This review is a guest post written by  Zoe Saunders, barrister at St John’s Chambers, Bristol. Zoe has particular expertise in cohabitation disputes, including applications for financial provision for children and trusts of land issues, and financial remedies on divorce. You can also find Zoe on twitter (@ZASaunders).

Financial Remedies Under the Family Procedure Rules 2010 by Singer, Mostyn, Marks & Smith 

This is a really useful book for anyone who does what we must now call ‘financial remedies’ formerly known as ancillary relief. The commentary on each chapter is likely to continue to be useful long after one has gained familiarity with the overall structure of the news rules and for those who are not yet familiar with the new FPR they are a really helpful guide to the most important changes.

The book is clearly laid out with commentary on the relevant sections of the rules preceding the rules themselves. It is a neat volume which is much more portable than the red book. It is clearly aimed at practitioners but does manage to balance adequate explanation without being excessively detailed.

Purchase of the book (£95 from Class Legal) also gives you access to the www.familyprocedure.com website which contains the full text and updates. One minor quibble is that it would be useful to see exactly what has been updated without re-reading the whole section, but other than that it is a useful resource and means that you can access the text without the physical book, which can be handy for when other members of chambers borrow it without asking! In my view although expensive I think this book is a worthwhile purchase.

@eGlance

We also got access to the @eGlance site for which you can get a discounted 12month subscription on purchase of the book (£30 off the usual £85 cost).

@eGlance suffers from two major flaws – the first of which is that it is not Apple compatible, which in the brave new world of ipads seems to me to be a really fundamental error and one which I think the authors / publishers really should get a grip on as soon as possible. The second flaw it that the user-interface looks like something which was designed 20 years ago and hasn’t been touched since.

In my view these two errors run the risk of putting off potential users, which would be a real shame, because once you get past the initial impression and start to actually use the software it is really pretty impressive. It has pretty much everything you could really ask for in a programme designed to help with anything from big money downwards. You can print off information and calculations and I suspect that it could become a really invaluable tool, if you can repress the urge to snigger every time you load it!

Both the Financial Remedies book and the @eGlance software can be purchased through Class Legal.

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Fork tongued husbands be warned…

If that were a tale of the innocent deprived of their just deserts, this by contrast is a tale of a refusal by the courts to help an applicant for ancillary relief which is far less likely to arous you sympathy: this case of a paedophile convicted of sexually abusing his ex wife’s grandchildren is a rare example of conduct deemed bad enough to warrant the court refusing to exercise its discretion.

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Since 2003 the inclusion of a father’s name on the birth certificate is effective to grant him parental responsibility, and his absence will mean that he must either obtain the mother’s consent or apply to the court for parental responsibility. Often of course the main reason that a mother has failed to name the father on the birth certificate is precisely because she does not want him to play a part in the child’s life, including through parental responsibility and so more often than not the father will have to take the more litigious route. 

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The flip side of the coin is that inclusion on the birth certificate also triggers financial responsibilities to pay child support.

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However under the new proposals there will apparently be an element of compulsion applied to both parents: upon the mother to identify the father and for the father to sign the register. This is likely to have several ramifications as far as I can tell (assuming the requirements to identify and to sign are complied with):

• the grant of parental responsibility will go hand in hand with the responsiility to maintain financially – either both will apply or neither.
• mothers who wish to obtain child support will be unable (theoretically) to avoid the grant of PR by leaving the certificate blank. .

It is unclear how these requirements will be enforced. If a mother is determined not to identify the father or a father is determined not to sign – will the threat of a fine really make a difference? And according to The Times a sole registration will take place where obtaining the fathers details would be ‘impossible, impractical or unreasonable’ – including cases of genuinely unknown fathers or cases of abuse (does this mean in cases of children who were conceived by rape or is it more wide?). That is all well and good but doesn’t this provide a gaping loophole through which any mother who wants to can skip, and that renders the whole reform a waste of time? 

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I wonder how all this will work in practice? A birth certificate is a pre-requisite to an application for child benefit so whilst the registrar is messing about trying to locate the errant father so that she can finally issue a birth certificate – the child benefit payments are delayed. Of course all these things can be ironed out no doubt but this is just one of several ways in which this is a dumber and more complicated idea than it perhaps first appears.  

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And even if it is successful in its own terms – labelling parents as such and giving them theoretical responsibilities, what this law reform plainly will not change is the inability of the child support system to get blood out of a stone, or the difficulties in transforming the tage ‘parental responsibility’ into the ability to play a meaningful part in a child’s life in cases of implacable hostility. An ‘end to fatherless children’ as touted in The Times? I don’t think that’s very likely.

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In short, Heather Mills McCartney was awarded £24.3m inclusive – far far less than asked for and quite substantially less than some pundits had suggested. Paul apparently has an asset base of £400m. The award was based primarily upon need. This may have been a case involving extraordinary wealth, and for most of us £24m is in itself an extraordinary amount of money, but this was never going to be a case where anything like an equal sharing of assets was imposed, not least because the majority of the wealth in question was presumably treated as non-matrimonial.

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I know it doesn’t make for very good blog posting but I for one am relieved at the possibility that we may yet be spared the revolting prospect of picking through the entrails of the Mills-McCartney marriage, and of the media attacking Heather Mills-McCartney regardless of the merits of the case. In fact, even if the judgment is published in full, as Bennett J proposes (subject to what the Court of Appeal has to say about the matter) it is likely to be in neutral terms and confined only to what is strictly relevant to the s25 exercise. Given that we are told in the judgment summary that the Judge declined to hear evidence on issues of conduct one hopes there will not be too much for the press to get their teeth into, but no doubt they will suck the marrow from the very bones of the judgment in order to get one last story or insinuation out of it.
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What I’d like to know is who was responsible for the leak of the draft judgment last week that suggested in round terms that Heather was going to be awarded around £25m, bearing in mind that such judgments would usually only be circulated to the legal teams involved (or in Heather Mills McCartney’s case to herself as a Litigant in Person)? And more importantly, was anybody castigated by the Judge for such behaviour when judgment was handed down?
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UPDATE: lunchtime Tues. Heather Mills McCartney’s application for leave to appeal has been rejected by a 2 judge Court of Appeal. The judgment has been published in full – I have not had time to read it as I have to rush out and deal with more pressing matters (yes such things do exist), but you can find the pdf document here. All I can tell you (and make of this what you will) is that the word ‘unreasonable’ appears 16 times, ‘conduct’ a staggering 108, ‘contribution’ 19 times, ‘exaggerated’ 5 times, and ‘ridiculous’ once. ‘Husband’s case’ appears 8 times, whilst ‘wife’s case’ appears 20 – perhaps an indicator of a certain amount of judicial appeal-proofing going on? ‘evidence’ raises 76 hits, the one which caught my eye being at pa 16 where Heather’s evidence is described as inconsistent, inaccurate, less than candid and Heather as a less than impressive witness. Oops.
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I fancy I shall enjoy reading this later on, in spite of my noble protestations about the media frenzy above. Well, its been published now – it’d be rude NOT to read it, no?

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I shall enjoy reading this later on, in spite of my earnest protestations above.

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FURTHER UPDATE (Fri 28 Mar) Do you know what – in fact I STILL haven’t read the darn thing. Frankly, I can’t be bothered. I’ve heard it gutted on the radio ten million times and I’m utterly bored bored BORED with the whole caboodle.

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‘It is a matter of public interest to ensure that children are kept safe and have access to justice. There is a real and serious risk that vulnerable children and their families will be prevented from having full access to justice if these proposals are implemented because some decisions about taking proceedings in relation to vulnerable children could be finance led.’

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What is of course left unsaid is the sad fact that these decisions are – in some instances at least – already finance led. I would not go so far as to say that is is the norm., but I have handled several cases recently which should for the sake of the children have been care proceedings, but the court and the parties were left flailing without the support of social workers because the Local Authority was reluctant to issue and trigger more onerous duties to the family. The distinct impression one is left with in these cases is that the Local Authority prefers to avoid its more onerous duties to what might otherwise be accommodated children by persuading the more capable parent or a grandparent to seek residence orders, whilst at the same time attempting to maintain the view that the children have suffered or are likely to suffer significant harm (the threshold for initiating care proceedings). In at least one case I have dealt with this led pretty directly to the breakdown of a placement with extended family under a residence order because the Local Authority viewed the residence order as the end of the matter and failed to support the carer. In another it has led to the Local Authority failing to allocate a named social worker for sexually abused children even when the children’s Guardian was begging them to do so.

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Again, I think (hope) my experience is of isolated aberrations but it does highlight the potential for cash strapped local authorities and underresourced social work teams to make decisions about how they spread those resources between families on the basis of cost. I don’t know if certain Local Authorities have policies to push for private law orders (residence orders) where possible as a matter of course, but it does sometimes seem that way.

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This is something which frequently crops up on the margins of what we do at court, and often slips through the net. Kinship placements should be properly supported and often financial assistance is vital to ensuring that a placement does not fail. Most kinship carers are not legally represented and do not know what they are entitled to so it is often left to the parents legal representatives or the Guardian to remind the local authority of its obligations to help out with money in order to ensure that even if the child can’t be with the parent, they can remain securely placed with the wider family.

.UPDATE – yet another example of a local authority being caught out paying less than it ought.