Daily Mail Readers Rejoice

I have been reading about the pointlessness of blogging.

Ben Elton's book Blind Faith demonstrates that blogging is not only a waste of time but harmful to the souls we do not have.

Read any readers's maudlin piece of tosh in response to almost any Daily Mail article to become 100% convinced of this.

All Daily Mail readers are of course 100% right 100% of the time.

Happy Christmas

The Law Lords Mess It Up Again: Pre-Nuptial Agreements

The eagerly awaited decision of the Privy Council in MacLeod v MacLeod was published on the internet today.

When I say "eagerly awaited" I mean by family lawyers. It was the first opportunity for some time that the law lords have had to consider the validity of pre-nuptial/pre-marital agreements. Some lawyers had speculated that they might grasp the nettle and make them enforceable. They did not. Paragraph 31 is as follows:

The Board takes the view that it is not open to them to reverse the long standing rule that ante-nuptial agreements are contrary to public policy and thus not valid or binding in the contractual sense. The Board has been referred to the position in other parts of the common law world. It is clear that they all adopted the rule established in the 19th century cases. It is also clear that most of them have changed that rule, and provided for ante-nuptial agreements to be valid in certain circumstances. But with the exception of certain of the United States of America, including Florida, this has been done by legislation rather than judicial decision. There is an enormous difference in principle and in practice between an agreement providing for a present state of affairs which has developed between a married couple and an agreement made before the parties have committed themselves to the rights and responsibilities of the married state purporting to govern what may happen in an uncertain and unhoped for future. Hence where legislation does provide for such agreements to be valid, it gives careful thought to the necessary safeguards.

Thus it remains for parliament to address this issue but with no liklihood that parliament will do so in the foreseeable future.

Do they remain influential?

The Privy Council referred to Crossley v Crossley where it was said that a pre-nup could be a factor of "magnetic importance" but there is no explicit endorsement or condemnation. Thus we do not know whether that approach survives.

Lawyers have plenty of room therefore to argue it both ways as to what the law lords impliedy meant about the Crossley decision.

This has happened before. Hand the law lords a landmark case in family law and they bugger it up by introducing further confusion rather than giving clear guidance. The reference is, of course, to White v White. There are now many Court of Appeal decisions relating to how the delphic utterances in that case regarding, for instance, the yardstick of equality and the disapproval of sex discrimination apply in completely different circumstances to a family run farming partnership.

They did change the law, however; in relation to post-marital but pre-separation agreements. See later post.

Graham Calvert's Last Bet?

I suppose it was inevitable that this case would reach the Court of Appeal. After all, Mr Calvert is a big gambler.

He may yet enter the ultimate casino, the House of Lords. This is the UK equivalent of the US Supreme Court. If he loses there, he has one further roll of the dice in the European Court of Justice. Watch this space!

What is it about?

Mr Calvert was a compulsive gambler (also a greyhound trainer) and William Hill (a big bookmaker in the UK) accepted his bets.

Mr Calvert said they should not have done so. He had made them fully aware that he was a danger to himself and they should have refused his bets.

Mr Calvert failed to establish a general duty of care on the part of bookmakers "to protect problem gamblers from the consequences of their compulsive problems."

This was not appealed.

He had won below on the basis of something "John" said to him:

Mr Calvert succeeded before the judge on his narrower case that, on the particular facts, William Hill, through John, assumed responsibility to do what John said in the telephone conversation they would do, and that William Hill were in breach of that duty in failing to implement the agreement. The judge found that William Hill had assumed this responsibility and that they were accordingly in breach of duty.

BUT he did not win any compensation.

This was an entirely pyrrhic victory then and this was because Mr Calvert would "probably have ruined himself anyway by betting with one or more of that bookmaker's competitors."

The Appeal

Mr Calvert lost.

Comment

Well, what did he expect? Oh, I forgot, he is a compulsive gambler. Exacttly the kind of client lawyers need in hard times?

Foreign Surrogacy: The Complexity and the Costs

If you are contemplating (as a UK resident) entering into a foreign surrogacy arrangement, you should read the case in the title link.

Everyone in this case is a good guy. Yet, difficulties arose. As Mr Justice Headley said in opening his judgment:

Although the outcome of this case was in the end happy for all those involved, it provides a cautionary tale for any who contemplate parenthood by entering into a foreign surrogacy agreement.

Very difficult issues arose and the following indicates them sufficiently for this post:

It will be readily apparent that many pitfalls confront the couple who consider commissioning a foreign surrogacy. First, the quality of the information currently available is variable and may, in what it omits, actually be misleading. Secondly, potentially difficult conflict of law issues arise which may (as in this case) have wholly unintended and unforeseen consequences as for example in payments made. Thirdly, serious immigration problems may arise having regard to the effect of Sections 27-29 of the 1990 Act, at least as understood by me. Children born to foreign surrogate mothers, especially to married women, may have no rights of entry nor may the law confer complementary rights on the commissioning couple. Fourthly, Section 30 is available only to a married couple, others may encounter even more significant difficulties in securing parental status to children born to a surrogate mother, and that is of importance since the Human Fertilisation and Embryology Act 2008 will by Section 54 open up parental orders to unmarried and same sex couples. Lastly, even if all other pitfalls are avoided, rights may depend both upon the unswerving commitment of the surrogate mother (and her husband if she has one) to supporting the surrogacy through to completion by Section 30 order and upon their honesty in not taking advantage of their absolute veto.

So, everyone is agreed that it is in the best interests of the child/children but the parents have to go to the High Court for approval. Read this case before you decide whether you are wealthy enough.

STOP PRESS: Miners Scam Lawyers Jim Beresford and Doug Smith Struck Off

Well, thank goodness for that! I felt dirty all of the time these obnoxious people could say that they were a member of the same profession as me. I have only just received the good news and refer you to The Times report for further information. Here is Jim Beresford:

What a nice smile!

A Preserved Daily Joke: The Stripper and The Teacher

A man walks into a supermarket and notices a beautiful woman staring at him.

She stares for quite some time, so finally the man asked "Do I know you?"

The woman answers "I think your the father of one of my kids".

The man thinks for a minute then realises this kid she is talking about must be the result of the one and only time he ever cheated on his wife.

So he says to the woman: "Are you the stripper that was at my best friend's bachelor party about 5 years ago? You know, the one I had sex with on the pool table while your friend spanked my bare ass with a whip?"

The woman looks at him horrified and says "No, I'm your son's teacher".

The British Soldier in Afghanistan

"it's not worth losing your life, it's not worth losing your legs..."

"... all for £19,000 a year..."

The Ruinous Cost of Divorce in England

A lot of women if they can seek to have financial disputes on divorce determined in England. Perhaps, they fail to take account of the "ruinous costs" that can be incurred in this jurisdiction.

Mr Justice Munby has had yet another go at the level of costs sometimes spent in financial disputes in England. I say "yet another go" because Munby J does seem to get more than his fair share of this type of case.

In the title link case, KSO v MJO (8th December, 2008) he says:

Something must be done about the problems highlighted by this and by too many similar cases. We simply cannot go on as we are. The expenditure of costs on the scale exemplified by this and by too many other such cases is a scandal which must somehow be brought under control.

The way in which the litigation had been conducted had the following consequence:

The denouement was, in hindsight, perhaps not altogether surprising. The litigation simply collapsed under the unsustainable burden of paying costs which had long since become wholly disproportionate to anything at stake and which, by the time the parties arrived at the FDR, had swallowed up a grotesquely large proportion of the never very substantial assets. On 26 November 2008 I received the news that the husband had earlier that day been declared bankrupt on his own petition.

More poignantly Munby J explained:

The picture is deeply dispiriting. And it is not as if it is only the adults who suffer from the consequences of such folly. The luckless children do as well. The present case is a sobering, and for me deeply saddening, example. If, instead of spending – squandering – over £430,000 in costs, the wife and the husband had been able to resolve their differences at a more modest and, dare I say it, more seemly level of costs, there might very well have been enough left in the matrimonial 'pot' to house the wife and children and to enable the children to remain at their school, whilst still leaving something more than a mere consolation prize over for the husband. As it is, it is hard to see much being left from the wreck, not least after the trustee in bankruptcy has had his costs, expenses and remuneration. It is difficult not to be reminded at this point of Jarndyce v Jarndyce (see the Appendix). And the wife and the husband – and for this purpose I refer to them as the mother and the father, for that is what they are – are faced now with the wretched and thankless task of trying to explain to their daughters how it has all come to this.

Warring parents rarely take account of the effects of their battles on their children. Munby J has said these wise words now and he has said them before but I detect that he is becoming dispirited by the fact that parents, husbands and wives who presumably once loved one another, seem not to be getting the message.

Links to previous relevant cases can be found in paragraphs 77-79 of Munby J's judgment.

QUIZ QUESTION: In which case did the wife and her legal team get it so wrong that she had to pay the husband's legal costs to an extent that really wasted her whole application?

Baby P and the Witches of Salem Part 2: More About Sharon Shoesmith

Yesterday I posted the first part of this comment series. I barely got to the point of the title.

The point is that we should not be hunting down and burning the foot soldiers. I will get to that point in Part 3.

Yesterday I focused on Haringey's Head of Children's Services and her shameful belief that she could save her hide by employing media consultants. Well, they sacked her anyway. An intelligent person should have foreseen that inevitable outcome and would, out of mere pragmatism, have gone before they were axed. Her strategy has simply humiliated her further and made future rehabilitation less likely.

Sharon Shoesmith seems to have perceived herself as being in a similar position to the Chief Executive of a private sector company that fails and fails catastrophically.

She read the newspapers and discovered that catastrophic failure and breach of duty seemed to result in lottery style payments on termination of office. She discovered that the bigger the failure the bigger the payment might be. She discovered that if they toughed it out for the longest possible time the employer would pay even more. They would pay almost anything to get rid of the problem.

What she forgot was that she is not a private sector CEO. She presumably also forgot to employ expensive lawyers to make sure her original agreement contained CEO type compensation provisions on termination of employment.

What she failed to remember was that she was a public sector employee and was therefore expected to perform a public service.

The public may resent payoff's to private sector CEOs but this is nothing to the bitterness they feel if someone responsible for protecting children cynically decides that whatever tragedy may have occurred under their watch their own financial interests are more important.

Baby P and the Witches of Salem

I have refrained from posting about Baby P until now.

Of course, Haringey Social Services are crap. Almost all of our social services departments in England are crap. I hold no brief for the inadequate provision we make for children or their protection in this country. See previous posts.

BUT the media hysteria and their love of finding people not only to blame but to demonise is now beyond a joke. Well, there is an exception.

Sharon Shoesmith (Haringey's Head of Children's Services) hardly covered herself in glory by spending £19k on media training presumably designed to pad her bottom from the impending storm. She is also, but this is simply my impression, not particularly children friendly in appearance:

Politicians in Haringey have resigned. That was honourable. That the operational head of children's services should fall on her sword was immediately obvious to the whole population of the planet except, perhaps, just one. She seemed to think that the marketing guys could save her.

Perhaps, we should require potential heads of department at local authorities to sit a basic intelligence test. Possibly also, they could be asked to take an "emotional intelligence" test (whatever that it is). Almost certainly, a basic humanity test should be mandatory.

Local Authorities are very good at setting tests or performance targets or whatever so this should not be difficult. However, these are tests that would apply to them and not others. Oh, it might take a little longer then!

I forgot to mention: they would be required to pass the tests! Oh, and they should not be allowed to set the pass mark.

The caveat I started out to put forward is that we should not conduct a witch hunt of the troops on the ground. In my experience (as a lawyer in care cases - a period of my life that is, thankfully, over) social services personnel begin as idealists but quickly become corrupted into judgmental harridans - or the male equivalent - I incapable of not absorbing the departmental assumption of infallibility.

Don't worry about the Pope. He is an intelligent man and I doubt very much whether he really believes that he is infallible. He is probably too intelligent to believe in a divine being (whether called God, Allah or the Spaghetti Monster). Social Services (is it genuinely a coincidence that they managed to choose a description that abbreviates to SS?) really do believe that they are infallible.

I have now entirely forgotten why these people do not deserve to be persecuted (sorry, I might have meant prosecuted).

Oh, it is lack of money. We get the Social Services we deserve and are prepared to pay for.