- Lewis Hulatt, South East Consultant with Major Family Law, the best divorce and children lawyers, comments:
It must be nearly Christmas for real – not the phoney Christmas created by supermarkets which these days is interrupted by Halloween. Trick or Treat? I have never been sure that criminal law is suspended on October 31st so demanding (sweets) with menaces, assault (causing fear of battery) or behaviour likely to cause a breach of the peace (annoying grumpy householders) are equally to be punished as administering noxious substances (covering Brussel sprouts in chocolate) or threatening behaviour (answering the door with a real axe in hand) [Query to self is that going too far?]
Halloween is supposed to be ghoulish and celebrate the Dark Side, whereas Christmas falling close to the winter solstice is meant to bring us cheer and the celebration of hope and light as the length of night gradually recedes. You have got to give the established church credit for choosing a good date for a focus for hope.
However, modern Halloween is probably more light-hearted than most people feel about Christmas.
Christmas is a pressured time – there are the practical and family-political arrangements to make (who gets Great Aunt ‘Smelly’ Nelly this year?) and having the glory of carving the turkey should be earned not expected simply due to alpha-male virility. Inviting home a group of golfing buddies or hangers-on from the rugby club without consulting the cook is not going to earn a husband any Christmas treats. Equally, failing to disabuse the children that anything they ask for is up for discussion may not be diplomatic when unexpected bills have shrunk the funds available. Pressure comes from many places – wanting to please families and friends, practicalities that involve time/effort and financial pressures.
Where there is pressure, there is scope for conflict and failing to think about or discuss the allotment of finite resources such as money, time or emotional energy makes it more likely that a couple will look back with regret over the fouled-up turkey or dog’s dinner of a Christmas pud. The pressure to have ‘a good Christmas’ is not restricted to Santa’s elves, so when it fails to meet expectations, it is a source of dissatisfaction generally and the other person will often be blamed. “That’s the last Christmas I put up with him/her…”
There is still time to discuss arrangements before the pressure builds up.
Earlier this year, the fee payable to Her Majesty’s Court and Tribunal Service to issue divorce petitions rose (virtually overnight) from £410 to a whopping £550. The House of Commons Justice Committee recommended that this increase should be rescinded, a recommendation that the Government has rejected. In its response to the Committee’s recommendations concerning court and tribunal fees, the Ministry of Justice said:
“Help is available to those who qualify under the fee remissions scheme, known as Help with Fees, which helps to ensure that those who are unable to pay are not denied access to justice. In the circumstances of a divorce (or any other matter where the parties have a contrary interest in proceedings) the applicant is assessed on his or her own, rather than the household’s, means. On this basis, women are more likely to qualify for a fee remission than men.
The new fee of £550 for a divorce came into effect on 21 March. Although it is too soon to draw any firm conclusions, there is no evidence so far that the fee increase has led to a fall in applications for a divorce. We are continuing to monitor the position carefully. Overall, we believe that the fee for a divorce is reasonable when considered against the objectives, generating an estimated £12 million per annum in additional fee income as a contribution to the savings required to make sure that the courts and tribunals are properly funded, and that access to justice is protected.”
Bob Neill MP, Chair of the Justice Committee, said the following in relation to the Government’s response:
“It is disappointing that the Government Response is so negative in respect of the Justice Committee’s recommendations; perhaps more concerning is that it is almost offensively perfunctory, appearing to have been rushed out at short notice and giving little evidence of attention paid to the Committee’s detailed evidence and analysis. This is all the more surprising given that Government has had more than four months to produce this reply. I therefore intend to raise this matter and possible further steps with the Committee at our next meeting.”
The European Commission has proposed a new Regulation to replace the wordy but well known (to family lawyers at least) Regulation 2201/2003 which is more commonly known as Brussels IIa. This is the law which deals with cross-border family matters and is adopted by EU member states. It is known mostly for its use in determining which member state has jurisdiction to hear a family law case in instances where this may be disputed, together with its use in child abduction cases. The EC proposals aims to provide clearer deadlines for certain procedures.
Notwithstanding Brexit, Sir Oliver Heald (Minister of State for Courts and Justice) noted in a written statement to the House of Commons that Brussels IIa has applied since 1 March 2005 and is the main instrument for families involved in cross-border divorce or children proceedings. It establishes rules to decide which EU Member State’s courts can determine divorce and other matrimonial matters, and parental responsibility matters (including residence and contact), and how orders arising from these cases can be recognised and enforced in another Member State. It also provides rules on the return of children abducted to, or wrongfully retained in, other Member States (usually by one parent), which supplement the international 1980 Hague Child Abduction Convention. He added:
“Following an evaluation of the current Regulation the Commission’s proposal aims to improve its use by providing clearer deadlines for certain procedures; making it easier for judgments to be recognised and enforced in another Member State; clarifying and streamlining certain parts of cross-border child abduction proceedings; removing the possibility that a court will refuse to enforce a judgment on the basis that it would have applied different national rules to whether a child should have been heard in the proceedings; and clarifying and improving the procedures for cooperation between authorities. Notwithstanding the result of the referendum on EU membership the Government considers it is in the UK’s interests to opt in to this proposal. Firstly the UK already applies the current Regulation to the benefit of UK citizens, including children, in cross-border families, and it wants to avoid the risk that, if the new Regulation comes into force before the UK’s exit, and the UK has not opted in to the Regulation, the existing Regulation will no longer apply to the UK because it might be deemed inoperable. This might mean for a period of time no EU instrument regulates these matters for UK families even though the UK is still a Member State. Secondly, even after a UK exit the Regulation will affect UK citizens, principally in other Member States, and it is in the UK’s interests to influence the negotiations. As a family justice measure, this proposal must be agreed by unanimity in the Council.
During the negotiations the Government will aim to make sure that what is agreed respects national competence, limits any impacts on domestic law and procedures and minimises any additional burdens on the courts and the authorities that will use the new Regulation.”
Our cable box records ‘suggestions’ and whilst it routinely fills up the 50 slots inappropriately, it also finds shows that intrigue. As part of our deliberate viewing includes ‘First Dates’ in which hopefuls of all ages veer between enchanting and excruciating, it recorded ‘Naked Attraction’ a dating show where Anna Richardson presents the singleton with six naked persons. Each datee is initially shown from the waist down and they are gradually eliminated as more is revealed to the dater. When there are two, the dater also gets ‘nekkid’ before the choice is made. At home, we often guess wrongly.
A little of the date (clothed) is shown and then they are interviewed. Such meat-market selection does not seem to be particularly successful: recently one candidate did not even turn up for the interview, much to the embarrassment of the dater. I don’t recall such lack of cooperation on ‘First Dates’ or on the rare occasions we have seen ‘Take Me Out’. I had not heard Paddy McGuinness announcing ‘Let the terrier see the rats!’ until after I saw on Facebook that a couple of friends of a friend had been on. Baring your butt on TV is one thing (exhibitionism), but it seems only a fraction as humiliating as being on Paddy’s show: whilst the women may start with control of the button for ‘No likey, no lighty’ there is a whiff of desperation when the table is turned and the guy extinguishes the lights of hope, leaving one (relieved) datee to go on a trip to the eternal sunshine ‘Isle of Fernando’s’ (Puerto de la Cruz, actually). Post-date, McGuinness could have added some vintage cheese with ‘Have you flown in from Paradise?’ to elicit ‘Nah – Luton Airport!’. I heard that a lot when I went away to college – slightly less refined that my friend Julia’s ‘Surrey’ which used to get ‘I’ll repeat that for yer me duck’…
Whenever you hear ‘She’s a great gel…’ or ‘He was a real gentleman…’ you know there is going to be a ‘but’. In the case of ‘Naked Attraction’ the difference is that you have seen the butt already.
Anyhow, trash-TV apart, whichever way people go about choosing a partner, it sometimes does not last forever. We family lawyers can sort out the legalities when it doesn’t.
I have no idea what is taught in school as to ‘morality’ these days. It seems unlikely that many of us have gone through the Sister Act experience of earnest matrons lecturing us on ‘sin’ or enduring a brutal masterclass in punishing bad language such as Kathleen Freeman gave as The Penguin in ‘The Blues Brothers’. Of the two, I prefer Dame Maggie Smith who was clearly a superior Mother. Dame Maggie always brings something to the part and starting out unsympathetic, she discloses an underlying wisdom and understanding of worldliness which she applies for the benefit of others including Whoopi Goldberg’s nun on the run, novice Sister Mary Clarence. Both films are good clean fun – sort of!
It being about 40 years since I had RE at school under our own Penguin, I am a bit rusty on The Seven Deadly Sins and had to research them.
Pride, Greed, Lust, Envy, Gluttony, Wrath and Sloth can endanger relationships: I probably mentioned an amicable divorce I handled where sloth was to blame – not the Gogglebox Sloth (Neal), but the inattention that the husband embodied in not being bothered his wife was off getting a bit of Lust providing she didn’t distract him from defeating the end-boss when she came in. There is tolerance and there is indifference. One ‘sin’ begat another, but they showed some virtues too and were a likeable un-coupled pair.
Not as well-known as the Dark Side’s Seven Deadly Sins, the counterpart Seven Heavenly Virtues are the Cinderella Brides for Seven Brothers.
Owing to their innate niceness, the Virtues smile fondly at the more famous Three Graces who always get the limelight prancing around in gauzy costumes. Such is their modesty, I had to look up the Virtues and found them rather pertinent to sustaining a healthy relationship – so the Seven are:
Chastity consideration in sexual conduct and health
Temperance not ‘losing it’
Charity not just about money – generosity of attitude and tone
Diligence being supportive
Patience tolerance – forgiveness
Kindness unselfishness – empathy
Humility self-honesty – open-mindedness – valuing others – doing what it takes
Put that way, the Seven Virtues sound positive and modern thus not a girl group for Simon Cowell!
The Seven Virtues – coming to a good relationship near you!
I was not much of a watcher of US sitcom ‘Friends’. I vaguely recall non-stop ‘hilarity’ announced by either an over-enthusiastic studio audience or a much-valued laughter track.
Back in the day, late-night radio presenters survived on provoking callers into killing dead-air by encouraging tin-foil hatters to express their obsessions and delusions and whilst Trevor of Dulwich or Edna of Ealing may have been happy to consider themselves ‘a friend of the show’, the laughter was ‘at’, rather than ‘with’ them. The radio presenters may have sounded ‘friendly’ but they were not ‘friends’ any more than the cast of the sitcom had to be anything more than work-colleagues. Business is business and laughter is often at somebody else’s expense.
Real ‘friends’ are the people who have earned the right to be honest through being supportive, but when a relationship has broken down, even good friends can call it wrong. People outside of the relationship do not always recognise the dynamic and often do not understand what their friend ever saw in Miss X or Mr Y. It is not just a case of not knowing the secrets of the bedroom (which sometimes explains a lot!), but even old friends may not understand the dynamics of their friends’ relationships and even less be able to take into account feelings which may not be clear even to the person undergoing them.
In all that uncertainty and confusion, what helps?
‘I told you so!’ ‘She was never good enough for you’ and ‘I didn’t like to say, but he…’ are probably some of the least helpful things. Saying what we think the person wants to hear – to validate their ‘rightness’ and their partner’s ‘wrongness’ at the end of the relationship is rarely the action of a good friend. As a family lawyer, I give people the opportunity to express their ambivalence and uncertainty and I strive to never put people ‘on a conveyor belt’ where they start by asking about their situation and end up with a Decree Absolute in their hand in a lonely room. Clients need to be making their own decisions and if they attempt reconciliation, they do not want the shame of doing so after all their friends have bad-mouthed their once-again partner.
Listen and remember that whatever you think, they might want to get back together.
A friend has two good ears and one cautious mouth.
At the weekend, I went to celebrate the wedding of a young couple setting out on married life for the first time and I was there as a guest through my wife, so did had met very few of the people before. My ice-breaker was my confession that I was a divorce lawyer and one couple, contemplating re-marriage asked me about Pre-Nuptial Settlements. Now that the inclination of the courts is to accept such settlements as binding if they are fair and meet certain other criteria, we see an increasing number of people asking about them – both Pre-Nuptial Settlements for people contemplating marriage and Post-Nuptial Settlements for married couples who want some certainty about what should happen if they were to split. Indeed, I took instructions only last week for a Post-Nuptial Settlement for a couple trying a reconciliation, but wanting some certainty should it be unsuccessful. I am hoping that for them it will be an easier discussion in an atmosphere of hope, than one taking place amid the emotional devastation of irretrievable breakdown. One of the helpful aspects of settlements is that it can lessen the hostility of adult children to their parents’ spouses: often children are defensive of their parents and want to protect them against exploitation as well as protect their inheritances. I was consulted for that reason a couple of years ago and the re-marrying older couple eventually decided to make their wishes known by letting the children see their Wills, but in my professional opinion a Pre-Nuptial Settlement would have been better, even if more expensive.
My wife cut her thumb so badly she needed hospital treatment last week and on returning to work with bandaged hand, the teenager she was helping had the first reaction of ‘How are you going to text?’ rather than worrying about the pain. Anyhow, one pleasing aspect of the reception was that people were only using their mobile phones to take pictures and even that mainly of the couple’s first dance, cutting the cake and suchlike. For a crowd of tech-savvy people, many younger than myself, it was a refreshing change that people were engaging with each other.
We do Settlements for conflict reduction or avoidance and wish the couple well. If it goes well, John and Sam will have their silver wedding when we have golden.
Any photographs purporting to show me Gangnam Style might be faked…
The Summer is drawing to a close, holidays have been taken, the football transfer window has closed, the lighter nights are gradually drawing in and the school run has been added to traffic flow. I guess I shall soon be back to the gym rather than striding across the Common or out-pacing narrowboats in the Summer breeze.
So the Autumn – season of mellow fruitfulness – has arrived. The Americans with their no-nonsense approach, call it ‘fall’ to remind them to dodge leaves and fruit. ‘Dodging fruit’ is a transatlantic sport it seems, but their main course portions make up for it. Travellers’ Tip: it is always worth spotting the proportion of American tourists being catered for before deciding on what to order – what to us Brits might be noodles for a table of four might be regarded as a single portion, as I once discovered. Would it be followed by a wafer-thin slice of peach? “Fall Off!” or something similar emanated from the Creosote party of diners. But enough of fruit-dodgers.
Family lawyers have long conditioned themselves to expect two or three peak times for new enquiries: September, when the children are back to school and the memory of a miserable family vacation is fresh; January, when the family have been crammed together, over-stuffed and the relationship feels like a ‘turkey’ and there is a minor surge in February, when crass commercialisation has surrounded the 14th February with a sea of pink schmaltz, much to the annoyance of those for whom their relationship fails to sizzle, sparkle or steam. More ‘Gone in Sixty Seconds’ than ‘9½ weeks’ those domestic dossiers could not even be ‘sexed-up’ by Tony Blair on a mission for Bush. More black armband than little black book, February like those other pinch-points in the year usually see an increase in enquiries.
‘How do I stand?’ is a common enquiry at such times, falling on family solicitors’ ears like the ‘Are we nearly there yet?’ of a few weeks before.
Avoiding trite responses to such questions is a mark of professionalism. We have a complex system in which subjective ‘fairness’ is recognised as being more important than mathematical certainty and it requires nuanced thinking to deliver such outcomes. Responsible lawyers do not promise outcomes, but comprehensible evaluations, tactical experience and diligent approaches.
In our ever shrinking world, many families have close connections with more than one country. As a consequence of this, together with other reasons such as career prospects and lifestyle choices, there is considerably more movement of international families. Those seeking to emigrate or relocate often receive advice from numerous and various agencies such as the Government, migration agents and lawyers.
If a separated parent is seeking to relocate and move abroad permanently with their child(ren), they will be swiftly advised that they must legally have the consent of the other parent – or the permission of the court if such consent is not forthcoming. However, parents seeking to relocate are rarely advised that following the relocation, they might never be allowed to return home with the children. A desire to return home could of course be for any number of reasons although the most common would appear to be in the event of the parents subsequently separating or if one party wishes to stay whilst the other wants to go home; in such circumstances it can be incredibly difficult, if not impossible, to be allowed to return home with children. Thousands of parents across the world are currently experiencing these difficulties.
International law provides that when you arrive in a new country with the intention of staying there, the “habitual residence” of your child changes to the new country. Accordingly, unless the other parent provides permission for the children to be taken back home, an application for permission to relocate again must be made to the local court (the court in the country which you now reside). The laws governing how a court treats such an application varies widely from one country to another and specialist legal advice in that particular country will be required. It should not be assumed that the courts will readily grant permission for the children to return home again and the converse is often true in practice. For example, there are many instances of permission for the children to return home being denied in cases where the parent with care is fleeing domestic violence, or is in dire financial straits or even where the other parent is imprisoned. Again, much will depend upon the justice system in each individual country but a relocation application can take around 2 to 3 years to be dealt with and permission to return is by no means a given.
Needless to say, being stuck in a foreign country – and one which you do not wish to be in – is tough. It is likely that family members and friends who can provide support may be many thousands of miles away. Simply leaving and taking your children home is not an option as the removal of a child without the knowledge and consent of the other parent constitutes an offence of child abduction. There are 81 countries in the world which are signatories to the Hague Convention on the Civil Aspects of International Parental Child Abduction 1980. The purpose of the Hague Convention is to secure a common accord and aim that a child removed (or retained) across an international border without the consent of all parents who have the right in law (generally the child’s parents) should be speedily returned to the state of the child’s habitual residence to enable the court in that state to make a decision about the child’s future. Hague Convention proceedings are perhaps one of the few areas in international family law where decisions of the court and consequent action can be speedily taken; in addition to this, child abduction is a criminal offence punishable with imprisonment under the Convention; there are only narrow defences to a Hague Convention abduction which rarely succeed. Within Europe, the procedures and timetables under law known as Brussels II are even tighter and more vigorously enforced with less opportunity to oppose a return order. If a child is not returned, the courts of the country from which the child was taken can still make an order, known as a “trumping order”, requiring the child’s return. This order takes effect across Europe.
So, is there anything that parents can do to protect themselves in the event, for example, that one of them decides s/he does not like living in the new country but the other does or if relationship comes to an end? As with all important decision making processes, ensure you are armed with all information before you relocate and are therefore able to make an informed decision. It is strongly advisable that you and the other parent consider such issues before relocation takes place. Family mediators and lawyers will be able to provide further advice and aid discussions between you to ensure there are pre-agreed arrangements in place to cover the various scenarios that could arise. Although there is currently no “pre-migration contract” in existence, the organization Expat Stuck Parent is working to produce one which will be similar to that of a Pre-Nuptial Agreement. Although such an agreement is not currently legally enforceable in a court, it is strong evidence of the arrangements that were agreed to be put into effect in the event that one of the parents wishes to return home with the children. Whilst the interests of the individual children in every case are likely to take precedence, such an agreement is clear and cogent evidence of intention and undoubtedly significantly better than nothing. A copy of a potential contract, together with lots of other information about the Hague Convention and Expat Stuck Parents can be found at www.expatstuckparent.org.
Today marks my 30th anniversary of legal work: I started in September 1986, but like all the other ‘articled clerks’ of that time, I had my qualifications and these days would be called a ‘trainee solicitor’. Trainees had to be ‘articled’ (manacled?) to an experienced solicitor who had to take responsibility for them. Back then, it was a somewhat feudal relationship like being an ‘indentured servant’ but for those living in the modern world, it could be compared to being ‘vouched for’ in the Mafia, prior to becoming a ‘wise-guy’. On proving ourselves for a period of two years, instead of the button, we had Admission to the Roll. Modelled on the Rolls of Chivalry, I guess – champion knights, but without the chivalry: more often compared to White Company mercenary Sir John Hawkwood than Sir Lancelot. Instead of King Arthur, the Capo di Tutti Capi in charge of who is allowed to be called a solicitor is called ‘The Master of the Rolls’, which these days sounds like an achievement Paul Hollywood grants a handshake for in British Bake-Off.
I did indeed get a handshake – as we filed across the eponymous Law Society Hall I had my hand shaken by the President of the Law Society and a certificate which was, in keeping with my status, rolled up. I did my parents proud by managing to walk, speak and collect a piece of paper without tripping up.
I was officially a wise-guy.
Like something from Subway, I had been admitted to the Roll.
Whilst being a family lawyer can sometimes chew us up dealing with the stress of other people’s disappointments and emotional turmoil, 30 years of knowing that every case has an outcome helps.
Working remotely with a law firm 300 miles away is a far cry from learning to use the correct ribbon to sew documents together or wrapping documents in ‘brief-paper’ with instructions typed using extra-long typewriters before being correctly tied up with ‘pink string’. Back in my first firm, we had solicitors who were working into their 70s and 80s, so at least I was given realistic expectations of what might happen.
Thirty years on, a septuagenarian solicitor sitting in the office, listening to ‘The Archers’ and spending most of the day being brought cups of tea might not be expected, but if that ‘office’ is your home?