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Should Children Really Be Seen and Not Heard?

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The Children and Family Court Advisory Support Service (Cafcass) have recently reported that more than 100,000 children were involved in court proceedings in the past year.

When people, usually parents, involve the courts in relation to their children, Cafcass are automatically involved. Initially, their role is akin to triaging cases to identify those where the children are potentially at risk and in which they need to become more involved. Cafacss are also involved in cases initiated by the Local Authority where their concerns for a child’s safety trigger legal action independently of the parents.

Children do not appear in court in cases that relate to them. Children younger than 12 can have their ‘apparent’ wishes and feelings taken into consideration, as reported to the court by Cafcass. Very often it is reported that children display a clear sense of loyalty to both parents and feel torn.  After that age, they are considered (potentially) mature enough to able to express their views clearly enough for the court to place more weight on them but again this is always through the reports of the Cafcass officer.  Conveying a child’s wishes and feelings, in such a highly sensitive court process, is as difficult as it sounds.

It is widely considered by many judges and lawyers that hearing from children directly in cases would provide them with the voice that some crave, unfiltered by other professionals. Many children feel excluded from cases that will affect their lives fundamentally. Some argue that this exclusion may be seen as a breach of their human rights.

Since 2010 a working group of senior judges had investigated how it might be possible for children to be heard in court cases. Liberal Democrat Simon Hughes, who was then Justice Minister, promised to change government policy. But earlier this year the Ministry of Justice admitted that the plan had been shelved.

In a recent interview with the BBC’s Today programme on Radio 4, Lord Justice Jackson discussed allowing some children to meet the judge. He was clear that it would not be suitable for all children. Indeed, all cases involving children have focused always on the child, and if meeting the judge would be harmful, it should not happen:

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Family Law - Impact of FDAC Unit Announcement

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Tracey Crouch, Minister for Sport and Civil Society announced that the FDAC National Unit (Family Drug and Alcohol Court) will receive £6.2m from the government’s Life Chances Fund.

The FDAC teams are currently working in 12 Courts, covering 15 local authorities - these include Kent and Medway, London, East Sussex and Gloucestershire to name a few. The FDAC works with a number of local authorities to sustain or establish their service to society.

These problem-solving Courts were initially pioneered by Michael Gove during his time as Justice Secretary. Funding for these specialist teams comes from local government’s Children Service Departments and family practitioners across the UK hope that they will have a significant social impact.

In a recent announcement, Crouch stated: “The UK is a world leader in using social impact bonds to make a positive impact in society, and these projects which will achieve real results in communities across the country”.

Research conducted by a thinktank highlighted that the public sector saves £2.30 for every £1 spent on a pioneering Family Court. Justice Minister Mr Dominic Raab said recently that “he was delighted that more families will have access to Family Drugs and Alcohol Courts in an attempt to turn their lives around.” It is anticipated that this sizeable investment by the government will lead to a number of care days being saved. 

The Court system is currently significantly overworked, particularly in relation to children care cases which is having an impact across the Family Courts. It is hoped that this recent announcement will assist both families and lawyers across the UK. 

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Good News from the City for Property Investors

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Despite the uncertainty over Brexit, foreign investors are still keen to invest in the City. We take a look at the latest property investment deals and what it means for its neighbours.

Whichever paper you read the outlook for the economy looks uncertain. However, and possibly due in part to a weakened pound, the commercial property market in central London has defied expectations of a Brexit downturn and has attracted a good level of investment.

Savills noted at the end of August that over £2.4bn was invested in commercial property in July. Total turnover for the year to the end of July was £11.5bn.

Real estate consultancy Cushman Wakefield reported an increase of £1.38bn in commercial property investment in central London in the first half of 2017, compared to the same period in 2016. Much of this has been from overseas, with Asian investment in central London being at its highest since 2012.” Investment has in fact reached £4.07bn – making up 46% of the central London market.

Notable acquisitions in the city include The Cheesegrater and Walkie Talkie building on Fenchurch Street, which was sold to a Hong Kong-based company.

James Beckham, Head of London Capital Markets at Cushman Wakefield Asia Pacific said “investors are set to continue with strong ongoing interest in assets right across the risk spectrum.”
There has also been an increasing interest from European investors. Four deals valued at over £200m in the City were by European investors, of which three were German including the acquisition by Deutsche Asset Management of 2 & 3 Bankside.

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Is Your Child at Risk of Domestic Violence?

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The Family Court has issued new guidelines for dealing with cases issued under the Children Act 1989 concerning a child where there is an allegation of domestic harm and/or violence.

The phrase ‘domestic abuse’ is very widely defined and is not limited to physical abuse.  It can include psychological, social, financial or emotional abuse and includes forced marriages or abandonment, coercive and/or controlling behaviour and ill treatment.

The Court will consider any form of domestic abuse as being potentially harmful to the child and/or where it puts a child at the risk of harm.  This can include not only domestic violence directed at the child, but circumstances where the child witnesses one or both of their parents being violent or abusive to the other. 

Children may also suffer direct physical or psychological and/or emotional harm living with parents who have a history of domestic abuse.

The Family Court will seek  to identify any such issues at the outset of proceedings and ensure that any application made under the Children Act 1989 by a parent is conducted in such a manner as to ensure that a child is safe from exposure to such abuse.

The Court will typically not make any order before an initial ‘Welfare Report’ has been carried out. This is usually done by the reporter speaking to both parents and checking for any criminal record or past involvement of Social Services.

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Prenups – a Matter of the Head or ‘Hart’?

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The number of couples considering a prenuptial agreement is expected to rise after the Court of Appeal dismissed a woman’s request for her and her ex-husband's assets to be split equally.

In the case of Hart v Hart, His Honour Judge Wildblood QC awarded Karen Hart just £3.5m out of the total assets amounting to just under £9.4m in a financial remedy order made in June 2015. This unusual ruling wasn’t as a result of a ‘short, sharp’ marriage as documented previously, as the couple’s marriage spanned 23 years.

Karen Hart’s solicitor said the settlement 'should have been based on an equal sharing of the assets they created between them during this time', and the recent ruling 'leaves the law in a state of flux. It allows a trial judge to find that even where it is not properly evidenced, the financial contribution of one spouse outweighs the family and domestic contribution of the other. This can lead to a result that is unfair and discriminatory, as it has done in this case. More such results are likely to follow, with the potential to set the law back more than 20 years'.

Regardless of whether this latest ruling will indeed set a precedent for financial remedy cases moving forward, it will no doubt make couples who are looking to wed in the near future think about their financial assets, and how best to allocate them should the worst occur by drafting up a prenuptial agreement.

 

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For more information relating to divorce law, prenuptial agreements and how Pinney Talfourd can help, please contact our Family Law department - call on 01708 229444 or email us using the form to the right to arrange a free initial consultation.
 
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Between a divorce rock and a hard place – Owens V Owens

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The impending divorce of Mrs Tini Owens and her husband Mr Hugh Owens is in the limelight once again following an appeal to the Supreme Court.
 
Since her initial case for divorce was dismissed by senior judges, Mrs Owens has been given permission to appeal her case to the Supreme Court, the highest appeal court in our jurisdiction. The decision they make should now be able to put an end to the much debated contentious divorce proceedings within the UK.

Mrs Owens originally petitioned for divorce against her husband of 37 years on the basis of his unreasonable behaviour. Under the law in England and Wales, a petition on this basis is one of only two ways separating couples can commence divorce proceedings immediately. Mr Owens defended the proceedings which in itself is somewhat unusual.

Multiple court hearings have since followed and the court have found, to date, that the examples of unreasonable behaviour Mrs Owens included within her divorce petition are not enough to satisfy the threshold, trapping her in what she calls “a loveless marriage”. The Court of Appeal found that "Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be."

There is current debate surrounding whether there should be legislation to allow separating couples to divorce immediately on a ‘no fault basis’. The idea is that this would enable couples to engage in the divorce process on a more amicable, less confrontational basis and would hopefully avoid the type of litigation Mr & Mrs Owens have had to endure.

The case demonstrates that it is vital to seek legal advice at the outset of separation to ensure that unnecessary, costly and stressful litigation can be avoided. 

 

MORE INFORMATION 

For more information relating to divorce law, finances and how Pinney Talfourd can help, please contact our Family Law department - call on 01708 229444 or email us using the form to the right to arrange a free initial consultation.
 
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2017.
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A Short, Sharp, Shock for Married Couples

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A City trader has successfully challenged a divorce judgment awarding her ex-husband of four years £2.7m in a ruling that lawyers say ‘gives couples more to bicker about’.

Mr and Mrs Sharp were married for four years. They had no children together and both worked full-time earning approximately £100,000 per year each. Mrs Sharp, however, did receive significant bonuses amounting to over £10 million during the marriage. Throughout the course of their marriage, the couple kept their finances separate, although they did purchase property together and shared in the costs of acquiring and refurbishing those properties.

Upon Mrs Sharp finding out Mr Sharp was having an affair in 2013, she issued divorce proceedings and the financial elements of those proceedings were initially determined by the court in November 2015. The Judge decided that Mr Sharp was entitled to exactly half of the matrimonial pot, which amounted to £2.75 million. This decision was very much in line with the long-established sharing principle upon divorce. Mrs Sharp appealed that decision and argued that the equal sharing of the matrimonial assets, which were mostly built up by her, was unfair.

The Court of Appeal have recently found in Mrs Sharp’s favour and decreased the award to Mr Sharp to £2million, which is less than 50% of the matrimonial pot. This decision is a significant departure from the long-established principle of splitting the matrimonial assets down the middle upon divorce, despite the length of the marriage.

Lord Justice McFarlane, one of the three Appeal Court Judges, found that in this case there was no impediment to depart from the established principle of equal division and he concluded that in a short, dual career marriage in which the couple had kept their finances separate, it was indeed justified.

This decision creates further uncertainty in the law and conflicts with the general principle of an equal split upon divorce. This case concentrates on the fairness of the outcome in the circumstances of this couple’s situation and clearly reflects the position that the courts will not apply an automatic split down the middle in every case and that the couple’s circumstances must be considered in each and every case.

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London Reclaims Its Divorce Capital Crown

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A wife has been awarded a whopping £453 million in financial matters upon divorce; this latest case allows London to reclaim its crown as the divorce capital of the world.

The couple in the case have not been named but the full judgment can be reviewed AAZ v BBZ [2016] EWHC 3234 (Fam). They married in 1993 and had two sons. The wife was 17 years younger than the husband and was described to be a housewife and a hands-on mother during their marriage. The husband was a businessman with significant wealth. The husband sold shares for US $1.375 billion during their marriage and at the point of divorce, the wife estimated their marital wealth to be over £1 billion.

The Judge accepted that the total wealth of the family was wholly matrimonial and that it should, therefore, be shared between the husband and wife.

The husband, in this case, seems to have not done himself any favours by failing to attend at court for the various hearings. The husband did, however, rather fittingly given the wealth involved, appear at the final hearing by video-link from his yacht in the Caribbean.

London is well known for being the divorce capital of the world and women from all over the world seek to issue their divorce proceedings in London if they have sufficient links to the country to secure jurisdiction. The reason for this is that the courts in London tend to take a more sympathetic attitude toward housewives or stay at home mothers.

The law provides for a starting point, in line with the sharing principle, in long marriages of a 50/50 split of the matrimonial assets regardless of who earns the most. The court will also give consideration to the standard of living the family has enjoyed throughout the marriage when determining a financial award. This means for a stay at home wife, who has been married to a wealthy businessman for a long while, is likely to receive an award very close to 50% of the entire matrimonial wealth.

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