http://www.sanderswitherspoon.co.uk/ Stay up to date with news and current events from the Sanders Witherspoon website. en-gb Copyright 2007 Sanders Witherspoon. All Rights Reserved. 29/07/2010 21:32:15 20 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FM “No” has been the answer from the judiciary for years. Indeed the presumption has been that they should not give evidence at all. Only in very rare circumstances would the Court consider hearing from a child in proceedings. The age of 12 was often seen as a milestone below which the Courts would not entertain the idea of asking a child to stand in the witness box. Last week, in the case of Re W (a Child) the Supreme Court (the replacement of the House of Lords), the highest Court in England & Wales, unanimously changed the rules and removed this presumption. If the child is able, then the decision whether or not they should give evidence will depend on whether the benefits to be gained from a child’s live evidence outweigh the risk of harm to the child. The basis of the change has been that the old presumption places the Respondent’s right to a fair hearing at risk. A balance will now be drawn between this right to a fair hearing and the risk of harm to the child. We believe that it is fair to say that this change in legal precedent will not lead to a Justice system overrun with children forced into the witness box. Many children do indeed wish to give evidence and have a contribution to make, but are prevented from being heard. A child who risks suffering harm by appearing in Court will never be forced to. That underlying principle appears totally unchanged. 11/03/2010 14:25:28 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FL A recent YouGov survey of separated or separating parents has discovered that perhaps as many as a third of mothers with children under 18 do not know how to go about arranging maintenance payments from the children’s father. 300,000 couples separate each year in England & Wales. 100,000 of them, it appears, are without the impartial information required to provide financially for their children. While some know of the Child Support Agency, the vast majority do not realise that there are many alternatives. The CSA does not have to be involved. This will come as a relief to many as the CSA has the unenviable reputation of having failed dismally in the past to fulfill its role. Seeking independent legal advice doesn’t automatically mean protracted and painful arguments with an ex partner. It can equip you with the information required and a realistic view of what can be arranged, without the need to involve the CSA or the Courts. Sanders Witherspoon LLP’s experienced and approachable Family Department are able to offer clear, practical advice and assistance to ensure that children are provided for financially while not causing unnecessary problems with your ex partner. 19/01/2010 10:41:15 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FK The EU Services Directive At the end of 2009, the Services Directive quietly came into force imposing additional requirements on companies. Businesses within the service sector need to put into effect the new rules which concern access to information about the company and its complaints procedures. The deadline for compliance was 28 December 2009. The EU Services Directive aims to break down barriers to cross border trade in services between countries in the EU. It is designed to make the working lives of small and medium sized businesses easier when dealing within Europe. Failure to comply can lead to vulnerability, litigation, failed contracts and potential financial loss for the company concerned. It is wise to ensure that your company complies (as it already may), in order to avoid potentially costly and commercially damaging difficulties in the future. Sanders Witherspoon LLP are able to assist businesses that need to comply. To find out whether the Directive applies to your business and how we can ensure it complies, contact the Firm. Home visits While no one was looking, the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 recently celebrated its first birthday. The effect of the Regulations is to provide tighter rules for the suppliers of goods and services agreed at people’s homes and afford greater protection for those in receipt of them. In essence, a cooling-off period of 7 days has been given to consumers in which to cancel an agreement with a ‘trader’. The meaning of the word ‘trader’ is broad and includes everyone from workmen to Solicitors. There are some exceptions under the Regulations, however if you are not one of these you may find you cannot recover unpaid bills for work you have done and worse still may be prosecuted and fined. Traders who are not exempt must inform a consumer that they have the right to cancel the contract at any time within a week of entering into it. If they express their wish to cancel within that time, the contract ends and no payment is due. Consumers are using the act to avoid liabilities for contracts they have benefited from. Courts are enforcing the remedy. If you are a consumer it pays to find out if you are covered. If you are a Trader you ought to find out if you are an exempt class and if not what you need to do to ensure you get paid in full for the work you do or the goods you supply. Sanders Witherspoon are able to assist and provide specialist advice. 13/01/2010 09:50:07 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FJ In a report released this week by the Office for National Statistics, interesting trends have been highlighted which demonstrate a change in the social structure of our society. The number of dependent children in the UK living with both married parents fell from almost three quarters in 1997 to two-thirds in 2009 (almost 10%). This trend reflects the increasing preference not to marry. Marriage figures have also dropped for the third consecutive year. Equally, figures for the number of divorces dropped by 3% between 2006 and 2007. Clearly then, marriage is falling out of favour and couples feel more comfortable setting up home and having children without having first married. While these figures offer us an interesting insight into decisions people are making, it highlights an increased need for legal protection among families. Marriage offers considerable protection in the event of separation and divorce for both couples. When relationships break down and the couple is not married or has not entered into a Civil Partnership, those safety nets are not in place. There are alternatives available that can protect couples, their children and property in the event of a relationship break-down or death. Who is to look after the children? Does the father have all legal rights towards his children? What happens if a parent dies? What will happen with the house? These are questions that are regularly asked and arise just as much in mixed as same-sex relationships. Much heartache can be avoided and reassurance gained by considering them with sound legal advice. Caution need not mean the beginning of the end, but provide security if the worst should happen. 08/01/2010 10:08:29 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FI Historically, fathers have not always been able to have the full legal rights available to them. Mothers automatically acquire all these rights by virtue of their having given birth to the child. ‘Parental Responsibility’ is the legal right afforded to fathers who are either married to the mother or who are able to place their name on the birth certificate at registration. However this has not been the case for very long and many fathers still find themselves in a position (without realising) where they have no real say in what happens to their child. 7% of births each year in England & Wales (45,000) are still registered without the father’s name being placed on the register. This has a massive effect on the father and his rights. The reason for the omission might be one of many, but invariably the father will want the rights that being on the certificate affords him, especially so when the parents do not live together. Knowing about a child’s admission to hospital, progress at school or being informed if they have been a victim of crime - these are the things that most fathers take for granted but that a significant minority can be left totally in the dark about. Dawn Primarolo, Children’s Minister this week launched a consultation on her proposed Bill, designed to ensure that in all cases father’s names are registered on the birth certificate. Of course sometimes this will not be appropriate but where there is no proper reason not to, the father’s name will be registered. The aim, is for as many fathers to gain the full rights possible and thereby promote responsibility and avoid mothers shutting out fathers. "We want to move away from a separated partner becoming the 'invisible parent' in a child's life and through registering at this key milestone in their child's life both parents can make a long-term commitment to the child.” said the Minister. The Regulations are on track to come into force in January 2011. Until then and for those who already have children, but are unmarried, there can still be a stone wall in the way of asserting the rights of the father. The fact that a father does not have the rights, for whatever reason, does not mean that he his beyond help. There are solutions available to enable him to contribute fully to his child’s upbringing. Where the mother is hostile, for whatever reason, the father can still contribute fully and where necessary this will be supported by the Courts. Fathers who are in doubt should seek legal advice and avoid letting time slip away. Children need both parents where they are willing and able to contribute to their lives. This will always be the Court’s priority. The Family Department at Sanders Witherspoon LLP is specialised in this area and can assist pragmatically and supportively. 13/11/2009 14:06:36 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FH The Home Office last week announced that it would be handing powers to the Child Maintenance and Enforcement Commission to track and find absent parents failing to meet their legal financial obligations towards their children. Following public consultation of the Regulation of Investigatory Powers Act (RIPA), Codes of Practice will be put in place to set out exactly what powers can be used, when and by whom. The Commission has defended suggestions that they will be allowed to access telephone and email information from telecoms companies. A Press Officer for the Commission commented on their ability to track who has been speaking to who and who they have been emailing, saying “We do have access to communications records, but it will not allow us to track this sort of information." New Codes of Practice replace old ones and provide greater clarity on what RIPA techniques would be permitted and considered appropriate. RIPA will now define in writing to each government body what action would be approved in specific circumstances, thereby giving officers case by case guidance. It seems the intention is that more government bodies will work from the same guidelines, achieving consistency under uniform practices. The Child Support Agency (CSA) has historically been the subject of both criticism and ridicule in its failings to meet its objectives. However it has recently improved considerably in ensuring that absent parents are meeting their responsibilities. These newly defined powers will provide the CSA with tools that will enable them to increase their success rates, particularly when faced with those unscrupulous members of society who resort to suspected criminal activity, fraud and deception to avoid providing financially for their children. Opponents of the plan include Chris Huhne, the Liberal Democrat home affairs spokesman. In a recent statement he said: "Only this Government could claim to be curtailing RIPA powers while extending them to a new body for the investigation of a different offence.” Clearly the topic of surveillance is a difficult one, but one that has to be weighed against the difficulties faced by parents struggling, through no fault of their own, to provide for their children. There is a lot to be gained and much heartache to be avoided if financial provision for children is dealt with thoroughly and agreed with independent legal advice when a separation or divorce is going ahead or intended. 09/11/2009 11:02:11 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FG Pre nuptial agreements remain in the minds of us in the United Kingdom, as an American preserve. They have been prominent in the US and mainland Europe for some time now and have formed part of the marriage process for many. However pre-nups remain a consideration for very few of us on this side of the pond. Elsewhere they are legally binding: A contract in the event of divorce or dissolution of civil partnership. In England & Wales however, they can still be overridden by the Courts, but increasingly they are becoming a very useful and more importantly a heavily persuasive tool when a marriage or civil partnership comes to an end. In a December 2008 judgment, the Court of Appeal stated that they did not want to make pre-nups binding. Then on 2 July 2009, only seven months later, in the high profile case of Radmacher v Granatino, involving the German aristocracy, the Court stated that pre-nups should be binding unless there is a very strong reason to show otherwise. This means that England & Wales is beginning to fall in line with our trans-Atlantic and European legal cousins in recognising pre nuptial agreements. Rather than being seen as a luxury of the celebrity world, pre nuptial agreements can provide couples with a sense of security. For those with assets acquired before the relationship, be they a little bit of equity in a house or a successful business, a pre-nup can save months of heartache by setting out who is to have what and how the rest is to be divided after a divorce or dissolution. Pre nuptial agreements are hardly the most romantic consideration in the world at the time when a civil partnership or marriage is being planned, but never-the-less if you don't need it, it can remain forever unused and no harm is done. Should the unthinkable happen, it could lessen the loss, the pain and the cost of a lengthy court battle. 16/10/2009 12:54:56 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FF The UK Supreme Court comes into existence on the 1st October 2009 and will be sitting for the first time shortly after on the 5th October. It replaces the Appellate Committee of the House of Lords as the highest court in the UK. The location of the Supreme Court is of particular significance as it is located on the Western side of Parliament Square in the former Middlesex Guildhall. The symbolism that Parliament and the Judiciary now being separated across Parliament Square. The former Law Lords become Justices of the Supreme Court with Lord Phillips the former Lord Chief Justice becoming the President of the Supreme Court. In court the Justices are to be addressed as My Lord, or in the case of Lady Hale, My Lady. In an effort to make proceedings more accessible it is the intention of the Justices not to wear traditional, formal robes and wigs when sitting in the Supreme Court. One of the most significant changes the new court will bring is to allow the public greater access to proceedings. An exhibition area will allow the public to view live footage of proceedings and broadcasters will also be allowed to use that same footage. The House of Lords provides the model for procedures to be used in the Supreme Court and the new rules will be applied with flexibility and common sense in the early days. The facilities in the court reflect the changing face of the law and provide far better facilities for the presentation of electronic evidence. Bundles can be served electronically and all court rooms will be IT enabled with access to Wi-Fi. For more information visit www.supremecourt.gov.uk 01/10/2009 09:02:34 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=FE The Work and Families Act 2006 s 14 provided for a one-off increase of the statutory maximum amounts (for an unfair dismissal basic award, a redundancy payment, payments by the Secretary of State and other sundry purposes). This power has now been exercised in the Work and Families (Increase of Maximum Amount) Order 2009 SI 2009/1903. The new amount will be £380, as from 1 October. There are the usual transition provisions in the Order. One side effect of this increase is that there will be no further increase next February. The main effect of the increase is that the maximum for a basic award or redundancy payment goes up to £11,400. 01/10/2009 09:01:08 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EM The Government is considering the requirement that all couples engaged in family disputes relating to children and finances especially in divorce proceedings, attempt or at least consider using Mediation as a way to resolve their disputes before being allowed to start proceedings in Court. Currently only individuals in receipt of Public Funding (old Legal Aid) are required to consider the use of Mediation. Of course it can never be mandatory as it is based on a willingness and open attitude to negotiate a solution with the aid of a neutral, but trained, third party. At the beginning of September this year Bridget Prentice, the Justice Minister, reported that she is actively seeking to promote mediation. The Government is committed to the promotion of family mediation, as in many cases mediation can offer considerable advantages over going to court. Mediation is not to be confused with reconciliation which seeks to try to restore a broken relationship. Critics of mediation suggest that the loudest voice always wins the day, but many family lawyers see the process as a means by which at the very least minds can be focused and options explored. As much or as little can be taken form the process as is desired. Of course nothing can substitute for sound legal advice, but mediation certainly can benefit many people and form part of family disputes rather than replace the legal solutions available. It has taken the Government 13 years properly to consider mediation as a requirement for all, but whether it adopts it or not, it is a course of action that has its critics as well as its supporters. 29/09/2009 16:02:03 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EL Sebastian Burrows joined Sanders Witherspoon in September this year in order to specialise in all aspects of Family Law. Having originally qualified as a Barrister in 2003, Sebastian worked for a leading City Firm. He later converted to become a Solicitor and has now practiced in Essex for several years almost exclusively in the area of Family Law. He conducts a large amount of advocacy in the County and Family Proceedings Courts on his clients’ behalves, when instructed and when the case warrants it. Sebastian has a broad range of experience as a Family Lawyer in both public and private matters. This has seen him representing clients in highly sensitive Care Proceedings brought by the Local Authority; representing clients in high value complex divorce proceedings; child contact and residence matters; domestic violence cases as well as advising generally in family situations that require practical legal advice and assistance. Sebastian prides himself on providing clients with a sensitive, pragmatic and professional experience in order to solve legal problems and deal with matters, at a time that is often emotional and difficult for clients. We are delighted to welcome Sebastian on board. 29/09/2009 15:53:33 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EK New rules to open family courts to the media rushed in by the government represent a missed opportunity to allow thorough and effective public scrutiny, family group Resolution warned today, as it called for the establishment of a Family Courts Inspectorate. From 27th April 2009 accredited journalists will be allowed to attend divorce, custody and care proceedings, unless the court has specifically excluded them. But the new rules still will not allow journalists to report on what they hear in court and cases not considered newsworthy will be completely without public scrutiny. “These changes simply tinker at the edges of the issue and have created a system which could well make matters worse when members of the public and press realise that details of cases cannot be made public, said Andrew Greensmith, Resolution spokesperson on family court transparency. “Greater openness and transparency has an important part to play in ensuring public confidence in the family court system, but simply allowing the media to sit in on cases is not enough. The new rules need to be extended to allow journalists to report what they see and hear in court, providing the identity of the families involved is protected. 04/06/2009 15:52:38 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EJ A devout Hindu from Newcastle has challenged the legality of the local authority’s refusal to allow him to be cremated in accordance with his religious beliefs. Mr Davender Kumar Ghai, who is the founder of the Anglo-Asian Friendship Society is seeking a change in the law that would allow him and the 600,000 Hindus in Britain to be cremated in accordance with their beliefs. Currently any cremation must be conducted in an approved crematorium. A Hindu ceremony is based around the belief that a cremation is essential to free the soul after death. An open air funeral pyre is lit by the eldest son of the deceased and is situated in the open air at a location where the sun shines at noon and is close to running water. Most crematoria do not fulfil this criteria. Three years ago the Crown Prosecution Service declined to prosecute Mr Ghai after he arranged a funeral pyre for a fellow Hindu in Northumberland. It will be argued that the current law does not prohibit a religious cremation outside a crematorium. If successful local authorities could be asked to grant permission for open air funeral pyres if there is sufficient demand. 21/04/2009 15:19:41 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EI The recent case of R v Kousar has given some further guidance as to ‘possession, custody and control’ [of goods] under Trade Marks Act 1994. Mr K was found guilty of 5 counts of trademark infringement but the question before the court was whether or not Mrs K was also guilty by virtue of her failure to demand the removal of the infringing goods from the matrimonial home. It was argued by the crown that the knowledge of the goods being present, the acquiescence (i.e. accepting the goods being in the home) and permission (whether implied or explicit) was sufficient for ‘control’ under the act. The appeal was failed on the basis that the wife was not in business with her husband as a market trader and therefore the domestic situation did not mean that she fell foul of the definition. Potentially this could have a wider implication in other areas of criminality. Possession of controlled substances with a view to supply is often accompanied with a charge against a co-owner/resident of a property on the basis of permitting the property to be used for such. If the resident/owner ‘permitting’ the use of the property received no benefit and the supply was in the course of business (albeit illegal) could this be a defence? Whilst the case in question concerns the control over goods which infringed upon trademarks could the case be applied to market traders in possession of stolen or counterfeit goods? 21/04/2009 15:19:19 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EH In the current economic climate many have found it difficult to embark on a new career or to progress in their current one. The government has backed apprenticeships in an effort to ensure that employers taking on new employees can do so with less risk and a far better end product. Most of us have seen Sir Alan Sugar in full flow in his TV show ‘The Apprentice’ but is an apprenticeship all about spilling tears and being fired? There are no formal entry requirements onto an apprenticeship and can be taken by anyone living in England who is not in full time education. There are many benefits to apprenticeships for both employers and apprentice. For an employer it means that an individual can be trained to the specific requirements of a job in a way that is flexible to the employer. An apprentice, although a risk, can be more beneficial than a higher costing member of staff who may be less able, or indeed willing, to adapt to changing work values. For the apprentice there is the opportunity to start a career with a practical base of applied working skills. Even for those taking on an apprenticeship within their existing career there is an opportunity to increase the skills base and provide scope for better productivity and career progression. Apprenticeships are available in a wide range of fields and industries. For more details see: http://www.apprenticeships.org.uk/ 21/04/2009 15:18:50 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EG The minimum wage in the UK increased from the 1st October 2008 with immediate effect. Most adults in employment, whether full or part time, can claim the minimum wage if working legally in the UK. The current rates are as follows: £5.73 per hour for those age 22 or over £4.77 per hour for those age 18-21; and £3.53 per hour for under 18s but above school leaving age. Employees who work under a contract of employment are entitled to receive the government prescribed minimum even if only working part time. A contract employment does not need to be written and can be an oral contract or even am implied contract. If you are working and not receiving the minimum but believe you should be contact us or seek further guidance at the HM Revenue & Customs website http://www.hmrc.gov.uk/nmw/ 21/04/2009 15:18:19 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EF Following the start of the new tax year there have been increases in statutory pay in relation to the following: Statutory Sick Pay £79.15 p/w (from £75.40) Statutory Maternity Pay (Basic Rate) £123.06 p/w (from £117.18) Where applicable to Statutory Adoption Pay and Statutory Paternity Pay the basic rate has also increased to £123.06 per week. Where SMP is payable the standard rate will take effect after 6 weeks for the remaining 33 weeks of leave and is payable where it is lower than 90% value of average weekly earnings. 21/04/2009 15:17:15 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=EE The Charity Ball on the 12th September 2008 was a great success and the Partners would like to thank all of the companies, firms, local businesses and the Mayor of Brentwood for their support of this function and all those who attended on the night to make this event such a success. The charity auction and tickets raised £4,000.00 for the nominated charity, HCPT. 15/04/2009 21:59:30 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=ED The Sanders Witherspoon Annual Charity Ball will be held this year on Friday 12th September. Our Chosen Charity this year is the HCPT who take disabled and disadvantage children on holiday each year providing them with a wonderful experience and their families with a much needed break. 03/07/2008 12:46:00 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=M The Government are set to introduce new measures to overcome a recent House of Lords decision upholding the ancient common law principle that Defendants are entitled to know the identity of their accusers. The Government believe that in the most serious of offences such as terrorism and those involving organised crime this will reduce the risk of fear and witness intimidation. Lawyers are concerned that these measures will hamper their ability to test the evidence put forward and to effectively cross-examine witnesses. 03/07/2008 12:37:37 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=L The Government are set to force through new provisions to enable the police to imprison suspects for up to forty two days whilst they investigate crimes. This is following recommendations and advice received from the police and security services who feel that given the new threats faced and the complexity of the law further time is needed to fully investigate threats to civil liberties, extremism and organised crime. Opponents say that the measures will themselves infringe civil liberties and fuel extremism. 03/07/2008 12:36:40 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=K Harriet Harman has set out plans to allow businesses to positively discriminate in favour of ethnic minorities and female candidates. The current law strictly controls the manner in which such discrimination can be made and limits this to situations where it is necessary for the job being undertaken. The Government hope that introduction of these measures will begin to address the inequality that still exists in the employment market where female part-time workers still earn 40% less per hour than their full-time male counter-parts. 03/07/2008 12:35:56 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=I On 1st April 2008 Philip Witherspoon retired as Senior Partner of Sander Witherspoon, passing the batton over Tim Gir, Mark Harris and Elizabeth Gager. Philip, continues to work with the firm as a consultant. 08/04/2008 13:03:31 http://www.sanderswitherspoon.co.uk/news.asp?v06VQ=G An amateur footballer who seriously injured an opponent in a clumsy tackle was taken to the Crown Court charged with assault occasioning grievous bodily harm, carrying a potential prison sentence up to a maximum of five years. Despite the referee and his assistants giving their opinion that the tackle was a deliberate assault, the defendant was acquitted after a four day trial. 12/02/2008 16:55:33