Tag Archives | self-representation

Faulty online divorce Form E

Form e financial disclosure

As we discovered just before Christmas, the online divorce Form E provided on the Court website was faulty.  It appears a section of the Form which summarises, amongst other things, the capital and income of divorcing couples, failed to carry forward the liabilities from an earlier section.  The result was that the net capital values produced in the summary section may have been falsely inflated by missing out any liabilities.

The person who claims to have noticed the error (a self-styled family expert)  used the publicity to criticise solicitors, barristers and judges for not having noticed it themselves.   This fed into the usual lawyer-bashing on public forums and comment pages.  Most family lawyers were taken aback by this particular slew of criticism because:

  • It is the Court service’s form, so nothing to do with lawyers;
  • 99% of family lawyers don’t use the court’s online Form E as we pay to have our own software;
  • Family lawyers pay no attention to the summary page of the Form E anyway as it is not helpfully laid out and does little to aid understanding;
  • The Form E financial information is quickly superceded by later rounds of  financial disclosure any way;
  • Family lawyers tend to reproduce the Form E information in separate Excel spread sheets (to model likely settlement options) so any error would be quickly spotted.

In short, although I have not been slow to have a pop at my fellow lawyers on the pages of this blog, I did think this particular story, as a vehicle to slag off family lawyers, was a bum rap.

The real story is that LiPs have been let down.   These people, the vast majority of this blog’s readership, cannot afford legal advice or struggle to maintain paid legal representation.  I’m guessing it would be LiPs in the main who would have been using the Court service online Form E.  I mean: it’s there to use, it’s free, and it’s on the official court website, so it must be safe to use, right?  Right?

The Minister responsible issued a statement to Parliament: “Update on investigation into faulty online form used in divorce proceedings”.  We now know the number of people likely to have been affected:

A total of 36,527 cases contain a version of Form E filed from these periods. HMCTS staff have now reviewed all these cases and found that 3,638 files – 10% – contained the faulty calculator version of Form E with an incorrect figure for net assets figure in the summary table.

1,403 of these cases are still live, allowing HMCTS to intervene immediately to clearly flag these cases to the courts in order to avoid the error affecting the final orders in these cases.

The remaining 2,235 files – 6.1% – were closed cases….I have instructed HMCTS to write to all parties in the 2,235 closed cases. The letter expresses our sincere regret for the error, sets out what happened and explains that, although Form E is just one part of the evidence used in their case, there remains a possibility that the error affected the final outcome.”

If you are one of the people with a closed case receiving a letter from the court service you will need to work out whether you may have been prejudiced by the software error.  Apparently, the letter sets out the options available for those parties who think they have been adversely affected, which includes seeking to set aside any final order made or varying such an order.  The letter also contains a link to a specific court form to be used by those who wish to set aside or vary their settlements.  If anyone has received such a letter or has the link I would be happy to post a copy (suitably anonymised) on this blog.

If there is anyone out there who thinks they are affected but has not yet contacted the court to register their concerns then please use the specially designated email address:  [email protected].  Only 51 people have done so as at 21 January 2016.


You can still get legal aid for mediation

you can still get legal aid for mediation

The government has been pushing mediation as the cure-all answer to its decision to end 60 years of legal aid for most family law work.  Everyone can mediate; who needs family lawyers, seemed to be the rationale.  Get rid of expensive legal aid, put lots of  money grabbing family lawyers out of work and mediation will deliver peace, love and understanding.


Well, the perfect storm in the world of legal services has continued unabated.  Locally, I am aware of dozens of family law solicitors and legal executives who have lost their jobs as a direct result of the withdrawal of legal aid.  I hear that close to 1,000 high street solicitors firms have closed over the last year alone.  In this respect, the government has succeeded: better still, there are no votes lost in casting lawyers onto the scrapheap.

So, with everything going to plan and all those annoying lawyers out of the picture, the mediation take-up will have rocketed, right?  Completely off the chart, right?  Right…?

Oh dear.  Ministry of Justice figures, as reported in The Guardian and other papers, show that the number of couples accessing mediation to sort out their family law problems has dropped by 47% since April – precisely the time when the legal aid cuts were introduced.  That’s nearly a 50% drop-off in 6 months.  How embarrassing for Mr Grayling, the big cheese at the Ministry of Justice.  This is the sort of policy car-crash that should have a resignation letter winging its way to the Prime Minister:

Dear Dave,

I just want to say how proud I am to have served in your cabinet.  We are responsible for some wonderful achievements and I am sure that history will judge us kindly.  However, it seems that I have made a bit of a hash with the meditation mediation wotsit.  In all fairness, I was only doing what you and George told me to do.  You said it would be all right to get rid of legal aid for family work.  Get rid of the lawyers and pack everyone off to mediation.  Bing, bang bosh, all sorted.  That’s what we told all the nay-sayers.

Well, the silly sods haven’t been going to mediation, have they?  They’ve been clogging up the bloody courts as litigants in person.  Then, some trouble maker only went and put in a freedom of information request.  (For God’s sake, can’t Theresa kick these requests into touch when she kills off the Human Rights Act?)  Anyway,  the ministry suits had to admit that mediation has dropped by half in less than a year.  I know, I know, I was blushing like a nun in a knocking shop.

Funny thing is, it turns out that it was the lawyers we have just kicked out who were making the referrals to mediation in the first place!  Who knew…?   Well, the Law Society and Bar Council did warn us that the sky would fall in but they would say that wouldn’t they?  How was I supposed to know this would happen?  I mean, I’m not a lawyer am I?  In fact, I’m the first non-lawyer in charge of lawyer-type things for nearly 400 years, which I have to say, was a master stroke of yours.  Bloody genius.

To be absolutely straight with you, I’ve never really got my melon around this Rule of Law thing.  Apparently, it’s like, really, really important.  All those lawyers, bigwigs and busybodies keep saying me and Theresa are taking the piss.  We show ‘scant regard’, or ‘contempt’ for constitutional checks and balances.  I don’t even understand what they’re getting their undercrackers in a twist about.  Why can’t they use simple language I’d understand?

So, I’ll be off then.  Spend some time with the family and all that.  Give it 6 months to blow over and then give me a shout.  Quite fancy Health.  Just sayin’…  See you at the next country sup.

Back in the real world, I just want to end by reminding any visitors to this blog that family mediation is still available on Legal Aid for those people adjudged financially eligible.  Good luck.


Funding options in the absence of legal aid for family law

Funding options in the absence of legal aid for family law

The forecast is dark clouds but it may become clearer

Funding options in the absence of legal aid for family law will be one of the more common concerns in my virtual postbag.  Legal Aid has largely disappeared for those wanting help from solicitors, legal executives or barristers who specialise in family law.  I consider the removal of legal aid for family law to be a terrible mistake.  The costs savings that will be trumpeted about by various ministers will be offset by the increased costs of other government departments such as the Ministry of Justice who will see further increases in Litigants in Person (LIPS).  A number of judges are now sounding the alarm bells about the delays (which means costs) in the court case lists attributed to LIPS turning up unprepared or unable to progress the case.

My purpose here is to list what limited provision remains for legal aid for family law matters and the funding options or alternatives there may be out there.

Legal Aid (remains of the day)

You can still obtain legal aid (provided you qualify on capital and income) in the following scenarios:

  1. If you are a victim of domestic violence.  You must be able to produce evidence of the domestic violence to your solicitor.
  2. If you have a child who is at risk of abuse from a partner.  Again, you must be able to give your solicitor evidence of the abuse.  Guidance has been published on the type of evidence at the Ministry of Justice website.
  3. If you and your partner agree to go to mediation.  You can also get some limited help from a solicitor outside the mediation process such as the drawing up of a consent order if the mediation is successful.  Unfortunately, mediation is not going to work for everyone.

Funding options in the absence of legal aid for family law

So what if you can’t get legal aid for family law?  What are the options?  In no particular order:

  1. Are you a member of a union?  Funding assistance may be available for members.
  2. Are you covered for legal assistance under your domestic household insurance?  Check the policy terms.
  3. Litigation loan funding.  There are specialist providers and your family lawyer should have the contacts to assess whether you can use such a facility.  However, you will pay interest on the loan and, ultimately, you will need some capital assets (such as property) in order to pay off the loan at the end of the case.
  4. Commercial lending from banks.  Unsecured loans generally available on the high street or online.
  5. Credit cards.  Another source of legal fees funding if all other commercial avenues are exhausted.  Fine in the short-term if the borrowing can be cleared in the settlement.
  6. Cashing in any existing investments.  There may be some savings accounts or ISA’s that could be utilised but do discuss with a lawyer first or an independent financial adviser.  Works if you have control over your own assets but not as good if the assets are joint and your partner wants to control your ability to get advice.
  7. Borrowing off family and friends.  More common than you might think. But ensure it is a ‘hard loan’ – one that must be paid back and is evidenced in writing.  If the loan is seen as ‘soft’ by your partner’s lawyers, they may argue it is not to be paid back and therefore you cannot count it in as a liability when deciding finances.
  8. A ‘Sear Tooth’ agreement.  This is a form of deed with your solicitors.  They will carry out the work for you if they believe that your settlement will be a reasonable one but the deed secures the costs of the legal fees against the settlement.  The usual scenario is that if a house is sold your lawyers recover their costs from the sale plus interest.  But the reality is that firms will only carry a handful of such arrangements at any one time.  They are risky for the lawyers because the settlement or court order may not be what was expected.   And there can be huge delays before the solicitors get paid even though they have no choice but to pay significant overheads each month such as staff wages and rent.
  9. A voluntary payment from your spouse or partner towards your legal fees.  Not as daft or improbable as it may sound.  Your lawyer picks up the ‘phone to your partner’s lawyer and says: “let’s be sensible, we don’t want to fight in court, give us some money to cover fees so we can explore a quick resolution.  We will give you a credit for it in the settlement”.  If the lawyers are sensible on both sides this can be quick and cost-effective.
  10. In the case of divorce or civil partnership financial orders: applying to the court for an order that your spouse or civil partner pays your legal fees. This used to be called an A v A application.  If you are married or a civil partner you can apply for interim financial help towards your outgoings called maintenance pending suit.  Part of this application could be for a ‘costs allowance’ to help you with your legal fees.  Various tests have to be satisfied (such as your inability to get commercial funding, legal aid or a Sear Tooth agreement with your solicitors).  A recent law change (which is not yet in force but which is imminent) will abolish the ‘cost allowance’ aspect and replace it with something called a Legal Services Order which will also go to meeting your legal fees.  Additionally, the court can provide an interim order for sale of real or personal property to provide the funds, if necessary, to meet the Legal Services Order.  (For years, matrimonial lawyers have argued that spouses should be able to apply for interim lump sum orders and interim orders for sale instead of having to wait until the end of a case. The power appears to have arrived at last, but strictly defined to only provide assistance with legal fees under the Legal Services Order).
  11. In the case of financial claims against your unmarried ex-partner on behalf of children under Schedule 1 of the Children Act 1989.  It is possible to seek interim lump sums on account of legal costs but certain tests have to be satisfied.

And a word about fixed fees.

I think that about wraps it up.  Remember that you must still ensure that you have a full discussion with your lawyer about how you can fund your case.  Make sure you ask for a written estimate of costs – or bands of costs depending upon likely outcomes.  Ask for fixed fee quotes which may be appropriate in some proceedings.  I keep reading various surveys that tell me the public demands fixed fees for all types of family work.

The public should be careful what it wishes for.  Fixed fees can be a good solution for some clients.  But guess what?  Sticking to an hourly rate with a carefully agreed plan of the work the solicitor will do and the work the client will carry out, can be cheaper. This is fashionably called unbundling nowadays. It is all about having a proper discussion at the start of the case.  I talk through budgeting plans and division of responsibility and work out whether a fixed fee or hourly rate is better for my client in every single case I take on. I fully explore all funding options.  And I put it in writing to them.

I think when people talk about fixed fees they want certainty about cost.  I absolutely understand that.  But I also think that some commentators are talking about fixed fees when they are actually meaning cheap fees.  And I suspect there will be a drive from some of the new entrants to family law – like Co-operative Legal Services – to offer lower fixed fees (like loss leaders) to bring in business.  That approach will only ever work on a commoditised basis.  This means the work may be dealt with by less qualified and less experienced staff.   Like my grandmother (and yours) always said: you get what you pay for.  That’s always been true.  So if you want to fly with Fixed Fee Family Airways, be my guest.  It may be fine for you but only make that decision after weighing up all the options.


Sorting out Separation – new DWP App

The DWP App

The Department for Work and Pensions (DWP) launched an app at the end of November 2012.  The app is intended to provide assistance to people who are struggling with the issues that arise on relationship breakdown: divorce, child support and so on.   I think the app is the delivery of an initiative announced in July of this year when the press reports talked of a ‘Divorce App’ and the figure of £14M budget spend was bandied around.   I questioned then why £14M was needed for an app.  I now understand the spend was closer to £300,000.  Quite a come-down.

I had a bit of a go in that previous post, unhappy as I was with the brutal staff cuts to the court system and the planned withdrawal of most family legal aid in April of 2013.  My bad humour is not dispelled by the ‘Sorting out Separation’ app now hosted by the DWP.  I’m all for helpful guidance but placing impossible obstacles in the way of access to justice turns me into Mr Angry.  For one beautiful moment, back when the app was launched in November, I saw a link to MailOnline about the app that seemed to share my anger.  At last, I thought, one of the press big beasts has woken up to the threat posed by the withdrawal of legal aid and the insulting attempt to fill the impending void with an app.  Fortunately, natural order was restored once I read the article and realised that the Daily Mail was angry, as usual, for all the wrong reasons.  It was just the usual piece about how getting a divorce or separating was being made even easier.  Strangely enough, most of the readers of this blog seem to find the exact opposite: sorting it out is expensive, complicated and deeply stressful.



However, I have allowed myself to be distracted.  Since my blog is intended to be helpful to the very people who will be most affected by public provision cuts, I have decided to give the DWP’s shiny new app a fair crack of the whip.


Good luck and let me (and others) know if the Sorting out Separation app is worth the money we taxpayers have just spent on it.


Litigant in person ‘not entitled to indulgence’


All the fun of the (un)Fair

I have written before about the difficulties encountered by self-reppers when trying to deal with the court system.  The courts are braced for a significant rise in the number of litigants in person when legal aid is removed from the grasp of most people requiring family law help in April 2013.

The spotlight will be on the courts (and judges in particular) to see how the reasonable demands of access to justice from the growing band of self-reppers will be met from the dwindling resources at the court system’s disposal.  There have already been severe cuts to the number of court staff.  I could wheel out some stats at this point but the reality on the ground says it all.  Most courts have public counters.  This is where you go if you need to grab some court forms or hand in court papers.  They used to be open to the general public from 10 in the morning until 4 in the afternoon.  There might sometimes be a bit of queue but there appeared to be enough staff around, hiding behind the screens, to come and help when things got busy.  Not any more.  Most courts now have restricted opening hours for their public counters.  My local court operates on half days.  If you want to issue a document and it is not screamingly urgent, then hard luck.

But what about the experience in court itself?  In a recent case in the Court of Appeal,  Lord Justice Kay, vice-president of the Court of Appeal, said that a particular self-repper’s lack of legal understanding did not entitle him to ‘extra indulgence’.  The Judge went on to say: ‘It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence.’

Having had a quick glance through the judgment it does appear that this particular self-repper had taken a few liberties.  But such cases are going to crop up in increasing numbers as we head into the economically austere, non-legal aid future.  This case prompted me to think about my own experiences with self-reppers.  My reflection was sharpened by the editorial comment in my professions’s trade mag: The Law Society Gazette which said about the case:

The finding will comfort solicitors facing a soaring number of self-represented opponents.

Unfortunately, I find little comfort in the finding.  I have represented clients whose ex-partners were self-repping.  Some of those people could have afforded legal representation.  Some could not.  Certain individuals were perfectly pleasant and decent and I tried to help them as much as I could without overstepping my own professional boundaries.  Other individuals had what I can only describe as ‘issues’.

Those issues used to be in relation to my client, usually in a divorce, but as the case went on, those issues would magically transfer themselves to me. Before long, I was the villain: lying to the judge; destroying a perfectly happy family; morally bankrupt; financially grasping; without a single shred of human decency or understanding.  In case I was too thick to get the message I could often rely upon the self-repper’s extended family to helpfully shout out my failings at the next court hearing.

If you have both parties legally represented then, in most cases, you can concentrate on the issues that the judge will consider relevant.  But more than that, a lawyer can help, constructively and patiently, to manage a client’s expectations of what can be acheived.  So, those self-reppers in the past who hated my guts could have had their own lawyer explain that I really wasn’t out to destroy them.  All that time and energy distrusting every word I said or letter I wrote just hopelessly, and sadly, prolonged the whole shouting match.  And don’t forget that my own client in this scenario, paying for my legal advice, ends up paying a whole lot more because their self-repping ex needs, at best, to have everything explained to them, and at worst, just wants to be as bloody-minded as possible to keep those bills racking up.

But despite some pretty horrible experiences with one or two self-reppers who had these proverbial ‘issues’ with the cut of my jib, I find myself largely sympathetic to the plight of litigants in person.  How do you make sense of a legal code or procedure that some lawyers struggle to understand?  I once jokingly quoted a small section of the costs rules in a previous blog from the Practice Direction accompanying Part 28 of the Family Proceedings Rules (FPR 2010). This states:

Rule 28.2 provides that subject to rule 28.3 of the FPR and to paragraph (2) of rule 28.2, Parts 43, 44 (except rules 44.3(2) and (3), 44.9 to 44.12C, 44.13(1A) and (1B) and 44.18 to 20), 47 and 48 and rule 45.6 of the CPR apply to costs in family proceedings with the modifications listed in rule 28.2(1)(a) to (d).

I mean, for Christ’s sake, how are self-reppers meant to get their non-legal melons around that one?

And, in the interests of fairness, whilst most solicitors have a few horror stories about self-reppers, the legal profession does not always cover itself in glory.  I must not say anything to bring the legal profession into disrepute and I wouldn’t dream of doing so.  I will only observe that there are some members of the legal profession who are tossers misunderstood, with egotistical extrovert personalities who are  arrogant forthright, long-winded articulate, and utterly pompous possessed of remarkable gravitas.

Since this blog is intentionally aimed at the public, rather than my friends and peers in the legal profession, I know that a fair few self-reppers visit my site, so I would be interested to hear their views in the comments section below.


McKenzie Friends in the Scottish Family Court

Is that the high road or the low road?

Family lawyers are still pondering how the family justice system is going to cope with the withdrawal of legal aid for divorce financial proceedings and the growth of self-reppers or Litigants in Person. The Government appears keen to take the family lawyers out of the equation if at all possible. It even appears keen to take the State out of the equation judging by the anticipated new statutory child support scheme slated to commence in October of this year and the renewed drive to divert potential litigants towards mediation. This new statutory child support scheme will, by the way, re-double its efforts to encourage parents to reach their own maintenance arrangements. I have no quibble with that aspiration but sufficient resources need to be retained by the State to assist those people who cannot resolve their own differences whether it be arising out of divorce, the separation of co-habitees, or general child welfare issues.

There have been developments north of the border (that’s Scotland, for those of my readers based outside the jurisdiction of the English court) that might have Kenneth Clarke, Secretary of State for Justice, very excited.  To explain his potential state of jurisprudential arousal, I should remind my readers that the traditional forum for settling differences between warring spouses or partners is the family court.  But the constant pressures on legal aid has meant fewer lawyers and more self-reppers in the precincts of the court.   The court administration (and Ministry of Justice officials)  know that the level of self-representation will rise, and one way of assisting such self-reppers (and prevent court business from grinding to a halt)  is to allow them to bring to the court a McKenzie Friend. I referred to McKenzie friends in one of my previous posts, which was intended to provide help and guidance for self-reppers.

But there are restrictions on what a Mckenzie friend can do in court. They can whisper in the ear and provide moral support and guidance.  But, most importantly, they are not court advocates and therefore not in court to represent the litigant in person. I have come across services that advertise themselves as a professional McKenzie friend, by attending court and completing court forms. Some services even offer to negotiate settlements for spouses which is certainly beyond the role most judges would expect the Mckenzie Friend to perform. It is not clear what training, qualification or experience underwrites the quality of such services. So the McKenzie Friend can perform a useful function but cannot speak on behalf of the self-repper in court. That would amount to court advocacy and, presently, only a tightly defined group of professionals can hold themsleves out as court advocates: solicitors, barristers and legal executives being the best known examples.

So back to Scotland: I hear that the Scottish Parliament has enabled legislation which will allow Mckenzie friends to speak on behalf of litigants in court proceedings.  It would appear that the move, if successful, is a direct response to the fact that an increasing number of people cannot afford lawyers to do the honours in court.  This is very big news.  Even bigger if Mr Clarke likes what he sees and wants to import the model to the English and Welsh jurisdictions.  Get rid of legal aid.  Get rid of bleating lawyers.  Bring on the McKenzie friends.  Perfect.  No doubt, this new breed of McKenzie friend will be highly trained.  No doubt, they will be masters and mistresses of the relevant law, court procedure and, in the matter of family law cases, deeply appreciative of and responsive to, the various stages of denial, anger, grief and acceptance that mark the psychological terrain of the average family law client.

And, no doubt, these advocate McKenzie Friends will be insured to the hilt in the unlikely event their clients feel they have got it wrong.




The Divorce App

Divorce Finance Toolkit App post

‘Appy Days ahead?

I read with interest the news that the UK Government has committed £14M of funds towards the development of an App that will assist divorcing spouses and separating couples, especially in relation to child care after parting.

I’m all for new technology if it empowers people who would otherwise struggle to afford the fees of divorce lawyers.  And yet, I can’t help wondering why it will cost £14M to develop such an App.  Sure, the quality of the content has to be there and that won’t be cheap.  What’s more,  the App developers may be kept busy building in some useful tools and calculators and that will cost a few bob.  But £14M?  Really?

I suspect, as usual, the news may have been spun too much or has suffered from mis-reporting.  If this initiative is to have a £14M price tag, i expect that the British public will find themselves treated to a website of information, online tools, some half-decent signposting to other resources AND AN APP thrown in because that is the sort of sexy thing we all like on our iPhone and Android devices.  (And Blackberries… if they’re still making them).

If that is the case, then I wonder: why bother?  There are a number of perfectly good websites in existence offering quality information and some excellent financial tools: I have listed them here.  An app is fine but a fully functioning website is better.  A fully functioning website is delightful, but a properly funded family justice system is simply splendid.

Now I come to think of it, if you deduct the tens of millions saved from the planned withdrawal of legal aid from the majority of family law cases and the tens of millions already slashed from the court budgets, £14M  on an App starts to look like a PR stunt.   Of course I know these are times of austerity, so the UK Treasury has to be tighter than a shark’s arse in a power dive, but I had envisaged helpful Apps to be a contribution from the entrepreneurial private sector, not a replacement for core, State-funded services.


Child support: excluding the CSA

Child support: excluding the CSA

Full of cheer? The Christmas Order

Self-represenatation in family proceedings is difficult.  Many litigants in person, or ‘self-reppers’ find it hard to fund legal advice from a family specialist.  This is particularly so where the only dispute may be about an income claim such as child support because it is not as if you may recover a valuable asset or receive a lump sum out of which you can repay your legal fees at a later date.

When faced with a self-repper, a family solicitor (who, we must remember is an officer of the court) should try to assist the litigant in person to understand the process or the proposal being made.  This is not to say, that the solicitor must advise the self-repper: they cannot do that as it would be a conflict of interest with their role as an advisor to their own client.

I have a great deal of sympathy for self-reppers, as may be evident for any regular readers of this blog.  When facing them in court I go out of my way to be courteous and helpful, mindful always of the stressful nature of the proceedings in which we are all involved.  I have sometimes had self-reppers throw doubt upon my parentage, but I don’t mind as I know, in most cases, it is just the pressure of the situation getting to them.

Unfortunately, this pressure of the occasion at court can cloud the judgment or even hinder the understanding of self-reppers.  This is presuming of course, that the lawyer on the other side of the self-repper and the judge have sufficiently explained the situation to the self-repper.  This is the subject of a recent enquiry from a ‘troubled mum’:

My son settled in court to pay a woman he had a one night stand with £750.00 per month. This was at a stage 2 meeting. My son had to represent himself because he could not afford the legal fees. The barrister representing the applicant explained the order was a “christmas Order” which meant it could be looked at again if my son were to win the lottery or found himself without a job ( I was there I heard the barrister say this) We now have received a typed up copy of the court order that we agreed on the 3rd May to let a legal person look at it. We have been informed the words “Christmas Order” means it automatically goes up each year which we were definately not informed that this was the case. Can we ask the court to take out that clause because we were informed wrongly of its meaning please help this is a nightmare regards very troubled mum

As ever, with many of the enquiries I receive, I do not have all of the detail but my initial thoughts are as follows:

  • I wonder why this matter was not dealt with by the CSA.  The child’s mother could simply have referred the case to the CSA to make a maintenance assessment and fix the amount of child support.  No need for her to pay for a barrister (unless she had public funding – or legal aid).
  • Since the CSA were not involved I am presuming the case before the family court was under Schedule 1 of the Children Act 1989 which can provide for financial orders between unmarried parents for the benefit of their biological child.  Such orders usually being:
    • Periodical payments (or child support)
    • lump sum orders (there can be more than one)
    • a property adjustment order (the provision of a house for the child and mother to live in) although the property will in most cases revert back to the father when the child reaches the age of majority.
  • If this case was being brought under Schedule I Children Act proceedings, then the father in this case could have referred himself to the CSA and the family court would no longer have the ability to make a periodical payments order.  The family court could still have made a lump sum order or a property adjustment order but whether the father had the financial means to meet such orders is not mentioned in the enquiry.  I suspect not.
  • The father has agreed (remember that the family court can only approve a child support order if it is with the consent of both parents) to a ‘Christmas Order’.  I have used such orders before but from memory I have only done so when my client’s spouse or partner has had legal representation.  This is because the Christmas Order attempts to oust the jurisdiction of the CSA (which, technically speaking, is against public policy).  Readers of this blog may remember that a court-approved child support order may only have a shelf life of just over 12 months because either parent can then refer the case to the CSA to take over and the family court order bites the dust.  A ‘Christmas Order’ is designed to automatically renew itself just before the 12 month period lapses so it is as if a new order is born out of the ashes of the preceding order each year.  Because the order never quite gets to be one year old before being renewed each year the CSA never gets to have jurisdiction.  The month of automatic renewal is usually December: hence the Christmas connection.   Clever. Unless you did not understand what you were signing up to.
  • A Christmas Order can be quite helpful in some circumstances but, as I mentioned earlier, I am troubled if the father of this child did not have a clear understanding of what he was agreeing to.  Without his consent this order could not have been made. Even if the barrister had not explained it clearly enough, I would have thought the judge, who approved the order, would have explained very clearly to the father what the Christmas Order entailed.  After, all it is an unusual order so the burden upon the barrister and the judge to assist the self-repper in this case is, in my view, even higher than normal.
  • The ‘troubled mum’ behind this enquiry and her son then consulted a ‘legal person’  with the result being: “We have been informed the words “Christmas Order” means it automatically goes up each year”.  That’s not right.  The Christmas Order operates as I have explained above: it automatically renews itself each year in such a way as to prevent the CSA having jurisdiction.  It would only go up in value each year if there was a specific clause saying that it will increase in value.  The normal mechanism for this to happen is to link the child support payments to the increase in the Retail Prices Index (RPI).  I have tried to explain how this operates in a number of posts on this blog. Again, I am troubled if the father in this case did not know he was agreeing to an automatic increase in the value of the payments each year.  Don’t get me wrong, I think such automatic increases can be a good thing but it is essential that all the parties (especially self-reppers) understand what they are agreeing to.)

Although I must reiterate again that I cannot advise anybody on the pages of this blog, one option open to the father is an appeal against the court order.  It will be an appeal against a consent order which makes it difficult to say the least but it may be worth a try if the father is certain that the order was not explained to him by the judge and that if it had been explained to him, he would not have agreed to it. The guidance for making such an appeal is here.  However, the usual time period for making such an appeal is 21 days from the date of the order so that time period has already passed.  It is, however, still possible to make the application to appeal (out of time) and the father may be given more leeway because he is unrepresented.

BUT: remember that such an order is variable.  That is, if there is a significant change in the father’s circumstances such as the loss of a job or a significant pay cut then it is possible to have the amount of the maintenance varied downwards on an application back to the family court.  At the same time the court could be asked to simply drop the automatic renewal (the Christmas Order) aspect of the child support so that it could, if either parent wanted to, fall back within the jurisdiction of the CSA in the future.

My inclination, if this father needed to vary the order in the future, would be to invite the mother of this child to mediation.  Much less stressful than contested proceedings.


Free subscriptions to MyOffspring




In my last post, provocatively entitled Why you don’t need a divorce lawyer. A Reprise,  I announced that MyOffspring had kindly offered my firm, Family Law Partners, free subscriptions for their online service  limited to the first 200 speedy applicants.


Here is the procedure for becoming a free premium subscriber for the first 12 months


  1. Point your browser to http://www.myoffspring.com
  2. On the right-hand side, just under the login fields, click the “Register” link
  3. Choose the 12 month subscription (£49.95) and continue to register. Note that your user name must NOT contain spaces
  4. On the next page, enter your coupon code (FAMILYLAWPARTNERS)
  5. Proceed to PayPal to complete the transaction. This will set up a subscription which is free for the first year. You can cancel the subscription at any time before the next payment is due. The first year is entirely free.
  6. If you have any problems, you can e-mail [email protected] for help.

Many thanks to Karim and the team at MyOffspring for their generous offer.


Why you don’t need a divorce lawyer. A reprise.


First: a confession…

I used to be one of those lawyers who felt distinctly nervous at the thought of changes in legal services that could impact upon my livelihood.  But then, as a person entering the law as a second career shackled with monstrous debt from my legal courses and young, hungry children, I was always likely to be of a nervous disposition. But as time has gone on I have learned to embrace change.  In fact, I positively welcome it.  I like to see the positives in change rather than the threat.  There is no greater agent of change than technology. Technology can deliver services in ways we could not have imagined some 15 years ago.  Legal services are not immune.  And I am not referring to the now commonplace changes introduced by innovations such as:

  • email
  • Skype
  • ‘Always on’ and synchronised services like Dropbox or Googledocs unleashing the full potential of mobile devices like the iPhone and iPad.

Lawyers are beginning to utilise these technologies to help their clients.  That’s the way it should be.  For too long, lawyers have thought of reasons why their established patterns of working should not change even though client pressures were building to demand greater flexibility in the delivery of legal services.  After all, why should the provision of legal services not be client-led?

This blog is aimed at that section of the public making one of the painful transitions called separation, divorce or dissolution of their civil partnerships. I am communicating directly with people who may need to access advice on matters like divorce.  I am precisely NOT writing this blog for the benefit of my professional colleagues specialising in family law.  They are very welcome to read my posts and take issue if they like but they are not my intended audience.  This is the reason I am not banging on about the profound changes to be wrought by the Legal Services Act: the public don’t give a toss and why should they?

So what are the interesting strands, now emerging, that are likely to shape the future of family law services delivery?


This simply means that the public may want to select from a menu of legal services: picking and choosing those bits they cannot do themselves with any confidence.  But, being prepared to roll up their sleeves and have a go at the aspects that look less daunting and may owe more to procedure than legal interpretation.  This has been going on for some time but the pace appears to have accelerated.  People having to deal with divorce have always been able to deal with the proceedings themselves but the availability of online services has allowed for the elements of the proceedings that can be process-driven to be offered directly to the public.  The divorce process (but not, in all cases, the financial aspects) can be broken down and delivered online.  Mark Keenan’s Divorce-Online has been doing this for years.  There have been other entrants into the online divorce services market but Divorce-Online, being the original, still appears to be the best.


Online forums attracted to discrete issues are creating their own ‘demand agendas’ that bypass traditional professional services or dictate the terms of engagement with them.  If you have a look at Wikivorce you will see a strong element of self-help driven on the forum pages.  The members posting on the user forums will often use the term STBX (soon-to-be-ex [partner]) when referring to the other spouse.  The other members will provide sympathy, support and some direct suggestions for how to tackle a problem with a STBX. It is clear that there are some comments posted by forum users with legal experience, possibly solicitors or legal executives, but they are not allowed to ‘own’ the pages, or even, as far as I can tell, use the forum pages to profile their legal firms.

Another good example of community action is  Suzy Miller’s Starting Over Show (SOS). An online environment that supports and encourages divorcing and separating couples to explore ‘better’ ways of resolving disputes  with an emphasis on mediation and the collaborative process.  An example of Suzy’s bottom-up approach is Divorce in a Box which provides vouchers to a range of services, both legal, and therapeutic.

I also like Only Dads and Only Mums.  These sites offer support for single dads and mums and signpost resources for people who might initially be shell-shocked at single parent status.


Look at MyOffspring.  This is a relatively new offering and I spoke about it on my companion blog, Larkinslaw,when I said:

“…  the MyOffspring team want to offer separating parents an online environment that provides a suite of  tools and resources that will allow them to communicate with each other and even their children using the now familiar tropes of social networking.  There will be the ability to use a schedule manager, join forum debates, access advice from a range of experts on family matters (both legal and therapeutic), and even upload materials for sharing with your ex-partner that can be timestamped and even geo-tagged.

The emergence of online offerings like MyOffspring throws up some interesting questions.

  • Will the ability to communicate with your ex-partner in a secure online environment in real-time improve the prospects for constructive dialogue and therefore improve the outcomes for children?
  • Will the ability to upload materials to a secure server reduce the room for conflict between those parents where the common cry of the parent who is not the primary carer of the children is that they are kept in the dark despite enjoying parental responsibility for their children?
  • Will the ability to geo-stamp certain entries, through a supporting App on a smartphone, do away once and for all with the destructive allegation and counter-allegation that one parent has failed to turn up at the agreed time and location to have or to allow contact with their child?  I have seen the courts struggle with these cases where a decision has to be made as to who is telling the truth about specific incidents.   The court’s decision, a finding of fact, can impact directly on the ultimate decision as to which parent should have care of the children or how much contact there should be for a so-called absent parent.
  • Does the concept of the ‘absent parent’ lose definition and meaning in a virtual world where the channels of communication are in real-time and ‘always on’?
  • Most intriguingly, will the English courts, like their North American counterparts, embrace the reality of such online tools and begin to incorporate into their orders, a direction that the parents before the court must subscribe to such an electronic service in the hope that communication will improve but that , if it does not, the un-cooperative and obstructive parent may be found out.

The potential for improving the frequency and I would hope, the quality, of the communications between parents in respect of their children is there.  The STBX will be the person at the other end of the interactive tools in this vision of the future rather than the subject of anger or despair in the forum discussions.  If I am right – that the tropes of social networking are becoming ubiquitous – then the particular patterns of engagement between consumers of such services, even hostile parents, could be constructively channelled for the benefit of their children.

Finally: a freebie

My day job is with Family Law Partners (FLP)  The MyOffspring team have kindly offered my firm 200 free subscriptions for their premium service for 12 months. You do not have to be a client of FLP to use the subscription.  It will be first come, first served.  I will post the online code for the offer as I soon as I receive it.