A postcard from the President…

So I go away on holiday for a week and, whilst my focus is on knitting and farting around in the back garden, and the rest of the world is breathlessly tweeting about olympic medals, CAFCASS and The President slip out three distinct reform bombshells, all with a common purpose : managing the ever rising number of care applications in the context of the ever diminishing pot of funds. Like we wouldn’t notice…huh!

See The President’s 14th View here and CAFCASS in CYPNow here, and also here, in which local cash limited budgets for CAFCASS areas are mooted (see page 11 in which a pricing schedule for section 7 reports is mooted). I moaned recently on twitter about this idea, remembering the annual “we’ve run out of funds” hilarity for the poor sods who desperately wanted the access supervised contact via CAFCASS, who were told they had to wait a further 3 months until the next payday. I was then contacted by CAFCASS Comms and asked what my tweets had meant (I know – yikes, eh?). I told ’em that this was an annual event in my neck of the woods until at least a couple of years ago, and was told that hopefully this was now a thing of the past. It does indeed appear to be a thing of the past at present : it may, however, also be a thing of the future, based on the sketchy description of these limited cash budgets that we have been given. You know guys, if you make us guess what the plan is, we might imagine it wrong…don’t complain if we get in a flap.

The gap since the President’s last “View” is, by my reckoning, about a year. In the interregnum we’ve seen much happen, latterly Settlement Conferences appeared (as if by magic). The fourteenth view attempts a “Calm Down, Dear” to the hyperventilating ALC. “Settlement Conferences, it’s only a pilot dear!” says The Pres. Bound to be a Winner. We shall see. The President may protest that the ethos of these conferences is not to pressurise parents into capitulating, but that may not be how it feels from their end of the barrel. And it’s all well and good to say it’s a pilot, but what I’d like to know is who’s flying the plane? The President says this is something which is judicially led. There is no reason to think that is not so, although I suspect that not all judges are likely to enthusiastically embrace this pilot. But, to torture the aeronautical metaphor a little further – the judicial pilot still needs clearance to land from Air Traffic Control. This is a MoJ pilot, with MoJ funds. It is clearly designed to try and save funds through a reduction in expensive final hearings. This is no bad thing in itself. But whilst we all love an Easyjet price tag, it is still *quite* important that the landing gear doesn’t fall off and the plane lands safely at its destination. Who gets the final say as to whether this judicially led pilot is rolled out? And who decides the criteria? (On a parallel note, I am told that the MoJ (with no fanfare) have recently pulled the plug on the drug testing pilots that appeared to unstick so many cases. I haven’t seen any announcement setting out why, or any published analysis of the effectiveness and cost / efficiencies of the scheme and we’ve had no guidance issued on “the plan” going forwards or even formal notification the problem is going to re-emerge. I’m not sure yet what we are supposed to do with those cases involving LiPs who can’t pay for hair strand testing, but whose cases (and relationship with their children) are going to be once again held up or stymied with out it.) – but I’m pretty sure that wasn’t “judicially led”.)

What’s more Judges – particularly those with managerial responsibility – remain very obviously under statistical and budgetary pressure – average case duration, allocated annual budgets of sitting days etc. which the purists amongst us might suggest have the potential to impair judicial independence. Is it not understandable to worry just a little that these pressures bearing down upon the judges will transfer inadvertently or overtly to parents and their legal representatives who awkwardly insist on a trial? Yes I know, I should calm down dear.

Anyway, it’s only a pilot. Whilst nobody was consulted much before it started, the relevant professional bodies and interested parties are now in a position to keep an eye on this and feed back on how it has gone in due course – it may be successful, as reportedly it has been in Canada. So, watch this space.

The second stealth missile delivered by The President in his Fourteenth Postcard from Summer Hollibobs was the “the tandem model is sacrosanct, except when it’s not” bombshell. It’s all a bit confusing :

The tandem model is fundamental to a fair and just care system. Only the tandem model can ensure that the child’s interests, wishes and feelings are correctly identified and properly represented. Without the tandem model the potential for injustice is much increased. I would therefore be strongly opposed to any watering down of this vital component of care proceedings.

And then (with an interlude in which The President opines that we are brassic) :

The MoJ, with my support, is investigating whether there is scope for a reformed level of representation for children in public law cases and how a reformed model might work in practice. 

Say what? What is this “reformed level of representation” of which you speak?

From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.

Oh. So you mean that the tandem model can be suspended at hearings that aren’t really that important. That would be those pointless hearings that we no longer hold because the PLO has streamlined the system so that only hearings that are really essential are held (in order to save funds), and each hearing should be a focused and purposeful demonstration of active judicial case management with collective participation and responsibility?

Maybe he means CMH’s? Where critical case management decisions are made and where a ball dropped at this early stage can lead to an evidence gap or ineffective final hearing and delay further down the line? Nope. Can’t be those. And anyway, where a Guardian cannot attend or it is accepted by all his attendance is not essential the court can and does (on occasion) excuse the Guardian’s attendance – because the lawyer will be there keeping an eye.

Maybe he means FCMH’s? Where a single CMH wasn’t enough and the court has decided that actually, this case is complex enough, or has got messy enough due to previous problems, delay or non-compliance to warrant a further hearing. As above, Guardian can be excused where justified…No, he can’t mean the child would not need to be represented at those, surely…

Maybe he means FoF hearings? You know, the split hearings we never hold any more (ssshhhh, don’t tell him – we really all do still hold them)? He probably doesn’t mean those because the Guardian rarely attends those hearings throughout in any event, and the solicitor for the child is usually the lead solicitor for any experts – so they kind of need to be present to chief the critical witnesses – and report back to the Guardian who is off doing four simultaneous final hearings and an EPO whilst juggling a plate on her nose.

IRHs? Surely not? The child has to be represented if the other parties are to agree a final disposal about that child’s life. Otherwise, what’s the point of the child being a party (as undoubtedly they have to be for the purposes of article 6). He can’t mean that.

Maybe he means Final hearings? At which the complexion of a case can completely change in a moment, during which the Guardian will need to give instructions in order that their representative can cross examine witnesses – and ultimately give evidence herself. Nope. Can’t mean those.

And let’s not forget that the LAA already require the solicitor for the child to conduct all hearings where humanly possible, meaning counsel is less often instructed on behalf of children than for the other parties. Or that the LAA is even more difficult to persuade that leading counsel is necessary in the case of a child party than a parent.

So, I confess I’ve not a scooby what this means or what exactly is being discussed privately at the MoJ. But I can’t at present think of any scenario in which the absence of a child’s legal team from hearings in care proceedings could be anything other than the “watering down” of the tandem model that the President is so averse to. Of course, it does not help that these things pop up out of the blue, blueprints half drawn before we even know they are afoot. It does not inspire confidence. Even now there is no information that I can locate on justice.gov.uk or gov.uk about the “data-collecting exercise in 12 courts” or the second phase (in which it is proposed that, with the involvement of the judiciary, there will be exploration of “how a reformed model of representation could work in practice”). Note that here there is no assertion that this is judicially led. One interpretation of this view is that the President is publicly laying down a marker to the MoJ that whilst they are exploring this particular issue, there is a line he will not let them cross : note the President’s “From my perspective” here :

From my perspective, the focus of this is the question of whether, at certain stages in the proceedings and at certain type of hearing, there could properly be scope for dispensing with the attendance of some, or even, in some circumstances, all, of the child’s professional team.   [my emphasis]

and his “so far as I am concerned” here :

so far as I am concerned, none of this can be allowed to prejudice the fundamentals of the tandem model. [my emphasis]

Goodness only knows what the MoJ have in mind – and again, its not reassuring only to hear of it via The President and once its already half baked. But the more I read the “View”, the more I think this may be a “By all means, take a look and see if you can find some savings – we recognise we have to help cut costs where we can – but don’t think you can mess with the tandem model!” coded message. I hope so anyway…

A personal sidenote : I’d like to see a stepping up by the minority of childrens’ representatives who still see a guardian brief as an easy brief and a passive or responsive role. It isn’t. It’s the hardest sort, and one bears a great responsibility as either solicitor or counsel for the child. When the wheels come off cases, it is sometimes legitimate to ask why, of all parties, the child’s team did not see it coming and raise it at the CMH or the advocates meeting? The role of solicitor for the child, when performed as it should be, is crucial and can have a significant postiive impact on case progression and efficiency. Its loss at any hearing, whether because an advocate is actually or effectively absent, is to introduce significant risk both of injustice AND wasted expenditure – as I think, at moments, the President’s 14th view acknowledges.

Anyway, hollibobs over tomorrow…Booo hoo.

Attendance of solicitors at LA Children Act meetings

The Law Society appears to have picked up on a bone of contention or area of confusion here, and has issued a practice note clarifying what, in it’s view, is the role of lawyers at CPC conferences and other CA meetings. It confirms that it is appropriate for LA solicitors to attend such meetings even where parents are represented but their representatives are not present at the meeting – and also sets out some of the limitations on what the LA solicitor can and cannot properly do in such meetings. It all sounds quite tricky to navigate, frankly.

Anyway, for those of you who attend such meetings or advise clients at these early stages – here is the guidance note.

Pensions on divorce for litigants in person

Rhys Taylor.a5x4


This is a guest post by Rhys Taylor. Rhys is a barrister and arbitrator at 30 Park Place, Cardiff and 36 Bedford Row, London. Rhys specialises in financial remedy and family property disputes. He lectures for the Judicial College on the subject of pensions on divorce. The views expressed here are entirely personal. Rhys tweets as @rhystaylor32.


Financial proceedings following divorce can often be complicated and, if you can afford it, I strongly commend the instruction of a solicitor who can assist you through the maze. This short note is written for those who would like to instruct a solicitor but cannot afford to do so and find themselves bewildered by the issue of pensions and how that fits into a divorce settlement.

The big picture

You are at an important crossroad in your life. You are about to make some very big decisions which may have lasting consequences. My headline is : take the issue of pension provision seriously. So often, retirement can seem a distant prospect and more immediate needs, particularly for housing, dominate. Time has a nasty way of creeping up, however, and retirement may be nearer than you think. I am not qualified to give financial advice, for which you must seek out an Independent Financial Adviser or a Chartered Financial Planner. I do know that many of them would urge you not to lightly trade away your possible rights to pension capital in exchange for more capital now, or worse still, for a quiet life.

Clearly you will need a house to live in, but in some circumstances it is possible (and your guardian angel might counsel you to do so) to bite the bullet and downsize now, so that you can have a basket of apples and pears i.e. some liquid capital with which you can buy housing (perhaps at a lower standard than your former matrimonial home) and some pension capital which will provide for your old age. I know that this will not always possible and immediate needs may simply demand a trade between apples and pears in order to keep a roof over your head, but do not do this too lightly and without having thought about your future and how you will afford to live in your old age.

The state pension

The state pension changed in April 2016. The changes are complex, but it remains miserly and the so called “Single Tier” pension is anything but that and is subject to all kinds of complicated adjustments, dependent upon how many years you have contributed.

Worse still, the ability of some spouses to substitute their partner’s National Insurance contributions has been removed. You can find a more detailed potted summary of the complex state pension changes and how they impact upon divorce at Appendix B of a paper I have written for lawyers, which is to be found on the Jordans website.

Do not compromise on disclosure

You must insist on proper disclosure of all pensions. Some people are reluctant to disclose. If they are difficult, you have a right to make an application to court for financial remedy proceedings and the court will require proper pension disclosure in a document called Form E.

Prior to making an application to court you will usually have to attend upon a mediator who is qualified to conduct a Mediation Information and Assessment Meeting (or “MIAM” for short.) In many instances mediation is a very wise road to go down, but even in mediation you must insist upon proper disclosure first and if you are at all dissatisfied the court will insist on that disclosure on your behalf.

How do I value a pension?

Pension disclosure normally comes in the form of a Cash Equivalent (also known as a Cash Equivalent Transfer Value, CETV, CEV or just CE). This is a figure which a pension scheme actuary will place on the pension as his or her assessment of what the scheme would need to be paid in order to agree to transfer the pension elsewhere. But, be warned, the Cash Equivalent does not always tell a true story.

This is particularly the case for a final salary or career average salary pensions which have a guaranteed benefit at the end of the day. The Cash Equivalent will be an illusory figure if the benefits are guaranteed and no transfer to another pension scheme actually take places.  The value will be in the pension itself, and the benefits it will bestow in due course, not in the potentially misleading Cash Equivalent figure. An expert will often be required to provide an accurate assessment of the true value of the pension.

It is well known that different scheme actuaries take difficult factors into account in arriving at Cash Equivalent and in big schemes the costs of investing and administering the scheme are not always factored into the figure. By contrast, a defined contribution or personal pension will usually fully factor costs of investing and administering into account and the Cash Equivalent will often be a more realistic assessment guide to the true worth of the pension.

So, the basic problem is that a defined benefit pension which has a Cash Equivalent of, say, £100,000 may provide a very different income on retirement to the defined contribution pension also said to be worth £100,000.

If you are dealing only with defined contribution personal pensions it may be acceptable to rely only upon the Cash Equivalents if:-

  • The value of the CE is not significant and/or the marriage is very short making the involvement of an expert disproportionate. There is no hard or fast rule as to what is significant and different lawyers will have different “rules of thumb.” My working assumption is that a single defined contribution pension worth less than £100,000 may not justify further expert assistance. However, I am aware that others may disagree with that arbitrary cut off and I am afraid that it is for you to decide what is significant in this context; OR
  • The parties’ ages are roughly the same; AND
  • The parties health and smoker status are the same; AND
  • There is no crafty small print which makes a defined contribution pension behave like a defined benefit/final salary pension (e.g. a defined contribution pension which has a guaranteed annuity rate upon retirement).

In other circumstances the investment of a few hundred pounds for advice from an Independent Financial Adviser may well be strongly advisable.

Where is the best online guidance?

The Family Justice Council has recently published a paper, “Sorting out Finances on Divorce”  to assist litigants in person navigate divorce settlements without a lawyer. This is essential reading. At pages 42 to 47 there is an admirably clear exposition of how pensions should be treated upon divorce. This is a very important document which judges will take notice of. If you are trying to settle a case without going to court then treat this as your trusty guide on how a court may approach your case. You are not bound to agree a settlement in exactly the same terms as a court would determine it, but it is often helpful to negotiate “in the shadow of the law”, i.e. with a rough idea of the range of possible outcomes and approaches a court would have in mind.

The Family Justice Council also recommends that you seek advice from an Independent Financial Adviser.

How do I find the right pension expert to help me?

But who do you turn to? There is a bewildering array of “experts” out there and if you can scrimp together the professional fees to see an Independent Financial Adviser you want to know that the money is well spent.

I cannot advise you who to go and see but can offer the following thoughts. Advising on pensions on divorce is a highly specialised area and many would agree that there are only a small handful of truly expert Independent Financial Advisers out there (and here I am also including Chartered Financial Planners, who are Independent Financial Advisers who have passed further stringent professional examinations).

In finding a true expert you may have to travel to see them or conduct your business over the phone with them. I cannot provide a definitive list of experts who I regard as suitable, but make this (personal) suggestion. I was involved in a project which had discussions with many Independent Financial Advisers and actuaries. It is called Apples or Pears: Pension Offsetting on divorce. There is a list of experts who were involved within the paper which may assist your search. I was also assisted by further experts in another paper called “Another Witches’ Brew”  (so called because pensions can get very complicated). There will be other true experts out there who were not involved in either paper, but this is a suggested start in your search for help.

You will want to get “triage” advice in the first instance and a good pension expert will then be able to advise whether you will also need the assistance of an actuary. An actuarial report may cost up to £1,500 + VAT but, if required, may be a very prudent investment. A court would require this cost to be shared equally between both parties.

Disclaimer As with all posts on this blog, this post is no substitute for legal advice and should not be relied upon as such. No responsibility is accepted for any action taken or refrained from as a result of reading this blog.