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Family Law

The leading authority on all aspects of family law

Court of Protection Practice and Procedure Conference 2016

A comprehensive guide to best practice and current thinking

30 NOV 2015

PSL Essential Update - Notable November 2015

Amy Sanders

Professional Support Lawyer


PSL Essential Update - Notable November 2015

It’s that time of year when we’re on the warm up (or should that be down?) to the festive season but November has seen its share of action on the family law front. With some more big cases to be aware of, a few special occasions and a change to the Family Procedure Rules, the penultimate month has been Notable November.

No cost

From 2 to 6 November a nationwide celebration took place commending the range and impact of voluntary free legal services provided by the legal profession. National pro bono week which was sponsored by the Law Society, the Bar Council and the Chartered Institute of Legal Executives (CILEx) saw a range of events and talks take place to highlight the important work done by the profession to support those without access to representation.

We also dedicated our ‘A day in the life of…’ to some special people who are closely involved with pro bono work.

No love lost

It was international #LoveYourLawyerDay earlier this month – to be precise, 6 November (a date we should all put in our diaries). Initially established as ‘I Love My Lawyer Day’ in 2001 before progressing to national ‘Love Your Lawyer Day’, this year’s event has gone global with the help of twitter and the popular hashtag.

The American Lawyer Public Image Associationwent a step further and called upon everyone to rein in the lawyer-bashing jokes for the day or make a voluntary donation to a charity of their choice. We’re not sure if people exactly embraced the challenge or not…but either way, we like the sentiment behind it!

No return

A big case this month was Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 in which the President dismissed an appeal regarding a transfer of care and placement proceedings to Hungary under Article 15 of Brussels II Revised.

An array of points were covered in the substantial judgment, regarding jurisdiction, the scope of the Regulation, an evaluation of the relevant factors and the requirements of an Article 15 transfer. The President specifically addressed the delay in the proceedings, the Local Authority having taken over eight months from the children being placed in foster care under section 20 Children Act 1989 to the issuing of care proceedings.

The President deemed this an abuse of the procedure under section 20 and gave some strong guidance about the use of the provision together with a warning about the likelihood of Local Authorities finding themselves on the wrong end of a costs order if the advice went unheeded.

See also ‘“Foreign element” adoption: Re N’ by Claire Fenton-Glynn in December Family Law.

No liability

In Minkin v Landsberg (Practising as Barnet Family Law) [2015] EWCA Civ 1152 the Court of Appeal has given a judgment concerning a solicitor who was instructed to draft a consent order agreed between a husband and wife following their divorce. The central issues of the case involved the scope of the solicitor’s retainer and the extent of their duty to advise in circumstances where the parties had reached prior agreement and they were being asked to give that agreement a proper form.

The wife had previously been given advice by another firm of solicitors about the merits of the settlement and was warned the husband’s offer did not seem satisfactory. Deciding to adhere to the settlement, she instructed the defendant solicitor to put the terms into an acceptable order.

The wife eventually came to regret having entered into the consent order and so commenced proceedings against the solicitor. The Court of Appeal held that the solicitor did not have a duty of care to advise on the merits of the underlying agreement – although highlighted that it would have been good practice if the solicitor had expressly confirmed in writing the limited nature of the retainer. The judgment emphasises the importance of solicitors being able to provide bespoke or 'unbundled' services where they will act in relation to a discrete part of a case, particularly given the lack of legal aid available for such matters.

For further reading see ‘Can two parties have just one adviser?’ by Caroline Bowden in December Family Law.

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No hard copy

The Family Procedure (Amendment No 3) Rules 2015 were published on 10 November 2015. With the exception of rule 3 which comes into force in January 2016, the rest will apply on 7 December 2015.

There is a new rule 5.5 allowing for a Practice Direction to make provision for filing documents with, and sending documents to the court by email. There are also related amendments to Part 6 regarding service by e-mail.

A new rule 9.46 makes provision about communication of information from financial remedy proceedings and there are further provisions to facilitate storage of documents in electronic format.

Several Practice Directions have been amended and there are two new ones added. Practice Direction 5B will include provision specifying the circumstances in which documents may be emailed, restrictions on size and length of e-mails and provision for authorisation of payment. Practice Direction 9B deals with how information from financial remedy proceedings may be communicated.

Nobody does it better

The annual Children Law and Practice conference took place on 10 November 2015 at the Copthorne Tara Hotel in Kensington and welcomed a host of esteemed speakers and delegates. As the go-to conference for children practitioners, the topics in focus were wide and varied.  Schedule 1 Children Act applications were considered, together with case-law and procedural updates, surrogacy matters, child arrangements across borders, EU child maintenance decisions and international relocation. A psychologist’s view of the capacity of parents to change and issues in complex private law cases was also discussed together with topical issues in public law proceedings ranging from vulnerable witnesses, jurisdiction and adoption.

Computer says No

In the anniversary month of the opening of the first divorce centres, the Bury St Edmunds centre announced its plan to launch an ‘on demand’ information bulletin as of 16 November 2015.

The bulletin will be updated daily at 12 noon to show the current work position of the centre and give general information to practitioners. This will allow users of the service to assess when work is likely to be processed instead of having to contact the centre for updates.

In other news…

See below for a list of ‘at a glance’ headlines of important items and articles you might have missed:

Divorce rate falls in latest ONS figures

Law Society issues practice note on working with transgender employees

Lord Chief Justice describes how court reform can save money (full video)

Immediate 9 month sentence for non-disclosure

Republic of Ireland legalises same-sex marriage

Clerklife: People are strange, when you're a clerk

Cohabitation continues to be fastest growing relationship in UK

ALC and NYAS publish report on children's privacy

Guidance on equal pay

The President delivers Arbitration Guidance following through his S v S process endorsement

Supreme Court unanimously allows father's appeal in 1996 Hague Convention case

Follow Amy Sanders on Twitter @Amy_Sanders1

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