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Archive for October, 2009

The Daily Mail today reports on the Law Commission’s proposals to change the law to give cohabiting couples  inheritance rights should one of them die without a will. The idea would be that all cohabiting couples with kids would automatically have these inheritance rights, but childless couples would have to wait until 5 years into their relationship to be treated as if they were married.

Personally, I am of the view that we need to keep a very clear line between marriage and cohabiting. Too many people seem to believe in the myth of ‘common law marriage’. To give cohabiting couple more rights to each others’ property will make the institution of marriage totally empty in a legal sense, and muddies the waters further. I am all for freedom of choice, and would have to agree with Baroness Deech’s recent opposition to the failed Cohabitation Bill. People have the right to choose whether they want to stay living together or become a married couple. In fact, I believe it is the right of a cohabiting couple to NOT be treated as if they were married. If they wanted to be treated like a married couple, then they have the freedom to get married.

To give cohabiting couples equal rights to married couples is a halfway house approach, and I am very uncomfortable with this. The law already is TOO COMPLICATED for people and a Cohabitation Bill would make things even more complicated. In conclusion- KEEP THINGS SIMPLE. If you don’t want to get married, that’s fine- but don’t expect to be treated as married by the legal system. Likewise, if you want to marry, that’s also fine- but be very aware of the legal implications before you enter into it. All the more reason for making pre-nuptial agreements enforceable.

All that really needs to happen is for cohabiting couples to be better educated about their options. The Government must do more, in my opinion, to explain to people what they do and don’t have a right to as an unmarried couple. Then, if people are not satisfied with the situation, they can either get married OR, if that seems too much to stomach, they can draw up an agreement with the help of their solicitors.

 

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Grandparental Rights

The Daily Mail‘s front page article today is an exclusive interview with David Willetts MP, the Conservative Party’s spokesman for family policy. Willetts has said that a Tory government would introduce contact rights for grandparents when relationships end between the children’s parents. He has also said that the Conservatives would make local authorities prioritise grandparents over alternative foster carers should the parents be deemed unfit to look after their children.

A few thoughts came to mind when I read this article. Firstly, as I was searching on Google for a nice grandparent picture to accompany this entry, I realised how inaccurate the stereotypical picture is nowdays of a grandmother sitting in her rocking chair with a cuppa tea and some knitting. Apart from the fact that some girls become pregnant at a very young age, making their mothers very young grandmothers, people seem to take much longer to grow older nowadays. Grandparents are NOT all fuddy-duddy old people in nursing homes. I know plenty of men and women in their 50s who have become grandparents, meaning that they could well end up spending half their entire life with grandchildren.

In an era where many grandparents are financially assisting the upbringing of their grandchildren on a regular basis, it is absolutely right to give them formal recognition under the Children Act. And when I say financial assistance, I don’t just mean help with things like school fees and clothes. Grandparents provide hours upon hours of free childcare services to  parents, which would otherwise have to be paid for in the form of a nanny or babysitter.

Under the current law, grandparents have to have leave of the court to apply for contact. It is absolutely right that we finally recognise the huge contribution grandparents make to a child’s upbringing. To be honest, I am amazed this has not been introduced earlier. I just hope the Tories remain true to their word.

I just have one caveat with regard to the Tories’ proposal to make local authorities prioritise grandparents as foster carers when the parents are unfit to care for their children themselves. In such a situation, I still think it is important to treat every case individually. Of course, the grandparents should always be considered as an option, but in some circumstances it will not be appropriate to give them priority over alternative foster carers.

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Legal Aid

So Lord Bach has decided to go ahead with the proposed cuts to family legal aid. The Times has reported that, in some cases, this will result in up to a 50% reduction in fees to legal professionals who are representing some of the most vulnerable members of society.

Admittedly, the new system (which won’t come into effect until Autumn 2010), has tried to take into account the criticisms of the FLBA by introducing more graduation into the scheme, so certain types of hearings will be paid more depending on their complexity.

However, as someone about to embark on a career at the Family Bar, I am still extremely concerned. The publicly funded cases are exactly the type of cases that are given to the junior Bar to ‘cut their teeth’ on. Pupillage itself is very poorly remunerated (certainly compared with training contracts in the City), not to mention student debts and the HUGE amount one has to pay to take the Bar Vocational Course. What sort of message does this send out to the young, aspiring law student who has his/her heart set on a career at the Family Bar? As the Kings College research showed, Family barristers are anything but ‘fat cats’. OK there are a few QC’s at the top who are earning vast sums off the big money cases in the Lords, but that makes up a very small proportion of the work of the Family Bar. Certainly in care proceedings and domestic violence work, Counsel is paid very little to represent an individual who simply cannot afford to pay their own legal fees. And after receiving a cheque from the LSC, Counsel has to pay their own travel costs (often having to travel to some obscure court out in the sticks), AND pay their fees to Chambers (how else do you expect the clerks to get paid!?).

Of course, it is not just the young Bar that will suffer. The people who use the legal aid system are some of the most vulnerable people in society. To put it bluntly, they are on the bottom rung of the ladder. In a nutshell, the concern is this: pay peanuts, get monkeys. Is it fair for you to only get an inexperienced, only moderately competent barrister just because you’re on legal aid? of course not!!! That would be like saying people on the NHS don’t deserve competent doctors treating them. But inevitably, if the work is not economically viable for the barrister, many of them simply won’t do it. That’s not because they want to cherrypick the more lucrative cases (indeed, we are not allowed to do this anyway). It is because, with everything else barristers have to pay as self-employed advocates, it will simply not make financial sense for them to continue doing this sort of work.

A very bad week for family legal aid!

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The Telegraph reports on a recent survey conducted amongst women (two-thirds of which are mothers), which has found that 74% of women would support being allowed to take a 6-month ‘maternity leave’ from work, even if they are not pregnant.

Maybe I’m being thick, but wouldn’t this be overly generous to all those women out there who choose not to (or indeed can’t) have children? Maternity leave is anything but a holiday. It is a time for a mother and baby to bond, without the interferences of work to get in the way- the theory being that those first 6 months of a baby’s life are vital in its formation of relationships with its parents. In my last job paralegalling in the City, my boss went on maternity leave halfway through my one-year contract. Whenever she called me after the birth of her son, she was either exhausted from a night without any sleep, or covered in baby sick. Contrast that with 6 months of leave for a woman with no children. She is free to do whatever she likes, be it taking a course in photography or going on a trip around the world.

Of course, every woman has the right to choose whether or not to have children, and obviously some women are physically unable to have children whether they want them or not. But that does not mean they should have the same rights to paid leave as a new mother should have. In fact, to do so would be to give them an unfair advantage. 6 months maternity leave is very different from 6 months where you’re free to do whatever you like.

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The Times today reports of the latest raft of recommendations from Baroness Deech over the status of pre-nup’s in English law. She calls our own system “anachronistic”, and refers to the approach taken on the Continent as an “immediate and attractive model for reform in this country”. Whilst I do agree that enforceable pre-nuptial agreements would save both parties time and money on divorce, for the time being I cannot see a situation where all discretion is taken away from the judges in our family courts. Baroness Deech seems to ignore the huge chasm that lies between our legal system and those across the Channel. France, for example, operates by a Code which affords little or no discretion to judges. By contrast, in England, we have always had a system where the judges have almost unfettered discretion in dividing property on divorce. Even the Court of Appeal’s decision in Radmacher was based on the judges being able to adopt a flexible approach that catered to the facts of the case.

For the moment, I cannot see a situation where absolutely all discretion is removed from judges in ancillary relief proceedings. So where would this leave pre-nup’s? Perhaps they should be added into s.25 of the Matrimonial Causes Act as a separate factor to be considered. That way, where they exist, they will always be considered, but we will still hold on to judicial discretion.

In any case, the Conservatives have pledged to make pre-nup’s binding when/if they form the next government, so perhaps Baroness Deech’s wish will come true…

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And so it begins…

George-Callaghan-GC2-2

Picture the scene. A young law graduate, eager to make his mark on the big wide world, standing amongst his fellow students at Middle Temple awaiting the start of his Call ceremony. “Congratulations”, the student officer lady says, “from now on, you can all call yourselves Barristers”. What she kindly forgot to mention was the minor detail of securing a pupillage. For those of you who haven’t got a clue what I’m talking about, a pupillage is a one year training contract for young barristers, where they shadow more experienced barristers, learn the ropes of advocacy and negotiation…and make lots of cups of tea. These pupillage-thingies are pretty hard to come by. In fact, one of the first things I was told at Bar school was how difficult it would be to get one. Nowadays, a pupillage seems harder to find than an MP without a second home (!!).

As I stood there in Middle Temple hall, wigged and gowned, surrounded by over 200 fellow student barristers, it suddenly occurred to me how difficult this Pupillage Quest was going to be. I wondered how many other people were looking for an opportunity at the same chambers as myself. To what extent would they go? How did their CV’s compare to my own? Little did I know back then that it would take me a good 2 years more until I found that Holy Grail of pupillage.

In the run-up to my pupillage interviews, I left no stone unturned. I read every newspaper article I possibly could. I perused every family case that came before the higher courts. But more than anything else, I kept up-to-date with the family law blogs. Before this year, I had no idea how useful blogging could be. Not that they knew it at the time, but I was (and continue to be) totally indebted to John Bolch (Family Lore blog), and Lucy Reed (Pink Tape) for their brilliant family law blogs, without which I would not have been able to keep so up-to-date with the law. They both had, I believe, a huge role to play in me obtaining pupillage- so thank you!

So here I am. 24 years old, just under 1 year until I start my pupillage. I thought it was about time I gave something back to the world of family law blogging. The Wigless blog will be my little critique on the most recent developments in the wild and wacky world of family law. I also want to try to help anyone out there who still seeks a pupillage in family law. My perspective is of someone who has only just recovered from 2 years ‘in the wilderness’ trying to find a pupillage. There is currently no body or organisation specifically designed to help student barristers in this situation, and I want to do all I can to help.

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