Month: September 2015

Personal Injury compensation and Divorce – how divorce can impact upon damages received

A number of news articles have reported that there is a possibility that Simon Vaughan, a soldier who was severely injured in Afghanistan, will face losing some of his £1.1m compensation in his divorce. The final financial hearing in this case started on 21st September 2015. The outcome of this decision will depend upon the details of the family’s situation (which the media has not reported on).

In 2008, Simon Vaughan received a £1.1million payout after an attack in Afghanistan left him severely brain damaged. Simon and his former wife Donna separated in 2013. Mrs Vaughan has issued financial proceedings so that the court can consider the parties’ finances as a whole to enable her to raise the two children of the family. The mixture of monies from the military and insurance payouts has now reduced from £1.1million to £250,000 and Mr Vaughan is concerned that he could face losing some of this in the financial proceedings as he needs such funds for his ongoing care costs.

This case raises the issue of how injury compensation is treated in family law and in relation to the interpretation of ‘needs’ in financial proceedings. Mr Vaughan’s representation is hopeful that the outcome of this case will identify and test these principles fully for the benefit of others who are in a similar position to Mr Vaughan.

When the court are considering the impact of divorce on a damages award, compensation is not ring-fenced and is brought into the balance sheet just like shares or savings. The court do however undertake a balancing exercise and consider factors such as the welfare of the children, their standard of living, or in Mr Vaughan’s case, his disability will be a relevant factor that needs to be taken into account when considering the parties’ respective ‘needs’.

For advice and guidance on how personal injury awards are treated in financial arrangements on separation, or to discuss your current situation, please contact our specialist Family Law lawyers on 0161 927 3118 for a free 20 minute consultation.

Court of Appeal overturns decision as focused too much on ‘gender discriminatory’ guidance in Payne v Payne – change the court’s approach to relocation cases

The latest Court of Appeal decision on international relocation (Re F (International Relocation Cases) [2015]) has overturned an experienced judge’s decision because they focussed too much on the Payne criteria and not enough on the overall assessment of welfare. In the first instance in Re F, the mother was granted leave to remove the child to Germany. Lord Justice McFarlane held that the harm of separating the child from their father had not been properly evaluated.

Prior to this decision, the guidance in Payne v Payne was the first thing to be considered by a judge in hearing an application for relocation. Payne v Payne was a Court of Appeal decision in 2001 in which a father’s appeal against the removal of his child to New Zealand was rejected. The guidance given in Payne referred to questions which needed to be asked in relocation cases such as:

– Is the relocating parent’s application genuine, realistic and well researched?
– Is the parent’s opposition motivated by genuine concern or an ulterior motive?
– What would be the extent of detriment to the father and his future relationship with the child if the application were granted?
– What would be the impact to the relocating parent of the refusal of her realistic proposal?

The guidance in this case has been criticised for placing too great an emphasis on the wishes and feelings of the relocating parent and that the guidance usually assumed that the mother was the caring parent and usually the one who sought to relocate.

The guidance in Payne v Payne has been described as a gender discriminatory approach and Lord Justice McFarlane stated in Re F ‘in the decade or more since Payne it would seem odd indeed for this Court to use guidance which is out of context which was intended is redolent with gender based assumptions as to the role in relationships with a child’. Lord Justice McFarlane went on to say ‘the questions identified in Payne may not be relevant on the facts of an individual case and the Court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it.’

The effect of Re F is not that the guidance Payne v Payne had been overturned or set aside, instead it has been re-aligned as just one of the decisions based upon the welfare of the child. The guidance is still useful in some cases, however Re F clarifies that a court should never base its entire decision upon the questions identified in Payne v Payne. Re F shows the courts acknowledging the importance of the erosion of the quality of the relationship between the relocated child and the left behind parent.

This is a highly emotional area of family law for the entire family. Whether the relocation of a child is to another continent or in Europe, these cases present sensitive issues. It is essential to seek advice early, if possible at the time of separation as early decisions may affect how things turn out later on. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. We can talk you through your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.

First female prosecuted under new law for posting person’s intimate images on Facebook

As we have discussed in previous blog posts, with the increased use of technology there is a growing problem of the malicious use of intimate images in Family Law proceedings. Under the Criminal Justice and Courts Act 2015(introduced in April 2015) it a criminal offence to disclose private sexual photographs and films without the consent of the individual who appears in them and with the intent to cause that individual stress.

Paige Mitchell pleaded guilty to disclosing private sexual photographs with the intent of causing distress to her girlfriend and is believed to be the first female to be prosecuted for revenge pornography under new legislation. The court was told that Ms Mitchell posted four sexually explicit images of her girlfriend on her own Facebook page after her girlfriend accused her of ‘looking at other women’. Ms Mitchell pleaded guilty to one count of assault by beating and one of disclosing private sexual photographs and films with intent to cause distress. Ms Mitchell has been sentenced to six weeks imprisonment suspended for 18 months, rehabilitation activity requirement for 50 days and ordered to pay costs.

The CPS Guidance on ‘revenge porn’ outlines the following:

• Revenge Porn is the sharing of private, sexual materials, either photos or videos, of another person without their consent and with the purpose of causing embarrassment or distress.
• The offence applies both online and offline and to images which are shared electronically or in a more traditional way so includes the uploading of images on the internet, sharing by text and e-mail, or showing someone a physical or electronic image.
• The issue in cases of ‘revenge pornography’ will be whether the message or communication is grossly offensive, indecent, obscene or false, not whether the image itself is indecent or obscene.
• Section 1 of the Malicious Communications Act 1988 deals with the sending of electronic communications which are indecent, grossly offensive, threatening or false, provided there is an intention to cause distress or anxiety to the recipient.
• Section 127 of the Communications Act 2003 makes it an offence to send or cause to be sent through a ‘public electronic communications network’ a message that is ‘grossly offensive’ or of an ‘indecent, obscene or menacing character’.
• Where there is more than one incident, or the incident forms part of a course of conduct directed towards an individual, a charge of harassment should be considered.
• In the most serious cases, where intimate images are used to coerce victims into further sexual activity, other offences under the Sexual Offences Act 2003 will be considered.

If you are experiencing abuse following your separation or fear that your former partner is acting in a vengeful manner, you can talk to us in complete confidence about the legal steps you can take to bring your abuser to justice and to legally end your relationship. Our Family Law specialists will handle your case with sensitivity and provide the proper advice and guidance you need. Please contact us for a free 20 minute consultation on 0161 927 3118.

Welsh Government Introduces New Fostering and Adoption Measures

Following the recent closure of the British Association of Adoption and Fostering (BAAF), the Welsh government is taking measures it hopes will maintain and improve upon the work done by the former charity.

The announcement comes just after the largest association of professional social workers wrote about their concerns for the future of fostering and adoption without the help provided by the charity.

One of the key measures announced is the passing on of the Wales Adoption Register to the National Adoption service. However it is not just the service itself that has been affected. Staff training and a new helpline will be operated by a new body.

Many of the staff who would previously have worked for the BAAF will be recruited to the new body. It is hoped that this will ensure that standards in the sector are maintained in Wales and best practice guidelines are adhered to.

The British Association of Social Workers have already expressed their concern about the closure of BAAF and it looks likely that even with a new body being set up, it will be difficult to maintain standards and existing staff training.

With social workers often under pressure, the closure of the BAAF is likely to put more pressure on resources and staff.

Pope Looks To Make Divorce Easier And Quicker

Divorce for Roman Catholics has historically been extremely difficult. The issue was actually a key factor in the UK’s break from the Catholic Church when Henry VIII tried unsuccessfully to get his marriage to Catherine of Aragon annulled.

Much has changed since then of course but it remains very much a last resort for Catholics. Great efforts will be made before couples get married to teach about the importance of marriage and working through problems rather than take the final option of divorce.

While the Pope is not exactly welcoming divorce, he is hoping to make it easier for people who no longer wish to be married to have their marriages annulled. In doing so the Pope has reformed the processes for annulling marriages. Fast track decisions are now allowed while automatic appeals which hold things up for quite some time in many cases will be removed.

While couples can still get their divorce by conventional means, those with a strong Catholic faiths will be relieved that they can get their marriages annulled by the church and be allowed to receive communion.

Couples who don’t have their marriages annulled by the church are considered adulterers.