MyOffspring: the shape of things to come?

July 17, 2011 in Alternative Dispute Resolution, Children, Self-representation, Technology by Alan Larkin | No comments

These are momentous times for family lawyers.  They are potentially disastrous times for family law clients.  The Government intends to slash the Civil Legal Aid fund and one of the ways it has decided to achieve this is by removing most family law cases from public funding.  If you have a divorce dispute or cannot agree what is best for your children after separation then you will no longer be able to obtain advice from a family lawyer under the Legal Aid scheme.

You will have to pay privately or try to muddle through yourself.  There are, of course, some concessions made by the Government by allowing cases involving domestic or mental abuse, forced marriage or child abduction to remain within the scope of public funding.  As for the rest of the public: well… tough.

It is confidently predicted by judicial commentators that the number of litigants in person will increase and that this will put significant pressure upon the court system which, incidentally, has been subject to costs pressures and staff reductions already.  It is also predicted that these changes will impact directly upon the children of warring parents who cannot access legal advice.

Just a few short months ago I along with my fellow directors at Family Law Partners were invited to join the advisory board of a new company called MyOffspring.  The people behind MyOffspring, most notably a dynamic Dane by the name of Lars Lemming, want to start a quiet revolution in that most fraught area of family dynamics: disputes over children in the wake of relationship breakdown.  Unlike his rather more aggressive Viking forbears from across the North Sea many hundreds of years ago, Lars wants to inflict peace, collaboration and consensus upon the warring factions of English parents (as well as grandparents, step-parents and so on).

Lars and 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 Government’s  rush to remove family law cases from Legal Aid is an abdication of responsibility, the consequences of which will be felt in the years ahead by the most vulnerable section of society: children.  I suspect that those at the top of the food chain at the Ministry of Justice will be praying that the private market and the not-for-profit sector will fill the gap in the provision of legal services that will now develop.   The thinking is that everyone can go to mediation and that will be fine.   I cannot see the not-for-profit-sector plugging this gap in family law services.  You only have to speak to a CAB advice worker to know how much pressure they were already under before the announcement of the legal aid cuts.  They will be given additional funding by the Government but it will be inadequate and no more than a political fig leaf.

That leaves the private sector.  Remember that the traditional private sector legal adviser has been around for hundreds of years: they are called lawyers.  You have to pay them.  Some even offer mediation and the collaborative law process (provided you pay them).   Most of the parents about to lose their access to publically funded legal advice will not be able to afford private lawyers. Will the big beasts of the private sector,  Tesco, The Co-operative, or  Which? come riding over the hill to the Government’s rescue?  I doubt it.  Family law is unattractive to these large commercial enterprises because it is difficult to commoditise and it is horribly unpredictable.  They will steer clear.

But this does leave some room for innovative private sector solutions such as the one envisaged by MyOffspring.  Which is why, after much deliberation, I and my fellow directors have decided that this online service is an additional way of promoting the values of respect, positive communication and collaboration that we espouse with our clients in our everyday, offline legal practice.

And before I forget, for any couples out there who would like to test the MyOffspring website, in return for which you can then get one year’s free subscription, go here.

But where do I start?

June 7, 2011 in Experts, Guest blog by Alan Larkin | No comments

A guest post by Robert Williams of Family Law Partners

Larkin’s Law’s post about how to find the right family lawyer got me thinking about how the poor soul who is about to walk through the family specialist’s door is feeling and what they can do to prepare themselves for the journey ahead.  How can a prospective client begin to make meaningful progress and, at the same time, save legal costs?

Like it or not, the costs are coming out of one pot and the maths is simple: the more the lawyers get, the less the family gets.  Is that really what you want to do with your family’s hard earned money?  If you are unfortunate enough to end up in court that’s the clear message the Judge will give you.

So, you’ve taken the step to meet your divorce solicitors for the first time.  Phew!  It wasn’t easy but well done for taking the decision to get that much-needed advice.  You’ve done your homework, you’ve spoken to people who have recommended your chosen solicitors, you’ve checked out their website, searched for them on Twitter and read their blogs.  They sound just what you were looking for: years of experience with a focus on solutions.

At this point, it has been a one sided relationship.  You’ve done all the running; you have had the control.  You’ve been a legal voyeur!  But when you walk through that family solicitor’s door it is all about to become very real.  You’re going to have to start opening up your life to someone you have never met before.  What will you say; where will you start?

Understandably, you’re apprehensive and perhaps a little daunted.  Above all you start realising you’re unprepared!  What do you ask?  What will they ask?  What will they need to see?  How much will it all cost?  What if you forget the children’s dates of birth?  What will they think of you?  Will they believe you? Will they listen to you?  Will they treat you as just another case?  Will you be judged?  After all, this is your and your family’s future you’re talking about!

Stop! Let’s rewind.

Because you did your homework so carefully, you have found a really good family solicitor.  And having  now found your ideal divorce specialist what else can you do to help your solicitor, and therefore yourself?  The following may assist:-

  • Think about yourself – you need to be strong so don’t ignore the idea of seeing a counsellor to help you cope with the emotional issues a separation will throw up;
  • Prepare a list of key dates eg marriage, dates of birth etc to pass to your solicitor;
  • Take evidence of your identity eg photographic ID and a recent utility bill or bank statement showing your address to your first meeting.  Your solicitor will need for the purposes of opening up a file.
  • Don’t be afraid to discuss carefully with your solicitor the options open to you:  mediation or the collaborative process should be considered (and do some research to make sure your solicitors can offer these services if they are suitable);
  • Prepare a list of questions for your first meeting and suggest there is an agenda for any meetings you have with your lawyers. Why not email this in advance of the meeting (but clarify what it will cost to deal with);
  • Be clear about your expectations so you can communicate them to your solicitor.  Those expectations may have to be modified in due course but your solicitor needs to really understand where you are coming from; in short, make sure you’re on the same wave-length  as this involves “ life decisions”;
  • Give some thought to how you will fund legal costs, for example, using savings, family loans or commercial loans etc.  Talk about what it will cost and get you solicitor to scope it out to the various stages in the process;
  • If you think you may qualify for Legal Aid (now called Public Funding) go here to check your eligibility with the online calculator.
  • Think practically.  Start trying to prepare a budget of your outgoings; are these likely to change? If so, how and when?
  • Keep a record of your expenses so you can prove what it costs you to live month to month.  This avoids the potential for arguments as to whether or not the expenses are reasonable;
  • Make sure you ask you solicitor to explain what documents you will need to disclose and  when and how these are shared – a quick search in Google will take you to an example of a financial statement called Form E which is likely to be used;
  • When giving paperwork to your solicitor make sure it is in date order, in appropriate sections, and in a file to pass to your lawyer – make their job easier and save yourself some money;
  • Think about where you/your partner/the children are going to live in the longer term; sites such as www.rightmove.co.uk will be of use.  Remember, the court will put the children first;
  • Make some enquiries to see what your property may be worth (have any similar properties recently been sold on your street? – sites like www.ourproperty.co.uk can help);
  • Find your marriage certificate or obtain a certified copy from the Register of Births Deaths and Marriages local to your place of marriage – but be aware the impact this may have if your partner realises it has gone and suspects you are looking for preliminary advice;
  • Collate any paperwork that may show particular contributions you have made e.g. using the proceeds of sale of a previous property to buy your home etc.;
  • Start looking into your mortgage capacity (preferably with an independent financial adviser) at an early stage – what can you realistically afford? ;
  • Gather together information in relation to your pensions – your lawyer can help you get up to date information;
  • Make sure you deal with the paperwork you solicitor needs; if they chase you up you will end up paying more;
  • AND REMEMBER TO PUT YOUR CHILDREN FIRST in whatever you do – they will thank you for it in the longer term!

The list is not exhaustive by any means.  But if you are able to at least consider half of the points on this list, you will be well on the way to making the most productive use of your solicitor’s time (and your money).

Remember, you and your specialist divorce solicitor will need to work as a team.  If you’re going to use the collaborative model the team looking for the solution that works for your family will include your partner and their solicitor.  There’s a thought: work with rather than against one another!

 

 

The Irresistible Rise of the International Couple

April 18, 2011 in Europe by Alan Larkin | No comments

In which Larkin’s Law gladly accepts the challenge of having ‘European Commission’ and ‘Statistics’ in the same blog post without fear of decimating his burgeoning readership.

There is a tendency in the hothouse of daily legal practice to immediately delete the worthy but dull emails that ping into the inbox and jostle for attention with the emails from one’s clients or the threat of proceedings from the ‘other side’ if a response is not forthcoming by close of business, yah boo sucks, so on and so forth.  So it was with the nattily titled, “COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS” that arrived very recently. I resisted the CTRL-DEL auto-response and was richly rewarded.

Now I appreciate that some of you are thinking of jumping off the page immediately in search of something more thrilling elsewhere: “The Potting Shed Diurnal Digest” or “The Complete Ebb-tide Almanac” holding obvious magnetic appeal.

For those of you left, I will really test your resolve by revealing that I am going to mention some stats.  I know, I know.  Blog posts don’t come racier than this. Let’s dive in.

The Commission is exercised about the property rights of European nationals from different Member States or those nationals living in a state other than their state of origin.  Just assume Larkin’s Law is English and imagine Mrs Larkin’s Law is Polish.  We would then constitute an international couple, which sounds perfectly grand and even a little sophisticated.  Even better, let’s assume Larkin’s Law is French and Mrs Larkin’s Law is Italian and we both live in England but we have a holiday home in Portugal.  Imagine Mrs Larkin’s Law gets the hump with Larkin’s Law and decides to divorce him.  But in which jurisdiction and under whose matrimonial rules?  Complicated isn’t it?  But surely only a small number of people are involved?

Well, I promised some stats and here they are:

Of the approximately 122 million marriages in the EU, around 16 million (13%) have such a cross-border dimension. Of 2.4 million marriages celebrated in the EU in 2007, about 300 000 fell into this category. So did 140 000 (13%) of the 1 040 000 divorces that took place in the EU in the same year. In addition, 8 500 international couples in registered partnerships were dissolved by separation and 1 266 were ended by the death of one of the partners.

To begin with, I am staggered by the number of marriages, 2.4 million, celebrated in 2007 alone.  That’s a lot of nuptials. Then, I am surprised by the number of divorces, just over 1 million, in the same year.  These are big numbers in a big (European) community.  And of this number of divorcing couples, 135,200 (remember this is 270,400 individual lives) were international couples.  And, in a welcome, albeit sad, recognition that the pain of relationship breakdown is not confined to the straight community, the European Commission addresses itself to the dissolution of civil partnerships for international couples in the same year.

I do not know how many of these international couples had children but if you add them into the cross-border mix, you have a large number of lives that require more considered (perhaps not always, helpful) legal input and judicial intervention.  And where you have lawyers, you have complexity and cost.  High cost, I imagine, for these international cases.

I’m surprised the attack dogs of the Fourth Estate haven’t descended on the report as  vindication of its view that ‘the family’ is going to hell in a handbasket presided over by unelected Eurocrats intent on enriching English fat cat lawyers already bloated on the thick cream of legal aid funding.  Well, even the English press might have trouble spinning the Commission’s report as its stated desire is to reduce the legal costs incurred by these international couples.  Yes, cut lawyers’ costs.  Come to think of it, where is the Daily Mail when you need it?  Who the hell do the Commission think they are?  Coming over here and cutting our costs.

 

Self-Reppers against the World

March 30, 2011 in Self-representation by Alan Larkin | No comments

What is it with litigants in person?  Why do they voluntarily throw themselves on the rack of legal self-representation?  Let’s face it, most lawyers who have to deal with self-reppers do so with the sort of angry incredulity normally reserved for the nurse with the officious air and a large syringe who claims, as she proceeds to bayonet you with it, that ‘it won’t hurt a bit’.

Lawyers learned long ago that self-reppers are mad, bad and dangerous to know.  Why else, would they dare to try and run their own cases, and worse still, horror of horrors, actually turn up at court as their own advocates?  Can you feel the delicious thrill of outrage running through the ancient and venerable Inns of Court?

Fifteen years ago, there were few litigants in person.  Now, there appear to be more people attempting, in varying degrees of comfort and efficacy, to apply self-help and run their own cases.  The motive may simply be that they are not eligible for legal aid and cannot afford to engage a solicitor.    Some self-reppers are perfectly able to afford legal advice but choose not to do so in the belief that there is really nothing to it; they know their own case best, and lawyers are a waste of money.  I tend to think that the latter are in the minority and, frankly, even if they do end up engaging lawyers, they don’t listen to the advice given.

The majority of self-reppers sit in court on their own, or sometimes with a Mackenzie friend, looking nervous, which is understandable, and trying to explain to the judge why the whole marriage breakdown is the fault of the person sitting just two yards away and therefore, surely, that must mean something when it comes to the financial division.  The judge, who had earlier taken an aspirin when he saw “litigant in person’” on the hearing sheet, sinks lower in his chair and explains that he just wants to know if the value of the matrimonial home is agreed.  The self-repper thinks this is a trick.  After all, he or she is speaking the Queen’s English while everyone else in court, including the judge, is communicating in a language tantalisingly close to English but different enough to engender bafflement, anger and despair.

I am always particularly accommodating to self-reppers, going out of my way to explain the law, de-mystifying certain legal terms, and generally trying to be understanding of their difficult position.  This does appear to be a bad strategy: I can see some squinting at me in deep suspicion: why is he being so nice?   He can’t be nice, he acts for that bastard ex of mine.  I shake their hand and they check to see if I have lifted their wrist watch.  It’s all nonsense of course.  It was the wallet I was after.

I assume that the situation for most self-reppers is that they cannot afford legal represenation but would prefer to have it if they possibly could.  If this is correct then it is an unhappy state of affairs.  Given this unhappy situation, I wonder if the Government’s decision to remove most people’s ability to access advice and representation in family law matters by removing legal aid is going to improve matters.  Well, I think the question supplies its own answer.  The ranks of self-reppers will swell and without immediate access to paid legal services, it is unlikely that many people facing divorce proceedings will find their way easily to the sorts of appropriate resolution models, such as mediation and collaborative law, that would divert them from the stresses and uncertainties of the the court process.  It therefore appears inevitable that more self-reppers will end up in court.

In the face of this abdication of responsibility by the State  under the convenient mantle of economic necessity what are the strategies that can be employed by the self-reppers?  I have explored these strategies in a post on my companion blog Divorce Finance Toolkit.

 

A short post about Mediation

March 7, 2011 in Experts by Alan Larkin | No comments

I’m not a mediator myself although I’ve thought about undertaking the training often enough. Every new client I see or speak to is pointed towards mediation. The coalition government considers mediation to be a very good thing indeed. Would it be too cynical to say the government sees it as a cheap fix, a convenient way to steer people away from court, perhaps even away from lawyers?

Regardless of the political or fiscal imperatives now driving the PR push on mediation I would just like to say this: mediation is a good thing.

Three reasons I like my clients to consider mediation.

  1. Choice.   As in, we can choose together who we wish to appoint as our mediator and that person will help us to discuss and identify appropriate solutions to the matters that we presently cannot agree upon unaided. As in, we choose not to kick the crap out of each other in solicitors’ correspondence because we choose to remember that we once liked, and even loved, each other. As in, our children’s happiness is more important to us than proving the impossibility of who is right and who is wrong.
  2. Control. As in, we can choose not to subject ourselves to the vagaries of the court process with its directions hearings, timetabling orders and strange legal language. As in, we will decide what we need help with and when we need it.
  3. Outcomes. As in, the outcome of that final hearing was not what I expected and I feel like going to sleep and never waking up again. As in, we have arrived at this mediated outcome together. It belongs to us and no one else. It is not the judge’s or the lawyers but ours alone.

Mediation, choice, control and outcomes. Fine words indeed.

Top Tips to find a good family law solicitor

February 18, 2011 in Experts by Alan Larkin | 2 comments

I am often approached by complete strangers, perhaps friends of friends, who shuffle up to me and say, “I hear you’re a family solicitor”.  I sometimes want to say: “No, I’m a plumber”. Not because I want to be unhelpful, as I’m an approachable sort of guy, but because:

  1. I am wary of getting too involved in discussions about divorce or separation when I may actually know the other spouse; and
  2. I am even warier of being taken to task for all the failings in the family justice system.   And the criminal justice system.  Or the European Court.  And generally anything to do with human rights.   There are failings in the family justice system of course but that is for another post;
  3. Plumbers appear to be held in higher esteem than solicitors.   (I find this strange since they are just as expensive and suffer from builder’s bum.)

After a few minutes of, I hope, helpful and constructive advice pointing people towards mediation services and the collaborative law alternative to court proceedings, I have to deal with the inevitable question: ”How do I find a really good family law solicitor?”

If my friend of a friend has collared me outside the school gates or in the frozen food section of Sainsburys then the answer is easy enough as I will be able to direct them to a ‘local’ solicitor, someone I know to be excellent in the specific discipline of family law.

But this does get me to thinking about how I would answer the question, and have answered the question in the past, to people who have telephoned or emailed me from Liverpool, Newcastle or Cardiff.  I do not take this task lightly.  I am being asked to direct someone to a legal adviser who will be expected to guide this client through one of the worst life events imaginable, impacting on the welfare of their children and the financial wellbeing of the family members not just for the immediate future but also up to and including retirement.  So, on the basis that I’m not in a position to make a personal and professional recommendation for every corner of this island nation, here are my top tips:

  1. The first tip  (more a warning than a tip) is the most commonly followed, which is to ask people for recommendations. Usually from poor souls who have already gone through the trauma of a divorce or a long-term relationship breakdown and required legal help. This is the ‘school gates method’ or ‘man in a pub’ technique.   The mistake most people make is to latch on to any name given, without much further thought as to the quality of the ‘recommendation’.  Big mistake. Dentists and heart surgeons are both medically trained but tend not to double up on heart by-pass and root canal work.  You will expect to see a specialist in the family law field  so by all means take the names you have been given at the school gates but then go on to the next tip.
  2. Take the names you have been given and see if they appear on the Resolution website.  If the names are Resolution members then this is a good start as they will adhere to a Code of Practice that puts the interests of any children first and avoids inflammatory actions and words that only make a bad family situation much worse.  Hold on. You’re not finished.  See Tip No3.
  3. Check to see if those precious names you are holding are also Accredited Specialists with Resolution.  If they are, then Bingo!  Now you’re on a roll.  This means they have at least five years’ experience of full-on family work and have jumped through some pretty hideous hoops to really test their knowledge and expertise to earn the right to be called an Accredited Specialist.   Alternatively, see if this person is on the Law Society’s  Advanced Family Law Panel.  Now move on to Tip No 4.
  4. Have a look at the website of the solicitors you have chosen.  With any luck there will be a profile for the person you are interested in.  There may a photo (not always a good thing admittedly) but hopefully a bit more personal information for you to start forming an impression of whether you like the ‘look’ of this person. Also, check out the rest of the family team. Is it more than one man and his dog.  Are there any other accredited specialists in the team, which is a good sign of strength in depth.  Can you get hold of a partner?  Is there sufficient support from assistant solicitors – let’s face it, you want to pay the expert, probably a partner, for giving you advice but you will not want to pay him or her for licking the envelope and stapling documents on your behalf.  (I exaggerate for effect but I think you get my meaning).  Now, go on to No5.
  5. While you are on the website and now that you like the look of the dashing partner/specialist and their strongly built team, just check to make sure they can offer you the full range of resolution models.  What’s that you ask? Simply this: have you resigned yourself to fighting everything out in a divorce court or would you like to be given the options of mediation or the collaborative law process?  Are you particularly concerned about the children of your relationship and might they be old enough to benefit from having their voices heard by you and your ex-partner within the supportive context of mediation? Family lawyers with the training to include children within the mediation process are relatively rare.  But why shouldn’t you want the potential outcome for your children, as well as yourself, to be as positive and as supported as possible?  Make sure your choice of family law solicitors gives you options right from the start.
  6. Give them a call.  You should be able to get a bit of time on the ‘phone with the subject of all your research.  You can form a strong impression of someone from a few minutes on the ‘phone.  If you have not been put off in the first few minutes you have probably got your man, or woman.
  7. Finally, if you want to make absolutely sure you have chosen the right divorce solicitor or family team you can have a look at Chambers and Legal 500 Guides.  These guides are a bit like trade directories for the legal profession but the key thing to note is that you cannot pay to obtain a ranking.  You only get in there if there are enough ex-clients, other solicitors, barristers and judges who are prepared, in total secrecy, to say something positive about you.  I have noted, over the years, that more and more clients have cottoned on to these guides as a fast-track to gain access to some of the best lawyers around.  If I was going to refer my mother or brother to another legal professional in a part of the country I knew nothing about, I would look first in Chambers and Legal 500.  Need I say more?

So there you have it.  The inside track to identifying the best family law solicitors around.