Author: Karen

LIFE BITE: Material Girl Madonna fights for custody of son in Court

/ Karen / 1 Comment

apple-150579_1280Madonna and her former husband Guy Ritchie are in the midst of a transatlantic custody battle over the parties’ 15 year old son Rocco.

Legal proceedings began when after Rocco left Madonna’s world tour in December and went to live with his father in London.

Madonna claimed that Rocco had lived with her in New York since she divorced Mr Ritchie in 2008.   Attempts by the singer to get her son to return to her care were unsuccessful, and she took the matter to a New York Court in December. The Court made a ruling that Rocco should be returned to his mother’s custody but this was ignored by the teenager.

The matter has been adjourned until later in the year by the US Courts and today it has since been reported that Madonna has issued further proceedings in the English Court for the return of her son. The US Judge dealing with the case urged both parties to “consider what is the best interests of their son”

It might surprise you to hear that most child abduction cases in the UK do not involve strangers.  Parental child abduction has become a more common problem in recent years than most of us would like to believe.

Parental child abduction is an issue which has been addressed by the Courts on an international level.  The 1980 ‘Hague Convention on the Civil Aspects of International Child Abduction’ is an agreement between various countries which aims to ensure the return of an abducted child to the country where he or she normally lives, so that issues of residence (custody) and contact (access) can be decided by the Courts of that country.

It is important for any parent to be aware of their rights under The Hague Convention and the legal proceedings they can issue to ensure the return of their child should the unthinkable happen.

You should seek legal advice as soon as possible if you are worried that:

  • Your child has been abducted from overseas to Northern Ireland
  • Your child has been abducted from Northern Ireland and taken abroad
  • You are being accused of abducting your child

If you would like more informaiton on this area, please feel free to contact us on kconnolly@fhanna.co.uk or leave your comments below

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Mediation: A Practical Guide

/ Karen / 2 Comments

pointing-mediationMany people may believe that going to Court is their only option to resolve a dispute.  Court proceedings can often be not only expensive but also stressful and antagonistic.

Thankfully, there are in fact other alternatives to Court proceedings – one of which is the process of mediation.

Nigel Martin trained as a Mediator at Harvard Law School. In his first of a series of guest blogs for Life Law NI, Nigel provides us with some practical information on mediation

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­­­­­­­­­­­­­­Many people who are involved in a dispute are concerned about the uncertainty of the outcome of formal Court proceedings. They are naturally worried about the open-ended costs of going to Court. They would also like to have more control over the resolution of the dispute and the time-frame for resolution.

Those of you who share those concerns will be pleased to learn that there are some alternatives to Court proceedings, sometimes referred to as “Alternative Dispute Resolution” or abbreviated to “ADR”.  There are two principal alternatives to formal Court Proceedings, namely Mediation and Arbitration.

The key difference between Mediation and Arbitration is straightforward.  With Mediation, a Mediator is appointed to facilitate a process in which the parties try to reach an agreement between them to resolve their dispute. With Arbitration, the parties agree to appoint an Arbitrator to actually determine the dispute for them and they agree to be legally bound by that determination.

In this first part of my guest blog for Life Law NI, I would like to concentrate on looking at the area of mediation. I will look at what mediation is and how it works.

What is mediation?

Mediation is a voluntary process in which an expert neutral, (the Mediator) allows each party a full and fair opportunity to express what is really important to them – not just what might be regarded by lawyers as “relevant” under the strict rules of evidence. Each party has the opportunity to hear the other party and, most importantly, to be heard themselves. The parties and the Mediator can examine the parties’ real interests and look creatively at all the options for resolution by way of agreement.

How does mediation work in practice?

 The parties can approach and appoint a Mediator directly, however most parties instruct a solicitor both for legal advice and to retain the Mediator on their behalf.

The parties are free to retain their solicitor to appear or advise them during or in tandem with the mediation. Sometimes where mediation takes place at an advanced stage of Court proceedings and the parties have already retained legal representatives, those legal representatives can attend the mediation and provide an analysis of the legal issues. However, it is important to stress that mediation is very different from Court proceedings and requires the direct engagement of the parties rather than their respective lawyers.

Typically, the Mediator will ask the parties to sign an ‘Agreement to Mediate’. This protects confidentiality and usually preserves each parties’ formal legal position pending the outcome of mediation. The parties then agree a time and place for mediation and provide the Mediator with any relevant documents in advance. The mediation takes place in private at a venue chosen by the parties. The parties control the timetable for mediation – it can take place over a series of short sessions or on an ongoing basis on consecutive days in more complex disputes.

What happens at mediation?

There are two primary models for mediation:

  • The Caucus Model – this sees each party occupy a separate room for most of the time with the Mediator shuttling between the rooms trying to “negotiate” a settlement.
  • The Model of Understanding – this is a model developed and taught by the Harvard Negotiation Institute at Harvard Law School in the USA. In this model, parties spend most of the time in joint session together with the Mediator. Working together in one room can increase mutual understanding and help model an agreement.

In each model, where the parties reach a consensus, the Mediator will assist them in either drawing up a simple agreement which will be legally binding and enforceable. If it is a complex matter, the Mediator will instead assist the parties in drawing up Heads of Agreement which their respective lawyers can flesh out with detail.

In either case, the goal is to have an agreement in writing signed by both parties which will be legally enforceable and binding of itself without the need for a Court Order. If Court proceedings are already underway, the agreement reached can thereafter be made an Order to conclude the proceedings.

Why choose mediation before litigation?

Court Proceedings rarely provide a real resolution of the underlying dispute or the emotions that drive it.  The Court must determine a legal claim within the strict legal framework and based on strictly admissible evidence. What you feel or what you regard as most important may never be heard by the Court or may have absolutely no relevance to the legal criteria.

The process of litigation is intensely competitive and highly oppositional, a bit like a Tug of War.  Litigation demands your time, focus, energy and increasing financial resources.   It is a process controlled by the Court and not the parties. The determination of a legal claim at first instance does not guarantee an end to the dispute as typically each party will have an automatic right to appeal to the next tier of the Court.

More information can be found on mediation, arbitration and litigation at www.nigelmartin.co.uk.

 

 

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Enduring Powers of Attorney – All Your Questions Answered

/ Karen / 1 Comment

 

elderclientNone of us like to think of the possibility as we grow older of getting too ill, either mentally or physically, to manage our property and finances ourselves.

We can all easily assume that, somehow, we will be able to manage our affairs throughout our lives – that we will always, for example, be physically capable of getting to the bank or post office to withdraw money or pay bills, or that we will always be mentally capable of understanding and signing documents connected to our property.
Whilst many of us will throughout life be able to look after our affairs as independently as ever, the sad truth of the matter is that for others, the ability to be physically or mentally capable of managing property or finances can be unexpectedly lost through accident, injury or the onset of illness such as dementia.

It is therefore reassuring to know that there are things that you can do to help you plan for the future should the worst happen.  You can plan for these possibilities by taking sensible precautions whilst you are mentally and physically capable of doing so.

 How? 

By executing a document known as an Enduring Power of Attorney (EPA)

So, what exactly is an Enduring Power of Attorney?

An Enduring Power of Attorney is a Deed by which you can give authority to another person (your “Attorney”) to act on your behalf in relation to all or specified property and financial matters.

An EPA is not a Will.  A Will is only relevant after your death.  An Enduring Power of Attorney deals with the management of your property and finances when you are alive, but unwell.

Do I lose control when I sign an EPA?

By executing an EPA, you are potentially sharing control of your property and finances with your Attorney.

You can however state that the EPA is not to come into operation unless you become mentally incapable.   Some people prefer to keep the EPA restricted in this way.  Other people choose not to, as they wish their EPA to be effective if they remain mentally capable but become physically incapacitated and unable to manage their banking etc.  This is an important choice which should be carefully considered before executing an EPA.

Who should I appoint as my Attorney?

You can technically appoint anyone to be your Attorney however it is important that you ensure that you appoint someone that you trust completely, whether a family member, friend or professional advisor.   An EPA gives your Attorney complete control of your property and finances (unless restricted) and so you must be confident that your Attorney will have your best interests at heart.

It is also important that you discuss your intentions with any Attorney you intend to appoint as an Attorney must accept such an appointment, and sign the EPA form after you.

Can I have I have more than one Attorney?

Yes, indeed it is often practical to have more than one Attorney. If you choose to appoint more than one Attorney, you must decide whether they can act independently of each other or whether they must always act together.  This choice is not entirely straightforward you may need legal advice to guide you in this regard.

What Powers would my Attorney(s) have?

Subject to the terms of the particular EPA, an Attorney has wide authority to stand in the Donor’s shoes and make all decisions about your property, income and finances, which you could have made, with a few exceptions.

An Attorney cannot do the following:-

  • Make a Will for you
  • Sign an affidavit
  • Perform any act which you were authorized to do because of personal appointment, personal skill or a statutory direction.
  • Make medical or personal welfare decisions for you.
I don’t have assets or property of my own – is there any point in signing an EPA?

Regardless of whether you own property or have assets, someone will need to manage your pension or benefits if you cannot do so yourself. This will be made much easier with an EPA in place.

All of my assets are jointly owned with my spouse/partner – would I still need an EPA?

If it became necessary for your jointly owned house to be sold and you were not mentally capable of signing the deeds yourself, only a person with authority (such as an Attorney) can sign on your behalf.  One joint owner cannot sign deeds for all co-owners.

Often, joint bank accounts are frozen if a bank becomes concerned that one party is no longer capable and there is no EPA is in place. This can cause cash flow problems for all of the account holders. This can be avoided with an EPA.

What responsibilities would my Attorney have?

At all times, your Attorney must act in your best interests. Your Attorney must apply to register the EPA with the High Court if you have become or you are becoming mentally incapable of managing your financial affairs.  During the registration process, the authority given to your Attorney is effectively “on hold” until the process has been completed and the original Deed is issued bearing the court registration stamp.

Your Attorney is obliged to give you formal notice if steps are being taken to register your EPA.  As an added protection, your Attorney is also obliged to give notice to a number of your next of kin.  You, or family members notified can lodge an objection with the High Court, if you or they consider the registration of the EPA to be inappropriate.

Can I change my mind and revoke an EPA?

Yes, you can revoke an EPA while you remain mentally capable, and your EPA has not been used.  You should give notice of revocation to your Attorney.  However, once an EPA has been registered, it can only be revoked by the High Court.

If I recover my capacity, who is in charge of my affairs then?

There is a procedure to de-register an EPA which would allow you to resume control of your affairs yourself.  It would be important to seek legal advice to guide you on this process.

Is it expensive to make an EPA?

No. Legal costs are modest as the paperwork is not complicated once the important decisions have been made with professional help.  In fact, it would be much more expensive NOT to have an EPA should you have the misfortune to lose your capacity.

LJohnstonThis article was provided by LINDA JOHNSTON, Partner at FRANCIS HANNA & CO SOLICITORS.  Linda has a significant experience in the areas of FUTURE PLANNING.  For further information on this area of law, feel free to CONTACT US HERE AT LIFE LAW NI or contact Linda at lj@fhanna.co.uk  

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Hitting the slopes this Ski Season? Ensure you’re Insured!

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snow-mountains-winter-sportIt seems like only a moment has passed since Christmas yet here we are at mid-term break again. As the school break conveniently coincides with European ski season, many of us may take the opportunity to go ‘off piste’ by heading to the ski slopes for long weekend of snowboarding and après ski.

Whilst we do not wish put a damper on the fun and enjoyment gained from skiing, it is important to be aware if you are heading to the slopes this year that if you fail to take notice of standard safety rules and mountain etiquette whilst skiing, you could find yourself held liable for injuries that may be caused as a result.

Following Michael Schumacher’s accident in December 2013, there has been increased awareness of ski safety and much higher numbers wearing ski helmets.  Still, statistics from the Foreign & Commonwealth Office show that 40% of skiers and snowboarders have been injured at least once and almost one-third of those have suffered a significant injury, such as a broken leg.  It is one thing injuring yourself, but what if your actions cause injury to someone else?!

Deborah Evans, chief executive of the Association of Personal Injury Lawyer (APIL)* explains;   “Over-zealous skiers and snowboarders who put speed before safety and disregard standard rules, such as giving priority to skiers in front, risk causing serious injuries to others.”

Deborah has likened skiing collisions to road traffic accidents and calls for those travelling abroad to ski this season to ensure that they have the appropriate insurance cover in place;-

“Ignoring the rules of the mountain, like the road, could make you at fault if you collide with a fellow skier. Assuming you’ve taken out the appropriate winter sports cover, your insurer should cover the help and assistance the injured person needs, such as medical bills and repatriation if it happens abroad. That doesn’t alter that fact that you still will have caused unnecessary suffering which could have been avoided.

If you are in a collision, you need to treat it in the same way as you would if you were driving – call for help and swap insurance details”.

So before you pack the hats, boots and goggles (not to mention skis!) it is both sensible and advisable to ensure that you have the appropriate insurance over in place to protect yourself against any potential legal action in the event of an accident. And if you are injured as a result of someone else’s actions make sure that you get their details at the time of the accident.

For more information on this area, please feel free to contact us by email or alternatively please leave us your comments below
*APIL (Association of Personal Injury Lawyers) is a not-for-profit organisation whose members are dedicated to campaigning for improvements in the law to help people who are injured or become ill through no fault of their own.

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LIFE BITE: Starbucks Employee wins Disability Discrimination case

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apple-150579_1280The media reported yesterday that a dyslexic woman accused by her employer Starbucks of falsifying documents  has won a disability discrimination case against her employer.

A Tribunal found Meseret Kumulchew had been discriminated against after making mistakes due to her difficulties with reading, writing and telling the time.

Ms Kumulchew was a supervisor at a Starbucks in Clapham.  One of her job roles was to be responsible for taking the temperature of fridges and water at specific times and entering the results in a duty roster.   After mistakenly entering wrong information on the roster,  she was accused by Starbucks of falsifying documents.

Ms Kumulchew told the Tribunal that she had always made it known to her employer that she was dyslexic and claimed disability discrimination after she was accused of fraud.  The Tribunal found Starbucks had failed to make reasonable adjustments for Ms Kumulchew’s disability and had discriminated against her because of the effects of her dyslexia.   The level of compensation to be awarded to Ms Kumulchew has yet to be decided.

Discrimination happens when an employer treats one employee less favourably than others.  It could happen in a case like Ms  Kumulchew’s or in other instances – for example,  if a female employee is being paid less than a male colleague for doing the same job, or if an employee from a minority ethnic community being refused the training opportunities offered to other colleagues.

There are specific laws against some types of discrimination (called ‘unlawful discrimination’). If your employer treats you less favourably for an unlawful reason, you may be able to take action.

If you require legal advice relating to disability discrimination or if you feel you have been discriminated against by your employer in any other way, please contact us  mgavin@fhanna.co.uk or leave your comments confidentially below

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