Splitting the assets

I had a little trip to the smelly old smoke yesterday to record a programme for BBC Radio 4. The programme is called Splitting the Assets and is airing on Radio 4 at 8pm on 3 Feb (repeating on the Sat night too I think). It involved yours truly, Sir Paul Coleridge (retired HCJ, Marriage Foundation etc), Nicola Mattheson-Durrant (Professional McKenzie Friend) and Marc Mason from the University of Westminster discussing the experiences of litigants in person dealing with financial remedy cases in the family court. The programme is structured around clips of interviews with litigants in person telling how it was for them (generally not great). There was lots more I’d like to have said but I think it will be an interesting, if depressing, listen. I don’t know if the degree of adaptation that has gone on in terms of judge’s handling of cases and changes in approach to litigants in person will really come across – there are genuine horror stories, and going to court is horrid and stressful whether you are represented or not, and whether your judge is friendly and efficient or not (my experience is mostly they are but there are of course exceptions) – but I hope that the programme will not make litigants even more anxious. There are resources out there to help you, whether you have a lawyer, a bit of advice here and there, or whether you go it alone, perhaps with the support of a friend or by paying for a McKenzie friend. A reminder that resources are out there can be found here : www.familycourtinfo.org.uk which contains both links local to the Bristol area and nationally applicable resources and information.

You can read more about the programme on the BBC website here.

Amended exceptional case funding guidance

Amended Guidance on exceptional legal aid (s10 LASPO) has been published here.

The revised guidance requires case workers to approach the assessment of each case on an open-minded basis, with no presumption about the proportion of applications that are likely to succeed. The basic test set out by the Court of Appeal in R (Gudanaviciene and others) v Director of Legal casework and the Lord Chancellor [2014] EWCA Civ 1622 features prominently and case workers are reminded at several points that:

“The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness”

Particular factors to be weighed in the balance are:
• How important are the issues at stake?
• How complex are the procedure, the area of law or evidence in question?
• How capable is the applicant of presenting their case effectively?

It will be interesting to see if and when this translates into a shift in the statistics on grants of exceptional case funding in family cases.

Domestic Violence Injunctions – good practice reminder

I had to go back to the Red Book this week to check something about non-molestation orders and I came across this case, which I have read before, but which is well worth a reminder. It covers so much ground about what should not happen in non-mol cases, including one point which has bugged me for years but which I had thought there was no settled authority on – on previous readings of the case I had not absorbed the fact that the answer to my niggle was in there. The case is the judgment of R v R [2014] EWFC 48, [2015] 2 FLR 1005. Unusually, it can be found on Jordans Family Law but not on BAILII (or at any rate it doesn’t come up with the citation search function). I would have thought this is just the sort of case that SHOULD be on BAILII for litigants in person, particularly unrepresented respondents to non-mol applications to be able to find. I’ve linked to the Family Law coverage, which includes the full transcript. [Update, within a millisecond of posting the amazeballs @johnbolch found the BAILII link – here it is : http://www.bailii.org/ew/cases/EWFC/HCJ/2014/48.html. I can also see from that link that the case is on WLR / ICLR too.]

I won’t rehearse the full facts, but it does make pretty grim reading. It’s an important thing to remember the boundaries of what is appropriate in applications for this sort of injunction, and the procedural requirements in order to be fair and just, particularly in an environment where there are undeniably perverse incentives to litigants to make allegations in order to secure “victims” legal aid. We know that there has been a spike since LASPO in non-mol applications and on perfectly reasonable explanation is that this is a distortion arising from the legal aid arrangements since 2013.

What you will recall from R v R if you read it at the time was the stern judicial reminder that the question on an ex parte (without notice) application was not “Why not?” but “Why?”. But there is more to R v R than that.

The point that struck me that I wanted to expand upon is the distinction between non-molestation and occupation orders. I don’t do many non-mols these days (faaahhr too important daahhling ;-)), and each time I go back to the law I struggle with the continual attempts to secure an ouster type provision by means of a non-mol, thereby bypassing all the law about the rarity of ex parte occupation orders. Usually my pedantry falls on deaf ears but now I have something to back my whining up with.

It is clear from R v R that care should be taken to ensure that non-molestations orders do not in effect amount to an occupation order by the back door – either through the imposition of an exclusion area or through other terms.

Extra injunctive provisions such as exclusion areas and orders prohibiting any direct communication between parties should not be routinely included in non-molestation orders. They are serious infringements of a person’s freedom of action and require specific evidence to justify them. 

In R v R the judge stated she would not make an occupation order, but went on to prohibit the Respondent from entering the street and from communicating at all with the Applicant. If she expected them to continue under the same roof (with 5 children) how was F to conduct himself without either being ousted from the property or breaching?

There are specific reasons for this quite apart from the general (and serious) unfairness that can result, as illustrated by R v R – it is a criminal offence to breach a non-molestation order, but not so with an occupation order – so the correct characterisation matters. Secondly, a respondent is entitled to rely on the expectation that he will not be ousted from his home without first being heard unless the circumstances are really pressing and serious.

The Red Book (Family Court Practice 2015) asserts, rightly in my view, at 1015 that :

A “stay away” clause [eg not to come within 100 metres]…could be expressed as part of an occupation order but it is not necessary to make an occupation order solely for that purpose and can be included in a non-molestation order. Such a provision should not be included as a matter of routine, must be proportionate and necessary and supprted by evidence [R v R cited]. A “get out” order, ie an order requiring a party to leave, cannot form part of a non-molestation order and must be made as part of an occupation order. 

There are some useful reminders also of the need to interpret the rules in relation to relief from sanction appropriately where the stakes are high and only one party, usually the one not at risk of losing their home, has the benefit of legal aid.