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Family Law Journal: May 2013

Elizabeth Isaacs QC highlights new challenges to local authority childcare decisions

Childcare practitioners, whether in private practice or working within local authorities, will already be familiar with the multitude of local authority decisions that are open to challenge. However, recent policy and legal developments culminating in the Children and Families Bill 2013 (CAFB 2013) (due to be enacted in April 2014) suggest that the scope of challenge is only likely to increase in the near future.

Hazel Wright explains how the court is seised of a matter and issues regarding international service

Many of us work with international cases. We are used to different concepts applying in different jurisdictions. We know that the first thing to do if you are contacted about a possible new case with a connection with another EU jurisdiction is to consider which laws apply, and which country’s laws will best help your client. If proceedings have already been issued, then there may be no further consideration of which jurisdiction works best in your client’s situation. If there is still time, and you have contacted a local lawyer in any other possible jurisdiction, you may need to act quickly.

KBW Chambers

Olivia Checa-Dover and Deborah Smithies assesses the varying rights to be balanced when considering witness anonymity

From time to time, in cases involving residence and contact arrangements for children, an allegation is made as to a parent’s conduct, either towards the child or children in question or towards a third party. Whether or not the allegation is made out is often highly relevant to the issues the court is asked to determine. These cases are difficult enough where the allegation is made by a party within the case, but a particular difficulty is presented where the allegation comes from somebody outside the case who wishes to remain anonymous.

Toby Hale discusses key areas of best practice for client care and complaints handling

Family clients complain: this is a fact of legal practice and, in mixed discipline firms (such as the author’s), complaints about family work are over-represented. Recent research tells us that clients in general are likely to be dissatisfied with the advice and representation they receive from family solicitors. Does this mean that family solicitors in general are less competent, less client centred and more likely to give a poor service? This seems unlikely. Conversely, does this mean that the nature of family work and the nature of our clients are such that complaints are always going to occur at an above-average rate and there is nothing we can do about it?

David Lister looks at a recent Schedule 1 decision and compares and contrasts A v A costs allowances with the new legal services orders

In the Schedule 1 case of PG v TW (No. 1) [2012] Theis J made an order in favour of the applicant for an A v A [2001] costs allowance order, payable by monthly instalments, to meet the applicant’s legal fees. The order was made partly to encourage the respondent to negotiate, and thus avoid the cost associated with a trial and is an example of how our path towards the new world in which we practice seems at times unclear. The decision in PG v TW (No. 1) predates the introduction of legal services orders under the new s22ZA inserted into the Matrimonial Causes Act 1973 (MCA 1973) by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) as from 1 April 2013. This article will consider the similarities, and differences, between A v A orders and legal services orders.

Sarah Greenan examines equitable accounting and the circumstances in which an occupation rent may be payable

Amy and Phil split up nearly a decade ago. Phil stayed in the house they owned with the two children, who were at secondary school. Amy moved out to live with her new partner. She felt guilty about what she had done, and she didn’t want to do anything about the house while the children were still at school and then at university. When the younger child was in his final year she approached Phil and tried to discuss what should happen to the house and how she might get her share out of it. To start with he was dismissive: ‘What share? You just walked away from it. You went off with him while I had to keep everything going.’ Then he calmed down and agreed that they would get a couple of marketing valuations and try to agree what her share was worth. Two different agents came around and both quoted about the same figure. Her share was worth about £70,000, taking into account costs of sale. Amy thought it was all going to be sorted out. But now Phil has told her that he wants to deduce from that one half of all the mortgage payments he has made since they separated. That comes to over £20,000. Amy doesn’t think this is fair. Her new partner and she have bought their own place, but his ex-wife had kept his former matrimonial home, and Amy had no capital, so they have a large mortgage to pay. Why should Phil get credit for half the payments he had made, when she has been paying more than he has to keep a roof over her head?

Joanna Pratt and Kirstie Law consider procedure and case law on defended divorce and whether reform is long overdue

Family lawyers will be familiar with providing reassurance to their clients about the rarity of defended divorces. Most follow the good practice of sending a draft of the proposed divorce petition to the respondent in advance of issuing so that any particular objections can be dealt with, and the petition amended if appropriate. In a behaviour petition it is also good practice to limit the particulars to four/five brief sentences, taking care to make them as anodyne as possible, without being so anodyne that the petition will be rejected entirely. The latter is subjective with some district judges arguably having a more blasé attitude than others.