Wednesday, 24 June 2015

Kids in the Middle



Once upon a time, many years ago a colleague handed me a new file and told me that he had asked the client whose name was on the front to contact me. I opened it and read my colleague’s initial and detailed attendance note.

“Attended Mrs X, in a small interview room, together with her 4 children, the family dog, a push chair and 4 balloons,” it began.

It finished with: “The appointment concluded by agreement when all the balloons burst, the dog wrapped its lead around the pushchair barking madly and one child started to wail. It was agreed that Mrs X would return next week but would see my colleague, Miss Middleton.”

Although and in anticipation I reserved a large interview room for my appointment with Mrs X, she came alone and I never did meet any of her children (with or without balloons and a dog) in what turned out to be a fairly straight forward divorce. In fairness and although the law makes it clear that the welfare and interests of a child are paramount in all family proceedings, in all my years of practice it was rare to actually meet the children involved.

However, even in amicable divorces, as my mediation and collaborative training emphasised, the children are still affected, carrying the scars of the family break up for far more years than was initially thought. The legal process has played lip-service only to the interests of the children being of concern within an undefended divorce when there is no other dispute, and the court has struggled to play any effective part in arrangements being made within the family.  During my career, Section 41 Appointments (as they were known), where parties had to attend before a Judge to discuss the arrangement for their children, were abolished and latterly, at the time I was retiring, the requirement that a separate Statement describing those arrangements be filed was withdrawn.

Whilst mediation and collaborative practice are both ideal environments for discussing the plan to separate and the steps to be taken to minimise its effect upon the children, even there the children themselves rarely have a voice. For that reason it was great to hear about the launch of the new Kids in the Middle website which is working in partnership with Only Mums and Only Dads and is supported by  a group of family lawyers and mediators. 

It has been set up in response to the recent Government commissioned report “Voice of the Child” which recognised that “whilst there has been considerable focus in recent years on the provision of better information and support services for separating parents there has been little parallel investment in information and support for children and young people."

The site currently provides support for 11-18 year olds and enables young people to hear the stories of their peers and provides links to discussion boards and on-line help.




Friday, 5 June 2015

Magna Carta



It is 800 years this month since the sealing of the Magna Carta. The charter was meant to bring peace between King John and the barons but has also been described as the closest thing our country has ever had to a Constitution as well as the forerunner to subsequent Declarations of Human Rights. I was in Lincoln a few weeks ago where one of only 4 remaining copies of the original Magna Carta is preserved.

Of course we all know that it sought to enshrine the right of free men to justice and to protect them from punishment outside of the law or without a trial by their equals. I was not however aware that it also contained clauses which would have been of relevance to family lawyers (had such beings existed in the days of the Crusades). Indeed there is specific reference to guardians who are entrusted under the Charter with management of a ward’s land, and are compelled to restore that land to their ward “stocked with plough teams and such implements of husbandry as the season demands” when the heir comes of age.

Obviously there is no reference to divorce, but marriage is referred to. It is specifically stipulated that heirs may be given in marriage “but not to someone of a lower social standing” and their next of kin must first be informed. Moreover widows were not to be compelled to remarry, provided that they wished “to remain without a husband.” I imagine that may have been the closest a disenchanted woman could come to living without a man.

However and whilst the Magna Carta provided for a widow to receive her inheritance “at once and without trouble” it allowed her to remain in her deceased husband’s home for only forty days. Imagine, therefore, the meagre level of provision that might have been made in those days had divorce been an option, or what King John might have thought of the Matrimonial Causes Act and the financial provision now awarded by the courts applying a “yardstick of equality.”