Caste Based Discrimination

The Employment Tribunal in a ground breaking judgment in the case “Tirkey – v – Chandock and Another” upheld numerous claims brought by an Indian woman of low caste who was kept in servitude by her employers for some 4½ years.

The claims included those for Religious and Race Discrimination (the Claimant is a Christian whilst her married employer couple are Hindu).

The Employment Tribunal found that the Respondents had subjected the Claimant to unacceptable working conditions including :

• Working 18 hours per day for 7 days per week
• Required to be on call 24 hours a day
• Paid 0.11 per hour (the National Minimum Wage is currently £6.50 per hour)
• Forced to sleep on a mattress on the floor
• Refused permission by the Respondents to bring her Bible to the UK

The Claimant’s evidence was accepted in full, with the Employment Tribunal finding that the conditions of domestic servitude in which the Claimant was kept amounted to a clear violation of her dignity.

Another potentially far reaching development arising from the case, related to the implementation of the Deduction From Wages (Limitation) Regulations 2014 (which came into force on 9 January 2015) and which prevents anyone from claiming more than two years wages owed.

With effect from 1 July 2015, the amendment limits how far back an employee can go when claiming a series of deductions from wages to a period of 2 years ending with the date that the claim was presented. Prior to this, the limitation period which applied was a far more generous 6 years. If you have any concerns about deductions taken from your wages, please contact either Darren Baker or Clare Riches to discuss your options further.

Access to Justice – So you have a Court Order; what now?

All governments like to say they promote access to justice and it is viewed as a fundamental human right. When lawyers raise the issue of access to justice, it is most often in connection with the withdrawal of legal aid (public funding). There are probably quite a few people who are in agreement with the removal of legal aid from the vast majority of family cases, as it was perceived as a blank cheque for litigation by those who were not eligible to receive it.

However my point in this article is that access to justice is only as good as your ability to enforce the terms of any order made.

If orders, once made, are too expensive or complicated to enforce, they become worthless and the whole system becomes pointless.

The court system is based on the assumption that by and large people respect the rule of law and that no one would ever contemplate disobeying a court order.

So what to do when they don’t stick to the order?

Where an order deals with ongoing payments such as spousal or child support (where the CMS does not have jurisdiction), the choice is fairly stark. If the payor is in employment, you apply for an attachment of earnings order – job done. If the payor is self employed – you could face a number of difficulties and expert advice will be required.

There are also some choices when enforcing a lump sum payment and if you can identify a fund or asset from which the money can be paid, you should eventually get your money. Here you are also helped by the fact that interest runs (at an attractive rate) automatically on lump sums of £5000 or above, so there is both an incentive to pay and a benefit to receive when you finally have enforced.

For some the biggest headache is the reluctant sellor when the court orders the sale of a property. In many family cases, the end result is that the family home has to be sold. However one party may not have wanted the sale and now, after the order for sale has been made, even if by consent, is when the prevaricators come into their own. Many people using the family court system do not realise that the court does nothing to enforce its own orders. It does not monitor compliance with time scales for action or payment. This can leave those acting without solicitors in limbo.

Depending on the action (or inaction) being taken by the reluctant selllor, different avenues are open to the other party but it will undoubtedly mean an application back to court. It may mean one or two or three applications back as the court deals in turn with the appointment of the estate agents, the marketing price, access to potential purchasers, acceptance of an offer and finally signature of the necessary sale documentation. You can obtain costs orders, to be deducted from the reluctant party’s share of the sale proceeds, but the bigger cost can be the delay which will then impact on the chance of tying in a related purchase.

To add insult to injury for anyone caught up in this type of frustration of a court order, the Government are increasing the fees for these type of “general” applications, from £155 to £255 later this year. This may be seen as a licence to those who do not want to co-operate with the sale, to make as many difficulties as possible as few people, after taking proceedings to the point of a final order, have spare money to fund repeated enforcement applications.

Here a solicitor can make all the difference to achieving as much as possible in one or (maybe two) applications to the court. Whilst use of a solicitor is a further cost, in these type of matters it can represent a saving overall not simply in money terms but in getting to the point of final closure.

K. Anker 15.9.2015

Leaving the country for good.

A recent reported case from the Court of Appeal will assist parents faced with an application for their child to be taken to live permanently in another country.

The law over “leave to remove” has been in a state of flux for a number of years as the courts struggled to align the changing structure of families with earlier case law which they were forced to follow.

Going back 10 or more years, it would have been fairly safe advice to a parent with whom the child lived that she would succeed on an application to move permanently with the child to another country. I say “she” as it was, and in reality still is, the case that mothers are the main carers in a lot of families, often referred to as “primary carer”. When it is the mother who wishes to relocate with the child, that role of primary carer has frequently meant that permission has been granted, to the detriment of the father, left behind in this country.

It was the Court’s interpretation of a 2001 case ( called Payne v Payne) that created this perceived bias in favour of the primary carer ( and in consequence therefore the mother) by giving guidance that the Judge should specifically look at the effect of a refusal to allow relocation on the parent wanting to go and giving weight to their wishes, particularly if they were returning to their native country or moving because of employment of a new partner.

The Court of Appeal has used this most recent case “F (a child) (international relocation cases)”to put forward a new approach which ought to be adopted and has also taken the opportunity to downgrade the previous guidance and criticise Judges for being to over-reliant on it in the past. It has reminded Judges that the child’s welfare is to be the paramount consideration and that the proposal put forward by each parent for living arrangements, education, healthcare and contact with the other parent are to be carefully scrutinised with the child’s welfare in mind.

In practice this means that the Judge will have to look and evaluate the harm to the child ( and not the parent) if permission to relocate is refused, as against the harm that may result from separation from the parent left behind, should permission be granted.

The Court of Appeal has firmly tried to assign the Payne and Payne guidance to the past, criticising it for promulgating gender inequality and, saying “in the decade or more since Payne it would seem odd indeed for this court to use guidance which out of the context it was intended is redolent with gender based assumptions as to the role in relationships of parents with a child.”

However, a note of caution. In the facts of this case, the mother had been generally unsupportive of the child’s contact with the father, which had required an application by him to have overnight staying contact, which of itself had only been granted in the preceding year. The court also took note of the fact that the mother had given no indication of any intention to relocate in the financial proceedings, or at the early stages of the father’s application for contact. The parents were of different faiths and there was a clear issue as to the mother’s lack of support for the child’s paternal cultural and religious heritage. In other cases, the risk of harm to the child in moving to a different country to her father, may not be so visible.

Would DR SPIP help you?

Would DR SPIP help you?
There is a tendency among lawyers to use acronyms that leave others none the wiser. This seems particularly the case in matters involving children with:

• CAA – Child Arrangement orders – these replaced residence and contact orders with the phrases “live with” and “spend time with”

• FHDRA – First Hearing Dispute Resolution Appointment
This is the first court hearing after and application has been made to the court. It is held to assist the Court in identifying the issues between the parties at an early stage and to see if it is possible for the parties to reach an agreement.

• CAFCASS – Children and Family Court Advisory and Support Service
This service helps children going through care or adoption proceedings or where parents are separated and are unable to agree about future arrangements for their children. It is the voice of the child in the family courts.

So what is DR SPIP ?
The Separated Parents Information Programme is a course designed to help separated parents become clear about what their children need most from them and learn the fundamental principles of how to manage conflict and difficulties, including how to put this into practice. It is a court ordered programme and is free.

However, it was felt that it was often too late for parents and their children to get the most benefit from the programme if they were only able to attend it, after the issue of a court application when emotions were often at their height, and parents were most likely to feel aggrieved.

And so DR SPIP was introduced. This is the same SPIP but outside of court proceedings, thus the DR reference , for Dispute Resolution. In Cambridge this is delivered by Cambridge Family Mediation Service and is free. It is not free all over the country.

Former couples do not attend the same course. It requires a whole day as the 4 hour course is interspersed with tea/ coffee and a lunch break. There are group discussions and a video, which sets out in a non nonsense way what children want from their parents when separating, and afterwards. There is an expectation that attendees will continue their training by using the online programme “Getting it right for children when parents part” which has been created by OneplusOne. This online resource can be dipped in and out of, as and when the parent has time to work through the 5 levels. It is accessed at

A significant number of attendees have told the providers that they wished they had been made aware of the resource of both eth face to face course and the online facility earlier, before they had the difficult job of telling their children of the separation.

So this may be the right resource for you, if you are considering separation or divorce, to give you the understanding and tools to handle matters in the best way possible for your children. Even if you are some way into the process, it is never too late to seek to make improvements.

Contact :Cambridge Family Mediation Service or Karen Anker at this form for further information


Mediation given Access Boost

As from 3rd November 2014, if one of a separating or divorcing couple is eligible for legal aid in mediation, then both partners get the first session free. This new measure is funded by the government to encourage couples to look at mediation as a means of resolving issues arising on separation whether it is the arrangements for any children or money matters. Continue reading