By guest blogger, Andrew Walker

A recent survey of family lawyers has revealed what we all know to be true, that individuals involved in a divorce are increasingly likely to conceal assets from their soon to be divorced husband or wife. The rationale being that what they don’t know about won’t harm them and “why should he or she have a share of my hard earned cash!”  The rise of internet banking and the global economy makes the opportunity to move assets around far easier and so more difficult to trace in a divorce.

The recent case of Tchenguiz v Imerman; Imerman v Imerman [2010] EWCA Civ 908 has made the situation much more difficult to address. This case involved a husband who shared a work office and computer system with his wife’s brothers. As the wife commenced divorce and ancillary relief proceedings against her husband, one of her brothers (possibly with others) accessed and copied information and documents of the husband’s from a server in the office, and passed them to their (the brothers’) solicitor. The solicitor had a barrister check the 11 files of documents produced by this exercise for possibly privileged material, leaving seven files of documents which were then passed to the wife’s matrimonial solicitors. They in turn disclosed the seven files to the husband’s solicitors in the ancillary relief proceedings. The court has decided that the Wife may not use any information they might have gained from reading the seven files.

The court must be able to form a view after having all relevant information available to it
Both parties have a duty to give full financial disclosure to each other and to the court. If they do not do so there can be civil and criminal consequences. A divorcing spouse should not however be deprived of a fair hearing at the expense of the other parties privacy and confidentiality. Time will tell if the decision in this case remains unchallenged in the future. However in the meantime divorcing couples must be very careful as to how they collate financial information.

Andrew Walker has been a partner and head of the family law department at Grahame Stowe Bateson for over twenty years. He is a member of the family law advanced panel and the children panel. Andrew leads a strong team of family, divorce and childcare law solicitors, offering expert advice on all aspects of matrimonial and childcare law. From their five branches throughout Yorkshire, GSB offer a range of services to their clients including free legal advice at all offices each week or initial consultations at a fixed price.

By guest blogger, Rosanne Brady

In recent years dissatisfied mutterings about the secret nature of children hearings have become common place.  Whilst judgments made in such proceedings are sometimes published, the identities of all involved including children, parents and professionals have remained secret.

Some Members of Parliament have raised concerns about the secrecy surrounding the family courts in parliament, including John Hemming, the Liberal Democrat MP.

Mr. Hemming used his parliamentary privilege to name Victoria Haigh as a mother in care proceedings involving Doncaster Council, complaining that Ms Haigh had been unfairly threatened with imprisonment by the council for discussing family law matters at a meeting in Westmister.

Mr Hemming’s comments led to a sympathetic out pouring for Ms Haigh and her situation.  That however changed on 22nd August, when the country’s most senior family law judge Sir Nicholas Wall took the very unusual step of publishing his judgment in the case and the judgments of two previous presiding judges, naming the parents and the council involved (although not the child who would be referred to as X).

The facts of the case were that the mother had accused the father Mr. Tune of sexually abusing their 7 year old daughter.  The court found that the mother knew this to be false but had coached the daughter into making the same allegations.  Two judges had examined the case and found that the father was not a paedophile and had not abused his daughter.  Despite this the mother could not or would not accept the findings of the court and continued to allege that the father had sexually abused the child.  The Local Authority recommended supervised contact between the child and Ms. Haigh, but Ms. Haigh refused and the Local Authority successfully obtained an order allowing it to refuse contact between the child and Ms Haigh.

With the assistance of a private investigator, Ms Haigh then put into the public domain “unwarranted and scandalous allegations about the father and others”.  This included the mother e mailing parents at the child’s school and the father’s work colleagues and repeating the allegations she had made against him.

In order to redress the balance Sir Nicholas Wall held that there was a need to make public the fact that the father had not abused his daughter and the court had decided that it was in his daughter’s best interest to live with him. The Judge ordered that Ms. Haigh should be named and shamed in order for her former partner, Mr. Tune, to be freed from the false smear that he was a child abuser.

Further, Ms. Haigh was prevented from making any further applications in relation to her daughter for the next 2 years and the private investigator received a custodial sentence for contempt of court.

As Sir Nicholas Wall comments in his judgment “It is ironic, of course that the mother has complained about the privacy of the Family Court process and has historically argued for greater openness. Realising that the professionals in the case would be bound by their respect for X’s privacy, the mother has utilised this to promote her own distorted view of the case which she has been able to advance thus far, unopposed by the true facts.”

So the mother had her wish; the case was made public, although we suspect not with the outcome the mother had hoped for.   As Sir Nicholas Wall concluded “Be you never so great, the law is still above you”.

And so goes the age old adage…..be careful what you wish for!

Rosanne Brady is a family law solicitor at Grahame Stowe Bateson solicitors in Leeds, specialising in children matters. Rosanne is a member of resolution and is committed to resolving family and childcare problems in a civil and non-confrontational manner.

The advantage, or disadvantage, depending on your viewpoint, of practising Law for nearly four decades is the striking contrast in the effect on the offender and the victims.  The changes, to a large extent mirror the changes in society, and societies attitude.

In my formative years I was disciplined by my parents. I knew the boundaries and the consequences and wouldn’t dare cross them. There was no physical chastisement, there was no need. My father always said a child was like a sapling. Plant it straight, nurture it and it will grow into an upright tree. Neglect it and it will grow crooked. School endorsed the difference between right and wrong with my rear meeting the cane and the slipper not infrequently as a young boys ebullience burst through ! Any gaps in my understanding of right and wrong were perfected by attending religious classes regularly.

At the same time the Police and Courts had a no nonsense policy: “break the law, pay the price”. I could be naive, I could be blinkered, but genuinely feel the publics attitude to the courts and criminal justice system was looked upon with a sense of confidence and respect not currently enjoyed.

Financial restraints are currently gnawing away at police forces across the country, remnants of a Legal aid system are denying many the right to legal help and advice, and the bulging capacity of the prisons has taken a costly toll, resulting in a quick turnover policy wherever possible.

As a solicitor in Leeds I see every day the changes. The police will readily refuse to investigate crimes, adopting such attitudes of “sort it out yourself”, “no further action” or “non prospect of detection”, which invariably ends a complaint in it’s tracks.

If a case is elevated to an open file status rest assured the bulk will result in “no further action”, a “caution” or a “reprimand”. If a criminal law case is serious enough to prevent the above the offenders may well get charged. The skill of applying for bail is a skill used again infrequently, as bail is offered where it would never have been previously. If an offence is serious enough to result in prison, the sentencing threshold has moved significantly, with the term being served ever diminishing. An offender sentenced to up to four years would have typically served half that period. Today it’s even less, as sentences are being cut to reduce the period of incarceration.

So why link discipline at home with the criminal justice machinery ?

The link seems all too clear. When families and schools exercised discipline, schools and children went to the equivalent of Sunday school, which now sounds wholly anachronistic, Youth and adult were clear on the rules:  offend and a price will be paid. The Police & the Criminal justice system were respected and feared.

The result was that the public walked the streets with less fear, the frequent reports of knife crimes by youths was unheard of. Similarly the idea of rioting to grab a freebee was as remote as seeing racially harassing mobsters invade The Albert Hall during a performance by The Israeli Philharmonic Orchestra and escape criminal prosecution.

Restoration of discipline within the home and schools with provision of a police force not diminished to an extent to render investigation a burden, and punishment when appropriate, may just return a decaying fabric of society to how it was, in what one has to concede were, if not ” the good old” but al least better days