Clapham Omnibus Summer 2015

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CLAPHAM OMNIBUS the journal of the South London Law Society

Summer Issue 2015 - www.southlondonlawsociety.co.uk

LEGAL TALK with Clare Kelly, Discussing Contentious Probate (cover story)

› Professional Practice › Cyber Security › Focus on Probate

Inside this issue:

View our new website: www.thameswater-propertysearches.co.uk/CO

Contents

Contents PUBLISHER Benham Publishing Limited 3tc House 16 Crosby Road North Crosby Liverpool L22 0NY Tel: 0151 236 4141 Fax: 0151 236 0440 email: admin@benhampublishing.com web: www.benhampublishing.com

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ADVERTISING AND FEATURES EDITOR Anna Woodhams PRODUCTION MANAGER Neil lloyd ACCOUNTS DIRECTOR Joanne Casey MEDIA No. 1394 PUBLISHED July 2015 © Benham Publishing Ltd LEGAL NOTICE © Benham Publishing.

None of the editorial or photographs may be reproduced without prior written permission from the publishers. Benham Publishing would like to point out that all editorial comment and articles are the responsibility of the originators and may or may not reflect the opinions of Benham Publishing. No responsibility can be accepted for any inaccuracies that may occur, correct at time of going to press.

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Benham Publishing cannot be held responsible for any inaccuracies in web or email links supplied to us.

DISCLAIMER The South London Law Society welcomes all persons eligible for membership regardless of Sex, Race, Religion, Age or Sexual Orientation.

All views expressed in this publication are the views of the individual writers and not the society unless specifically stated to be otherwise. All statements as to the law are for discussion between member and should not be relied upon as an accurate statement of the law, are of a general nature and do not constitute advice in any particular case or circumstance.

Members of the public should not seek to rely on anything published in this magazine in court but seek qualified Legal Advice.

COVER IMAGE Clare Kelly, Anthony Gold

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INTRODUCTION

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MEMBERS REPORT

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NEWS

34 22 CONVEYANCING 24 PROBATE

12 JUNIOR LAWYERS DIVISION

30 PROFESSIONAL PRACTICE

16 SPOTLIGHT ON...

32 LEGACIES

17 CYBER SECURITY

34 BOOK REVIEWS

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Introduction

Officers President

Vice-President

Council Member

Gareth Ledsham

Robert Hush

David Taylor

Tel: e-mail:

Tel: e-mail:

Tel: e-mail:

020 8394 6413 gareth.ledsham@Russell-Cooke.co.uk

020 7815 6725 hushr@lsbu.ac.uk

020 7228 0017 dxt@hanne.co.uk

Treasurer

Hon. Secretary

Magazine Editor

Andrew Pavlovic

Sarah Hughes

Richard Busby

Tel: e-mail:

Tel: e-mail:

020 8394 6455 andrew.pavlovic@Russell-Cooke.co.uk

020 7940 4060 sarah_hughes@anthonygold.co.uk

Tel: e-mail:

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Web Address: www.southlondonlawsociety.co.uk

020 7091 2755 richard.busby@fishermeredith.co.uk

Introduction

President’s Review

What has the Law Society ever done for us?

A good question, some might say. As many will be aware, on 9 July this year, Jonathan Smithers took office as the 171st president of the national Law Society. One of the priorities highlighted in his inaugural speech was championing the role of the profession in protecting the rule of law. But how to do this?

He has kick-started a mission to find out by taking the opportunity to meet with the profession and discuss the role of the Law Society and its relationship with its stakeholders - us solicitors.

This is part of the Law Society’s 2020 initiative, an opportunity for all members have input into how the national Society can best represent, support and promote solicitors’ practices and the profession. It is an initiative the South London Law Society is keen to support in this period of considerable flux for the profession.

As part of this engagement, I met Jonathan together with committee members from both South London Law Society and other London local law societies to have a roundtable discussion covering the following areas: • what the future looks like for the legal sector • the ‘brand’ of the title of solicitor and its value to the profession, business and the public • what we as solicitors would like from our regulator • what the Law Society's role should be in legal education and professional standards • how the Law Society should manage its relationships and achieve the change wanted by its members • how the Law Society should tailor what it does to support, promote and represent the many different parts of its membership This was a wide-ranging agenda and there was only a short timeframe in which to address the topics. It was clear that the

participants had a number of (sometimes divergent) views and were not afraid to express them; however a number of recurrent themes emerged which were common to many similar roundtable discussions that have been taking place around the country.

One such theme (upon which everyone seemingly agreed) was the passion of the participants for our profession, and for our “brand” as solicitors.

It was also clear the national Society does want to listen to and act upon the contributions of its members. This is no easy task when attempting to balance ever divergent interests - from sole practitioners and small high street practices, to City firms, in-house lawyers and solicitors working in alternative business structures.

If any members have views on the topics discussed, or about what they would like to see the national Law Society doing for them, details of how to get involved in the 2020 project can be found in this issue.

Likewise, if there are issues with which members would particularly like the South London Law Society to engage, then please do get in touch - the SLLS exists for its members and we are keen to ensure the voices and views of south London solicitors are heard.

I will finish off by asking you all to keep an eye out in your email inboxes for details of our annual dinner which will be taking place in the autumn - it will be an event not to be missed.

In the meantime, may I take this opportunity to wish you all an enjoyable summer.

GARETH LEDSHAM Aside from expressing out views to the national Society, the roundtable was an President excellent opportunity to meet South London Law Society representatives from other local law societies, including those from City of Westminster and Holborn, Middlesex and West London Law Societies. It was agreed that we would like to meet more often to exchange ideas about how best each of respective societies can best serve our Autumn 2015 14th October 2015 members at a local level. Do watch this space for future joint Spring 2016 17th February 2016 initiatives.

Summer 2016 11th July 2016 The feedback from the Members wishing to submit editorial please contact us roundtable discussion (and the before copy deadline. other roundtables around the Anyone else wishing to advertise or submit editorial for country) is being fed back to a publication in the Clapham Omnibus please contact Anna Woodhams, before copy deadline. strategy team who are working on a strategy document to be Email: anna@benhampublishing.com put before the national Law Tel: 0151 236 4141 Society council in October.

COPY DEADLINES

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Members Report

Council Member’s Report

David Taylor Council Member Law Society Council summary: 8th and 9th July 2015.

This was the last Council meeting chaired by Andrew Caplen during his term as President of the Law Society. A day and a half of Council business was followed by the Annual General Meeting of the Law Society, at the conclusion of which Jonathan Smithers took office as President for 2015-16, Robert Bourns became Vice President, and Joe Egan joined the office holder team as Deputy Vice President. Formal notification was given of all those elected and re-elected to Council this year. The AGM also formally accepted last year's report and accounts which may be found at: http://www.lawsociety.org.uk/about-us/annual-report/.

The Law Society strategy Council members had the opportunity to hear about ongoing progress on developing the Law Society's strategy. The strategy is intended to set the Society's corporate direction for the next three years and beyond, explaining our purpose, role and aims simply and in a jargon-free and engaging way, and demonstrating how we are putting our members at the heart of what we do. The strategy has a diverse range of audiences, including - besides our members - the general public, senior external stakeholders, and teams and staff within the Law Society. The content of the strategy will emphasise our role in protecting justice for everyone - raising awareness of the benefits of using a solicitor at home and abroad and in supporting, promoting and representing the profession. The strategy will also focus on our role in influencing government and other key stakeholders to support the justice system for the benefit of our members and the general public. It will include sections on the contribution of the legal profession to the UK economy and internationally, and on future changes within the profession and the external environment that will generate challenges to our members. It will also be important that the finished strategy documents indicate the extensive range of consultation and research on which they are based.

Net Funding Requirement and Practising Fee Council agreed the Net Funding Requirement (NFR the amount to be raised from the practising fees) for the Law Society Group, for 2016. This needs to be done in order to set the level of the fees for next year, which will remain unchanged for individuals at £320.

The total to be raised from entity fees from firms also remains unchanged, although levels paid by individual firms may change dependent on turnover.

President's update Andrew Caplen took the opportunity to update the Council on key activities in the second half of his presidential term of office. As well as ongoing engagement with the profession across England and Wales, the President's activities continued to support the three key themes set out in his presidential plan.

• Access to Justice - a number of activities to promote the Law Society's manifesto for justice in the lead-up to the General Election in May,

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and with new solicitor MPs following the election; influencing work on criminal legal aid and court fees, including meetings with shadow spokesperson and the All Party Group on Legal Aid; and activities related to pro bono and domestic violence, including a collaboration with Oxfam's initiative of lawyers against poverty which led to a legal breakfast in June.

• Rule of Law - including full participation in a number of events marking the 800th anniversary of Magna Carta, presenting a paper at the Commonwealth Law Conference in April entitled 'Protecting the Protectors: the role and responsibility of the legal profession in supporting the rule of law', hosting the Graham Turnbull essay prize giving for students who had written essays addressing the impact of how proposals to repeal the Human Rights Act could impact on the protection of human rights in Britain and round the world; and chairing a debate on 'Human Rights and the Theatre of War'.

• Diversity and Inclusion - including events targeted at introducing those interested in a legal career to the diverse routes of entry into the profession, opening a half-day seminar at the Law Society to mark International Women's Day, and attending an event in relation to Irwin Mitchell's mentoring scheme for ethnic minority staff.

Representing, promoting and serving the profession Significant work reported to Council included: • The first formal meeting between the President, Vice President, Chief Executive, and the newly appointed Lord Chancellor, Michael Gove, at which we discussed the key themes in our Manifesto for Justice, including access to justice, the importance of the legal sector to the UK economy, and our concerns that recent court fee increases and legal aid cuts were damaging access to justice as well as the reputation of our legal jurisdiction abroad; • Ongoing representations to the Ministry of Justice as to the adverse effect of the civil and criminal legal aid changes, and support to our members in responding to them; • Taking forward initiatives from the Professional Indemnity Insurance stakeholder seminar chaired

by Linda Lee with the SRA and representatives of brokers and insurers; • The annual Presidents' and Secretaries' conference in May, which appears to have been successful in dealing with a number of live issues for those involved with local law societies; • The focus on improvements to the Law Society's Customer Relationship Management (CRM) system which offer real potential to improve how we engage with our members in a targeted and relevant way.

If any constituent has comments or questions on these matters please contact me.

PASTORAL CARE PRACTICE ADVICE SERVICE Tel: 0870 606 2522 or practiceadvice@lawsociety.org.uk This provides advice from experienced solicitors on legal practice issues including conveyancing, costs, probate, Law Society policy and practice notes including anti-money laundering. Lines are open from 9:00am to 5:00pm Monday to Friday.

LAWYERLINE Tel: 0870 606 2588 or lawyerline@lawsociety.org.uk This provides advice on client care and complaints handling. Lines are open from 9:00am to 5:00pm Monday to Friday.

PASTORAL CARE HELPLINE 020 7320 5795 This provides personal, financial, professional and employment advice.

Lines are open from 9:00am to 5:00pm Monday to Friday.

JLD HELPLINE 0800 085 6131 Pastoral care for junior lawyers. Lines are open from 9:00am to 9:00pm Monday to Friday.

Please contact me with any issues that you wish me to take up at dxt@hanne.co.uk or follow me on Twitter on @DavidTaylor364

News

One nation justice system The Law Society has already spoken with the new Justice Secretary about challenges facing the justice system, and the following extract from the Law Society President is an important message worth repeating here: “Solicitors, who are at the heart of our justice system, support access to justice for everyone irrespective of background.

Tackling waste is important but investment in the justice system, which is a key public service like the NHS and education, is fundamental if services to the public are to be maintained and improved." “We welcome the news that the Justice Secretary recognises this and is calling on HM Treasury for funding. However, recent court and employment tribunal fee increases made by government have restricted the ability of ordinary people to access the justice they deserve. Last year 600,000 people were denied legal aid who would have been entitled to it in the past. This includes people who have had catastrophic injuries and victims of domestic violence. It is no wonder that the UK justice system is being labelled 'two tier', which is damaging

our reputation as the best legal system in the world."

"The legal profession is committed to pro bono and nearly half of solicitors in private practice average more than 50 hours per

year. But pro bono is never a substitute for a properly funded system of legal aid, which needs skilled and experienced solicitors to provide expert legal advice to those who need it."

Criminal Legal Aid Criminal practitioner firms had until May to tender for the current round of legal aid contracts. In total the Legal Aid Agency (LAA) received 1,099 bids from more than 500 organisations across the 85 procurement areas before the tender closed. The assessment process for the tender is now underway and the LLA expects to notify applicant organisations in September 2015.

There are three procurement areas where the MoJ did not get enough bids: Devon, the Isle of Wight, and Dyfed-Powys 2 and the LAA is holding meetings with practitioners in those areas to discuss next steps.

Whether the recent tenders will be affected by the MoJ’s June intention to proceed with a second criminal legal fee cut of 8.75% remains to be seen.

The above is leading to profound changes in how criminal legal aid will be delivered in England & Wales. There is significant anger over the damaging effects of Government policy on access to justice and on dedicated professionals and small businesses. Individual firms and

practitioners are considering their positions, with some contemplating whether to withhold their services in the market.

It is the longstanding position of the Society that it cannot support, organise or lead collective action. The Society is not a trade union and it cannot call its members out on strike or encourage them to take collective action. It would be unlawful under the Competition Act for us to call for, organise or lead collective action. We will continue to work with all of our members to understand their response to this upheaval and support them through this period of major change as they continue to provide excellent services to the public.

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News

Regulatory Update:

Separate Business Rule - levelling the playing field Changes to the Separate Business Rule - which mean that solicitors can own or be connected to separate businesses providing non reserved legal services, have been agreed by the SRA. The opening up of the legal market already allows other types of businesses to own law firms and deliver innovative services. By changing the Separate Business Rule, all law firms can own separate businesses, allowing them to compete on a level playing field with alternative business structures (ABSs). As part of the same package of reforms, the rules on what activities can be undertaken within solicitors firms have been relaxed, making

it easier for those firms to create one-stop shops for professional services.

The changes need the approval of the Legal Services Board. If agreed, they will be part of Version 15 of the Handbook when it goes live on 1 November.

EU ADR Directive The government has updated the guidance for alternative dispute resolution.

Solicitors now have until October 2015 to comply with the EU ADR Directive.

From 9 July 2015, all traders selling to consumers will have access to a certified provider of ADR services in their sector.

Certification of ADR providers ensures quality and consistency of standards across ADR services. For some traders, especially those in regulated sectors, this will mean little change as they are obliged by existing legislation to use ADR for their consumer disputes (see Law Society guidance).

The regulations do not make use of ADR mandatory for all traders, however from 1 October 2015, all traders selling to consumers, whether or not they intend to use ADR, will need to: a. Give the consumer details of the certified ADR provider in their sector AND b. Inform the consumer about whether they intend to use that provider.

New Consumer Credit Proposals (open consultation until 6 August) The SRA has issued new proposals for the regulation of solicitors doing consumer credit work. Under the proposals, the SRA would continue to regulate solicitors undertaking certain consumer credit activities as long as they are central to the legal services they provide.

SRA-authorised firms that mainly carry out consumer credit activities already require FCA regulation. The changes mean firms may now also require authorisation by the FCA if they undertake prohibited activities that are not considered central to their legal services practice.

The SRA will produce specific guidance around consumer credit work, and will hold a webinar to give those affected the opportunity to hear current thinking and pose questions directly to the SRA.

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News

SRA consultation on its regulatory reform programme (closed consultation response) The SRA has consulted on a range of proposals aimed at reducing unnecessary burdens and costs for regulated firms, and to ensure proportionate and targeted regulation. The consultation includes numerous topics which the SRA considers to be non-controversial and of less significance, and therefore requiring less in-depth consideration. The Law Society’s response to the reform proposals is available, and an edited summary of the key points is included below.

Proposal

The following is abridged text from the Law Society’s more detailed response to each area under consideration

Simplifying compliance officer approval for small firms (1-4 managers)

The proposal to introduce deemed approval for the COLP/COFA roles for sole practitioners and 1-4 manager firms is supported and should be extended to all non-ABS firms.

Simplify candidate declaration and notification processes

This is supported in relation to 'traditional' solicitors firms. The SRA should defer proposals to reduce regulation on ABS firms to any material degree until there is a greater level of experience. Additional risks which may at present be unforeseen may only emerge over time.

Remove the requirement for firms to carry out reserved legal activities

It would be unwise to look at authorisation rules in isolation. It would have been useful to be provided with the SRA’s analysis of the original rationale for the present rules in order to be able to judge whether it is appropriate for them to be removed or relaxed.

ABS Authorisation - operational changes and improvements

Detail is lacking, and the rationale behind the original rule should be explained, the reason why the SRA wish to change the rule and the difference that the SRA thinks this will make before commenting.

It can often take several years for problems with firms to become apparent. The full impact of ABS firms is unclear and it is too early to start relaxing regulatory requirements. ABS firms have potential risks: the involvement of non-lawyer managers and the structure of ABSs means that there can be significant cultural differences in approach and therefore safeguards may be necessary.

In respect of non-ABS firms, the authorisation process has been developed by the SRA, driven by a perceived need to “harmonise” all forms of application. There is nothing in the Legal Services Act which envisaged that ABS-specific regulation would be applied to all firms including those operating a more traditional model.

Changes to insolvency rules

This seems logical but should form part of a wider debate about the reaction of the SRA to insolvency or the risk of insolvency.

Frequent and repetitive demands by the SRA for information from a firm already in difficulty can make the situation worse. The perception established over many years is that the SRA generally regards statutory intervention as a cure-all though it can be of greater prejudice to clients than a properly managed administration.

Alternatives to client accounts

This is a complicated concept which deserves a full consultation of its own. On the face of it, this is a liberalising and permissive measure allowing solicitors to have a choice: however, there has been no meaningful attempt to consider the possible consequences of approving third party managed accounts.

Client accounts can represent a risk; there will always be a danger of dishonesty, which is why the compensation fund was established. However of the vast amounts of money passing through solicitors' client accounts each year, the cost of supervising accounts and dealing with dishonesty is low in proportion.

Guidance on recording of non-material breaches

It is reasonable to allow firms to develop their own systems without prescription, which is all that is proposed.

Guidance on material breaches linked to practice would be useful as defining a material breach can be difficult.

Retaining a prescriptive requirement for a record to be kept is also of questionable value. The obligation to report material breaches including any pattern converting non-material to material should be sufficient.

Clarification on the outsourcing of legal and operational functions

Consideration of whether or not the current wording of O 7.10 is stifling innovation is a useful exercise.

Recording and reporting of diversity data

Initiatives towards promoting diversity and access are welcome. Whether the SRA needs to alter Outcomes or IBs is questionable, in this instance, the existing Principles seem sufficient.

The Apprenticeship Route to qualification

A move towards enabling qualification as a solicitor through the apprenticeship route is supported so long as they meet the same high standard as other currently existing routes.

The SRA must also retain control over admission of such candidates, as for those qualifying by other routes.

Fee sharing and referrals

The current ban on referral fees should remain in place. The consultation paper correctly points to a view amongst some solicitors that such fees are regarded as unethical.

In terms of crime or any publicly funded work, the reputation of the profession would be adversely affected by payment for work. This is not a situation analogous to referrals from estate agents in conveyancing, for example, where a charge can be properly disclosed to the paying client. The paying client is the LAA so there is a lack of transparency. Most legal aid firms struggle to make this work cost-effective. If they had to make payments to referrers as well, that would damage their economic position further, and may impact adversely on quality.

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News News

BSB consultation on the Cab Rank Rule (consultation response) The cab rank rule is the obligation of the barrister to accept any work in a field that the barrister professes competence to practice, and at usual rates.

The Law Society supports the adoption of the third proposal in the consultation document that the Cab Rank Rule should not apply other than on standard terms published by the barrister, or on any reasonable terms offered by the barrister or the solicitor.

In addition, the Law Society does not support solicitors' liability for unpaid barrister's fees. In a situation where the client has not

made funds available, it is likely that neither the solicitor nor the barrister will be paid; solicitors should not be expected to bear all the risk or to take a 'double hit' in this situation and this should be open to negotiation between the solicitor and barrister when discussing terms.

HMRC Penalties: A Discussion Document (response) In February 2015 HRMC published a consultation document entitled HMRC Penalties: A discussion Document. Penalties are applied to encourage taxpayers to comply with their obligations, to act as sanctions to those that do not comply and to reassure the compliant majority that they will not be disadvantaged by those who do not play by the rules.

In general terms, the Law Society believes that the proposals in the document seem reasonable as the current regime is overcomplex. The Society remarks on what issues should trigger a penalty as well as some of the major concerns with current penalty regimes.

Practice Notes: MEETING THE NEEDS OF VULNERABLE CLIENTS Some clients have difficulty accessing and using legal services. Research has concluded that solicitors need to adapt their practices to identify and meet the needs of vulnerable clients.

SOCIAL MEDIA • •

good practice when using social media to promote business the benefits and risks of using social media

OUTCOMES-FOCUSED REGULATION: OVERVIEW This practice note includes detailed advice on: • outcomes-focused regulation, providing an overview of what it is • the issues practitioners may wish to consider in light of its implementation

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INFORMATION ON LETTERHEADS, EMAILS AND WEBSITES This practice note includes detailed advice on: • the information which you need to supply to your client in order to allow them to make informed decisions about the services they require and how these will be delivered • the requirement for publicity not to be misleading and details as to what is considered to be publicity • specific information for companies, partnerships, LLPs and registered European and foreign lawyers A full list of Law Society practice notes are available at: http://www.lawsociety.org.uk/supportservices/advice/practice-notes/

News

LAW SOCIETY 2020 THE PROFESSION IS CHANGING AND WE NEED TO CHANGE TO SUPPORT IT. AT THE LAW SOCIETY WE ARE TAKING A HARD LOOK AT HOW WE WILL SUPPORT, PROMOTE AND REPRESENT SOLICITORS FOR THE NEXT FEW YEARS. WE ARE LAUNCHING OUR LAW SOCIETY 2020 DISCUSSION. THE CHANCE FOR CURRENT AND FUTURE MEMBERS TO TELL US HOW WE CAN BEST REPRESENT, SUPPORT AND PROMOTE THEIR PRACTICE AND THE PROFESSION IN FUTURE YEARS. The legal marketplace is changing: funding cuts, changes in regulation and changing technology are just some of the issues we're grappling with and representing the profession on. We know you want us to be clearer about what we can do for you, for your practice and for the profession. Some of this is about focusing our support and our products and services in ways which make sense to you and developing more relevant communication from us, especially concerning services and benefits.

What are we going to do?

We are developing a new strategy. To help us put members at the heart of what we do, we will be asking questions about: • what the future looks like for the legal sector • what regulation should look like • the title of solicitor and its value to the profession, business and the public • what the Law Society's role should be in legal education and professional standards • how we should manage our relationships and influencing to achieve the changes our members want • how we tailor what we do to support, promote and represent different parts of our membership.

We need your views about the future of the profession and what you want from the Law Society. The decisions you help shape now will influence your Society and your profession.

How can you take part?

If you have any thoughts or views on the above, or would like to see specific questions on each of these areas, please

PRESIDENTS AND SECRETARIES CONFERENCE 2015 This year’s annual Presidents and Secretaries conference, specific to local law societies, was themed around adapting to change. Plenary sessions focused on Magna Carta and the SRA’s future vision, and breakout sessions looked at social media, sponsorship and member retention.

NATIONAL PRO BONO WEEK 2015 The 14th annual National Pro Bono Week (NPBW) runs from 2-6 November 2015, aiming to celebrate the breadth and impact of pro bono work undertaken by the legal profession across the year.

If you want to get involved in running an event during the week, please contact Rebecca Wilkinson, Pro Bono & Public Legal Education Policy Adviser at the Law Society at rebecca.wilkinson@lawsociety.org.uk

contact me. I would be very happy to meet you in person or discuss over the phone; alternatively please email me your thoughts directly.

Mark Hudson Law Society Greater London Regional Manager mark.hudson@lawsociety.org.uk 07794 335818 @LSGreaterLondon

PII GUIDE TO INSURERS An updated guide to insurers includes PII survey findings on insurers' and brokers' market shares. The SRA is preparing the 2015/16 Participating Insurer Agreement and we anticipate new insurers will enter the market. We will update the guide again when we know which participating insurers will be active in 2015/16.

Events: The Law Society hosts a range of events. Upcoming key conferences are highlighted here: Small Firms Division Annual Conference (24 September) Commercial Litigation Conference (5 October) National Property Law Conference (9 October) Lexcel Conference (21 October) Law Management Section Finance & Business Conference (11 November) Anti-Money Laundering and Financial Crime Conference (18 November)

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Junior Lawyers Division

Is the Family Court biased against fathers?

by Robin Stewart, trainee solicitor at Anthony Gold

Do fathers get a raw deal from the family courts? It is not uncommon for fathers to claim that social workers, CAFCASS (Child and Family Court Advisory Support Service) officers and Judges alike discriminate against men when deciding issues about who a child should live with, or what contact arrangements should be in place.

Recent research by academics at the Universities of Warwick and Reading found that the courts demonstrated no gender bias in contested cases about where a child should live. However, despite this apparently positive conclusion, the researchers’ factual findings demonstrate that there are significant gender imbalances in the private law children’s work which the courts carry out.

Men were bringing 70% of the applications generally, and of the applications for contact with a child, 96% came from the father. As a broad trend, mothers were seeking to maintain the long-term status quo, whereas father were using the courts following a recent change in the arrangements or to bring about such a change.

The researchers found no evidence of bias from the courts in the decision made – the success rate for mothers and fathers were similar (although mothers had slightly higher rate of success when seeking sole residence orders).

Despite the researchers’ unqualified finding that there was no evidence of bias, it perhaps was not a surprise to see that conclusion being dismissed by some. Glen Poole, writing in the Daily Telegraph, questioned whether it was fair to label a father’s application ‘successful’ if he was allowed some contact with his child, but no overnight stays. He writes: “The entire system of parenting in the UK is set up around the presumption that mother knows best and that when parents separate there should be a primary parent (nearly always the mother) and a secondary parent (nearly always the father).

The role which is reserved for the secondary parent is unfair, unequal and for many, a deeply unfulfilling way to experience parenthood.”

What's more, success rates in isolation could be misleading. They measure only applications which were actually made, and mask cases where solicitors advised their clients that they had poor prospects of success. The relatively healthy success rate among men applying for contact might logically be attributed to realistic advice being given to fathers by legal practitioners about their prospects in the face of a biased judiciary.

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It is clear that many men feel marginalised by separation and divorce, and the view that the courts are complicit in allowing this is widespread. However, recent law reform has attempted address these concerns.

There is now a statutory presumption under section 11 of the Children and Families Act 2014 that the involvement of each parent in the life of a child will further that child’s welfare.

Where there is evidence that this is not the case, then the presumption is rebutted or does not apply, but now the court’s starting point will be that both parents should be involved.

The Children’s Minister, Edward Timpson, explained the goal of that legislation in 2013: “As well as sending a clear message about what is right for children, the changes will help address the perception among parents that the courts are biased in favour of one or other parent.”

Of course, a statutory presumption itself introduces a new bias, albeit one that many will see as grounded in common sense. However, fathers may continue to find the court’s approach frustrating.

In 2009 Supreme Court case, which examined the importance of the biological parents’ involvement in a child’s life [Re B (A Child) [2009] UKSC 5], Lord Kerr wrote (paragraph 37): “All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance.”

Lord Kerr’s unremitting focus on the child’s best interests does not fit entirely easily with the new statutory presumption. It does not seem likely that Judges will appreciate being told by statute law what is or is not in the best interests of a child, when they will feel that this is a question for them to determine by weighing up evidence.

Further, the researchers from Warwick and Reading Universities felt the presumption will have little practical effect, since, they found that the courts were already promoting regular overnight contact as the standard pattern.

While section 11 of the Children and Families Act is careful to keep the focus on the child’s welfare, some fathers will feel they have a right to access this child – and their child has a right

to live with them. Lord Kerr rejected this perspective in that same case (paragraph 19): “To talk in terms of a child’s rights – as opposed to his or her best interests – diverts from the focus that the child’s welfare should occupy in the minds of those called on to make decisions as to their residence.”

It is likely that disputes over child arrangements will continue to be perceived as biased by some fathers, but when parents cannot agree on residence and contact arrangements, the courts must find a practical solution which serves the best interests of the child. Whereas in a financial dispute the judge has the option of ‘splitting the difference’, this cannot be done to a child!

Establishing workable and durable living arrangements will rarely mean splitting a child’s time 50:50. So while one parent (frequently the mother) is taking on the role of primary carer with apparent success, the courts will still be reluctant to disturb that arrangement too greatly.

The researchers noted, with concern, that one father had felt that his importance in his children’s lives would only be equal to the mother if the court made an order that the children lived with both parents for equal amounts of time. This is an unfortunate viewpoint, but probably quite common.

If fathers are going to have confidence in the family justice system, legal professionals will need to take the lead in emphasising the need for realistic proposals (which will not generally be 50:50 sharing), while at the same time not advising their clients in a systematically discriminatory way (for example, by advising father that they cannot expect their child to live with them but advising mothers that they can).

The courts can only really be judged on whether they show bias in their decisions, but solicitors and barristers must also guard against bias in their advice to clients. Using initiative, rigour and persistence when finding and presenting evidence which substantiates the role a particular parent should play and how the child’s best interests are served by their involvement should be preferred over grandstanding rhetoric about institutional bias.

This will surely serve clients and their children better.

News

Ahoy There!

If you are a forward thinking legal firm looking for new ways to network with industry peers and support your internal team development the Legal Cup could be perfect for you. Open exclusively for legal Industry professionals, each company enters a team (of between 7-10 people) who sail together on a premium sailing yacht, racing against other teams from rival legal companies!

It doesn’t matter if you have never set foot on a yacht before, part of the entry package includes hire of a high-quality, fully commercially insured yacht with professional sailors on board to literally show you the ropes, so you can learn to

The Legal Cup is a unique event; combining productive networking, constructive team building, raising funds for charity, learning a new skills and having lots of fun!

sail and be an active crew member.

Alternatively, if you own your own yacht you are welcome to enter it and bring your own crew.

In May 2015, 19 teams took part including many Magic Circle and Silver Circle names, with the Bar Yacht Club and Allen & Overy claiming the Winner’s Trophies.

Field Fisher, Linklaters and Ricoh also featured on the podium!

The next chance to take part in the Legal Cup sailing regatta is on 14-15 May 2016.

If you would like to find out more the Legal Cup including who took part in 2015, see the event photos and download a booking

form please visit the event website www.britanniaevents.co.uk/legal-cup You are also invited to join the Legal Cup networking drinks on Tuesday 1st September 2015 from 6.30pm in central London. It’s a great opportunity to meet some of the teams who take part, as well as the event organisers, so you can find out more about how to enter, what’s involved and how you could benefit from taking part.

Full details on the Legal Cup Networking Drinks and the chance to RSVP are available here https://goo.gl/otHRyr or call the Event Manager on 02380 458900.

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News

WILL CHALLENGES WHAT CAN BE DONE?

by Clare Kelly, Partner at Anthony Gold Clare Kelly

Challenges to wills are becoming more common. What can you do if you find a will that you have drafted is later subject to challenge?

Mistake or misinterpretation The case of Marley v Rawlings [2015] AC 129 where a couple mistakenly signed each other's wills shows that mistakes may not be discovered until years later.

The Supreme Court ‘rescued’ the wills by rectification. It is possible to rectify a will if there is a mistake on the face of it as a result of clerical error or a failure to understand instructions (s20(1) Administration of Justice Act 1982). The definition of a 'clerical error' now has a wide meaning.

If it is not possible to rectify the will, but it is clear that the words do not have the effect intended, an application can be made to Court for an interpretation of the will. The Court will determine the subjective intention of the testator, which may involve rewriting part of the will. In Brooke v Purton [2014] EWHC 547 (Ch) an inappropriate nil rate band formula was used when the solicitor followed an incorrect precedent. That part of the will

was subsequently struck out because the Court found that the testator could not have intended the effect.

Capacity Capacity claims if proven, invalidate the whole will. Here, prevention is better than cure. The 'golden rule' for solicitors is where there are doubts about capacity, a medical opinion should be obtained (Kenward v Adams (1975)). However, it may be difficult to raise the issue (and cost) with a client, they may not have a regular GP and it can take a long time to obtain such an opinion (which is particularly a problem with very elderly testators). If they refuse to get a report, confirm this in writing along with your advice.

In Hawes v Burgess [2013] EWCA Civ 94, the evidence of an experienced solicitor on capacity was preferred over that of experts drafted in after death.

If there is no medical report, make a decision about capacity and record it with your reasoning. Keep a detailed attendance note of the meeting, and ensure that issues such as recent illnesses, the contents of previous wills and the reasons for any changes are explained. Detailed attendance notes and copies of ID and the final will are also helpful in dealing with any claims that a testator did not know or understand the contents of their will, or that it was fraudulent.

If a medical report is not obtained, it does not necessarily mean that the will is invalid. In Sharp v Adam [2006] EWC Civ 449, the golden rule was described simply as a ‘rule of good practice’.

Clare is part of the probate team here at Anthony Gold. The team, headed by David Wedgwood, is experienced in both contentious and non-contentious areas of probate.

MEET THE TEAM David Wedgwood - Partner and head of department Clare Kelly - Partner Beth Holden - Solicitor Monika Byrska - Solicitor Tom Deely - Solicitor With three offices in South London, we believe it is important to help other local solicitors. We are working on our autumn event schedule and are planning a specific event around contentious probate. If you are a non-contentious lawyer and would like to learn more about contentious probate register your interest by emailing Eileen in our marketing team: eileen.donaghey@anthonygold.co.uk

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David Wedgwood

Beth Holden

Monika Byrska

Tom Deely

News

WOULD YOU TWIG IF YOUR FAMILY TREE WAS INCORRECT?‌ THE IMPORTANCE OF USING A PROBATE GENEALOGIST As so often in life the basics are sometimes overlooked: in similar vein, the importance of identifying all known heirs prior to distribution is often Pictured: James Gartland not given the thought and effort that it deserves.

In-house Solicitor at Estate Research Estate Research are a leading firm of probate genealogists with over 100 hundred years in-house experience and an array of specialist technology at our disposal to assist you with problems you may encounter in processing a probate file.

One of the services we provide is our family tree verification service. We are often approached by clients asking to verify a hand-drawn family tree that they have been provided by an administrator that principally stems from a client’s testimony.

By way of an example, by no means uncommon, we recently checked a tree for a solicitor who was on the verge of distributing an estate to a sole maternal cousin. The heir (also the administratrix) had provided a tree stating that the deceased’s father and paternal family had no family.

Fortunately, the solicitor involved asked us to verify the estate before he finalised the estate for distribution. Our subsequent investigations revealed that the paternal family had over 25 full blood heirs, some as far afield as New Zealand and Eastern Europe; however, even more crucially we discovered that the administratrix was actually a half-blood maternal cousin and therefore not entitled to benefit under intestacy.

Another case involved a large estate: the Administrator had stated he was the sole heir based mainly upon a family tree compiled from information he had discovered on the internet. The tree stated that numerous branches had no descendants. The administrating solicitor, mindful of the risk present to themselves and to the putative administrator, contacted

us to investigate the family tree; again, we discovered the tree was indeed incomplete and proceeded to locate heirs in South Africa and the US. If you are considering a missing beneficiary indemnity policy to address the risk posed by a missing heir or indeterminate family tree you will invariably be required to provide a genealogists report to the insurer.

As part of our family tree verification service we provide a free no-obligation quotation for you to consider.

The examples above highlight the necessity of confirming the family tree and the importance of instructing a genealogist.

Please refer to our website for further details.

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Spotlight on...

Introducing - Professor Sara Chandler,

Law Society council member for the voluntary sector and soon to be, first female president of the Federation of European Bar Associations and a guest in our spot light feature on top lawyers in South London.

Throughout her career, Professor Sara Chandler has undertaken work in the fields of human rights, welfare and social security. She has been regarded by clients and fellow practitioners alike as a leader in her field. Her invitation to the 60th Anniversary of the signing of the Universal Declaration of Human Rights in 2008 and winner of the Human Rights Worker of the Year award in 2014 by the UK Latin community, recognises such regard.

By Beverly Sowah Do you think there are still barriers to career progression in the law, specific to being a woman?

Yes I do. I think that many old fashioned attitudes still exist and firms sometimes think that a woman is going to be more of a risk than a man. That a woman may leave to have children and when they come back to work, they may want to work part time. It takes a lot to change those attitudes and while it is happening, I think it still exists.

Who or what influenced you to pursue a career in the law?

I wasn’t always a lawyer. I did not qualify as a solicitor until I was 49 and that’s very late in life. Before that I had worked with refugees. When I finished working with refugees, (that program had been closed down by the government of 1979), I applied to do the social work course at London South Bank Polytechnic. I qualified as a social worker in 1982, but what influenced me into the law was that my placements on the course were in North Lewisham Law Centre and Albany Welfare Rights Unit, both of which showed me that actually there’s more to social work and more to the law than is immediately apparent. The 1979 government changed things in social work which had been about people’s rights when I started, but when I finished the course it wasn’t about people’s rights anymore and so I went towards the law and that’s how I knew I wanted to be a lawyer. I could fight for people’s rights.

What path did you take to the law?

I was always interested in human rights and that’s why I worked with refugees from Chile who had been in prison under the Chilean dictator, General Pinochet. I worked with those refugees as their social worker in London, speaking Spanish every day from 1974 till 1980. I kept up my interest in human rights as soon as I got to work in a law centre which was in 1982, where I did welfare rights and housing and then I studied at night to do my exams and finished the law society finals in 1993. I completed my Articles in Peckham firm Glazer Delmar. When I qualified in 1995, I went straight to Hanne & Co to do housing and social security.

You are President of the Human Rights Commission of the Federation of European Bar Association and former chair of the Law Society Human Rights Committee - between that and your other responsibilities, how do you manage your work/life balance?

I am the immediate past president of the Human Rights Commission of Federation of European Bar Association, because In May (2015) I was elected Vice President of the whole of the Federation. I was the first woman to be elected to that post.

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I work at the Legal Advice Clinic at London South Bank University, 2 days a week, part time and so that gives me the rest of the week to do Law Society and Federation of European Bar Association work. It’s varied and it fits in well. I represent law centre solicitors on the Law Society council, that includes solicitors who work in law centres, Citizen Advice Bureau, University legal advice centres, charities and the voluntary sector.

What is a typical working day like for you?

I start work at 9 am. By quarter to 10 I am in the clinic welcoming the student volunteers. At 10 am we open the doors to members of the public and it’s free legal advice, nobody has to pay. We give advice in housing, social security, employment, family and debt. Where possible we help the students learn all their skills and in fact because they stay with us for 3 months in the clinic there is ample opportunity to practice their skills and understand the law in practice. After the clinic finishes I then organise employability talks with lawyers who visit the University, telling students about their paths to the law and what their typical working day is like and how students can follow the same kind of career progression.

I also work with students at Lambeth County Court on the helpdesk where law student assist members of the public to find the correct forms and find out what fees they have to pay and what procedure is necessary.

How did the Lambeth County Court Help Desk scheme come about?

Lambeth County Court was instrumental in supporting setting up the Legal Advice Clinic. We met up with some of the judges there who told us that the Ministry of Justice was closing the court office and they asked if we could think of a way to fill that gap. We immediately said yes and that was back in 2013. We’ve run the help desk there for two years and it’s a win-win situation. Lots of members of the public get help and students get experience in seeing the law in action.

Your son is also a barrister. Where you his role model?

He never told me he was going into the law. When I was studying, both my boys were still doing homework and thought it was quite funny that mum was doing homework as well. I think my son is a very logical person and he argues a lot (laughs). He is very good at putting together a case, so that’s probably what influenced him into going into the law.

What have been some of your highs and lows in the legal profession?

My highest point was in 2008 when I was invited to go to the 60th Anniversary of the signing of the Universal Declaration of Human Rights in Paris. I went a long as

past President of the South London Law Society and past President of the City of Westminster & Holborn Law Society to sign the document to mark the 60th Anniversary. I was very honoured and privileged to be part of that gathering in December 2008.

I do a lot of work with human rights lawyers in Colombia and it’s sometimes very distressing to hear of lawyers who have been killed because of the work they do defending human rights. Altogether over 450 lawyers have been killed up to 2014 and those of us in the International Legal Movement do a lot of writing like Amnesty International does, to try to protect the lawyers who defend human rights.

What do you think are the challenges facing the legal profession in the next 12 months?

The biggest challenge is the legal aid sector of the profession because of the cuts to legal aid. It’s extremely difficult for both criminal practitioners and civil practitioners. The public need help even more and have even less resources available to them to pay solicitors and yet at the same time, the Government is cutting them. That is a huge challenge for us in the legal profession and how we meet the justice gap.

What would you like to see changed in the legal profession in the next 5 years?

I would like greater diversity in the profession. London South Bank University is part of the consortium who organise a law careers fair every winter and that’s an important way that our students get a chance to meet future employers.

What are the qualities that make an effective lawyer in your opinion?

Determination to succeed for their clients.

What are you reading at the moment?

Gaslight in Page Street by Harry Bowling, set in Bermondsey in the years 1871 to 1920. I knew Harry before he died, and he tackled subjects such as social justice from the story teller's perspective, rather like Charles Dickens.

What motto do you live by?

Never give up.

Cyber Security

CYBER CRIME: A TICKING TIMEBOMB 2015 IS THE YEAR THAT LAW FIRMS, BOTH LARGE AND SMALL NEED TO ADDRESS THE EVER-GROWING THREAT OF CYBER CRIME. HACKERS ARE ALREADY TARGETING LAW FIRMS, AND THIS IS NOT BY ACCIDENT. CYBER CRIMINALS ARE FULLY AWARE OF THE VALUABLE DATA AND MONIES THAT PASS THROUGH A SOLICITOR’S SYSTEM AND ARE TARGETING THEIR VULNERABILITIES. THE REALITY FOR LAW FIRMS IS THAT IT IS NOT A QUESTION OF IF IT WILL HAPPEN, BUT WHEN. The financial costs of a major cyber attack, both in terms of business continuity and reputational damage, are likely to ripple through the industry with the potential for large insurance claims resulting from high value actions against Law firms. As such, Law firms should ask themselves: what are the recent trends in cyber losses and insurance coverage?

How have the significant losses transformed cyber into a board issue?

What cyber cover do I have? And is there a road map for those who are insured?

Ryan Senior, Executive Director, Professional Services Group, Aon added: “No business is immune to cyber crime.

Whilst the industry is taking steps to pull together and share information, it still remains that few in the legal profession really fully understand the extent of the threat cyber crime presents to their business. As Law firms continue to hold increasing amounts of client sensitive information electronically on servers that are controlled by third parties, it may be a mistake to assume that the security measures in place provide an impenetrable barrier to those seeking to gain unauthorised access to your systems. The question is whether Law firms are prepared to assure their clients that they are genuinely safe custodians of their valuable information, and if the answer is no, they need to urgently put the necessary security in place.”

Clients of law firms are placing more scrutiny on the companies they use and questioning what protective measures they are putting in place to protect their commercially sensitive information. As Ryan adds, “Companies are increasingly requiring their Law firms to provide not only the reassurance that their information is safe, but that they can show an

understanding of what the threats are as well as the protective measures they have put in place. This is where your insurer and your insurance broker should be working with you to demonstrate their thought leadership and guidance on the emerging exposures and coverage issues.

As part of this, Law firms will need to build a security model into their business model design, that is seamlessly integrated into every device at every layer to provide that reassurance.”

When discussing Cyber Liability Cover with your insurance carrier, it is important to know whether the cover they offer includes first party and third party coverage, loss or damage to digital assets, business interruption from network down time, cyber extortion, theft of money or digital assets as well as security and privacy breaches, investigation costs following a breach, customer notification costs and loss of third party data. It is also worth looking at the ‘service offering’ that comes with a cyber policy. This gives the insured a response plan in the event of a breach (24/7), including access to IT forensic security specialists, PR consultants and legal experts etc, (which, subject to the terms and conditions, should be covered under your policy).

Ideally, there is only one number to call and these specialists will work with the firm to make sure they respond to incidents as soon as possible. Time is critical with all potential cyber security

breaches. It may help to mitigate any 3rd party liability if you act quickly and decisively in such circumstances.

Something firms should be mindful of when reviewing cyber insurance are the exclusions in the policy wording. Policies may exclude cover for patents, trade secrets, refunds owed by the breached entity and liquidated damages, known network security vulnerabilities and unencrypted devices such as laptops, tablets and mobile phones.

The reality, to all involved in the field of cyber crime, is that companies struggle to stay ahead of the game. Hackers have the advantage of growing with technology and being adept at quickly adapting to new products, infiltrating companies and being invisible. However, Law firms do have the choice to better secure their clients’ information. Knowing the challenges Law firms face and the associated risks, those who ignore the fast paced growth of cyber threat do so that their own peril. With ever-greater client, Government and regulatory expectations, now is the time to act.

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Cyber Security

A PROACTIVE CYBER SECURITY STRATEGY WITH SERO SECURITY

by Ben Millar, Director, SERO Security

VERY FEW ORGANISATIONS ARE AWARE OF WHAT PENETRATION TESTING ACTUALLY IS AND THE BENEFITS IT OFFERS IN TERMS OF REDUCING THE RISK OF NETWORK BREACHES. Penetration Testing is a pro-active method of identifying vulnerabilities and configuration weaknesses within your information systems, network infrastructure and IT procedures. By identifying these vulnerabilities and weaknesses, your organisation is able to significantly reduce the risk of being compromised by hackers and cyber criminals during cyber attacks.

Organisations commission Penetration Tests for a number of different reasons.

Any savvy Chief Information Officer (CIO) or Senior Information Risk Officer (SIRO) will commission a Penetration Test to ensure that the risk to their information from external threats is as low as possible. And in other cases, they are commissioned to meet compliance requirements.

Lexcel is an accreditation within the legal sector, indicating quality in relation to legal practice management standards. The Lexcel "Standards for Legal Practices" guidelines make several references to Information Security Management and confidentiality of client data. In order to satisfy these requirements and achieve compliance, all compliant legal practices are required to demonstrate that their client information and digital assets are safe and secure from external threats. This can be achieved by conducting regular penetration testing to identify vulnerabilities and risks so that they can be reduced or completely mitigated.

Many legal practices use third party IT companies to manage their network infrastructure and services. But in some cases, these third party consultants are

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putting your information at risk by using very poor security practices, as one of our clients found out (described in the case study).

Case Study

This would have taken the law firm weeks or months to recover from. And if the hacker had chosen to delete all of the information they had access to (including backups), the firm may not have been able to ever recover.

A law firm that SERO tested were using For more information please contact: external IT consultants to manage their IT Tel: 01489 559485 network infrastructure and services. The firm had placed their trust in the consultants, assuming that they were using the most secure practices to manage their IT SERO Security provide expert network. It wasn’t until penetration testing services the firm to help identify the weakest commissioned a areas of your cyber defences.

Penetration Test that This enables your organisation they learned how to mitigate vulnerabilities and reduce the risk of vulnerable their being compromised during network and Cyber Attacks. information really was.

Would your Legal Practice be able to withstand a Cyber Attack?

SERO were able to remotely breach their external network defences and gain administrator access to the whole private network and all information stored on it. If a hacker had gained this level of access they would have been able to cause enough damage to bring the business and trading to a complete halt.

>

Identify vulnerabilities in your information systems

>

Secure your intellectual property and sensitive information

>

Protect your digital assets from hackers and cyber criminals

Speak to a specialist on 01489 559485 or email info@serosecurity.com www.serosecurity.com

Cyber Security

Cyber risks:

How safe is safe?

Protecting confidential client information is an essential requirement of any law firm and it must ensure confidentiality to comply with SRA guidelines. So how do you best protect yours and your clients’ data?

For most principals running small and high street law firms, common sense can go a long way to ensuring that your systems protect your information. But there are three major threats to data security.

Threat # 1: Benign Neglect The most common threat to data is the failure to regularly make checks that the data on the backup can be restored. Twenty years ago when computers were less reliable, the need to make backups was front of mind.

However, when disaster strikes, the consequences are far more damaging.

Threat # 2: Your staff Some people who work in law firms are dishonest. The best thing you can do is ensure that your staff are properly trained.

There is no point in giving a junior staff member, responsibility for making backups and then not providing training.

You can’t prevent a staff member from carrying confidential information off the premises. How many times have you or one of your staff taken a physical file home to work on? This is incredibly common and also incredibly risky.

Staff also do stupid things on work computers. Create a culture in which good computer behaviour is the standard. A lot of work is usually the best cure. Busy staff don’t have time to surf the net or download suspect programs.

Threat # 3: Do you use email?

Many emails containing your client information have confidential documents attached. Very few law firms encrypt emails because recipients aren’t able to open the encrypted data. Sending an email to the wrong recipient might be the single biggest threat to data security, and yet it relies almost completely on common sense to prevent mishaps.

RICHARD HUGO-HAMMAN, CHIEF EXECUTIVE OFFICER AT LEAP LEGAL SOFTWARE, LOOKS AT SOME OF THE ISSUES INVOLVED, AND RECOMMENDS SOME SIMPLE STEPS OF HOW TO MINIMISE CYBER RISKS IN A LAW FIRM. Threat # 4: The bad guys out there!

In reality, the information that a small firm has on its systems is unlikely to be of interest to hackers. There is however a risk, and it is particularly important for you from a compliance perspective because your income depends on your practice certificate.

The SRA are justifiably concerned about all these threats.

Threat mitigation: a legal cloud software solution for small firms Some people are concerned about using cloud software but we have all done online (i.e. cloud) banking for years. Many of us post information on Facebook and LinkedIn. Cloud software. In reality we use it all the time, and the good news is that data stored in the cloud is far safer than almost every other common data storage mechanism.

Here is a 5 point checklist for you to use when you consider making your data as safe as possible:

1 Location Many people like the idea of having a physical server in their office, or in the office of their IT provider. This seems safe but is risky. World leading cloud software products run on servers are located in secure data centres with the world’s best practice for access not only to the data, but to the facilities in which the servers are housed.

This is where we keep data for our clients.

It is secure and constantly backed up. With cloud software location risk is eliminated.

2 Communication between your workstation/devices and the Servers Make sure that your software supplier utilises Secure Socket Layer (SSL) and RSA data encryption ensuring all communication between workstation and server is encrypted and protected from interception. These technologies are also used by financial institutions to protect client data.

3 Data Security on the Servers The world’s best practice security controls include industrial strength Firewalls, Antivirus and Anti Malware detection, Security Patch Management, System Security Hardening, N+1 redundancy and a host of other acronyms that are difficult to understand and that you don’t need to worry about anymore.

Make sure your technology provider is taking proper precautions. For example at LEAP our servers are hosted in Amazon Web Services data centres in Dublin. I would suggest that it is impossible for any small law firm to be able to afford similar levels of data security on their own.

4 Workstation Security A cloud application cannot protect your workstation and you should always ensure it is properly secured with the latest security updates from a reputable provider with anti-virus, malware detection and firewalls if necessary. Don’t open suspect attachments or download programs from untrustworthy sources. A good policy it not to allow personal use on work equipment.

5 Passwords You need a good password and you need to keep it secret. These are like security locks on a house; they keep 95% of potential intruders out. Don’t use: • 12345 • Password1 • Welcome • Your initials or date of birth • Your present or deceased pets’ names.

A final word on backups Make sure your technology system backs up your case management and accounting data. Implement smart, safe practice management software into your firm and your cyber risk is near to nothing. www.leap.co.uk 08437130135

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Cyber Security

TARGETING CYBER SECURITY A recent survey highlighted ‘Cyber Security’ as one of the greatest concerns of small and medium law firms within the UK. Legal technology today is a source of competitive advantage in many instances and, at the very least, a driver of efficiency and innovation. It is also often the mechanism by which many solicitors share information both between themselves and between themselves and their clients.

Thus, it is fair to say that the majority of information within a modern solicitor’s firm is held in a digital form and is, therefore, a potentially lucrative target for digital criminals.

Many such criminals target smaller firms because they believe they will have less resources available to protect them but will still hold much extremely valuable data. In essence, there is a very real threat to small and medium sized law firms and the data they hold. The question being asked across the sector is what can be done to reduce this threat? To properly understand what can be done, it is first necessary to understand from where the threats emanate.

Traditionally ‘Security’ was predicated on the notion of erecting an impenetrable exterior and only allowing known people through, an approach based on the assumption that threats were primarily external. In IT terms, this meant having a firewall to prevent unauthorised entry to the systems and protecting the systems with passwords.

In a World where sharing information is second nature to increasing numbers of people, many otherwise diligent workers can create situations where the data held by a firm is placed into less than secure environments. Research indicates that the majority of security breaches emanate from within organisations rather than from external attacks and that many of these are inadvertent rather than malevolent.

Many staff will access information from a variety of devices and a proportion of these staff will use the same passwords for their work accounts as they do for personal, less secure accounts. It is human nature to adopt repetitive simplicity when selecting passwords and it is this behaviour that creates the perfect opening for cyber criminals. The modus operandi for many cyber criminals today is the gathering and analysis of fragments of data which they can then use to launch very specific attacks.

For example, many firms will use an employee’s e-Mail account as their primary identifier for systems. Establishing a valid eMail address is a relatively simple task and so the cyber criminal already has half the information needed to access a system. And the password? Some of the most common passwords in use are 123456, password, qwerty and letmein.

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Even where more complex passwords are used, users often make it relatively simple for cyber criminals to uncover this last line of defence by using the same password for multiple accounts both personal and work related and the personal ones are often much easier to breach. Staff may send work to personal accounts to enable them to work out of the office or carry data on portable devices which are easily lost. We have become careless in our use of technology and this carelessness is the source of much valuable information to cyber criminals.

So is it all about the users? Absolutely not.

There is still a requirement to invest in proper security systems and processes and to review where data is stored, how it is accessed and by whom.

The cloud is often the source of much discomfort about security but is probably the one area where security is actually greater than more traditional IT solutions. The data is usually located in highly secure physical locations and the majority of cloud providers invest significant amounts of money in surrounding the data with both preventative and detection technology and have proven rapid responses to security incidents. Cyber criminals are less likely to waste time and effort attacking such environments when one known user account will provide them with direct, unhindered access.

Simple steps such as using token based authentication in addition to passwords and

reiterating to users that data protection is as much their responsibility as that of the IT function can significantly reduce risk. Regular audits and ethical hacking attacks can also reduce risk. Security requires a multi-faceted approach and requires consistent awareness and adoption by all members of a firm. There also needs to be an acceptance that you will be compromised at some point and establishing an effective response and counter-measures plan is equally as important as seeking to prevent the breach.

There is no panacea for cyber security. The threat landscape is constantly evolving and so establishing good security requires vigilance, constant education of the users, closing down the sources of information to potential hackers and frequent auditing and testing of the solutions that are in place.

Above all it is a constant process not a one off activity.

Simon Ratcliffe Consultant Advanced Computer Software Group For more information please contact: 0844 815 5575

Cyber Security

Brighter Law’s Trevor Hellawell advocates a pragmatic approach to cyber security Simple steps to safer security by Trevor Hellawell The risk of being hacked, or being groomed into revealing sensitive information to well-rehearsed and very plausible fraudsters is now well-known.

Not only can open email be intercepted, but con-men are increasingly winning the trust of law firm staff and (often successfully) inviting them to reveal additional information about clients, and client account access codes.

Such techniques can not only result in client money being siphoned off to fraudsters, but also in sensitive information being used to the detriment of clients and others. Information about a person’s or a company’s legal dealings can be every bit as valuable as cash.

The implications are frightening: - breach of Mandatory Principle 10 (protecting client money and assets) - breach of Accounts Rules protections - breach of trust to lenders and clients - breach of confidentiality - breach of DPA rules - lack of insurance indemnity - loss of reputation.

Some simple everyday steps can be taken by all staff to reduce the risk, on the ‘burglar alarm’ principle. The steps won’t deter a determined hacker, but may put off the opportunist. To fail to take them would appear negligent, given current states of awareness and understanding.

Simple steps: 1. be AWARE that hackers and crooks target the least suspecting and more innocent targets - if you don’t think you are one, then you probably are 2. be AWARE that fraudsters are VERY plausible - be sceptical at all times - just because you are

paranoid doesn’t mean they aren’t out to get you 3. never reveal sensitive information in telephone calls - always ask to call back, and always from a separate phone line 4. if sent a link in an email, hover the mouse over the link without clicking on it - it may reveal a URL address that suggests it is a fraud 5. never send sensitive data in an open email - use encrypted PDF files or something similar that are less easy to intercept and alter 6. always double-check bank account details just before remitting funds to it - give the other side a call to check the details 7. consider allocating a client number to clients or third parties (a PIN number or transaction code) that they can quote as testimony of their genuineness before we do anything ‘sensitive’ for them 8. don’t send PIN numbers, or encryption codes by open email, especially not the same email that includes the encrypted attachment 9. beware ‘emergencies’ and threats con-men often strike when the pressure is on 10. check anything you are not sure about with your COLP.

On a deeper level, firms should consider: • triaging clients according to their sensitivity • adopting protocols as to who has authority to deal with highly-sensitive clients/matters • discussing enhanced cyber-security measures with their IT/ISP teams • adopting enhanced IT systems and measures • if not already in place, adopting an IT policy.

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Conveyancing

Speed up house buying with the personal touch Moving house or business premises can be one of the more stressful processes in a person’s lifetime. One of the frustrations many consumers and businesses face when buying a house or commercial property is the length of time it takes to complete. Often, it’s search turnaround times during the conveyancing process that can be a challenge for solicitors and their clients. Not just in terms of the reality of the delay, but also how this can be perceived by customers.

Today, clients expect property transactions to move quickly, but some local authorities can take longer to return searches due to resource issues and a backlog of work. That can create tension for all those involved in the buying and selling of homes and commercial buildings.

There is, however, an option that can cut turnaround times while providing the same quality of search for residential and commercial searches. Personal Search Agency (PSA), a subsidiary of SearchFlow, offers an alternative to official searches that puts the entire process in the hands of a dedicated and experienced team. It’s a bespoke service that many buyers and sellers value highly.

In areas where local authorities take three weeks or longer to provide conveyancing results, a personal search can reduce this waiting time by a whole week, on average. And across some locations, including London, SearchFlow figures show buyers could shave as much as two weeks off the property transaction process by instructing a personal search.

Latest research from SearchFlow’s Conveyancer Sentiment Survey suggests that many feel the problem of delays could get worse. In total, 31% of conveyancers said that they felt changes to the Local Land Charge process could further extend turnaround times. Personal searches therefore promise a viable alternative that could ease the delays associated not just with present challenges, but future changes.

“There are a number of factors that impact turnaround times for official searches at local authorities, including lack of resource, dealing with crises and changes in processes,” said SearchFlow’s Search Manager Ray

22 Clapham The Clapham Omnibus The Omnibus 22

Farrell. “Solicitors whose clients are looking for a faster transaction should consider recommending a personal search solution.

“Our 22-strong, directly-employed personal search team at SearchFlow is extremely experienced and they have the most up-to-date technology available to deliver fast results. They visit the relevant local authority for each and every search, rather than relying on past or banked data, and so are equally as reliable as official searches - if not better.”

Delays in turnaround times for conveyancing searches impact solicitors as well as their clients. And with 44% of conveyancers expecting the market to improve by the end of 2015, Farrell says that now is the time for the industry to consolidate their operations and improve efficiency.

“Efficiency drives profitability,” he said.

“The faster solicitors are able to process clients, the more they’ll be able to take on and the more revenue they’ll make. Then there’s the service angle. By easing the conveyancing process for clients, solicitors will be offering better service.”

PSA is staffed by a regional team of fieldbased professionals and an internal administration team. Covering every region of England and Wales, they work to secure appointments and visit local authority offices, doing all the legwork in person. More than 50,000 searches were undertaken by the team last year.

But it’s not just speed that defines PSA searches. In-depth knowledge of the Local Land Charges Register, as well as the ability to drill into the detail of CON29 responses and to decipher and interpret their content means conveyancers can be sure of the accuracy of the work. When a

solicitor instructs a personal search to be undertaken, they will have a single point of contact so that there is regular communication and updates throughout the process.

For the solicitor’s client, the personal search option may also resonate in a positive way and assuage some of the negativity that can define the conveyancing process. Today, buyers increasingly seek the personal, bespoke touch whatever the goods or services being bought. So why not a personal search to help deliver a competitive advantage and show the industry is on the front foot?

According to the Conveyancer Sentiment Survey nearly two thirds of conveyancers have seen the biggest volume of growth from direct business. And this statistic alone could help convince more of the benefits in promoting personal search to potential clients.

All PSA searches are search code compliant and provide protection of £10 million in professional indemnity cover as standard. In addition the team goes beyond regulated searches, offering an ad hoc enquiry service for other aspects including highways and planning. Call 01732 523952 if you would like to speak to SearchFlow and PSA about the services they offer.

Probate

Investment Overseas and the Impact on Estates The complex world of asset repatriation

by Louise Levene

Godfrey: “Prosperity is just around the corner.”

Mike: “Yeah, it's been there a long time. I wish I knew which corner.”

(Source: “My Man Godfrey” 1936 (Universal Pictures; Director: Gregory La Cava) This bit of bleak humour from the depression-era screwball comedy “My Man Godfrey” never seems to lose its relevance, as the global economy bounces from boom to bust, or navigates the fragile limbo in between.

Picture: “My Man Godfrey” 1936 ©Universal Pictures

Throughout the prosperous 1990s, British daytime television was peppered with programmes which painted a pleasing picture of investment opportunities in Spain and beyond for British householders with a pot of equity to spend.

Disposal of a property, even at a loss, might meet one such duty, but retaining the property, even if it costs money to do so, might arguably meet a different one. There might be reason to hope the value of the property will improve.

translations of English probate documents.

When an intestate English estate includes immoveable property, there may be questions of forced heirship, where close family members must benefit from part of the estate.

You could have a retirement home or an investment, whatever you needed. Building companies in Spain responded to demand with a huge construction programme, some of which turned out to have been built almost literally on sand, with building firms granted unsustainable mortgages by banks on the rash promise of quick sales.

Even once the decision to sell the property, or transfer ownership to beneficiaries has been made, dealing with property in Spain can be slow and expensive. Spain’s laws are kinder to UK estates than others in Europe: Spain uses nationality to determine how an estate should be dealt with, but it will accept the renvoi from England & Wales.

Clients who bought retirement villas and flats on the Costa del Sol during that time might not have counted on a scenario in which they died, in the throes of a terrible recession. Spanish property prices have tumbled up to 40 percent since 2008.

The Spanish inheritance process needs to be followed, involving the services of a notary (‘notario’). Spanish notaries are responsible for the drawing up of deeds covering the administration of estates and the registration and disposal of property.

Since the financial crash of 2008, time has shown that there aren’t easy answers to that central dilemma of whether estate representatives should keep or sell Spanish property. Any sale within the last seven years might have been through necessity alone, but continuing uncertainty and year-on-year declines in Spanish property values since that time also made it difficult to wait, with confidence, in the hoped-for improvement in the market.

For lower-priced property in particular, this can leave the estate with a dilemma. Sell the Spanish property as quickly as possible, at a loss, or hold out in the hopes of a recovery at the mercy of European market forces, while the fabric of the property deteriorated every year?

They don’t all communicate equally effectively, and some struggle to interpret the English & Welsh concepts of domicile and Executors (although the recent EU Succession Regulation 'Brussels IV' has been designed to smooth the way for estates after August 2015). Spanish NIE (fiscal identification) numbers have to be obtained for the beneficiaries something that is not made easy for UK residents to obtain - and tax clearance paperwork submitted.

Investors know, or are expected to have some idea about, the risks they are taking.

But it is the executors that have to juggle those risks against their occasionally conflicting duties as estate representatives when the investors die.

Personal representatives must gather in estate assets, and act promptly in administering and preserving the estate.

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Registration of title to the property must be transferred out of the deceased’s name before it can be sold. It can be difficult to get Spanish bank accounts closed. The Spanish authorities need official, legalised

For now, there are signs that the drop in values may have bottomed out, but UK property owners in Spain might still be glancing warily at Europe’s tribulations, and wondering which corner that much-needed prosperity will turn out to be ‘just around’.

Louise Levene is asset services manager at Finders International. For an initial, informal discussion about valuing or disposing of Spanish property, obtaining NIE numbers or closing bank accounts in Spain, or to discuss any estate matters with an overseas asset element, contact Louise on 020 7490 4935 or, in the UK, 0800 085 8796, or by email louise.levene@findersinternational.co.uk

Probate

Dealing with a “digital legacy” WITH THE HUGE RISE IN THE STORING OF PERSONAL EFFECTS SUCH AS PHOTOGRAPHS, MUSIC, BLOGS AND SOCIAL MEDIA DIGITALLY, IT IS IMPORTANT TO CONSIDER HOW TO HANDLE THIS INFORMATION WHEN PLANNING A WILL. Many people upload information, such as photographs and videos, to social media sites like Facebook and YouTube. However, depending on the terms of use set by the relevant provider, these accounts can come to an end on death. Therefore, the information may be lost or, in any event, it is unlikely that any family member would be able to access the information without the user name and password of the deceased person. The same would be true of any email accounts, where again useful information may be held that the executors and family of the deceased cannot access without the required passwords.

Internet companies have to tread a difficult path when deciding how to deal with the accounts and data of their users that have died. Facebook though have recently announced that it will let its users decide what to do with its account when they die, possibly in response to pressure from families. The new feature will allow users to

appoint a “Facebook heir” who will look after the account and will be allowed to make certain changes. They will also be able to choose to have their account deleted entirely. If users don’t choose a Facebook heir but name a digital heir in a normal will, Facebook will honour that choice.

“This is a welcome move to allow the appointment of a Facebook heir which could be of comfort, particularly, for families who lose a loved one in tragic circumstances,” commented Sue MacLeod from law firm Hart Brown. “It will allow the heir to access photos which may only be stored via Facebook. However I wonder how many people will actually appoint a Facebook heir and will that person have the time to keep the memories alive through the Facebook page? I think that privacy may be more important to Facebook users, and I think users will have to think carefully who they

appoint as their Facebook heir.”

Naming digital heirs in a Will, along with passwords and other personal information, poses its own problem though. A Will becomes a public document, once it has been sent to the Probate Registry to obtain a grant of probate, which may be required to deal with their property and other assets.

Therefore, any confidential information in the Will can be obtained simply by applying to the Probate Registry for a copy of the will at the cost of £6.

It is therefore essential to ensure that any user names and passwords are stored in a very safe and secure place. One option is to keep a list of details with the original Will, with a solicitor. Having taken these steps, it is also extremely important that the information is updated, as old information can be as useless as no information at all.

For more information please visit www.hartbrown.co.uk

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Probate

HEIR HUNTERS SHED LIGHT ON LONG LOST BROTHER WHO SPENT LAST 25 YEARS IN MAKESHIFT HOME A CHESHIRE WOMAN HAS DISCOVERED HER LONG LOST BROTHER’S UNIQUE PAST THANKS TO TV HEIR HUNTERS’ SEARCH. Mr Millen died without leaving a Will, giving no indication of who he wanted to inherit his valuable estate.

As an ex-meteorologist who spent many years at the Met Office and learnt his craft in the military, Mr Millen enjoyed the outdoors.

team of leading genealogists and international probate researchers, dedicated to tracing missing beneficiaries to unclaimed estates.

It was only when probate research firm Fraser and Fraser, who star on BBC One’s daytime show Heir Hunters, tracked down his sister, that the family discovered his unusual way of life.

Neil Fraser, Partner at Fraser and Fraser said: “We sometimes get unusual cases such as Mr Millen’s which can make it harder to track.

Once we located his birth certificate, however, the family tree started to unravel.

Offering their skills to solicitors, finance professionals, large corporations and local authorities, their services, including International Bankruptcy Searches, Missing Beneficiaries Insurance and Probate Property Services are tailored to each individual’s needs, and are there to offer support to the legal profession with every step of estate administration.

Anne King had not seen her brother for over 25 years after he chose to tie off all forms of contact.

When the London based firm contacted Mrs King, she said she felt a “feeling of relief that at last I would know what had happened to him”.

Mrs King last saw her brother at their mother’s 80th birthday over a quarter of a century ago.

Although her other brother, Boyd, had tried to find him, no one managed to get back in touch.

Mr Millen used to live in a house boat along the canal, but when the council deemed it unfit for habitation, he chose to build his own home.

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“Mr Millen actually have £10,000 worth of premium bonds with the rest sitting in a bank account - something which the four heirs, including his sister, can now enjoy.

“In cases where the deceased is elderly, we often find the beneficiaries are further down the tree, but here we managed to find near kin, as well as Mr Millen’s nieces.”

Fraser and Fraser located four heirs on this case, the majority in the Cheshire and Liverpool area.

With over 90 years of experience, the firm are a

If you are searching for next-of-kin in order to distribute an estate to the rightful heirs, get in touch today. We understand that each case is unique and so offer our quote on a case-by-case basis. Once Fraser and Fraser begin to work a case, a full report will be provided, showing how the estate will be distributed at maximum value and as efficiently as possible.

Probate

The SRA’s new approach to CPD How Title Research can help LAST YEAR, THE SRA ANNOUNCED SIGNIFICANT CHANGES TO THE WAY IN WHICH SOLICITORS AND LEGAL PROFESSIONALS NEED TO DEMONSTRATE THEIR CONTINUING COMPETENCE. The move away from a rigid continuing professional development (CPD) structure was intended to refocus the profession’s attitude to training and development, bringing an end to the ‘tick box’ attitude which many saw as limiting the effectiveness of CPD for the majority of legal professionals.

Instead, the new approach aims to enable solicitors to tailor their CPD activity in order to reflect the legal areas in which they operate more accurately. This will also ensure that more emphasis is placed on the outcome of the activity and the value that this offers the individual, rather than the process by which it has been achieved.

The new approach will become compulsory for all legal professionals from

November 2016. However, you can already opt in to the revised scheme and many are choosing to do so given the increased flexibility that it offers.

wide range of subjects impacting on trust and estate planning professionals, including risk management and compliance issues.

So what do the new regulations mean in practice? One of the most significant changes is that the CPD activity that you undertake no longer needs to be accredited. Adoption of the new standards means that you can now identify a wider range of training opportunities that can count towards your CPD activity.

We can deliver this service to you in the comfort of your own office at a convenient time for you and your colleagues, free of charge. If you would like to find out more about how you could benefit from a free CPD presentation, please contact Nicholas Beetham, Senior Relationship Manager at Title Research, on 07714 853651 or Nicholas.beetham@titleresearch.com

Title Research has provided free training and support to the legal profession for many years, drawing on our 50 years’ of experience as specialists in the estate administration market. Our team of experts regularly speak at industry events on a

Alternatively visit www.titleresearch.com for information on how we can support you and your clients with any asset repatriation or people tracing services.

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Spotlight on...

Pictured: Malcolm MacDonald

International Family Law - Malcolm MacDonald, Barrister In a recent address to the Family Law Bar Association at Cumberland Lodge in May 2015, the President of the Family Division of England and Wales, Sir James Munby, identified International Family Law as one of the areas of family law of particular importance during his Presidency with a view to broadening understanding of international children law beyond specialist solicitors and barristers.

In this article I have identified some recent cases that highlight issues in international children law cases that are not only topical, but are also examples of some important issues that may confront practitioners when dealing with child abduction cases and other international children law cases.

Habitual Residence: AR v RN (Scotland) [2015] UKSC 35 The case of AR v RN involved child abduction proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention).

In this case the mother had moved to Scotland with two children (aged 3 and 1) from France with the father’s consent.

The father alleged that there was an agreement that the mother should live in Scotland for 12 months during her maternity leave and then return to France. The mother’s position was that the family was to move permanently from France with the father joining the family once the family home had been sold and arrangements had been made for the father’s business to be managed. The parents were then to decide where they were going to settle in the long term.

The family home was sold in August 2013. The father visited the family once a month in Scotland and the mother and children had holidayed twice for short periods with the father in France. The mother and children moved into a rental property adjacent to the maternal grandparents’ home in Scotland. The oldest child attended nursery.

In November 2013 the mother discovered that the father was having an extra marital affair in France. The mother, ended the relationship with the father and issued proceedings in Scotland on 20 November 2013 for a residence order and an interdict (prohibitive order) against the father removing the children from Scotland.

The father remained in France and sought the return of the children on the grounds that the mother’s initiation of proceedings in Scotland was a ‘wrongful retention’ under the 1980 Hague Convention.

The first question for the Scottish Court at first instance to answer was whether the children were ‘habitually resident’ in France immediately before 20 November 2013.

The court at first instance concluded that the children were habitually residence in France, primarily because nothing in the communications between the mother and father indicated a joint intention to uproot themselves and relocate permanently (my emphasis) to Scotland.

This was overturned on appeal in Scotland on the grounds that the court at first instance had erred in law in treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children’s habitual residence from France to Scotland.

The Appeal Court found that the children were habitually resident in Scotland at the time of the mother’s application and identified the ‘real issue’ as whether there needed to be a longer time than four months for the children to change habitual residence. The Appeal Court found that the four months the children had spent in Scotland was sufficient when the whole circumstances of the case were taken into consideration.

The father then appealed to the Supreme Court to restore the first instance decision.

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In cases of child abduction involving two states in the EU (in this case France and the UK) the 1980 Hague Convention is supplemented by Brussels IIR (Article’s 10 and 11) and Brussels IIR takes precedence over the 1980 Hague Convention. This means that the concept of ‘habitual residence’ as interpreted under Brussels IIR determines how ‘habitual residence’ is interpreted under the 1980 Hague Convention in the UK. The Supreme Court in coming to its decision referred to guidance on how ‘habitual residence’ is to be determined for the purposes of applying the 1980 Hague Convention and Brussels IIR in its previous decisions in the cases of A v A [2013] UKSC 60; and In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1; [2014] AC 1038.

The guidance was developed with reference to case law from the Court of Justice of the European Union in Proceedings brought by A (Case C- 523/07) [2010] Fam 42, Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, and C v M (Case C-376/14PPU) [2015] Fam 116.

The Supreme Court found that, consistent with the case law set out above, a child’s ‘habitual residence’ corresponds to the place which reflects some degree of integration by the child in a social and family environment. Factors that are to be taken into consideration include • the duration, regularity, conditions and reasons for the stay and the family's move to that state, • the child's nationality, • the place and conditions of attendance at school, • linguistic knowledge and the family and social relationships of the child If a child is an infant then there will be a need to focus on the primary carer rather than the child. “Habitual residence’ is distinguished from ‘temporary’ residence by having a certain duration that reflects an adequate degree of permanence.

The Supreme Court emphasised that it is the ‘stability’ of the residence that is important, not whether it is of ‘permanent’ character. There is no requirement that the child should have been resident in the country in question for a particular period of time, nor is it necessary that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.

‘Habitual residence’ is, therefore, a question of fact requiring an evaluation of all the relevant circumstances.

There are no legal ‘rules’ that apply, for example, that a parent cannot unilaterally change the habitual residence of a child.

The Supreme Court found that the Scottish court at first instance was in error because it had focused on the intention of the parties and failed to consider the ‘abundant’ evidence relating to the stability of the mother’s and the children’s lives in Scotland, and their integration into their social and family environment there.

The Supreme Court upheld the Scottish Appeal’s Court decision that the children were habitually resident in

Scotland and had not been wrongfully retained by the mother in Scotland. For the time being, their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on, the more deeply integrated they had become into their environment in Scotland.

Other issues raised on appeal, and in the court below, by the mother that her application for a residence order in Scotland was not a ‘wrongful retention’ per se under the 1980 Hague Convention and whether the father had in fact consented to the children’s retention in Scotland did not need to be determined by the court.

The case has wider relevance than child abduction cases under the 1980 Hague Convention because the ‘habitual residence’ of the child is the primary source of jurisdiction under Article 8 of Brussels IIR for issues of parental responsibility, not only between EU states, but also between the UK and non EU member states. [Re A (Jurisdiction: Return of Child) [2013] UKSC 60]]

A Child’s Objections to Return - Defences under Article 13 of the Hague Convention: Re M[2015] EWCA Civ 26 and Re U-B [2015] EWCA Civ 60 and and Re K (Lithuania)[2015] EWCA Civ 720 Article 13 of the 1980 Hague Convention sets out the circumstances where a requested state is not bound to order the return of a ‘wrongfully removed’ or ‘retained’ child under Article 12.

In Re M, Black LJ conducted a comprehensive review of the case law to determine what was the proper approach to deciding whether a child’s objections to their return to their country of habitual residence under Article 13 should prevent a return order being made.

The facts of the case were that the mother and children (D ( aged 17), J ( aged 13), T( aged 11) and I aged 6) came to England from Ireland on 12 March 2014 in circumstances that were conceded by the mother amounted to the children being wrongfully removed from Ireland.

The mother alleged that she had fled Ireland due to serious domestic violence perpetrated by the father.

CAFCASS interviewed the children who expressed fear about returning to Ireland and also of their father, describing traumatic experiences in the home, witnessing and being subject to domestic violence from the father. The father disputed the allegations. He issued an application for a return order under the 1980 Hague Convention in June 2014.

In proceedings at first instance in the High Court an order was made for the children to return to Ireland.

Black LJ found that there should be a two stage process to considering a child’s objections to return under Article 13. The first stage is a ‘gateway’ stage which is confined to a straightforward and robust examination of whether the simple terms of the Convention are satisfied in that the child ‘objects’ to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

Spotlight on...

Pictured: Sir James Munby

In respect of the ‘gateway stage’ Black LJ identified a number of issues to be considered : • the child’s age and maturity and whether they object is a matter of fact • there is no fixed age at which a child’s objections may be taken into account • the child’s views must amount to an ‘objection’ as distinct from a ‘wish’ or ‘preference’ that may fall short of an ‘objection’ • the child’s objection is not confined to an objection to the country of habitual residence but may also be to the return to a parent’s care • a child’s objections are not determinative but will be considered alongside other factors at the ‘second stage’ where the court exercises its discretion.

In exercising the court’s discretion at the second stage Black LJ emphasised that the expedition required in 1980 Hague Convention cases does not permit a full investigation of welfare issues and that normally the courts deal with such cases without hearing oral evidence and without resolving contested issues of fact.

The constraints of time means that there is limited scope for the filing of documentary evidence and statements from the parties responding to material as it comes to light. The judge will have to take a view about the limited evidence assisted by submissions. It would not be true to the spirit of the 1980 Hague Convention or serve the interests of the children if applications became bogged down in protracted hearings and investigations.

Black LJ identified facts relevant to the exercise of the court’s discretion in this case as .

• the availability and adequacy of protective measures in Ireland, • the serious emotional disturbance of J, • all the children’s feelings against a return to Ireland • the possibility of resuming a positive relationship with the father, • separation from family members, • the age of children ( noting that it may be appropriate to give more weight to the views of an older child than a younger child) • Hague Convention considerations that include the benefits that flow for children from the swift return of abducted children to the place they have been living, comity between contracting states, respect for one another’s judicial processes and the deterrence of abduction • the fact the children had always lived in Ireland.

• the role the father had in the children’s lives • concerns about the mother’s ability to care for the children • the children’s unsettled life in England ( the family were living in a refuge) and

•

the Irish court’s jurisdiction in the case under Brussels IIR based on the ‘habitual residence’ of the children in Ireland

In weighing up these factors Black LJ found that there were strong reasons not to order the return of J to Ireland in light of his age, fears, strength of his objections and his emotional vulnerability. In respect of T the case was less compelling, however Black LJ found that it would not be appropriate for T to leave behind his elder brothers to make a return to which he was opposed. In respect of I Black LJ did not determine her position on the basis of I’s objections but found that it would place in her in an intolerable situation if she was to be returned to Ireland.

Black LJ also set out some guidance in respect of the joinder of children to Hague Convention proceedings and on appeals.

The Court of Appeal had cause to consider a child’s objection to return under Article 13 in the cases of Re UB and most recently in Re K (1980 Hague Convention) (Lithuania). Black LJ presided in both cases and applied the approach she had developed in Re M. In Re U-B a 14 year old boy objected to returning from England to his mother’s care in Spain after his summer holidays in England with his father and in a context where it was not alleged that the child would suffer harm in his mother’s care.

By contrast in Re K a return order was made in respect of an 11 year old who had refused to return to her father’s care in Lithuania after summer holidays where the child had raised allegations of abuse by the father towards her and members of the maternal family.

Temporary leave to take a child outside of the jurisdiction: Re H (A child) (Temporary Leave to Remove: Turkey) (Enforcement of Child Arrangements Order) [2015] EWFC 39 (Fam).

The case of Re H raises a number of issues in the context of seeking temporary leave to take a child outside the jurisdiction of England and Wales. This type of case usually takes place in the shadow of ‘child abduction’ concerns about what steps can be taken should the child not return after the temporary leave has expired.

The parents in Re H were Iranian nationals. The father had arrived in the UK as a political refugee. There had been a long history of litigation, a history of domestic violence, a troubled history of contact between the father and child and Local Authority involvement with the family since 2010.

The father had successfully appealed an application by the mother to take their four year old daughter to Iran.

The Court of Appeal over turned a district judge’s decision to allow the mother to travel with the child to Iran [Re H [2014] EWCA Civ 989] .

The Court of Appeal gave guidance in the case that where a non - Hague country was involved the case should be heard in the High Court. This was because in such cases there were no other arrangements in place for the recognition or enforcement of decisions made by the courts in this jurisdiction. The expertise of High Court judges meant that they could draw on experience to take judicial notice of international circumstances in an appropriate case or by hearing expert evidence if necessary.

Following the guidance of Patten LJ in Re R (A Child) [2013] EWCA Civ 1115, the Court of Appeal stated whether by taking judicial notice or by hearing expert evidence, it is of critical importance that the court gives consideration to the magnitude of the risk if permission is given, the magnitude of the consequences if the child cannot be returned or the order is breached and whether

the risk and the consequences can be provided for by the available safeguards. The Court of Appeal found that the evidence before the lower court from the Foreign and Commonwealth Office and the lack of identified safeguards were not sufficient to meet the risk of taking the child to Iran.

The case before Cobb J was a re-hearing of the mother’s application. However, the mother shortly before the commencement of the hearing and without formal application sought leave to remove the child temporarily to Turkey (a Hague Country) should her primary application fail.

Cobb J heard oral evidence from an expert on Iranian law. At the conclusion of the evidence the mother conceded that the plan to travel to Iran was not sustainable given the risks identified by the expert of the Iranian authorities preventing her from returning from Iran with the child.

In considering the mother’s application for temporary leave Cobb J applied the guidance of Patten LJ in Re R and granted the mother’s application on the grounds that it was in the child’s welfare, pursuant to Section 1 of the Children Act 1989 for her to have a holiday with her maternal family.

Cobb J accepted there were sufficient safeguards for return of the child including that there was little evidence that the mother wished to return to Iran permanently but also rejected the father’s concerns about the dangers of the mother travelling to Iran from Turkey.

The following safeguards were identified: • Turkey was signatory to the 1980 Hague Convention • Sworn undertakings were to be given by the mother to the Court: i. to provide details of travel, accommodation, flight numbers and other relevant information ii.to return AH to this jurisdiction at the conclusion of the holiday; iii. not to seek a passport for AH in Turkey, from the Embassy or consulate in Istanbul or Ankara or elsewhere; iv. to apply as soon as practicable to obtain a British passport for herself. c. The mother would swear her intention to return AH to this jurisdiction on the Koran before an Imam, if required; d. The mother to lodge her and her Iranian child’s birth certificate and a divorce certificate with her solicitors during the period of travel Cobb J noted that the father had in the past previously proposed that the mother travel to Turkey to meet her family as an alternative to traveling to Iran and that the father was a less than impressive witness. The mother’s application for temporary leave to remove the child to Turkey for a holiday was granted.

Conclusion The cases outlined above raise common issues in cases of child abduction and applications for temporary leave to remove and have broader application in matters involving international children law.

I hope I have been able to demonstrate that the issues involved are not so esoteric such that they should be the sole province of specialist solicitors and barristers.

Malcolm Macdonald, Barrister, 36 Bedford Row Malcolm is a dual qualified solicitor and barrister in England and Wales and Australia. He qualified in Australia in 2004, cross qualified as a solicitor in England and Wales in 25 and was called to the Bar in 2010. He has extensive advocacy experience in complex litigation and has been reported in several leading cases.

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Professional Practice

Anyone can prepare a will, can’t they?

Will writing is an active and changing area of law; yet practitioners working in other areas of the legal profession often underestimate the challenges that these changes pose. Martyn Frost, TEP and Tutor for the STEP Advanced Certificate in Will Preparation believes this is the reason why the view that anyone can ‘do wills’ is still encountered.

Reported cases in the Wills and Trusts Law Reports demonstrate continuing problems with issues inherent to will writing, such as, undue influence, domicile, forgery, donatio mortis causa and I(PFD)A 1975 claims.

Some of these issues made it to the Court of Appeal with one execution and rectification matter going all the way to the Supreme Court. Reported cases, however, are very much the tip of the wills litigation iceberg.

Statutory changes have been common to this area in recent years, such as, new Acts amending presumption of death, some trust accounting issues (which impinge on will preparation) and the new Non-Contentious Probate Rules that are on the way, which add to the number of reported issues assimilated into practice each year.

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Changes in the structure of UK society have, moreover, added a sociological aspect to the field’s development and have been alluded to by the Court of Appeal in I(PFD)A 1975 decisions. To put these changes in the context of everyday variations in domestic structures and relationships, one can see that practical problems are likely to arise for the will advisor. Other areas of impact are: • wealth holding; • mobility of population across borders; • greater life expectancy and a switch to commercial care in old age.

Whilst anyone can write a will, it is inconceivable to think that clients would choose a Will Writer without either adequate training or an understanding of the changing demands of an evolving market place.

In the absence of regulation, what is there to differentiate the quality provider of will writing services? The answer is training, qualification and expertise. Now in its fifth year, the STEP Advanced Certificate in Will Preparation is the only specialist qualification in the field and is the benchmark for TEPs, solicitors, barristers and professional will writers. This Advanced Certificate helps to develop the knowledge and skills required of the wide range of professionals involved in will preparation, whilst allowing you to demonstrate a high standard of knowledge through a qualification that will set you apart from the competition as a competent will draftsman.

For more information, please visit www.step.org/AdCertWP or email cltinternational@centlaw.com

Legacies

LEAVING THEIR BELOVED FOUR-LEGGED FRIEND WITHOUT AN OWNER Some dog owners worry what might happen to their dog if they were to pass away first, leaving their beloved four-legged friend without an owner. Thankfully, Dogs Trust, the UK’s largest dog welfare charity, offers the Canine Care Card, a special free service that aims to give owners peace of mind, knowing that the charity will look after their dog if the worst should happen. Not only does this offer reassurance to dog owners, it also helps to ease the minds of friends and family during what is already a distressing time.

Over the past 12 months, Dogs Trust has taken in a whole host of dogs across its 20 rehoming centres in the UK as part of the Canine Care Card scheme and helped them settle into happy new homes.

One of these dogs was Suzy who arrived at Dogs Trust Loughborough aged six-years-old when their owner sadly passed away. Scottish Terrier Suzy had spent most of her life with her previous owner so she was used to her home comforts. Dogs Trust Loughborough was able provide Suzy with a home away from home while she awaited her furrytale ending.

Dogs Trust never puts a healthy dog down, and works hard to match every dog with a responsible, loving home. After being cared for by Dogs Trust Loughborough, Suzy was soon rehomed and began settling in with her new family.

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Adrian Burder, Dogs Trust CEO says, “Thanks to Dogs Trust’s Canine Card Card scheme, dogs in need of a new home are given a lifeline meaning that Suzy and many dogs like her are able to get a second chance at happiness and bring joy to a new family. If you decide to become a Canine Care Card holder, we will issue you with a wallet-sized card. It acts in a similar way to an organ donor card and notifies people of your wishes for your dogs, should anything happen to you. Dogs Trust also strongly recommends that you mention the care of your dog in your Will. That way, there can be no confusion about your wishes.”

Professional Practice

CILEx APPOINTS WINE OF THE SEASON CHIEF OPERATING OFFICER with Conal Gregory, Master of Wine

The Chartered Institute of Legal Executives (CILEx) has today announced the appointment of its new chief operating officer, Linda Ford, who will take up the post on 24 August.

Linda, who is currently head of the Education and Standards Directorate at the General Optical Council (GOC), will focus on implementing CILEx’s business plan through the efficient and effective delivery of existing and new products and services, professional schemes and qualifications.

Commenting on her new role, Linda said: “I am delighted to be joining the CILEx team at such an exciting time, with significant changes in the way legal services are delivered and the opportunities provided by practice rights and the ability for Chartered Legal Executives to establish entities.”

She continued: “The CILEx approach, providing flexible training pathways and world class qualifications, provides a solid foundation to meet the future needs of the legal sector and I look forward to working with the team to determine how we can continue to train and support our members and Fellows in response to these changing demands.”

by Linda Ford

Chief executive of CILEx Mandie Lavin said: “Linda brings tremendous breadth and depth of experience to this role. Her track record of achievement and delivery make her ideally suited to lead our operations during a time of reform, challenge and change.”

Current chief operating officer Helen Whiteman commences her role as chief executive of CILEx Regulation on 1st September.

Chile has a reputation for making wines of real character at an affordable price. One of the country’s family-owned wineries is Viu Manent, situated in the Colchagua valley. Founded in 1935, its strengths are Cabernet Sauvignon and Malbec.

Seek out Gran Reserva Cabernet Sauvignon, made largely still from vines over half a century old. The 2011 shows a raspberry red hue, inviting cherry fruits on nose and a rich, still tannin structure on taste. Great value at £11.90 (Spirited Wines).

For fish and poultry dishes this summer, the apricot and jasmine flower aromas of Viognier with appealing acidity are just right. Try Eagles’ Nest 2014 made at the foot of Table mountain in Constantia in South Africa. The grapes are hand-picked and the wine is barrel fermented for six months. Dry and stylish, it has real class. £22.90 (Handford).

Sponsored by NFU Mutual Bespoke, high-value home insurance tailored to protect everything you value, including art, antiques, fine wine and more.

Visit www.nfumutual.co.uk/bespoke for further information.

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Book Reviews

BEYOND MAGNA CARTA A Constitution for the United Kingdom

by Andrew Blick Hart Publishing Bloomsbury Publishing plc ISBN: 978 1 84946 309 6 www.hartpub.co.uk

ARE WE REALLY ‘BEYOND MAGNA CARTA’? CONSIDERING THE CASE FOR A WRITTEN UK CONSTITUTION An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers In this 800th anniversary year of 2015, there have been almost countless books written about Magna Carta and numerous celebrations to commemorate it on both sides of the Atlantic. With its fierce defiance of tyrannical and repressive rule, this now ancient document continues to inspire controversy and veneration almost in equal measure.

It is fortunate, 800 years later, that the influence of Magna Carta continues to prevail, while still generating further controversy and discussion - hence the recent publication of this erudite and fascinating book from the Hart Publishing imprint of Bloomsbury.

Unlike most current publications on the subject of Magna Carta, this book places it in its historical context. Taking an almost panoramic view of the past eight centuries, the author Andrew Blick of King’s College, London, considers Magna Carta in the light of the social, political and constitutional developments which have followed it. In so doing, he

constructs a detailed and carefully argued case - as the subtitle indicates - for ‘a constitution for the United Kingdom.’

In case anyone needs reminding, the UK does have a constitution - which is good. But in the view of many, its major flaw (or perpetually annoying disappointment) is that it is not written down, which is - um - not so good. The Americans have a written constitution, complete with amendments implemented from time to time, but in fact difficult to amend. The old Soviet Union certainly had a written constitution which successive dictators cynically ignored. The current Russian constitution, also written down, appears to be alarmingly vulnerable to the whims of whoever holds onto power.

In the United Kingdom, an unwritten constitution has been traditionally regarded as more flexible, pragmatic and ultimately fairer for the very reason that it isn’t written down. Instruments known as ‘conventions’ do exist, however which function as mechanisms for change as social mores change.

Conventions of the Constitution (which are not effectively binding in perpetuity) offer a level of flexibility which the US constitution does not apparently have.

Nonetheless, Blick’s arguments in favour of a written constitution are persuasive. In Parts I and II of the book, the reader is taken on a fascinating journey through English - and subsequently UK history, focusing on those documents, (yes many of which were written) which have shaped or influenced UK

constitutional development.

In Part III Blick puts forward both the positive and negative case for creating a written constitution and furthermore tackles the practicalities of its actual presentation, including writing style and preamble.

The book cannot fail to reveal, however, that there has been little political will to change the status quo and develop a written constitution; otherwise somewhere, sometime in the last 800 years, or notably recently particularly and possibly under Gordon Brown - we would somehow have acquired one.

Complex and convoluted arguments aside, the fundamental question regarding a written constitution for the UK pivots on whether it would be a step forward, or a step backward for this nation. The author therefore has created a valuable and meticulously researched study which should be read both by those who favour a written constitution - and those who do not. Either way, the book is a valuable contribution to the corpus of literature and analysis on UK constitutional history.

The publication date is cited as at 2015.

ANTI-SOCIAL BEHAVIOUR The New Regime

by Anesh Pema & Justin Crossley Jordan Publishing Also available as an eBook ISBN: 978 1 84661 947 2 www.jordanpublishing.co.uk

THE NEW REGIME ON ANTI-SOCIAL BEHAVIOUR EXPERTLY AND CLEARLY EXPLAINED IN PRACTICAL TERMS FOR 2015 An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers This important new statement from Jordan Publishing Limited on the changes introduced by the Anti-social Behaviour, Crime and Policing Act 2014 is most welcome for its clarity and expertise from 2015 but will certainly not be an end to Parliamentary intervention in this difficult area of law.

The book offers a detailed practical analysis on the new legal framework as we begin a fresh era on how to deal with these essentially community-based problems which were viewed by our Coalition government (2010-2015) before the new Conservative government took office in May 2015.

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The two authors, Anesh Pema and Justin Crossley, have written a highly competent and very helpful guide for all on the new legislation. Their purpose is to provide practical current advice to all those involved in dealing with anti-social behaviour, and also those who act on behalf of people accused of allegedly behaving ‘anti-socially’.

Pema and Crossley explain in very clear terms the new procedures and remedies available for lawyers and lay people alike. The methods they use are designed to be as straightforward as possible for those applying for, or defending under the new regime. Of great help, too, are the discussions on the preceding legislation together with the relevant caselaw decided under the old provisions which will assist all in the interpretation of the 2014 Act. There are 13 chapters in the first hundred or so pages. The rest of the book comprises the 8 detailed appendices makes up the bulk of the book with a helpful index at the back. We found the practical know-how from these two professional experts on antsocial behaviour very helpful.

The coverage of this important area of community law where both criminal and civil jurisdiction unusually coincide concentrates helpfully on the formulation of

protocols and the creation of multiagency working groups to the preparation and presentation of cases in court and handling the matter of breaches.

The modified regime on antisocial behaviour is given much needed expert explanatory comment in this new work. It includes important time-saving practical materials such as draft applications, notices and orders, and all the relevant statutory provisions including all the amendments.

We welcome the fact that the authors have given us an extra special service here so that we, as lawyers and advisers, have everything available as a short one-stop shop being a well thought out successor to their popular earlier work - “Anti-social behaviour: A Special Bulletin”. Thank you.

The law is as stated at 15th April 2015.