I have to say I think Google+ is much better for quick posts and links than Twitter is, but since practically nobody is using Google+ at present I have given up the unequal struggle and I’m moving my quick posts to Twitter. You can find me here @shmbarrister.
You may remember that at the time of the House of Lords judgment in Stack v Dowden, Hale LJ dropped a very heavy hint to the Land Registry that it would be useful if it was to review its practice of not requiring joint owners to set out their interests in the equity, or their expectations of such interest, at the time of the conveyance. The mills of the Registry run slow, it appears, but there is finally some movement. Last Thursday, 1 November 2012, the Registry introduced a new form “JO” which is intended to make a significant difference to conveyancing of titles where there is more than one beneficial owner. This development is of particular interest to those advising cohabitees and others entering into a joint purchase of property.
Form “JO” is a voluntary form – it does not have to be completed, and joint owners can still rely on the relevant tickbox sections of TR1, FR1 and other forms. Where all relevant names appear on the title, purchasers will probably still take that course. However, the really important development in Form JO is that it directs the purchasers’ intentions to what is to happen if one of the joint purchasers is not on the title, as, for example, where the house is bought in the name of one partner but it is agreed that the other partner will have a half-share.
It was always possible to record an agreement like this by executing a separate deed of trust and referring to it at Box 10 of the TR1, but it was hardly ever done. Now, the conveyancer has an opportunity — indeed, it is more or less an obligation, since the careful conveyancer must direct the attention of the parties to the existence of this form — at the time of the transfer to point out to both parties that there is a very easy way to record this agreement for posterity. Parties should have their attention directed to Form JO and their instructions as to what to do about it should be carefully recorded. It is likely that in due course, the question of whether or not a Form JO was completed at the time of purchase will assume quite a lot of importance.
Form JO is an important opportunity for those who do not intend equity to follow the law, or who have unusual arrangements about the equity — it is to be shared with someone not on the title, for example, or the beneficial tenancy in common is to be held either in unequal shares or by a formula which is agreed now but will be calculated later — to put that in writing at the very earliest opportunity. It is also, incidentally, a good opportunity to look at whether the completion of Form JO should be part of making a cohabitation agreement.
Women with children who are living with their partners but who are not on the title should in my view be strongly advised to put any agreement about their eventual share of the equity into Form JO at the time of transfer.
Conveyancers will no doubt already be aware of this development. They may be underwhelmed and tell you that what can be done by Form JO was already possible under, for example, box 10 of the TR1. That is true, but the important thing about Form JO is that it is a specific stage in the conveyancing process which should be considered by the conveyancer and the parties should be advised about it. Whatever they decide to do (as I have said, completion of the form is voluntary), a careful record of the advice and instructions should be kept on the file.
There is a link to the relevant page on the Land Registry website here.
I’ve set up a Google+ page so that I can quickly post up news and other items that I think will be of interest to you. From now on I’ll be using the blog for longer articles, and there are some other changes in store. I hope you’ll stick with it! My Google+ page is here.
In the course of her Henry Hodge Memorial Lecture at the Law Society in June of last year, Baroness Hale recalled Lord Justice Mathew’s aphorism that “in England, justice is open to all — like the Ritz”. I don’t know about the Ritz — I don’t get there that often, entirely through pressure of work, you understand — but sadly, for the past few years, justice has enforced an ever-stricter door policy; almost literally, now that we are getting accustomed to talking about “gateways”.
There has been some interesting research on the adequacy of the proposed domestic violence gateways which has appeared today, and which I want to comment on in more detail later, but looking back again at Lady Hale’s lecture (which you can find here) has prompted me to give you a bit of a flavour of it, because it remains an important comment on the changing situation, and because to my disappointment it wasn’t terribly well reported at the time. It was covered by most of the legal press, but almost entirely for the eye-catching claim that the public funding cuts would affect the poor disproportionately. In fact, her lecture made it clear that even one of the highest judges in the land now has serious concerns not only about how restrictive the access has become, but what the effects of that restriction will be.
The lecture was entitled “Equal Access to Justice in the Big Society”, and as I’ve already noted it predictably caught most headlines for the statement that the Legal Aid reforms will “have a disproportionate effect on the poorest and most vulnerable in society”. Rightly so; this was bold, plain speaking. It was bold, also, to place the issue of access to justice (which, as she pointed out, is not quite the same thing as access to lawyers) in the context of the “Big Society”, that politically radioactive concept which continues to divide the populace. In fact, the only time she referred to the Big Society by name is in the title of the lecture, but she had a number of interesting reservations about the current plans for the Legal Aid system which make it clear that she believes that they cut across and impede the stated “Big Society” objectives. If the Big Society is about anything, it is surely intended to be about social inclusion, but she made the point a number of times throughout her speech that the Legal Aid reforms will probably have the practical effect of barring access to justice for many people, and that result is, in effect, social exclusion. Just after she has noted in the speech that the effect on the poorest and most vulnerable will be disproportionate, she quotes (without comment) Legal Action‘s concern that “this would lead to an underclass of people disenfranchised from justice and indifferent to the rule of law”, and notes herself that
“the idea, recently floated, that some claims recognised by the law should become non-justiciable in our courts is truly alarming. This would turn debts and other legal duties into voluntary obligations, binding in honour only. And we know what risks of truly alternative enforcement mechanisms those can bring.”
Strains of the theme from The Godfather: but of course her point is a valid one. If you leave, say, debt collection and the general law of obligations to be dealt with by means of self-help, guided by ideas of honour and loyalty which may be fairly rough and ready, bad things tend to happen. As she also remarks, this idea runs counter to the “no right without remedy” principle set out in Ashby v White over 300 years ago (in 1702, in fact). This new idea is therefore, in its proper context, (but this is my gloss on what Lady Hale is saying) a truly revolutionary one. There is something rather sinister about this concept of a legal system which admits that it cannot afford, for reasons of lack of money, time or other resources, to provide an adequate remedy in response to a legal right. Note that it is not the resources of the parties which are being questioned, but the resources of the process. It is an admission of a systemic failure which is, in its own way, a quiet catastrophe.
She considered the various alternative routes to justice, other than lawyering up, but overall her conclusions were gloomy. Tribunals have not worked out to be as simple or as cheap as was first hoped, in part because the system has had to be restructured to reinforce the concepts of independence from the state and impartiality. Mediation is, she thinks, suitable and indeed preferable for family disputes (“no family judge who has had to decide who will pick the children up from school thinks that this is a sensible way to do things”), but possibly not such a great idea for other disputes, particularly where it is forced on the parties. What about their Article 6 rights to access a court?
She is also concerned that compulsory mediation can reinforce the power imbalances between the parties unless it is “very professionally conducted … and professional mediation costs money”. If you have been involved in a David and Goliath mediation of this kind, you will probably recognise the profound truth of that sentiment. It is the unfortunate habit of Goliaths in mediation simply to flex their muscles and indulge in je m’en fichisme until everyone gives up and goes home. The cost of the mediation may be a drop in the ocean to Goliath, but a small fortune to David, meaning that David has much more of a stake in the success of the process. Mediation is not the answer to all ills.
In the light of the current arguments about the new public funding gateways, this speech remains as pertinent as it was six months ago, and I urge you to read it if you haven’t already done so.
… to all my fellow jocks, wherever they are.
Can I also recommend to you Louise Restell’s posting today on the QS website, “Why lawyers should join a real trade union”, which you can link to here.
If, like me, you’ve sometimes gathered up your papers at the end of a care application and wondered, “What next for this child?” — or even if you haven’t — can I recommend to you the two BBC documentaries by Neil Morrissey, which are available on iplayer here, but only for the next couple of days. Neil was taken into care at the age of 10 and lived in a care home until he was 17. He gives an enormously touching, honest and courageous account of his time in the care system, and the impact it had on him in childhood and into adult life. It will give you an idea of the trauma involved if I tell you that Neil and his brother Steve, to whom he was extremely close, were not expecting to be taken into care at all. They were suddenly separated from their parents, and each other, at the Magistrates’ Court, and sent to separate children’s homes. Neil did not really see his brother again for another 10 years. His brother was in fact sent to a children’s home which later became the focus of a police investigation for physical and sexual abuse on a large scale. It sounds like a Dotheboys Hall for the 20th century. This was in the late 1970s, and certainly things are a lot more child-centred now, but it is heartbreaking to see the effect this sudden and dreadful dislocation had on Neil, and children like him. Certainly nobody appears to have given any thought to how the process felt from the point of view of these two children, and the damage has been permanent.
Even as an adult, Neil had no real idea of why he had been taken into care in the first place. One of the most interesting sections of the documentary is the meeting between Neil and the family’s social worker, who gives him some more of the background. Neil lets him off a bit lightly in my view, but one of the important things he says in the programme is that he has learned not to dwell on the past. I can imagine that if you started to allow yourself to get angry about some of this stuff, you’d never stop.
He talks to some of the people who were in the children’s home with him, and to young people in today’s care system. These are not easy interviewees, who are at times telling stories of significant distress and damage, and I thought he was a great interviewer. He clearly has a lot of natural openness and empathy which encouraged them to talk. It obviously helped that they knew he had gone through the care system himself. He also highlighted the particularly significant problem of what happens when a young adult leaves the care system and has to learn to fend for him- or herself, often without any significant life skills or support. This is a really serious issue and deserves to be more widely known about.
His is of course a purely personal and subjective view of what it was like to be a child and teenager in the care system thirty years ago, but it’s that personal touch and subjectivity which gives these programmes their strength. I really do urge you to have a look at them, I think they’re very important.
And I was utterly delighted, on a personal note of my own, to find that my two favourite Norn Irishmen, Adrian Dunbar and Charlie Lawson, are old friends — of Neil Morrissey and each other! (So they are.) (Not Brazil.) But you’ll have to watch the second programme to find out about that.
I’m not minimising the concerns of lawyers in the UK about public funding cuts and access to justice; obviously these are important issues and they need to be fully argued and discussed. But can I ask you to click the link below to Jonathan Goldsmith’s article in the Law Society Gazette online, which reminds us that in some times (including now) and some places you can face physical injury and imprisonment just for doing your job. Perspective is always useful. His comment that oppression of lawyers in China has increased since the protests in the Arab world is particularly interesting. Please spare a thought for the lawyers named in this article and consider doing something concrete to help, such as supporting Amnesty.
Most of you will probably have found this already, but I thought I would post this link to the Supreme Court website where the Radmacher judgment is published in full. There is also a version of it on the Guardian law page hosted on Scribd, but for some reason when I tried it last night the print button wasn’t working, which isn’t terribly useful for oldies like me who can’t read more than five pages on a screen without feeling dizzy. My younger readers may fare better. Family Law Week‘s website, which I believe is still free to subscribe to, has what looks like an interesting analysis by James Turner QC here. I will try to round up as much of the early analysis as I can, as soon as I can, but it will probably take a few days.
This beautiful illustration comes courtesy of Coffeelatte on Flickr and is the work of John R Neill, who illustrated the original Wizard of Oz and other Oz books. It is just about 100 years old (published 1914) and I think we can safely say that the concept of marriage has lost a lot of its romance since, and has just lost another little bit of its sparkle. Mind you, I don’t say that’s a bad thing.
This story is a sad little sign of the times. I’ve come across quite a few attempts myself recently to gag departing partners from talking about the break-up. The long shadow of Facebook and other types of social networking is getting cast over more and more partings these days, and more people now have the capability of airing their grievances to the world at large, even if they’re not stand-up comedians. And, as we know, the danger is that once the information is out there, it will be out there forever. (I’m not totally convinced about this, actually, there are storage limits on blogs and social networking and eventually items will be deleted just out of sheer apathy, but I agree that your past will certainly hang around for longer than it once did.) Even the man or woman on the Clapham omnibus has a “public profile” these days, and wants to protect it.
Anyway, I strongly suspect that Mr Grant had better be very, very funny if he wants to avoid further wrath from his ex.
Oh dear. Well, it’s true I have been very busy, but apologies for the long gap between posts. Many interesting things have happened while I’ve been elsewhere, although from my point of view the most interesting is probably the Jones v Kernott decision, about which I intend to write in the near future, but there are lots of other potentially important developments. I hope to return very shortly with more news and comment.
I have sometimes been surprised by the attitude that some of my colleagues at the family bar, and family lawyers generally (and indeed, I regret to say, sometimes the family bench), have towards money. Quite often I have been told, in the context of a private law section 8 dispute or indeed sometimes in the course of care proceedings, that family money is an unimportant issue. I have been told that it is trivial; I have been told that one or more of the parties is being mercenary; I have been told, implicitly and explicitly, that disputes about money, particularly in the context of contact proceedings, should be treated as totally irrelevant because they are not what family law should be about. It turns out, as I always suspected, that the children involved in such disputes emphatically disagree. I am delighted to see that, as this report from CAFCASS demonstrates, 46% of children involved in contact disputes were worried about money and accepted the blindingly obvious truth, namely that they had got poorer as a result of their parents separating. Money is important to children too. The very least we can do as professionals is accept that they have got a point. Bravo to CAFCASS for commissioning this research and, I hope, making all legal professionals aware that money matters as much to children as it does to their parents.
The image is “Mrs Guinness and her Children” from the Library of Congress Collection on flickr. I love the standing little girl’s rather mad oversized hat.
A busy day today. Those who keep up with this blog will know that I take a very keen interest in openness in the family courts and the comparisons, sometimes invidious, with what happens in criminal cases. In that regard I bring your attention to this story from the Times that Mr Justice Keith has been refused access to the full Serious Case Review in the case of the Edlington children, despite the fact that Peter Kelson QC (for the older brother) wanted the Judge to be able to read in full prior to sentencing how he believed social services and other authorities had failed the children. The decision was taken by the Doncaster Safeguarding Children Board, although I have to question whether this particular child is being “safeguarded” by having access to important pre-sentencing information about him withheld from the trial Judge. It may well be that this is not a case where the professionals involved are putting their interests in front of the childrens’, but the problem, as I think I have said before, is one of perception. What conclusion will the public draw from this turn of events?
Note that 25% of all separated parents did not speak to anyone at all to get advice about the financial support of their children; a further 25% spoke only to their mothers. All Nanas out there should take note, and also take note of the website address www.cmoptions.org. But this is an issue for all advisers, including lawyers — and note that 29% of separating parents did not want to involve lawyers. We came in only 2% ahead of the CSA! We can all make our clients aware of this important resource, whether they have legal problems or simply practical ones.
This beautiful image from the collection of the McCord Museum of Canadian History collection on Flickr reminds us of the bad old days (or it ought to). The children are probably Irish immigrants living in Goose Village, Montreal around about 1910. The little one doesn’t look too happy about being photographed, does she?