From September 2015 all family court judges in England will be able to order DNA tests to determine a child’s parentage. This follows two pilot schemes in Taunton and Bristol which were set up following anecdotal evidence that courtroom arguments led to delays in divorce cases, particularly where parentage was in question. 

The aim behind this initiative is that all cases involving children should be resolved quickly and wherever possible outside court. 

Findings from the pilots suggest the tests mean judges can be more confident when making decisions about children and, most importantly, parents would be more likely to follow the court’s orders.

The funding for DNA testing in private family law cases follows the introduction last year of a series of reforms designed to place children at the heart of every case;  government agencies have reported that this has resulted in care cases being reduced to 29 weeks. 

The reforms have included:

  • the introduction of the new Family Court in England and Wales with a simpler single system and a network of single application points
  • New child arrangements orders which are designed to encourage parents to focus on the child’s needs rather than what they see as their own ‘rights’
  • compulsory family mediation information meetings so separating couples must consider alternatives to harmful and stressful court battles when they are resolving financial matters and arrangements for child contact
  • a free mediation session for all couples where one of them is eligible for legal aid 

Hopefully, the recent reforms, together with the new rules on DNA testing, will help to end acrimonious and embarrassing court battles.  

If you would like assistance on a family matter please call Anthony Scott on 01638712243 for further information. 

Posted 31/03/2015

Whilst divorce invariably leads to a leaner lifestyle, at least temporarily, for both parties, the current tough financial climate is leading some divorcing couples to the bankruptcy courts.

A recent casualty is David James, the former England goalkeeper, who, despite earning £20 million over his career, recently filed a debtor’s petition this month. His three million pound divorce was cited as one of the major reasons for his financial difficulties.

Some errant partners are also beginning to use bankruptcy, or the threat of it, as a tactic to reduce payments to their soon-to-be ex-spouses. Scot Young a city financier was jailed last year after refusing to disclose details of his assets to his wife. She accused him of creating a sham bankruptcy to hide his wealth. Mrs Young was awarded £26 million, although she had sued for £300 million. This case has demonstrated that Courts are beginning to take a tough line with people who hide their money and resort to sham bankruptcies as a way of circumventing the rules on equitable distribution of assets in the event of divorce.

If you would like assistance in a family matter or divorce, call Anthony Scott on 01638712243 for further information.

Posted 02/03/2015

The Government has announced new measures to support sufferers of the industrial disease mesothelioma and their families.  The changes have been designed to speed up compensation claims for victims of the terminal condition, which can take hold decades after exposure to asbestos but usually causes death within 9 months of diagnosis.

They include:

  • work with the National Cancer Registration Service and Public Health England to speed up the process of obtaining hospital medical records
  • giving HM Revenue and Customs the ability to provide the work records of deceased victims to their dependents without permission from the courts

These changes will be brought into force at the earliest opportunity; they will benefit mesothelioma sufferers and their families by providing them with a streamlined process to access vital evidence necessary to resolve their claim.

The government has also announced that, following a legal ruling, it will not be making any changes to the law around no-win no-fee deals involving mesothelioma cases at this time. A further review of the likely effects of the no-win no-fee reforms on mesothelioma claims will be carried out in due course.

Mesothelioma is an awful disease which can destroy lives in a frighteningly short amount of time and so any help in getting claims settled fairly and quickly is welcome.  If you would like assistance in relation to a claim, call Anthony Scott on 01638712243 for further information.

Posted 24/02/2015

The government’s archive of 41 million wills dating back to 1858 have now been made accessible to the public through a searchable online database which will enable people to find out more about their family histories, as well as researching the last wishes of some of the most influential people of the 19th and 20th century. 

As a result of the project carried out by HM Courts and Tribunals Service (HMCTS), together with storage and information management company IronMountain, this project gives the general public, here and overseas, the chance to get closer to their ancestors from the comfort of their own home.  Individuals will also be able to connect to history and look up the wills of people such as: 

  • the writer George Orwell, who died in 1950.  Orwell insisted that all his notes, manuscripts, pamphlets, press cuttings and other documents be preserved;  
  • while the economist John Keynes, who died in 1946, wanted most of his personal papers and unpublished manuscripts to be destroyed; 
  • Alan Turing, the mathematician and cryptologist who cracked the Enigma code and is the subject of the film The Imitation Game.  Turing, who died of cyanide poisoning in 1954, aged just 41, left a brief will sharing his possessions equally among his mother and a cherished group of colleagues; 
  • A. A. Milne, the creator of Winnie the Pooh, who died in 1956, left a share of future royalties and copyright to his favourite London club and Westminster School; 
  • while Beatrix Potter, the creator of Peter Rabbit, left a long and generous will that reflected her passion for natural science and conservation. 

The ease of access to this fascinating archive has been enabled by technology and is matched by careful preservation of the original paper records;  these are, and will remain, in trust for future generations in a secure temperature-controlled environment. 

The project provides us with insights into the ordinary and extraordinary people who helped shape this country and the rest of the world.  It is a fantastic resource not only for family historians but also for anyone with an interest in social history or the lives of famous figures.  

If you would like assistance with your Will, or probate, call Andrew Geddes on 01638661116 or Lorna Manning on 01638712243 for further information. 

Posted 24/02/2015

The courts recently found that a bank had failed in its duty to investigate an assertion by a debtor that a restricted-use credit agreement had been rescinded before reporting to credit reference agencies that the debtor was in default.

The case came about after the litigant, Mr Durkin, set out to buy a laptop computer with an internal modem.  He made his purchase from PC World via a credit agreement – a debtor-creditor-supplier agreement with a bank under section 12(b) of the Consumer Credit Act 1974 – apart from the deposit which he paid upfront.  But when he got home he discovered that the laptop did not have an internal modem. The following day he returned the laptop to PC World and requested a refund of his deposit and cancellation of the credit agreement.  PC World refused to accept his rejection of the goods and took no steps to cancel the credit agreement. 

It is a common misconception, when a product is bought under a credit agreement, that returning the product to the supplier automatically also nullifies the credit agreement; it does not.  Mr Durkin did not pay any money under the terms of the credit agreement and the bank, without making any enquiries into the circumstances, issued a default notice which was taken up by two credit reference agencies and noted on his credit records. 

Mr Durkin raised a small claims action against PC World and recovered his deposit in an out-of-court settlement in which PC World did not admit any liability. But that did not resolve his problem with the bank. He found that the entries on the credit registers prevented him from opening new accounts with credit card companies and other lending institutions.  Mr Durkin therefore raised a further action against both PC World and the bank. 

The courts held that PC World had been in material breach of contract and that section 75 of the 1974 Act had the effect that Mr Durkin had been entitled to rescind, and had rescinded, both the sale contract and the credit agreement.  The Bank was held to have failed in its duty of care to the litigant in that it simply accepted PC World’s assertion that the credit agreement was not rescinded and had not made adequate enquiries before issuing its default notice, with the subsequent ramifications. 

Although justice was eventually served, this case shows that care must be taken to ensure that both parts of the transaction are rescinded to avoid the problems Mr Durkin experienced.

If you would like assistance in a matter relating to consumer law, call Anthony Scott on 01638712243 for further information. 

Posted 09/02/2015

In a recent ruling, the Courts gave a woman permission to look at the court files on her late father’s adoption so that she could identify her grandmother. This ruling from the Family Division is ground breaking and sets a precedent for future cases to reveal family secrets.

The judgment will allow the woman to explore her ancestry – an inquiry previously blocked by an adoption order dating back to 1930.  It was based on the fact that the grandmother, adoptive parents and father in the case before him are all known or assumed to be dead.

No legal authority existed to determine whether the woman should be allowed to see the file. The adoption file, which has been closed, contains the name and address of the grandmother, a signed consent form and the father’s birth certificate. It is possible that the child was born outside marriage and adopted to avoid what might at the time have been considered a social disgrace.

Whilst is was accepted that the general principle of maintaining the confidentiality of such papers should be upheld, it was decided in this case that it was in the greater interest that the information should be made available to the applicant.

If you would like assistance in relation to an adoption matter plese call Anthony Scott on 01638712243 for further information. 

Posted 09/02/2015

A recent ruling by the European Court of Justice (ECJ) has established that holiday pay must take into account ‘usual’ overtime and other supplements. This ruling has major implications for small businesses in Britain who must now change their holiday-pay policy.

In the past, British rules had been interpreted to mean that holiday pay could be calculated solely on the basis of a worker’s basic pay and need not take into account other aspects of their pay. These rules must now be “re-interpreted” as a result of the recent Lock v British Gas ruling by the ECJ.

The type of payments that need to form part of holiday pay calculations now include average overtime payments, shift supplements (for example, unsocial hours payments) and standard travel supplements (as opposed to reimbursement of out-of-pocket expenses).  Where these payments vary, then they will need to be calculated taking into account a twelve week reference period. What is less clear is the position in relation to bonuses and commissions and it is likely that these issues will be the addressed in later cases.  However, it would appear that regular bonuses and commissions would need to be taken into account but annual bonuses would not.

The changes to holiday pay calculation can add significantly to costs for a small firm; although the setting up of clear policies and procedures can go a long way to mitigate this.

If you would like assistance in relation to employment issues, call Andrew Geddes on 01638661116 for further information.

Posted 27/01/2015

New laws have come into force which give greater protection to children:  these provide better support for children whose parents are separating;  a new system to help children with special educational needs and disabilities;  and help for parents to balance work and family life. Current workplace arrangements have not kept up with the times,  the Children and Families Act will bring the way parents balance their working and home lives into the 21st century.

The act includes a number of new measures to protect the welfare of children, including:

  • changes to the law to give children in care the choice to stay with their foster families until they turn 21;
  • a new legal duty on schools to support children at school with medical conditions;
  • making clearer young carers’ and parent carers’ rights to support from councils;
  • reforms to children’s residential care to make sure homes are safe and secure and to improve the quality of care vulnerable children receive;
  • a requirement on all state-funded schools – including academies – to provide free school lunches on request for all pupils in reception, year 1 and year 2;
  • amendments to the law to protect children in cars from the dangers of second-hand smoke;
  • prospective fathers or a mother’s partner can take time off to attend up to 2 antenatal appointments;
  • extending the right to request flexible working to all employees;
  • replacing the current statutory procedure, through which employers consider flexible working requests, with a duty on employers to consider with requests in a ‘reasonable’ manner. 

This new act is designed to make sure the welfare of children is at the heart of the family justice system and provides a very welcome string to our bow.

If you would like assistance in family matters please call Anthony Scott on 01638721143 for further information.

Posted 27/01/2015

Changes to the law designed to support Good Samaritans and community heroes moved a step forward recently. The government’s Social Action Responsibility and Heroism (SARAH) Bill is currently being considered by Parliament and has now completed the House of Commons stages. It can now move to the House of Lords for consideration.

The Bill is part of the government’s ongoing commitment to supporting volunteers and has been designed to make sure people are not put off doing good deeds by worries about risk and liability if something goes wrong.

The law changes are being made to counteract the growing perception that it’s too risky for people to participate in activities which benefit the common good – like leading a school trip, organising a village fete, clearing snow from a path in front of their home or helping in an emergency situation.

The reforms will mean that, if a person has been acting for the benefit of society, intervening to help somebody in an emergency or demonstrating a generally responsible approach towards safety during an activity, the court will take a full and sympathetic account of their actions in the event something goes wrong and they are sued.

Measures to be brought in will also put the law more clearly on the side of employers who do the right thing to protect employees if something does go wrong through no fault of their own.

 These changes will allay the fears about liability that can drive volunteers to take out insurance when they don’t need to, force responsible employers to settle damages claims out of court rather run the risk of being found negligent, and stop passers-by from stepping in to help people who are in difficulty.

If you would like assistance in relation to a liability claim, call Anthony Scott on 01638 712243 for further information.

Posted 21/01/2015

More separating couples are to benefit from free mediation under arrangements announced last year by the Department of Justice. The objective of the new rules is to see more people resolving issues and reaching agreements on their own terms through mediation, which is often more successful, less expensive and less stressful than going to court. In 2013 for example, it was found that nearly two thirds of couples who attended mediation for a child dispute reached general agreement after a single mediation session;  almost seven out of every ten couples who opted for mediation reached a final agreement.

From 3 November 2014 the first mediation session was funded for both parties, provided at least one of them was already legally aided.  That followed the introduction, on 22 April 2014, of compulsory Mediation Information and Assessment Meetings (MIAM) which were required when separating couples applied to court over children and financial matters.

From 1 January 2015 there was a third stage in the government’s work to improve mediation and encourage separating couples to use it to resolve disputes:  from that date, the Family Mediation Council (FMC) introduced a compulsory accreditation scheme and new professional standards which all mediators must work toward (all mediators and those working towards becoming a family mediator are required to be registered with the FMC). The Ministry of Justice is funding the preparation work and costs of implementing the new standards;  the new professional standards will mean that separating couples and parents can have confidence in the mediator they choose.

These are the latest stages of reforms to improve the family justice system and follow recommendations made by the independent Family Mediation Task Force.

If you would like assistance in relation to a family matter, call Anthony Scott on 01638 712243 for further information.

Posted 16/01/2015