Government to bring forward an amendment to the Domestic Abuse Bill

The Government is bringing forward an amendment to the Domestic Abuse Bill inserting a new clause that would ensure that victims of domestic abuse are automatically eligible for access to special measures in family proceedings without the need for any determination of the victim’s vulnerability

This includes a new clause  given the Court the power to give a direction prohibiting cross-examination in person.

The direction will be given where such cross examination is likely to diminish the quality of the victim’s evidence or would cause significant distress to the witness

The court would have the power to appoint a legal representative to conduct cross examination on behalf of the perpetrator with payment made from central funds.

Further guidance is awaited.

This news is welcome. For too long, victims have been subject to cross examination by perpetrators. Currently, the Judge has limited powers only to prevent direct questioning, but this has the effect of making the process longer and more difficult.

The family courts make decision with lifelong consequences for children and it is essential that evidence is given that ensure a safe, lasting and satisfactory outcome for the child to ensure justice is done for all involved.

Graeme Fraser, Partner & Head of Family comments as follows:

This is welcome news, particularly at a time when domestic abuse has manifestly increased as a result of the Covid19 disruption and lockdown. We hope that these measures can be brought into force imminently so that justice can be done to all those affected.

 For information and advice in relation to domestic abuse issues, please contact the OGR Stock Denton Family Team.

No fault divorce bill to receive royal assent

Yesterday evening (17th June), the Divorce, Dissolution and Separation Bill completed its passage through Parliament, and Royal Assent is imminent. The new law means that divorce will be possible after a 6 month period by notification without the need for either a husband or wife to find fault. The requirement to find fault unless a couple have been separated for a prolonged period has caused much unnecessary hostility and impaired the ability of couples to move on from their separation, impacting on their children too. Implementation is expected by Autumn 2021 with the first divorces to go through in 2022 after the new 6 month notification period.

Graeme Fraser, Head of Family at OGR Stock Denton and member of Resolution’s Family Law Reform Group commented as follows:

This is great news for all those who adopt Resolution’s principled approach towards reducing confrontation and a real tipping point for reducing conflict in family law generally. In recent years, Resolution’s campaign for no fault divorce created an irreversible momentum for change. I am delighted that our clients will be able to soon benefit from this important improvement to divorce law.

The new law will mean that couples can take better advantage of non-court options including collaborative law, mediation and arbitration which promote fairer outcomes with a reduced level of conflict. For further details about these options, all of which are fully serviced by the Family Law team at OGR Stock Denton, please contact Graeme Fraser.

Expert comment: Bullying and harassment in the workplace

With workplace bullying and harassment being a hot topic in the workplace, Senior Associate in our Employment department, Hayley Trovato, has commented on what employers can do to combat it:

Both bullying and harassment can often be hard to recognise and the symptoms may not be obvious to others. If you are the person on the receiving end you may think that this is normal behaviour for the company you work for and you simply cannot handle the pressure, or you may feel anxious that you will be considered weak or not up to the job if you speak out and say you find the behaviour of others intimidating. A common theme in people not coming forward and reporting bullying is that they will be accused of overreacting and they worry that no one will believe them. There is also a fear of what the consequences may be for them if they do raise a complaint.

Bullying at work can take many different forms and can happen face to face, in writing by email or letter or over the phone.

It can be characterised as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.

There is a lot of talk about ‘ banter ‘ and where the line should be drawn between banter and insulting behaviour; or between robust management and abuse of power; or where someone with a strong personality becomes intimidating.

In terms of the law, there is much uncertainty as there is no legal standard for bullying within employment legislation.  Unless bullying is related to a protected characteristic and amounts to conduct defined as harassment under the Equality Act 2010 then it is not possible to make a complaint to the Employment Tribunal about it.

Tackling bullying behaviour before it becomes a problem is key. Here are some practical steps that employers can take to tackle the bullies head-on:-

  • Provide training to employees and managers so everyone is aware of their own rights and responsibilities.
  • Lead by example – how employers lead sets the tone for how employees are expected to treat each other.
  • Have a zero-tolerance policy making it clear what behaviour is unacceptable, make sure this policy is widely publicised and applied consistently.
  • Ensure that there is a clear reporting channel for employees to raise concerns and what steps you will take to ensure what you will do to safeguard against potential victimisation following any complaints.
  • investigate all complains promptly and fairly
  • Promote a positive and open workplace culture

This article is for information only and does not constitute legal advice. For professional legal advice on employment matters around bullying in the workplace, please contact Hayley Trovato.

Expert comment: What can employers do about coronavirus?

Hayley Trovato, Senior Associate in the Employment department has commented on the points that employers need to be aware of around coronavirus:

There are a number of issues that may arise for employers in connection with the coronavirus outbreak. In order to prepare for this, there are a number of things employers may wish to consider.

Refusal to Attend Work

You may be faced with a situation where you have employees that are afraid of catching the coronavirus and do not want to come into work.

It is important to listen to any concerns and if you believe them to be genuine then you should try and protect the health and safety of staff where possible – such as offering remote working. If an employee is still refusing to come in or if remote working is not possible, another option may be that they could take this time off as holiday or as unpaid leave. However, as an employer, you don’t have to agree to this. Any total refusal by an employee to attend work could result in disciplinary action. However, If the employee who is refusing to come to work is pregnant or at high risk, it is wise to be even more flexible. Refusals to allow employees to stay at home or disciplining them for not attending could result in them bringing legal claims such as constructive unfair dismissal if there is a genuine health and safety risk in being at work. The best practice Is to act reasonably to ensure employees are not at any unnecessary risk.

Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, including those who are particularly at risk. Employees also have a duty to take reasonable care of their own health and safety and that of people they work with. They must cooperate with their employer to enable it to comply with its duties under health and safety laws Employees who refuse to cooperate, or who recklessly risk their own health or that of colleagues or customers, could be disciplined.

If an employee is not actually sick but you tell them not to come to work then they should receive their usual pay.

Race discrimination

There have been recent reports of the increase in instances of discrimination and harassment towards people of Chinese ethnic origin and employers need to be vigilant to the risk of direct and indirect race discrimination claims. Employers could be vicariously liable if employees racially harass other colleges, even if they don’t know about and would not approve. In order to avoid liability employers will have to show they took all “reasonable steps” to prevent their employees behaving in this way. This means they should have a clear and easily accessible diversity and anti-harassment policy, ensuring staff are all trained on equality issues. There should be a zero-tolerance policy on any negative or hostile comments.

Practical Steps

In the event of the coronavirus spreading more widely in the UK then ACAS recommend some simple steps to help protect the health and safety of their staff

Employers should:

  • keep everyone updated on actions being taken to reduce risks of exposure in the workplace
  • make sure everyone’s contact numbers and emergency contact details are up to date
  • make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example, sickness reporting and sick pay, and procedures in case someone in the workplace develops the virus
  • make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
  • give out hand sanitisers and tissues to staff, and encourage them to use them
  • consider if protective face masks might help for people working in particularly vulnerable situations
  • consider if any travel planned to affected areas is essential
  • If the employer takes measures such as asking staff to wear protective face masks, they must not single anyone out, for example, based on their race or ethnicity.

This article is for information only and does not constitute legal advice. For professional legal advice on employment matters around coronavirus, please contact Hayley Trovato. 

OGR Stock Denton Paralegal shortlisted for pair of prestigious awards

Mahsa Tavakol, a Paralegal in our Litigation team has been shortlisted for a pair of prestigious awards at the National Paralegal Awards 2020.

Mahsa has been shortlisted in both the Civil Litigation Paralegal of the Year and the overall Paralegal of the Year (South) categories at the awards, which celebrate the contribution of paralegals within the legal profession.

The rigorous judging process for the awards has already seen OGR Stock Denton make a detailed written submission setting out Mahsa’s achievements and qualities in supporting the litigation team and assisting clients.

Stephen Silverman, Partner and Head of the Litigation team, said: “Mahsa has been tenacious in working on behalf of our clients to secure the best possible outcome and so she very much deserves to be in contention for these awards. It is no surprise to us that the judges have recognised her in this way.

“We all wish her well as she waits to find out whether she will be named as the overall winner.”

Mahsa added: “I am delighted to have been shortlisted and I am looking forward to the awards evening and discovering whether I have won.”

The winners of the National Paralegal Awards 2020 will be announced at a glittering ceremony on Friday 27 March 2020 at the Grand Connaught Rooms in the West End.

North London law firm further strengthens innovative Family offering

Finchley-based law firm, OGR Stock Denton LLP, has expanded its successful Family law offering with the appointment of a solicitor specialising in approaches designed to minimise unnecessary conflict.

Holly Covington has experience of a wide range of Family law issues, including divorce, financial settlements, children matters and domestic violence situations.

She is a member of Young Resolution (YRes), which promotes a constructive approach to family issues that considers the needs of the whole family and particularly the best interests of children.

Holly will be working closely with Graeme Fraser, Head of the Family department and a Partner at the firm.

Holly said: “I am committed to providing clients with objective and professional advice at every stage, which helps to resolve disputes in a cost-effective manner and, importantly, reduces conflict during what is often a very stressful experience.

“It is wonderful to be joining OGR Stock Denton LLP and I am looking forward to working with Graeme and the team to make a difference for each of our clients.”

Graeme Fraser added: “Holly has a proven track record of working to reduce conflict in family matters and we are delighted that she has joined the team.

“There can be little doubt as to the benefit that a collaborative approach delivers for clients in most circumstances and so I am sure they will value her input and advice.”

Prior to joining OGR Stock Denton LLP, Holly trained at another London-based law firm, where she qualified as a solicitor in November 2018.

Family lawyer says cohabitation reform should feature in the Queen’s Speech as new figures show one in five people in their early 30s are now cohabiting

A prominent Family lawyer has said that the Government should include cohabitation reform in the Queen’s Speech, as new official figures show that nearly 20 per cent of people aged 30-34 – almost a million people – in England and Wales are cohabiting.

Graeme Fraser, a Partner and Head of the Family department at Finchley-based OGR Stock Denton LLP, said that the figures show that the need for action is urgent and legislation should be included in the Queen’s Speech on Monday 14 October.

Unlike for married couples, when a cohabiting relationship ends there is no specific legal mechanism for dividing property fairly and partners who did not have a legal share in the family home can find themselves destitute.

At the same time, cohabiting couples are at a disadvantage when it comes to Inheritance Tax (IHT) and death benefits in comparison with married couples.

However, thanks to the myth of ‘common law marriage’ many cohabitants wrongly believe that they share the same rights as married couples.

Graeme Fraser, who is also Chair of Resolution’s Cohabitation Committee, said: “Official statistics have repeatedly shown how quickly the number of cohabiting couples is rising.

“However, laws shaped by the social norms of the twentieth century are still governing twenty-first century relationships, potentially putting millions of people at risk of destitution in the event of the breakdown of their relationship or the death of a partner.

“With these new statistics showing a fifth of people in their early thirties are cohabiting, the need for action is urgent. People in this age group are often just getting onto the housing ladder and starting families, making them especially vulnerable to the consequences of relationship breakdown or the death of a partner.

“I would like to see legislation announced in the Queen’s Speech to introduce certain automatic rights for cohabiting couples who have lived together for a defined period of time or have children, unless they choose to opt-out of these rights.

“I hope this call will be supported by a Prime Minster who likes to characterise himself as a social liberal and who is himself in a cohabiting relationship.”

The figures from the Office for National Statistics (ONS) also show that an estimated 6.3 million adults in England and Wales are cohabiting, over a million more than in 2008.

 

OGR Stock Denton Partner comments on Court of Appeal decision in contested probate case

OGR Stock Denton Partner, Ian Pearle, has commented on the recent Court of Appeal decision in Cowan v Foreman & Ors [2019], where the widow of Michael Cowan – credited as the inventor of the bin liner – has challenged the use of trusts to pass on his wealth.

 

  1. What is your reaction to this decision?

“Two particular issues to be drawn from this case, surrounding the court’s interpretation of the Inheritance (Provision for Family and Dependants 1975) act:

“First – The Court of Appeal has shown that even with an estate of over 16 million and the claimant being made a beneficiary of two trusts, the court will adopt a traditional approach, which ensures that the surviving spouse is left in control of her own livelihood.

“Second – The Court of Appeal overruling the decision to strike out the claim for being issued out of time. It undertook a useful analysis, and said that delay in issuing proceedings to try and reach a negotiated settlement is not to be penalised.”

 

  1. Is there anything that people putting their estate into trusts can do to reduce the chances of circumstances such as these arising? 

“They should ensure they set out their reasons clearly in a letter of wishes which would not preclude a claim but would give the courts an insight into their wishes and the reasons for them.”

 

  1. Might the will have been structured differently to enable ‘reasonable financial provision’ to have been made while still achieving tax savings (assuming that is why it was structured in this way)?

“It seems from the analysis that unless the surviving spouse is given control i.e. made a trustee, it is difficult to see how, a Court could not find that the deceased failed to make reasonable financial provision.  It also protects the spouse otherwise the trustees could make decisions without her consent or approval.  A lump sum could have been given to the spouse outright with only the balance of the estate being put in trust.  This could make it easier to argue that ‘reasonable financial provision’ has been made.”

 

  1. Why is it necessary to make ‘reasonable financial provision’?

“If you fail to make reasonable financial provision, a Court may well overturn your last wishes set out in your will, if your surviving spouse, partner or child makes a claim.”

 

  1. How is ‘reasonable financial provision’ usually interpreted?

“When calculating reasonable financial provisions for the surviving spouse, the benchmark is what they would have received on a divorce, however where the parties are merely cohabiting the statutory provision is what is necessary to ‘maintain’ the claimant.  Whilst case law shows that there is judicial flexibility to address this difference, for anyone arguing that there is no distinction between being married and cohabiting, this is further evidence that there is!”

Number of cohabiting couples increases by more than 25 per cent in a decade

Graeme Fraser, a Partner at Finchley-based OGR Stock Denton and Chair of Resolution’s Cohabitation Committee, has commented on figures from the Office for National Statistics (ONS) showing that the number of cohabiting families in the UK increased by more than 25 per cent from 2008 to 2018.

He said:

“These statistics should come as no surprise, with even the Prime Minister being in a cohabiting relationship.

“However, what many people do not realise is that cohabiting couples are at a major disadvantage in comparison with their married and civil partnered counterparts in many areas, including on the breakdown of a relationship, inheritance, death benefits, pensions and tax.

“For example, where only one party to a cohabiting relationship is named as the owner of the family home, the non-owning partner can be left with nothing on the breakdown of the relationship and no straightforward legal recourse.

“The fact that the number of cohabiting families is rising so quickly underscores the need for urgent reform so that couples who have lived together for a period of time enjoy certain automatic rights, unless they chose to opt out.”

Labelling a healthy divorce

The passage through Parliament of the Divorce, Dissolution and Separation Bill this summer has identified how a simple matter of labelling the parties may send out a much healthier message to children.

During the Public Bill Committee stage in the House of Commons on 2nd July 2019 David Hodson OBE (Law Society Family Law Committee) said:

“One of the things the legislation has to bring through is that we have to review how we call people in this process. It is the soft elements around the legislation that are as important as the harder elements.”

Thousands of family law professionals who belong to Resolution subscribe to a Code of Practice that promotes a constructive approach to family issues. As divorce law currently stands, the adversarial positioning of the couple as “petitioner” and “respondent” could be perceived as automatically putting the good intentions of family lawyers and other family law professional at odds with various pledges under the Code, including to:

“Listen to and treat everyone with respect and without judgment.”

Hodson further commented:

“Let us call it a divorce between two people, without having a litigious element in the heading.”

The importance of labelling may therefore be considered relevant to the focus of no fault divorce legislation, which has a core objective to promote the welfare of children. During the Committee Stage, Nigel Shepherd (immediate past Chair of Resolution) confirmed that a very considerable number of divorces involve children under the age of 16, that children are at the heart of this process, and the conflict is damaging to children.

These comments are borne out by the findings of Professor Liz Trinder’s Finding Fault Report (Nuffield Foundation) which indicated that the use of fault might trigger, or exacerbate, parental conflict, which has a negative impact on children. The national survey found that 62% of petitioner’s and 78% of respondents said fault had made the process bitterer. When interviewed, both petitioners and respondents gave examples of how the use of fault, mainly behaviour, had had a negative impact on contact arrangements, including fuelling litigation over children. Some described threats to show the petition to children

Resolution members and family lawyers have long known that traditional processes often fall short of achieving a healthy divorce. It explains why a significant number of family law professionals have trained in dispute resolution processes better suited to meet the need of couples facing relationship breakdown.

Dispute resolution processes dramatically steer away from the harder elements of existing legislation and traditional processes, which label parties as part of an adversarial process.

In the Collaborative law process, for example, the parties and their lawyers sign a Participation Agreement at the beginning, which includes a commitment to the following primary principle:

“They intend to resolve these issues by focusing on all their needs (their own and the needs of their children), rather than focusing upon just their own claims, needs and legal rights.”

However, continuing to base divorce on fault can fuel unnecessary distress in an already difficult situation for the separating couple. During the Committee Stage, Aidan Jones (Relate) described the benefits of removing fault from the divorce process for the couple who are trying to work through their relationship difficulties

“Blame is toxic and is never helpful. A great deal of the work we do in the counselling room is around helping people to understand this and to take responsibility for their own actions.”

The Bill currently under consideration does include measures to change references to “petitioner” in the process to “applicant”. However, references to a “respondent” will remain. This is not sufficient to mark the sea change of no fault divorce legislation, which is intended to transform divorce from an adversarial to a more consensual process.

Instead, the heading could be changed to “in the marriage of” and the parties simply referred to by their names, rather than on the basis of who notified the other of the divorce. This is also far less confusing later on because applicants and respondents can mean different things in different process. For example, someone could be the applicant in the divorce and the respondent in family remedy proceedings.

Meanwhile, using “wife” or “husband” also seems not to be appropriate as the process is designed to bring the relationship to an end.

Using the parties’ full names, by contrast, would help humanise the process. Many Agreement documents reached through Dispute Resolution processes use the parties’ full names in the title and commencement and execution clauses, and the forenames within the main body of the text. This would also make the documents work better and be easier to read, as it is plain English rather than legal language. It is a good opportunity to modernise the process thoroughly.

However, the legislation could go further still by making it possible to apply for divorce jointly – something that should be encouraged as a matter of good practice. We would expect that those who have been through counselling, mediation or collaborative law would want to apply for divorce jointly, as it gets away from having to attribute blame. By having this possibility, we would hope that this would become the normal way forward as part of obtaining a more healthy divorce. It also sends a better message to the children.

Reducing conflict in relationship breakdown is a laudable aim and generations of family lawyers have been campaigning for these changes for decades. Language acts as a framework for our thinking. Where that framework is geared towards conflict, there can be little surprise when our thoughts and actions follow suit.

Not only will a relabelling of the divorce process promote better outcomes for families, but also could lead to other welcome changes in other areas of family law practice.  For example, the President of the Family Division’s practice guidance on the use of standard orders in financial remedy proceedings encourages Court Users to express the parties as Applicant and Respondent despite the fact that the bulk of Orders are made by consent.  Would it not be better to express the parties by their names to reflect the accord between them rather than require standard reference to litigious phrasing?

Generally, the priority now must be  to get the new legislation over the line through Parliament so that it does not get delayed or fail. These changes can be dealt with by modernising the terminology through a wholesale revision of the Family Proceedings Rules 2010. These are ripe for revision, given the progression of legislation towards modernising the practice of family law in any event and these changes  could be achieved relatively easily by secondary legislation.

Resolving children and finance issues when couples are experiencing relationship breakdown can be complex and difficult when they are experiencing conflict, but no fault divorce will send out a much healthier message for children. A humane divorce that recognises the couple as two people rather than litigants is a subtle but important way of reducing conflict and ultimately achieving better outcomes for families.

Graeme Fraser is Head of Family and Partner at OGR Stock Denton