English High Court: Dual UK-US citizen separated from husband granted permission to relocate to Boston with young daughters 

By Mitchell Skilling

Applicant TR and respondent JM had two daughters together, aged six and four, and had lived together in London throughout their marriage. The couple had not divorced at the time the application was heard but it was observed that it was “very probable” that their marriage was at an end.

The application was heard by Family Court Judge Mr David Rees QC, with Deborah Eaton QC and Tadhgh Barwell O’Connor appearing for the applicant and Anita Guha for the respondent.

Higher earner

The parties first met in 2011 and married in the summer of 2014. The applicant first moved to the UK from the USA in 2005, having grown up in the Boston area. Both the parties’ children possessed British and American citizenship. The eldest child, VB, attended an independent school in London and the youngest, LB, a private nursery. It was noted that both parents had played an active role in the children’s parenting but there was a dispute as to which was the primary carer.

Both children were diagnosed with a heart condition from a young age for which they were in receipt of private medical treatment. It was noted that VB had mostly outgrown the condition and was on a small amount of medication, while LB remained on a higher dose.

Of the parties, the mother was the higher earner, with a salary of approximately £260,000 per annum and around £900,000 in savings, £350,000 of which albeit was earmarked to meet a potential liability to the US government. Medical evidence led by both parties demonstrated that they both suffered from some form of depression, with an expert witness for the mother stating that she considered her desire to return to the USA to be the longest standing issue, and it was submitted that any decision made would have a serious negative impact on at least one of the parties.

The mother’s proposal was that she would move with the children to a town just outside Boston. In respect of the children’s condition, their existing consultant had offered to make a referral to an identified consultant at Boston Children’s Hospital. A desire for the father to move with them to the USA was expressed, or for the children to spend 4-6 weeks per year with him over school holidays.

It was the respondent’s position that the UK was the children’s home, and he was critical of the feasibility of the relocation plan. In response to his proposal that the children remain in the UK, the applicant argued that it was not affordable for the parties to purchase two suitable properties in the local area and keep the children in their current school.

Long-held desire

In his decision, Judge Rees observed: “Having had the opportunity to hear the evidence of both parents I have been left in no doubt that the mother has a genuine and long-held desire to return to live in the USA, and to do so with the two children. I accept that this is not a case where the mother is seeking to remove the father from the children’s lives. The duration and consistency of her desire to return to the USA and her obvious wish for the father to continue to play an important role in the children’s lives make this clear.”

He continued: “I do not criticise either parent for their position. I do not consider that either has deliberately set out to frustrate or thwart the other. Sadly though, they have reached the point where their conflicting wishes and objectives for their and the children’s future have become mutually irreconcilable, are having a damaging effect on their own and each other’s mental health and risk placing in jeopardy the welfare of the children.”

Comparing the proposals put forward by the parties, Judge Rees said: “I consider that there is little to choose between the two proposals in terms of the material facilities that will be available for the children (by which I mean accommodation, education facilities, healthcare and the like). In my judgment this case turns upon the impact that the proposals will have on the children’s relationships with each of their parents.”

However, he went on to say: “The key factor in the present case is the likely effect that each proposal will have on the parents’ mental health, and the extent to which this impacts upon the welfare of the children and upon each parents’ ability to provide the love and support that these children require. In my view this is the issue which reveals the crucial differences between the parties’ proposals. I have formed the view that if the mother’s application is refused and I require her to remain here with the children, her mental well-being and her ability to parent the children will be greatly impaired.”

The judge concluded: “Both outcomes are far from ideal as, one way or another, a significant and adverse impact on health of one or other of the parents seems unavoidable. However, when looked at through the lens of the children’s welfare, I am satisfied that the mother’s proposal to relocate to the USA offers the better prospect of reducing the impact upon the children (so far as is possible) of their parents’ ill-health.”

Judge Rees therefore granted permission for the applicant to relocate the children to the USA and gave the parties until 1 July 2022 to attempt to reach an agreement as to contact arrangements.

England and Wales: Criminal barristers’ strike begins

The Criminal Bar Association (CBA) refused the offer of a 15 per cent uplift in fees, saying it was insufficient in the wake of deep cuts to the legal aid budget and pointed out that it will not apply to the backlog of 58,000 cases.

The CBA said incomes have declined by nearly 30 per cent over the past 20 years and that criminal barristers make an average of £12,200 after expenses during their first three years in practice. The poor remuneration has driven 22 per cent of the junior bar out of the profession since 2016.

Striking barristers spoke of being paid less than minimum wage for court hearings when travel and preparation were taken into account and not being paid at all when hearings were cancelled.

Mira Hammad, who called to the bar in 2019, told The Guardian: “The criminal justice system is falling apart. Cases aren’t going ahead because there aren’t enough barristers, there aren’t enough judges, there’s not enough court resources.

“As a criminal barrister you can’t earn enough, so I do inquest work as well as crime. If I was doing solely crime I would not be able to earn a living. It’s unsustainable for anyone involved in the system.

“The fact that there’s no funding in the system means that it’s also an incredibly stressful and frustrating job to do. You don’t get paid well and you’re constantly having to work within a system that is just completely dysfunctional.”

Andrew Fitch-Holland, who called in 1990, said barristers’ goodwill had been exploited.

“People are at breaking point, I’ve seen colleagues in tears,” he said. “I know of the level of personal debt people are taking on. We are all struggling to make ends meet and frankly sick and tired of not being paid for the work we do.”

He added: “We’re not being greedy, we’re not fat cats. There have been a series of brutal cuts to our funding at a time when also, over the years, the demands of the job have increased. So we’re not only getting paid less, but we’re being asked to do more for less. We have reached an existential crisis and the criminal bar is haemorrhaging members.”

In a statement, Justice Secretary Dominic Raab, who was a trainee at Linklaters in 2000, said: “It’s regrettable that the Criminal Bar Association is striking, given only 43.5 per cent of their members voted for this particular, most disruptive, option.

“I encourage them to agree the proposed 15 per cent pay rise which would see a typical barrister earn around £7,000 more a year.

“Their actions will only delay justice for victims.”

Barristers are walking out today and tomorrow and will increase the number of strike days by one each week, meaning that in the week beginning 18 July there will be a five-day walkout.

Sheriff Adrian Cottam appointed deputy director of Judicial Institute

Sheriff Cottam is a graduate of Dundee University. He joined the Crown Office and Procurator Fiscal Service in 1996, starting as a depute in Inverness and worked in various roles in Aberdeen and Edinburgh thereafter, including a period as district procurator fiscal for West Lothian at Livingston.

He was an advocate depute, then senior advocate depute over two periods totalling six-and-a-half years. He was appointed as a summary sheriff in Lothian & Borders in 2017 and in October 2021 as a sheriff in South Strathclyde, Dumfries and Galloway based primarily at Lanark Sheriff Court.

Sheriff Pino Di Emidio, who was appointed director of the Judicial Institute in February, following the arrest of Sheriff Alistair Duff in January, said: “I am delighted that Adrian is joining the Judicial Institute.

“He brings a wealth of experience and will help the continuing development of the Institute and its resources as we implement our recovery plan.  I am also extremely grateful to Susan Craig for her outstanding contribution to the work of the Institute over the last four and half years.”

DVLA used wrong legal basis to disclose information to car park operators

In a six-page opinion published this month, the privacy watchdog said it would not be pursuing enforcement action for what it called a “technical infringement of the law”, but experts have said the finding could lead to individual claims for compensation.

The DVLA had been relying on “legal obligation” as its lawful basis to process the data based on the incorrect belief that Regulation 27(1)(e) of the Road Vehicle (Registration and Licensing) Regulations 2002 imposes a legal duty on it to share details with car park management companies.

The agency therefore believed that this satisfied the requirement under Article 6(1)(c) of the UK GDPR that the processing is necessary for compliance with a “legal obligation”.

However, the ICO said Regulation 27(1)(e) “provides the DVLA with a power, rather than a legal duty, to disclose vehicle keeper information”, meaning the DVLA cannot rely on the legal obligation basis.

The correct legal basis would be “public task”, as Regulation 27(1)(e) creates a task to be carried out in the public interest which requires the disclosure of vehicle keeper data, the opinion continues.

The ICO said the situation “apparently arose because of an unintended change to the interaction between the Parking Regulations and data protection law, following the 2018 data protection law reforms”.

The opinion goes on to call for the UK government to “review the relevant legislation” in order to “provide legal certainty on the correct approach”.

It adds: “If the Department for Transport and the DVLA believe that Regulation 27(1) gives the DVLA a legal duty rather than a power to share keeper information, the government might choose to consider a legislative remedy that puts this issue beyond doubt. This would provide certainty to both the DVLA and to vehicle keepers.”

A spokesperson for the DVLA said: “There is no doubt, as confirmed by the ICO in its published opinion, that the release of data to private parking firms is lawful.

“ICO’s opinion reflects a legal technicality around processing conditions, and also acknowledges it will make no difference to the outcome of data sharing. This has no bearing on the release of data nor does it affect customers in any way.”

White House worth £3m goes on sale in St Andrews

The property, listed with Savills, has ten bedrooms and gardens almost 1.5 acres large. Six of the bedrooms are in the main house and the remaining four are in an annexe.

According to The Times: “The ten-bedroom property in Hepburn Gardens was built in 1904 in the Arts and Crafts style. It has classic Edwardian accommodation on the ground floor, including a study, drawing room and formal dining room.”

With an expected 290,000 visitors to attend the Open in July, the property could attract interest from wealthy golfers and fans of the town. The demand for properties in the area has been kept high over the years due to the interest in golf and demand for housing students and employees of the prestigious university.

Faculty welcomes 28 new members

On Thursday 14 new members were welcomed by Dean of Faculty, Roddy Dunlop QC, and admitted to the public office of advocate by Lady Carmichael. Their qualifications were read out by the Clerk of Faculty, Richard Pugh.

“You join Faculty at a time when its importance to the people of Scotland is once more front and centre,” said Mr Dunlop. “At a time when the rule of law is under attack, domestically and internationally, the independent referral bar remains a bulwark against injustice and oppression.

“You will need support, and you will find it here: from your peers, from your opponents, and from me. You join Faculty at a time of challenge, but also of opportunity. I am delighted that you have chosen this path in your career, and I wish you every success therein.”

The Vice-Dean of Faculty, Ronnie Renucci QC, presided over the calling ceremonies for the second group today, where the Faculty’s deputy director of training and education, Gillian Ross, reported on their qualifications. They were then also admitted to the public office of Advocate by Lady Carmichael.

“Admission as an advocate in Scotland is not simply a licence to practise,” said Mr Renucci, but also admission to a public office that carries privileges and responsibilities.

“The criminal bar has never been busier,” he said, which created great opportunities for the new members. “You should be proud of yourselves – calling to the bar is a significant achievement.”

The new members are Colin Neilson, Neil Deacon, Sarah Loosemore, Iain Halliday, Alistair Sloan, Jordanna Blockley, John Laing, Katharine Muir, David James, Gareth Reid, Kenneth Young, Elaine Smith, Thomas Mulhall, Terence Merck, Mark Nicholson, Ayla Iridag, Emma Boffey, Lynsey Morgan, Jonathan Deans, Chris Stephen, Duncan Milne, Scott Clair, Sheana Campbell, James McCrone, Louise Cockburn, Megan Davidson, Iain Buchanan and Michael Briggs.

Men given CPOs over illegal metal detecting

Metal detectorists Andrejs Grisulis, 35 and Matthew Madden, 55 had previously pled guilty to heritage offences at Dunoon Sheriff Court.

The pair were each given a CPO requiring them to carry out 80 hours’ unpaid work and supervision for six months. A requirement of their sentence was that they do not enter any site owned and managed by Historic Environment Scotland for a period of two years.

The court also granted the prosecutors motion for the forfeiture of the metal detector.

The court heard that on 8 June 2020 the pair were seen by witnesses to be using a metal detector and digging at the protected site of Dunadd Fort in Argyll.

Dunadd Fort is one of the most important early medieval power centres in Scotland and was the royal centre and capital of the early Scottish kingdom of Dál Riata. It has been subject to legal protection for 90 years.

Following a complaint and a subsequent investigation by Heritage Environment Scotland, 28 holes were found at the site and police recovered an extremely fragile and vulnerable iron hammerhead

Speaking following the sentencing, Anne Marie Hicks, assistant procurator fiscal for North Strathclyde, said: “Dunadd Fort is of great significance to our Scottish heritage and the local community. It is a nationally important scheduled monument subject to legal protection.

“It is vitally important that there are laws in place to protect such important sites and as with this case where there is sufficient evidence of a crime and if it is appropriate and in the public interest to do so, we will prosecute.”

Local authorities granted power to run bus services

Transport Minister Jenny Gilruth said that the powers, obtained through the Transport (Scotland) Act 2019, would “revitalise” bus services.

Under the legislation, the transport authorities have the power to run bus services in their area as they see fit.

Ms Gilruth said: “The Act was designed to help make Scotland’s transport network cleaner, smarter and more accessible than ever before.

“By giving local authorities the flexible tools they need to respond to their own transport challenges, we can deliver a more responsive and sustainable transport system for everyone in Scotland.

“I would encourage all local transport authorities to consider using this power and the full range of tools available to them under the Act.”

England: Corporation tax rise could reverse trend of lawyers forming limited companies

Research by the Solicitors Regulation Authority (SRA) indicates that 53 per cent of firms south of the border are limited companies – an increase of about 90 per cent over the past decade.

A change to corporation tax, however, could reverse that trend.

A report from the SRA ascribes the change in preferred business vehicles to a reduction in corporation tax, which fell from 24 per cent in 2012 to 19 per cent in 2017.

Moreover, the tax rate on dividends paid to shareholders in limited companies was lower than that which was paid on the profits of limited liability partnerships or members of traditional partnerships.

The data show that 52.6 per cent of solicitors’ firms are incorporated companies. This group is followed by sole practitioners, at 18.5 per cent. LLPs account for 15.3 per cent of firms and traditional partnerships for 13.2 per cent.

The report states that partners who were shareholders in limited company law firms had “benefited from a noticeable tax advantage over recent years”, which had “allowed them to enjoy a greater share of their firms’ profits than partners in traditional partnerships or LLPs”.

Report authors Hazlewoods, an accountancy firm, noted that the tax benefits for law firms was set to end next April as the UK plans to raise corporation tax to 25 per cent for companies with profits over £250,000.

Quote of the day

We often contradict an opinion for no other reason than that we do not like the tone in which it is expressed.

Nietzsche

And finally… derelict

Knockderry Castle’s former owner, Marian van Overwaele, was made bankrupt in 2000 after her repeated refusals to pay the £230 bill escalated the debt to £30,000.

She subsequently transferred ownership of the castle to her brother and continued to live there with him, fightings bids to evict them in the courts.

However, the Inner House ruled last summer that the pair had to leave. They were finally evicted in March, The Guardian reports.

The 160-year-old building, with six bedrooms and four reception rooms, is being marketed for offers over £1.25 million by Strutt & Parker and Shepherd Chartered Surveyors.

James McCrone, Lynsey Morgan and Alistair Sloan join Optimum Advocates

After the rigour of the examinations and practical training, the stable has welcomed James McCrone, Lynsey Morgan and Alistair Sloan.

Mr McCrone has practised in personal injury law for the last four years. He qualified at one of Scotland’s leading personal injury firms and gained considerable experience acting on behalf of pursuers. Thereafter, he practised in a defender firm where he predominantly acted on behalf of insurance companies. He also conducted numerous debates and proofs at Sheriff Court level during that time. As a devil, he gained experience in criminal law and comes to the bar with a keen interest in developing his knowledge in this type of work.

Ms Morgan calls to the bar as a Lord Hope scholar. Prior to calling, she gained six years’ experience as a litigation solicitor, where she specialised in family and child law. As a solicitor, she had a busy practice, advising clients on a broad range of matters including divorce, financial provision, cohabitation, residence, contact and relocation. She was frequently instructed in applications under the Adults with Incapacity (Scotland) Act 2000. Ms Morgan has considerable experience appearing in the sheriff courts. During her devilling, she gained significant experience in criminal law, developing a keen interest in the area.

Another Lord Hope scholar, Mr Sloan calls after having been a solicitor for five years, primarily in civil litigation. He worked in-house on matters concerning the regulation of care services. In this role he advised on both the civil and criminal aspects of the regulation of care services. When in private practice, he focussed primarily on matters relating to family law, data protection, privacy, freedom of information and property disputes. He has a particular interest in data protection and freedom of information law.

Optimum Advocates stable director, Sarah Livingstone, said: “This is an exciting time for newly called advocates to contribute to our members efforts to return the justice system to normality, after the huge disruption caused by the pandemic.”

Angela Bath, practice manager, said: “I am looking forward to working with James, Lynsey and Alistair as they begin their career at the bar.”

Axiom welcomes Neil Deacon and Emma Boffey

Neil called to the bar on 23rd June after serving for three years as Law Clerk to the Lord President of the Court of Session. In that role, he assisted Inner House judges in appellate matters across civil law. As a qualified solicitor on secondment to the Lord President’s Private Office, Neil drafted procedural rules for civil courts and tribunals, and advised the Scottish Civil Justice Council and its sub-committees. In particular, Neil worked on a considerable number of cases concerning each of commercial contracts, public law, planning and tax and has more recently during devilling gained greater experience of professional and product liability, as well as commercial and company law. Previously, Neil spent 12 months of his traineeship as a solicitor in litigation teams within the Government Legal Service for Scotland and in the Office of the Advocate General dealing; and has a particular interest in competition law, which he studied at postgraduate level.

Emma Boffey called as a Faculty Scholar on 24th June, following seven years’ experience as a solicitor practising with international law firm, CMS. Emma was qualified as a solicitor in both Scotland and in England & Wales. She specialises in commercial dispute resolution, including contract, technology and financial services matters. She also has a keen interest in company/corporate matters, where she acted as solicitor in a number of leading reported decisions. As a solicitor, Emma was regularly involved in high value and complex first instance litigation before the Commercial Court and appellate proceedings before the Inner House of the Court of Session. She also has experience of resolving matters through mediation. Emma served as president of the Scottish Young Lawyers’ Association from 2014-2016.

Kenny McBrearty QC, director of Axiom said: “Axiom is delighted to welcome both Neil and Emma to the stable, given their backgrounds and experience both are without doubt valuable additions to Axiom. I wish them every success in their chosen paths at the bar”.

Themis Advocates welcomes new members

Mr James joins Themis with vast experience in employment law having conducted case management hearings to multi-week evidential hearings, not only on complex discrimination matters but also advising on large commercial transactions and contractual disputes. In addition, David has gained significant experience as a solicitor in clinical negligence and personal injury matters and public and fatal accident inquiries.

Mr Halliday spent eight years as a solicitor specialising in public law, including immigration and asylum law, retained EU law, human rights, and judicial review. He has been instructed in complex deportation, asylum, and human rights appeals including appeals against refusals of returning resident visas, spouse visas, and mental health based private life claims.

Mr Stephen comes to the bar with a wealth of experience having been a solicitor for 12 years, 10 of which were spent in London working for the UK government, both in the Foreign, Commonwealth & Development Office (FCDO) and Office of the Advocate General for Scotland. He is in the process of becoming dual qualified as counsel and specialises in dispute resolution, employment, commercial property and public law

Ms Blockley has experience in asylum and immigration matters having appeared regularly in tribunals representing clients in asylum, immigration and deportation appeals and has a particular interest in refugee law. She has also recently gained experience in personal injury actions such as workplace accidents, industrial disease claims, product liability actions, stress at work claims, and occupier and public liability claims both for pursuers and defenders.

Welcoming them to Themis Advocates, stable director Andrew Webster QC said: “We are delighted that out new members have chosen to join Themis and we welcome them heartily. Themis Advocates is committed to servicing the needs of our clients and to provide informed and effective advice and representation at all levels. Our new members add to the strength of our provision and we have every confidence that they will flourish in practise. We wish them well in their new career.”

Full profiles can be found at www.themis-advocates.co.uk

Westcor International Limited triples its Scottish team

Laura joins as a Commercial Underwriter having worked previously at another major title insurer for the last 7 years.

Laura says “I am thrilled to have joined Westcor at such an exciting time and I am proud to be part of such an experienced and innovative team. I’m looking forward to serving our Scottish clients and delivering creative title indemnity solutions.”

Caroline joins as Westcor’s new Head of Claims with over 30 years’ experience, and has spent the last 9 years at Lyons Davidson as a Senior Manager.

Caroline says “I am delighted to have joined Westcor and to have been given the opportunity to utilise my claims and legal experience. Having the support of our highly experienced national & international team, fills me with overwhelming confidence and excitement.”
Kirsty Noble, Westcor’s Senior Underwriter & Solicitor in Scotland says “It is wonderful to have Laura and Caroline join our team. Both have a wealth of experience in their respective fields that will prove hugely valuable to our clients. Laura joins at time of growth in Scotland. Her appointment bolsters the depth of our Underwriting expertise and enhances our ability to provide a quick and effective service to the profession. Caroline brings years of experience in claims handling and insurance-related disputes. Her addition to the team means that Westcor is the first legal indemnity provider to locate their Claims department in Scotland.”

Should you have any title insurance enquiries, please contact the Scottish team on 0141 737 3079 or email enquiries@westcorintl.com

Butcher & Barlow select PracticeEvolve to consolidate systems to achieve operational efficiencies

Offering a full range of legal services, Butcher & Barlow operates from ten offices across the North West with 160 staff. With a focus on building long term relationships with clients, the team wanted to consolidate their software to ensure they could continue to provide a high level of service to their clients in a demanding environment.

Rick Roberts, IT Manager, comments “Over the years, we have employed a number of different systems to handle our cases, our accounts and our document management. Butcher & Barlow are always looking for ways to build on the resources we already have to improve efficiencies across the firm for the benefit of our clients. Our investment in PracticeEvolve will enable us to have everything in one single system and help us achieve further efficiencies which will ultimately benefit of our client’s.”

Rick continues, “PracticeEvolve has a number of great features which we will benefit from. The fact we can sculpt the software and write workflows according to how we manage new business all the way through to billing will significantly increase our efficiency and ensure that we can provide our clients with the personal service they have come to expect from the firm. The consolidation means we can save costs on software, hosting and training. We’re now looking forward to PracticeEvolve’s migration project and getting us live.”

Dave McCarthy, BDM at PracticeEvolve says, “I’m very pleased Butcher & Barlow have selected us as their provider of choice and I’m looking forward to go-live. We are certainly seeing more firms look to consolidate their software and our feature rich end-to-end PMS really delivers on that requirement. It has been a pleasure liaising with the team to demonstrate the power of PracticeEvolve. We’ll now turn our attention to migrating the data from multiple systems and bring the team live!”