Judges being rude about barristers

My former colleague, Paul Diamond, has been representing Mr and Mrs Johns in the claim they brought against Derby City Council in the Administrative Court over Derby's refusal to certify them as foster carers because of their views about homosexuality: see http://tinyurl.com/4ljcekq.  The report of the case is worth reading not just because it sets out the view which English law takes of religion but also because it contains a rare example of a court being stunningly rude about a barrister (see paras 32-35).

Judiciary responds to Government’s legal aid proposals

The Judges’ Council, the Council of Circuit Judges and the Association of District Judges have published their responses to the Government's Legal Aid proposals. They make interesting, if not entirely unpredictable, reading. They can be found at http://www.familylawweek.co.uk/site.aspx?i=ed80420

What does 'full-time education' mean?

Here is a problem which occasionally arises under old orders which simply say that periodical payments for either the wife or (in non-CSA case) the child continue until the child "reaches the age of 18 or finishes full-time education, whichever is the later". The question is does that include tertiary education?

The answer is yes. In B v B (Adult Student: Liability to Support) [1998] 1 FLR 373 CA,  the husband, who wanted to terminate the periodical payments he was paying for his daughter, who was at university, argued that the order had terminated on her completing secondary education. Thorpe LJ said:

"The financial arrangements following the divorce of her parents were the subject of an order made in the Plymouth County Court on 4 November 1991. By para 4 of that order, the appellant was required to pay to his former wife for the children of the family periodical payments at the rate of £175 per month per child until they respectively attained the age of 17 years or ceased full-time education, whichever should be the later, or further order. Manifestly, the liability in respect of his daughter continues under the provisions of that paragraph."

In practice, of course, it is ordinarily futile to argue about this anyway because the child has his/her own right to claim periodical payments under Schedule 1 of the Children Act 1989.

Legal Aid cuts: Problems for Ancillary Relief lawyers

Unless you have been living the life of a hermit over the last few weeks you will know that Legal Aid is to be radically cut and that family law is to suffer particularly. In practice, public funding will only be available for cases in which domestic violence is a factor.  That is likely to have two effects:

• There will be more litigants in person
• There will be more people alleging that the other party was violent during the marriage.

As all lawyers know, litigants in person know even less about the law than we do but they often don't know it. The internet has made this problem worse: every Tom, Dick and Harriet who has watched a couple of episodes of Kavanagh QC and rummaged around on the internet seems to think that he/she is the reincarnation of George Carman.

For those of us practicing in ancillary relief this leads to two particular problems when we are faced with a litigant in person on the other side.  First, in practice it places much responsibility on us to guide the court. It also means that, whether or not we have instigated the application, it is often up to us to prepare bundles etc (with all the attendant expense for our client) or face having inadequate bundles prepared by the LIP. Secondly, it makes FDRs - the valuable tool for settlement introduced in the 1999 rule changes - pointless, because litigants in person don't know what sort of orders the court is likely to make and thus are unable to recognise what reasonable offers to make and/or accept.

That means, of course, (as others, including the President, have noted) that there will be fewer cases settling and more proceeding to final hearings. That may be good for lawyers but I'm not sure that it is good for the law.

The second problem is even more pernicious. If legal aid is only available if one makes an allegation of violence it is clearly likely that more people will make allegations of domestic violence in order to get public funding. That is likely to inflame rather than ameliorate ancillary relief disputes. The flip-side of that, of course, is that those (predominantly husbands) who are faced with allegations of violence are likely to allege that the allegation is only being made so that the wife will be able to get legal aid.

Both of these are likely to increase the length of hearings, and thereby the delays in and the cost of running the family court system. In the long run I suspect that they are more likely to cost than to save money.

The main objection to these cuts, however, is not financial. The family court system is  a service which the State, and only the State, runs. Unlike health and education, for instance, it is not something which can be dealt with privately: if you want to get divorced  you have to go through the family courts.  Putting in place changes, such as those proposed, which lead to potential injustice and increased delay in such an intrinsic part of a modern state are, therefore,  wrong.