounts of work just to bring in the same amount of money I have not been able to look at the announcement in detail or to post anything about it. However, the FLBA have issued the following press release which enables me to cheat a bit:

The Family Law Bar Association (FLBA) notes the announcement made today by the Ministry of Justice about changes to the family fee proposals made last December, in particular some limited recognition of complexity in cases. However, it is a matter of regret that the Government has refused further time to the representative groups to consider the underlying data and structure of the changes announced today. The refusal of further time undermines the benefits to be derived from a more collaborative way of working between the Legal Services Commission and its stakeholders,  which the Justice Committee called for in their report on Family Legal Aid Reform, published in July.

The FLBA remains concerned that these changes will drive experienced practitioners away from this work, at a time when child protection cases are increasing. Those cases involving allegations of domestic violence, private law disputes and financial cases will simply be uneconomic to undertake. This will deter talented new entrants from doing this important work, which cannot be in the public interest.

I understand that the new scheme represents an improvement on the previous set of proposals, insofar as it recognises some graduation and different types of hearings. But the fundamental concern that this is work which is becoming increasingly unattractive and unviable remains, for all the shifts and tweaks. Still, I have until October 2010  to steel myself to read the proposals, if I can afford ever to take any time off again…

Yesterday I took a breather between lever arch files to chat with colleagues about the new fee regime that we will be paid under from next October. Some of the fees are clearly better than now, largely care work. For that I suspect we have the furore arising from the Baby P scandal to thank. But whereas domestic violence injunction work used to be the poor relation in the legal aid family it is now one of the most attractive pieces of work to do, notwithstanding the fact that it is usually quite straightforward to prep and run. Fee rates appear to be more linked to whether or not something is a political hot potato than by complexity per se – domestic violence and safeguarding children being two such hotties. So, for a return date injunction (which is relatively easy to prepare and can (often) be disposed of within minutes at a 30 minute block listed appointment) the remuneration is excellent. And its one of the few kinds of case that can often be double or triple stacked without causing any professional difficulty. At £400 a pop – cher-CHING! Nice work if you can get it – we’ll be fighting over these briefs.

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But just to demonstrate that this is only a different set of swings and roundabouts, there is a whole range of other work, which currently makes up the bread and butter income for many at the family bar (particularly at the junior end), that will be paid at appallingly low rates. So in private law children (contact, residence etc) the hearing fees start at £69.55, and for equivalent hearings in ancillary relief (money on divorce) precisely 65p more at £70.20 (who knows why?). This is a gross figure, before travel expenses, and including preparation and travel time. In real terms it amounts to probably £30 a day in your pocket (family barristers income comes almost exclusively from court work unlike solicitors who bill for the work they do back in the office). Remind me again why I trained for three years post graduation and incurred at £25,000 debt?

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In fairness, those fees increase where the hearing lasts more than an hour from the time the advocate was ordered to attend court. As long as an advocate is at court for an hour and a minute the fee will be approximately £100 higher. How well has this been thought through? At many courts local to me there are two relatively common listing practices which appear to have been overlooked by those who have apparently costed this meticulously and down to the last penny: block listing and directing the parties and their representatives to attend court for negotiation at least an hour before the hearing. I wonder what proportion of cases the LSC is banking on being disposed of in an hour or less for a mere £70 odd? If a court block lists say 10 cases for 10am on a Monday morning, at least 8 of them are inevitably going to end up being paid at the higher rate. None of us will want to be the unlucky advocate whose case goes in first out of the block list, and whoever draws the short straw they clearly can’t all be dealt with before an hour is out. I can see ushers up and down the country struggling to find something for the judge to do before 11am. 

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And of course in a case where parties are ordered to attend an hour prior to the hearing for negotiation the lower fees will never apply. 

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When you have a minimum fee to pay to chambers each month an income of £30 a day is just not viable, even if its offset by higher fees on some days. No doubt the notion is that an advocate can triple stack short hearings and make a reasonable amount in a day, but any advocate will tell you that there is no reliable way of knowing before you attend a hearing how long it will last. That is why cases are block listed – so that the court can juggle them around as they become ready to go before the judge. One is faced with the proposition either of taking several cases and running a distinct risk of compromising quality of service (or even a wasted costs order against counsel personally if she cannot manage all the work she has taken on) or of taking on simply one case and hoping the court will have overlisted (or perhaps simply happening to be in the loo or deep in negotiation when the usher calls the first case). Neither is satisfactory for advocate, for client, for the interests of justice. And it doesn’t sound to me like a system that reflects the work done or is anything other than arbitrary.

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Block listing and requiring the parties to get their neogitations done and dusted so a case is ready to go at the listed start time are both legitimate method used by the court service to manage their workload. There is a real tension here between the practices of Her Majesty’s Court Service which are designed to make the best use of limited judicial resources and court time, and the theory behind the new fee structure which is designed to save the LSC money. 

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Sometimes I wonder how much has been spent by the LSC on this wretched consultation and fee revision process and think wistfully that it could have been spent on legal aid. And its on days like these that I despair that all these endless fee cuts achieve is to push a diminishing amount of money from one area to another in complicated ways that fail to save the public any money, reduce the value obtained for that money and put at risk the interests of justice.

What odd times we live in. The Guardian reported on Saturday that hedge fund managers are now betting on the outcome of high worth ancillary relief cases by funding the litigation costs of one party in return for a largeish chunk of the prize.

Given that this is the type of arrangement which springs up where traditional sources of funding are unavailable because of the unpredictability of a return on investment, this tells us something about the lack of legal certainty available to litigants in this area of law.

Still, its a problem most of us will never have. For most of us legal certainty means the sure knowledge that our fortune is so small it is scarcely worth the legal fees. I wish my spouse or I were wealthy enough for hedge funds to be interested in taking a punt on one of us should we ever fall out. You’ll excuse me for being such poor company – I’m still getting over the disappointment of having had four numbers in Saturday’s draw only to find that my other half had read out the numbers for Wednesday’s draw. Does that count as grounds for divorce? Can I run it as conduct? Anyone fancy my chances?

I have just taken time out in between briefs to watch Lilo & Stitch whilst feeding the boy his tea. I confess that I had one eye on the tv and one on the tuna sandwiches that were being liberally smeared all over the high chair and his face, and that were threatening to come in my direction, so I may have missed some of the detail. But it still made me cry - just a little bit. But then I am a sap.

Lilo is a Hawaiin orphan being raised by a struggling older sister. She is bullied at school and displaying alarming behavioural problems including violence against her contemporaries. She is odd and sad (she explains to the other girls at school that her home made green doll’s head is oversized because it is full of insects – she is shunned). She is at risk of removal by the oddest ex-CIA social worker / man in black I have ever seen and apparently the sisters are left to fend for themselves with no help or support at all. And then they adopt an odd looking ’dog’ Stitch, in fact an alien experiment programmed to exhibit destructive tendencies but who longs for a family to belong to. I don’t really understand how the squalid living environment, near death through negligence and demonstrably poor behaviour management techniques are miraculously overcome by the simple concept of ‘family’ (the Hawaiin word is ‘Ohana’ meaning family, and the concept that nobody gets left behind) nor how the house that was blown up by aliens is rebuilt in a mere blink of an eye (although I think that may have been down to some kind of alien wizardry). But somehow it turns out ok and the family lives happily ever after with Lilo and Stitch, big sis and random male friend who is good at surfing who appears towards the end I think just to make it more of a conventional sort of unit. But it was a touching movie with a refreshing glimpse of the sadness and oddness of children who live with fractured families and loss. But at the end of the day although Lilo is a wierd kid, she is still a cartoon and as cute as a button. Not all survivors of difficult home scenarios are quite so appealing. And sometimes someone is left behind.

Gee I should really lighten up….[Sighs....and gets back to work]…

No, you are absolutely right. We have spent years acquiring expertise, passed up the opportunity to earn three times as much money in any other area of law you care to choose, regularly work into the night reading graphic details about head injuries and abuse and neglect, and spend 50% of our time telling our feckless clients a few home truths and putting up with tears and swearing and storm outs, all because we don’t give a **** about the children. I’m sorry if I sound a little facetious but really! I can’t THINK of a more stupid job to do if you hated children. If I really hated children I’d go and be a teacher or something.

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I do despair sometimes when a children’s guardian can say such a thing to the lawyers in a case. I understand why these things are said, but still. It’s a little insulting and a little upsetting.

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But there is a serious point here. Simply because counsel acting on instructions of their client, say the mother or father in care proceedings, pursues an appeal on fairness grounds which will cause delay in a case where the Guardian is clear in her own mind what the outcome should be – does not demonstrate the callousness to the best interests of the child that the quote might suggest.

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For what is fairness if it is not something applicable to all parties? If a parent seeks a step to be taken in proceedings to enable them to have a fair trial this may well cause delay but this does not necessarily mean that such a course of action is not child focussed. Delay is better avoided, but an unfair trial is unfair for all concerned. A gap in the evidence that prevents a parent properly pursuing their case for return of their children is a gap in the evidence which has prevented a child from having as good a chance as possible of going home to their family, which increases the risk that they may be avoidably adopted. And a trial which is rushed through to avoid delay at all costs may end up being postponed or appealed and reheard to ensure that it is done thoroughly and fairly – causing unnecessary delay and heartache for all concerned. And then there’s the worst case scenario – a trial that produces the wrong outcome for a child that is not rectified on appeal.

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Lawyers understand this whoever they are acting for and whatever their silent views of the merits of their clients case. What some professionals interpret as not caring is no more than our professional ability to take a step back from making judgments about what is or is not worth delaying matters for, and focussing on preparing the case properly so that the judge who has to make the final decision can make the right decision first time round. It is not easy for professionals of any discipline involved in these cases to maintain a professional distance, and it is particularly difficult for social workers and Guardians who are specifically tasked with making recommendations to the court to feel anything but frustrated waiting for their considered views to be acted upon by the court at trial, but the court framework is overlaid upon the social work role for a reason – to protect families, and to protect children. The lawyers are not working against that aim, they are a vital art of the process of getting to the right outcome.

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Some cases admittedly look so hopeless or pointless or inevitable that everyone concerned feels that they are going through the motions. But in cases like that I remind myself of the cases I have dealt with where I have found myself succeeding on what I have told the client is a completely hopeless case. That’s neither a mark of my brilliant advocacy skills, nor of my poor judgment – it is a demonstration of the importance of the judicial process.  

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So to go back to the question – for my part I think about the kids all the time. How could one not? But then I get on with giving sound advice and acting on my instructions, and put my faith in the court to work out the right solution.

Listened yesterday to the Jeremy Vine show on the way back from court (tenuous link with family law). Not my favourite radio show, but yesterday dealt with the novel idea of paying bipolar and schizophrenic patients to receive their medication by way of regular shots. It received a largely ‘disgusted of Chingford’ response as one might expect from the listeners of daytime radio. But actually what struck me was my own instinctive discomfort at the notion of coercing someone into taking medication that may significantly affect their functioning by financial means. Many – most - patients with enduring mental health problems of this kind are financially vulnerable, and a reluctance to take the medication which can render them dopy and affect their memory and intellectual functions, is to some extent a feature of conditions of this kind. For some the cure is worse than the disease – and a period when well and unmedicated is worth (at the time at least) the inevitable mania or relapse which will follow at some stage. Whilst it is easy for an outsider to say that it’s ‘better’ for someone to be compliant with medication for the sake of reducing risk, it must be very difficult to accept medication which has a tendency to turn you into a zombie (albeit a safe zombie) when apparently well. To persuade yourself that you will recognise the signs of relapse and take the risk in pursuit of ‘normal’ or socially acceptable functioning is understandable. I’m not saying the pilot scheme discussed on the show is wrong, but I do think it would need stringent safeguards in place in order to be morally appropriate.

Equally unpalatable is the report in the Times earlier this week that members of the public will be paid to monitor a network of CCTV cameras over the internet to spot crime. Nosy neighbours from hell…

It’s all about money ain’t it? SIGHS.

Fatimah Miah is a mother recently acquitted of the charge of manslaughter in relation to her baby son who died in May 2007. The Telegraph reports here that she is to make an application to the High Court for the return of the baby’s three siblings who are now in care.

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Of course the mere fact of her acquittal is in itself not enough to secure the return of the children. The family court within care proceedings will have heard evidence, including medical evidence, and most likely made a finding of fact that she was more likely than not the perpetrator of the non-accidental injuries to the child. In order to secure a return of her children she will have to go further than persuading the court that the evidence is insufficient to be satisfied of her actions to the criminal standard – she will need to persuade the court that the new evidence she seeks to rely upon is such that the balance of probabilities now falls in her favour. It is quite possible that whilst evidence is insufficient to secure a conviction in criminal the same evidence can be sufficient to satisfy the lower standard of proof in civil and family proceedings. And before the court will re-open the findings made in the family case it will need to be persuaded that there really is important new evidence that may well undermine the findings.

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It is impossible to tell from the reported material whether any of this is likely to happen, but one thing is for certain – seeking the return of children in these circumstances is a road fraught with potential difficulties even if one is armed with an acquittal. And even more so if the children have already been adopted.