Stephens Scown Lawyers in Exeter, Turo and St Austell

The Repeal of Mineral Royalties Relief

Philip Mogridge — Thu, 17 May 2012 16:02:41 +0000

Mineral royalties relief was introduced in the 1970’s (when rates for income and corporation taxes were high) as an incentive to encourage mineral owners make minerals available for commercial exploitation. Mineral royalties were treated as having both an income and a capital element. The Government’s view is that, as tax rates are considerably lower than those when the relief was implemented, it is no longer needed.

The 2012 Finance Bill includes legislation to repeal the relief which allows 50% of mineral royalties received to be treated in the same way as a capital gain. More specifically, the provisions relating to tax relief for mines and minerals contained the Income Tax (Trading and Other Income) Act 2005, the Corporation Tax Act 2009 and the Taxation of Chargeable Gains Act 1992 are to be repealed.

This relief allowed for half of eligible mineral royalties to be taxed at the generally lower rate on gains, leaving the remaining 50% subject to income or corporation tax. The relief is to be withdrawn in respect of the royalties received on or after 1 April 2013 for businesses subject to corporation tax and 6 April 2013 for businesses subject to income tax. After these operative dates, mineral royalties will be fully liable to corporation or income tax. This includes royalties received in respect of existing mineral leases and agreements.

Landowners who receive mineral royalties can currently claim relief for the loss of value to the land in question. The losses are crystallised at the time the agreement or lease ends. The loss can either be relieved in the year the lease or agreement ends or carried back for up to 15 years and set off against any chargeable gains. The relief (in respect of this ‘loss’ element) will continue to be available to landowners with pre-April 2013 agreements. However, the lease or agreement must have been entered into before the operative dates.

This move is in line with the Government’s announcement in last year’s budget that it would repeal seven of the reliefs available under the Finance Act 2011 and that it would abolish a further 36 reliefs in the Finance Bill 2012. The main objective behind the various abolitions was to simplify the tax system. The Government aims to remove those reliefs which are deemed either no longer necessary, or have not achieved their policy justification.

The measure will apply to individuals and all sizes of business, although the Government estimates that the measure will affect less than 800 individuals or households but it is difficult to assess the impact on companies, as the precise numbers on the take up of the relief is unknown, however it is thought that approximately 700 mineral quarries are currently leased.

For more information visit the HM Revenue & Custom’s website: http://www.hmrc.gov.uk/tiin/tiin850.pdf

Disclaimer: The above is for information purposes only and should not be considered tax advice. Stephens Scown LLP does not offer tax advice and if you have any queries or concerns you should contact your tax advisor or HM Revenue & Customs direct.

Time is running out for companies to comply over cookies

Ben Travers — Wed, 16 May 2012 11:57:46 +0000

An alarming number of companies in the South West have not taken any steps to make sure their websites are compliant with new laws due to be enforced from the end of this month, according to one of the region’s top IT legal experts.

Ben Travers, Head of Intellectual Property & Information Technology Law at Stephens Scown LLP, says despite the new regulations governing the use of ‘cookies’ being enforced from May 26, few Westcountry-based businesses will be ready in time.

The Information Commissioners Office (ICO) will not enforce the provisions until after this date, but organisations will need to show they are prepared before then.

Ben says, “Now really is the time to act. Almost every company in the South West is affected by the new regime which will result in a sea-change in the way UK websites operate. Many owners will need to change the practical way in which their websites function, which could have an impact on the experience of the person using the site. Although the new legislation looks complicated and unwieldy, the legal issues can be safely navigated, provided you are careful.”

Cookies are small pieces of code installed on a computer when users visit a website. They can remember login details or products previously viewed, as well as help a website owner and/or third party to track the effectiveness of their online marketing or trace and record web browsing activity – both types of cookies are affected by the revised legislation.

Traditionally cookies have been installed on a user’s computer without the user’s consent. If they did not want to receive cookies, they had to take positive steps to block them. Under the new provisions, this system will no longer be compliant.

Ben adds, “With some very limited exceptions, website owners will have to obtain consent to the installation of cookies before they are installed. This is going to have a potentially negative effect on the user’s experience and enjoyment of a website, particularly if the company asks for consent on their homepage before the user can proceed. It may even drive traffic away if badly managed. Compliance needs to be managed carefully to reduce the risk.”

Stephens Scown says some companies will have to look at whether their website would still function at all if the user rejected consent for cookies to be used.

“Complying with the law, but maintaining the website’s commercial function is going to be a difficult balance,” says Ben Travers, “Get it wrong and you could face a fine from the ICO and risk putting customers off. Making sure you comply with the new legislation is just a small part of the growing data protection obligations placed on businesses. Having an effective privacy policy on your website, and complying with it, can go a long way to ensuring you stay on the right side of the law. At a time when consumers are becoming increasingly savvy about their rights online and in their personal data, it makes business sense to ensure your site complies.”

Stephens Scown LLP, which has offices in Exeter,Truro and St Austell, has now issued some advice, along with a step-by-step guide that businesses can take to ensure they are legally compliant:

1. Identify cookies used by your site, who operates them and what purpose they serve;

2. Provide details of your cookies to your end users. These details must be given prominently (i.e. not buried in a link at the bottom of the page) and must explain what the cookies are and what they do. You should tell the user how long the cookies will be installed for and give them enough information to explain the impact those cookies will have on the user’s privacy;

3. Give users the chance to opt out of receiving cookies, before they receive any. You should explain that not accepting cookies may result in the website not functioning properly; and

4. Delete any cookies which you do not need and ensure the cookies you are using do not go over the top. The ICO will take a dimmer view of cookies which, for example, invade a user’s privacy, survive multiple browsing sessions, or relay data to third parties.

Getting More Child Support

Michael Lowry — Mon, 14 May 2012 15:48:10 +0000

The Child Support Agency was originally created to get money out of parents who were either not paying anything, or enough for the maintenance of their children. To correct this, the Child Support Agency (or C-MEC as it is now called) was created to implement a “one size fits all” policy.

A rigid system was introduced, which deducted a percentage from the income of the parent not caring for the children, or “absent parent” as they were then called.

However, it became immediately apparent that the rigid application of the Child Support Agency formula was creating hardship and unfairness, and so departure directions were introduced in 1995.

These departure directions have now been modified to the Child Support (Variation) Regulations 2000. These variation grounds, if applied, will result in the Child Support liability being increased and will therefore be sought by the parent with care (PWC) where the non resident parent (NRP) has sources of income, or have adjusted their finances, which minimise the Child Support payable. The main variation cases are:-

a) The NRP has income not taken into account (Regulation 19).

b) Diversion of income by NRP (Regulation 19) (4).

c) NRP has assets over £65,000 (Regulation 18).

d) Lifestyle inconsistent with declared income (Regulation 20).

The first point to bear in mind is that the Child Support formula works on the basis of net income from which a percentage is deducted, depending on the number of children. This percentage is again adjusted according to the number of children who live in the NRP’s household, and the number of nights staying contact.

Net income is defined by the relevant regulations as being earnings from employment or self employment, together with Tax Credits and pension/retirement benefits. This means that other forms of income such as rental, dividend and investment income are excluded.

The second point to bear in mind is that the net income figure of the NRP is calculated by determining the gross income (as defined above) and deducting only Income Tax, National Insurance and pension contributions.

A PWC making an application for Child Support may wrongly assume that income from rentals, dividends and investment sources are taken into account. It is often only when the PWC receives the detail of the Child Support liability that they realise that this is not the case.

To ensure that these sources of income are taken into account, it is necessary for the PWC to make a successful application for a variation on one of the following grounds:-

i) Income not taken into account in the standard formula (Regulation 19)(1)(a) This covers the problem when an NRP, through control of their company or business is able to pay themselves an income which is not taken into account in the formula, i.e. dividends instead of a salary. The criteria is that the NRP must be able to control the income they receive from a company or business.

If a successful application is made on this ground, then the dividend income received by the NRP will be added to the PAYE income before the running of the formula.

Regulation 19 will also deal with the problem where the NRP has a nil rate liability based upon status as a member of a prescribed group, e.g. a student. A student might have, for instance, a private income, and this permits a variation to be sought.

ii) Diversion of Income – Regulation 19 (4)

This regulation enable a variation to be sought where the NRP has “unreasonably” reduced the income taken into account by the formula. Here the NRP has to have the ability to control the income they receive, so that they have unreasonably reduced the income they receive by diverting it to another person or for another purpose.

Traditionally, variation has been used in these cases where, for example, the NRP brings a new partner into the business as, say, a company secretary and pays them an unrealistically high salary. The taking of benefits in kind such as an expensive car, leaving potential income in the company as shareholders funds, may also justify a variation.

Another example arises where the NRP has the ability to control the amount of net income received by increasing pension contributions.

iii) Assets over £65,000 – Regulation 18

It is important to note that there is no specific provision in the additional cases for a variation to catch rental and investment income. There are not within the ambit caught by Regulation 19 (income not taken into account). It is also the case that the Child Support System calculates an NRP’s liability on the basis of their income alone, rather than on their capital resources. This is subject to one exception, which is the additional case in Regulation 18 known as “assets over £65,000”. This regulation provides that where an NRP has net assets with a total value of £65,000 or more, then it is presumed that these assets generate an income at a rate of 8% of the total value.

This deemed income can then be added to the NRP’s other income for the purposes of running the formula. Regulation 18 contains a detailed definition of the relevant assets including money, land, shares, stocks, securities and enforceable debts, including assets abroad.

Notably, the home of the NRP and business or trade assets are excluded, unless it is property which produces a rental income.

iv) Lifestyle Inconsistent with Declared Income

This is a final and “catch all” additional case variation which is set out in Regulation 20. This ground may be invoked where, for example, the NRP has a lavish lifestyle but declares only a modest income. Normally the PWC has to produce sufficient evidence to enable this ground to be made out, before demonstrating that the income which funds the lavish lifestyle should be applied to the formula.

Regulation 20 is included for the sake of completeness in the variation regulations, but is a difficult application to make succeed.

Procedure

An application for variation will only succeed if, in addition to meeting the detailed criteria and the relevant regulations, it is considered to be “just and equitable” by reference to prescribed factors, including whether the NRP is likely to cease employment if the variation is made.

Variation application can be made by telephone or in writing, and can be done before or after the maintenance calculation has been undertaken. It can be withdrawn or amended at any time prior to a decision.

Variations by the NRP

It is possible for the NRP to also reduce a maintenance calculation by applying discounts to reflect “special expenses” such as the cost of having contact, costs of other children who have a disability or illness, prior debts of the relationship, boarding school fees, and mortgages/loans paid for the benefit of the PWC.

Applicability

The additional case variations are a useful tool for the PWC. Unfortunately, there existence is not widely known. If the case variations are not implemented, then not all relevant assets and income will be taken into account by C-MEC when calculating child support. Perhaps, however, the most useful application of the case variations is as anti avoidance provisions to overcome the situation where an NRP is doing all things possible to reduce their income in an attempt to pay as little child support as possible.

Is this the end of the Aggregates Levy? Maybe Not

Robert Camp — Fri, 11 May 2012 15:53:23 +0000

The European General Court has recently ruled that the UK Aggregates Levy constitutes state aid. Robert Camp, the head of the Mines Minerals & Waste Team at Stephens Scown, discusses the impact this decision may have on aggregate producers in the UK.

On 7 March 2012, the European General Court issued a decision in respect of a long standing appeal by the British Aggregates Association (BAA). They found for the BAA, concluding that the European Commission was wrong in its decision that the UK Aggregates Levy (the Levy) did not contain elements of state aid.

Background and Case History

In 2001, the BAA brought its case before the European Commission on the following basis; that the Levy constituted state aid due to the exclusion of certain materials from its remit, and that the exemption for exported aggregates and the different application of the Levy in Northern Ireland was unjustified.

In April 2002, The European Commission adopted the position that the Levy did not encompass any components of state aid and decided it was therefore justified, and also that the exemption for Northern Ireland was compatible with the common market.

The BAA appealed this decision and in September 2006 brought its case before the General Court, seeking an annulment of the Commission’s decision. This appeal was dismissed.

In December 2008, the European Court of Justice overturned the 2006 decision and referred the case back to the General Court. The question relating to the exemption for Northern Ireland was not the subject of the appeal, so the main points in issue were:-

The General Court had misinterpreted the concept of aid and had considered only the environmental issues having omitted to weigh up the “selective nature” of the measure.
The General Court misunderstood the definition of “secondary aggregates” in respect of the application of the Levy.
The General Court had breached its duty to state reasons why it believed that the exemption for exported aggregates was justified.

The Decision

The examination of whether the Levy constituted state aid required an assessment of the effect of a tax exemption that places the recipients in a more favourable financial position than other tax payers. The Court had, firstly, to identify and examine the normal regime applicable in the member state and, secondly, assess the selective nature of the Levy; in the context of whether and how it discriminates between two operators who are in fact in a comparable legal and factual position.

The General Court concluded that the Commission was not correct to take the view that the tax advantages were justified in the general scheme of the Levy.

The protection of the environment was one of the main objectives of the Levy and the intention was to endorse the use of secondary or recycled aggregates (i.e. slate, ball clay, china clay and shale) rather than primary or quarried aggregates. The Commission in its decision had distinguished between virgin, primary and secondary aggregates even though no distinction had been made under the provisions establishing the Levy.

In order to reach its decision, the General Court assessed whether these exempt aggregates were factually and legally comparable with those aggregates that were subject to the Levy. They found that all materials regardless of whether they were virgin, primary or secondary aggregates were effectively the same. Therefore, irrespective of the environmental objective, the selective treatment resulted in a tax differentiation which could give rise to selective advantages (i.e. amounting to state aid).

The exemption for recycled aggregates could also be construed as contradictory to the environmental objective, as there was no evidence that the exemption measures were encouraging the use of secondary aggregates.

The BAA also argued that producers of taxed aggregates, which were capable of being replaced by exempt materials, suffered twice the disadvantage as not only were they subject to the Levy itself, but they were also subject to the economic consequences of reduced demand. Many primary aggregates producers now find themselves in the difficult position of not having generated sufficient income from sales to pay the Levy and this has been destructive and detrimental to their businesses.

Exports

The General Court did however dismiss the BAA’s challenge to the Levy exemption for exports. This was on the basis that once aggregates had been exported overseas, they were in a different taxable situation and therefore not comparable. Nevertheless, due to the Commission’s errors surrounding the concept of aid, the decision as a whole was annulled.

The Future

The judgment does not solve all the legal issues and aggregates producers still await clarification as to what will be done about the Levy in light of the decision. At the time of writing (May 2012) the tax is still payable, albeit at the frozen rate of £2.00 per tonne. In the 2012 Budget, the government confirmed that the current rate will remain until April 2013, delaying the planned increase of 10 pence per tonne. The BAA are calling for the Levy to be suspended altogether and for a confirmation that producers who cease to pay tax will not be penalised.

Corporate team further strengthened with two more appointments

Stephens Scown — Fri, 11 May 2012 15:32:00 +0000

Leading legal firm Stephens Scown LLP has further strengthened its growing corporate team across the South West with the appointment of two new high-profile lawyers.

Ben Travers and Lynne Rathbone (both pictured) join the Westcountry legal firm as Associates. Stephens Scown has offices inExeter,Truroand St Austell and employs more than 230 staff, including over 30 partners.

Ben, who lives in Exmouth and graduated from theUniversityofExeter, joins Stephens Scown as Head of Intellectual Property & Information Technology Law from Ashfords LLP where he worked as a solicitor for more than five years.

He specialises in intellectual property and IT law, advising clients on non-contentious and contentious IP and IT issues, helping them to identify, protect and exploit their IP.

Ben also files and prosecutes trade mark and design applications, as well as drafting and negotiating IP agreements and IT contracts. He provides expert advice on data protection, freedom of information, e-commerce, domain name disputes, online marketing and commercial contracts.

On the contentious side, he brings and defends IP infringement cases. He has advised clients in a wide range of sectors including food and drink, nursery, pharmaceuticals, fashion, marine, leisure, publishing, media, sports and creative industries.

Ben says: “I am really excited to be joining Stephens Scown as it continues to cement its reputation as a leader in the legal industry in the South West. I am looking forward to being able to offer businesses across the region first-class advice on IP and IT issues. This part of the world is blessed with a wealth of innovative businesses who are creating IP everyday. Stephens Scown’s continued development in this area means these businesses can get the advice they need right on their doorstep.”

Lynne, who has recently relocated from the North West and now lives in Shaldon, joins Stephens Scown from the head office of national firm Weightmans LLP, where she worked as an Associate for over six years. Lynne advises private businesses and public sector organisations of all sizes on company law and general commercial matters

As well as specialising in corporate transactions, business sales, shareholder agreements, partnerships, joint ventures and private equity investment work, Lynne deals with a wide variety of commercial contracts to help with the general running of businesses, including standard terms & conditions and supply agreements.

Lynne also advises doctors’ practices, specialising in partnership and LLP agreements, and will work closely with Stephens Scown’s education team, dealing with academy conversions and free schools, as well as the firm’s renewable energy team, advising on contractual matters.

Commenting on her appointment, Lynne says: “I am delighted to be joining such a well-respected local firm as Stephens Scown, which is also recognised as a regional heavyweight for the quality of its corporate and commercial work by Legal 500. Moving to the South West has been a life-changing decision for myself and my family and I am looking forward not only to using my expertise to support the local business community and to promote its continued growth and development, but also to making the most of the wonderful opportunities that come with living in this beautiful part of the country.”

The news of Ben and Lynne’s appointments comes soon after the recent announcements of other key appointments to the firm’s growing Corporate team including Christian Wilson, as a Corporate partner and Terry Falcão, as a Partner to head-up the firm’s Employment Law team.

Robert Camp, Managing Partner of Stephens Scown, adds: “The addition of Ben and Lynne, two talented corporate lawyers, broadens and deepens our expertise and at a time when many firms are doing the opposite, we are delighted to be further strengthening and expanding our corporate team across the South West. Both Ben and Lynne have long track records of success in their fields of expertise, providing first-class legal advice to companies and organisations and we are pleased to have them join our team.”

Outside of work, Ben enjoys playing tennis, cycling and playing guitar, as well as spending time with his family. Lynne, meanwhile, enjoys walking and cycling in her spare time, as well as socialising with her family, and has made a pact with her daughter to learn to surf before the year is out!

Suspended Residence Orders

Nick Gibbins — Thu, 10 May 2012 14:31:47 +0000

One of the most difficult type of cases for the family court to deal with effectively is the contact dispute in which one parent is refusing, unjustifiably to allow the children to see the other parent. By definition of course the parent who is refusing to allow contact to take place is the parent who has care of the child or children.

Such cases must be distinguished from those in which the parent with care of the child has a very good reason for being reluctant to allow contact to take place. Good reason can include, for example fear of domestic violence, drug abuse or alcohol abuse.

The difficulty for the court is what is to be done to try and ensure that the awkward parent complies with the orders of the court in respect of allowing contact to take place. This has been the subject of many reviews and reports over the past few years, and indeed is an issue which has been highlighted by the organisation Fathers for Justice.

The court has a number of powers in its armoury which can include anything up to and including imprisoning the parent who is blocking contact. The difficulty with using such powers is that the children themselves could suffer further harm if, for example, the parent who is caring for them is no longer available to them due to a term of imprisonment.

A novel way in which the court will now consider addressing such situations is by way of a “suspended residence order”. Such an order will not be found in the children act 1989. It is the creation of the court.

In effect, a suspended residence order involves the following;

The court makes a residence order to the parent with whom the children are not living (and are not currently having contact). Normally that would trigger the immediate transfer of the children to live with the other parent. When a suspended residence order is used, however the transfer of the children is delayed or “suspended” while the parent who is currently caring for the children is given one final chance to prove that they will ensure that contact takes place in accordance with the orders of the court. If they succeed in doing this, the suspended residence order can then be discharged. If they continue to be difficult and entirely or partially block the contact which has been ordered, the court will lift the “suspended” part of the order meaning that the actual change in residence will then come into effect.

Changing a child or children’s residence is always a very big decision and in cases such as these is liable to be fraught with difficulty. For example, the children may well have been alienated from the non resident parent by the parent who has been blocking contact and, therefore a change of residence may not be possible because it would further damage the children. There are, regrettably occasions when the court has to accept that it is simply not possible to maintain contact between the children and the non resident parent.

On the other hand, there will be and are other cases in which such orders can be used or at least considered because the children still retain a significant and largely positive relationship with the non resident parent.

Stephens Scown LLP solicitors have specialist family lawyers who can assist in such circumstances.

Will new reforms on unfair dismissal claims change the face of the workplace?

Terry Falcao — Thu, 10 May 2012 08:51:57 +0000

With new reforms to unfair dismissal claims recently introduced, lawyer Terry Falcao asks whether they will change the face of the work place…

It has been said that 2012 will be somewhat of a watershed for both employers and employees in the Westcountry. Whether you are running a small builders firm, care home, farm or holiday business in the region, the following may certainly be of interest.

The Government’s latest proposals are to adopt a “no fault dismissal” regime; so that employers can dismiss employees without having to say they have done something wrong; permitting employees and employers to have “protected conversations”, and the abolition of up to half our health and safety rules and regulations. In addition, there have been amendments to employment law tribunal procedures, accident-reporting requirements, statutory maternity, paternity, adoption and sick pay increases. But perhaps one of the biggest changes has been to increase qualifying periods for unfair dismissal cases.

On 6 April, the rules existing in 1999 were re-introduced, where an employee now has to work for a minimum of two years before they can bring an unfair dismissal claim against their employer – previously an employee required a year’s service. However, the newly extended qualifying period does not apply to those already in employment on 6 April; they keep the right to bring a claim for unfair dismissal with one year’s continuous service.

Whilst the latest change is useful in all sorts of ways and largely good news for employers in the Westcountry giving them more time to assess their employees, they should not be lulled into a false sense of security or become blasé about it. Employers now effectively have longer to dismiss an employee who is performing badly, but that does not give them carte blanche to do what they like.

It is always advisable to consider following the correct procedures to dismiss someone as there may be hidden factors such as disability issues or sickness absence linked to disability. Merely considering length of service would be dangerous in such circumstances. Similarly, where employees have made complaints about their contracts, or health and safety or some other workplace issues, the courts can decide that such complaints are “protected disclosures” when made in good faith and provide the employee with protection from detrimental treatment from their employer. The employee has, in effect, engaged in “whistle blowing”. Again, a claim may be brought with even a few days service.

Whilst for employees, the change in service requirement appears to be a major blow; some may after being in the job for a matter of weeks decide to bring claims such as whistleblowing, harassment or discrimination, where there is no minimum qualifying period or service length. Remember these particular sorts of cases do not have a cap on the level of compensation that could be awarded. Also in the employee’s favour is case law which has rendered advice from non-lawyer advisors as discloseable. This means that conversations and emails between HR consultants and businesses may be required to be disclosed to those employees as evidence if an employee sues. Lawyers have legal professional privilege and cannot be forced in these circumstances to reveal that information.

As an employment dispute mediator and litigator, I welcome any changes aimed at reducing the number of claims in the employment tribunal. However, I am not convinced the changes will have the desired effect. In my view, the biggest elephant in the room and one which the Government has yet to tackle head-on is the issue of performance management more generally. The management time and the length of the processes remain unacceptable to most businesses.

With youth unemployment figures at their highest and the Government removing the upper working age limit, people are working for longer, and I believe we are heading for a very stagnant workforce. People are working into their late sixties and young people are unable to secure jobs. So keeping the workforce with a balanced age profile is probably one of the biggest challenges facing employers today.

Many employers now feel pressured to keep staff for as long as they want to work or risk a claim for age discrimination. The knowledge and skills people learn from the length of time they work within a firm are really important – these need to be passed on when the person retires, but employers do not know when that will be, as employees don’t have to specify when they are planning to retire as they used to do. Succession planning has, therefore, been made almost impossible.

The Government has suggested performance management as the only way to deal with the problem, but this is a lengthy and time consuming process and does not address succession planning or achieving a diverse workforce. It is also undignified for the employee. We await further developments with this issue but there is no doubt that we are facing the dawn of a new age when it comes to employment law and the work place.

The Use of Children’s Guardians in Disputes Involving a Child’s Contact with a Parent

Nick Gibbins — Thu, 03 May 2012 14:31:35 +0000

The family courts are familiar with cases within which children who come from split families are the subject of disputes between the parents in respect of how much contact the children should have with the non resident parent.

Most cases are dealt with relatively quickly with evidence being taken from both parents which confirms how much contact each parent believes the children should be having with the non resident parent. This evidence is usually taken in the form of statements which are filed with the court. Each parent also sees the statement which the other parent has prepared.

The court will consider the proposals of both parents and any factors which may affect the court’s decision as to how much contact should be taking place with the non resident parent. If, with the court’s assistance the parents can reach an agreement all well and good. If not a contested hearing may be necessary in which full evidence is heard by the court, the parents are cross examined in court, and ultimately the court reaches a decision in respect of how much contact should actually take place.

In slightly more difficult cases an organisation called CAFCASS (Children and Family Court Advisory Support Service) is asked by the court to provide a report. This involves a skilled CAFCASS worker speaking to both parents and the children and thereafter providing a report to the court setting out the recommendations of the CAFCASS Officer with regards to the level of contact that should be taking place.

Whilst most cases are dealt with, in essence following the above procedures there are a small but growing number of cases which cannot be resolved in this way. These are usually cases in which there is significant and complex evidence which is likely to materially affect the decision the court reaches in respect of contact. In particular, such cases are ones in which the dispute between the parents over the issue of contact has continued for so long and/or become so bitter that there is a significant possibility that the child or children may be harmed by the level of antagonism between the parents.

In such cases the court has the option of appointing what is called a guardian for the children. This is quite different to a legal guardian with whom a child may live. The guardian will be drawn from the ranks of CAFCASS (to which I have referred above) and will be a skilled worker almost always with a social work background. The purpose of the guardian is to remain totally independent of both parents to focus only on what is best for the child or children. In order to assist them in this role the guardian will appoint a solicitor to act on behalf of the children. Except in a very few instances the children will not provide the instructions to the solicitor in respect of what they want. It will be the guardian who provides the instructions. Nonetheless, both the children’s guardian and the children’s solicitor will listen very carefully to anything which the children have to say about the issue of contact and will always take that into account.

The guardian with, when relevant the assistance of the children’s solicitor will carry out very detailed enquiries into the whole circumstances of the case before providing a recommendation to the court in respect of the issue of contact. The report will ensure that the court and anyone else involved in the case including the parents focuses exclusively on the needs of the children and what is best for them.

Stephens Scown LLP solicitors are regularly instructed by children’s guardians in respect of cases such as these and also other cases in which children’s guardians are appointed by the court. We can also assist parents and grandparents who are involved in cases such as these.

How could a Christian deal with the breakdown of his or her marriage?

Fiona Cavell — Mon, 30 Apr 2012 14:30:00 +0000

Christians may have difficulties with the breakdown of their marriages, not only emotionally but also ethically, given what it says in the bible about divorce. In what circumstances, therefore, could a Christian pursue a divorce?

In Matthew, it says “…it has been said, ‘anyone who divorces his wife must give her a certificate of divorce’, I tell you that anyone who divorces his wife, except for marital unfaithfulness, causes her to become an adulterer and anyone who marries the divorced woman commits adultery”.

Some people believe that this “exception clause” is God giving his permission for divorce. You could, therefore, divorce your wife, or husband, according to this belief, is she or he has committed adultery.

Under the Matrimonial Causes Act 1973, the only legal ground for divorce is that the marriage has broken down irretrievably. One of the facts to support irretrievable breakdown is if your husband or wife has committed adultery with another person. Under the current law, adultery means that there is consensual sexual intercourse between a married person and a person of the opposite sex not being the other’s spouse. Some sexual conduct outside of the marriage, therefore, will not amount to adultery under this strict interpretation. Equally, an adultery petition may not be successful unless the adultery can be proved, normally by a confession. Does this mean that a Christian would have to stay within a broken marriage if they are unable to prove adultery in the strictest sense?

Another fact to support irretrievable breakdown, however, is that of “unreasonable behaviour”. Unreasonable behaviour can include “improper association”. This can amount to inappropriate sexual conduct falling short of adultery.

Some Christian’s believe that there is another exception within the Bible to allow them to divorce their spouse. This is found in Corinthians . This suggests that a believer is not bound to continue a marriage if an unbelieving spouse wants to leave the marriage “..if the unbeliever leaves, let him do so. A believing man or woman is not bound in such circumstances; God has called us to live in peace.”

Another fact that the law lays down to support irretrievable breakdown is the fact that the husband and wife have been separated for either a continuous period of two or five years depending upon whether consent to the divorce is necessary.

A Christian, therefore, may wish to consider a divorce upon the breakdown of their marriage and believe that a divorce is not in opposition to their religious beliefs. The divorce could be based upon adultery, unreasonable behaviour or periods of separation, all showing irretrievable breakdown.

Some people wish to consider a divorce to end their current marriage to allow them to be free to remarry. Others simply wish to move on and end the marriage without contemplation of having another partner. Others wish to move on but without ending the marriage. Most people just wish to live in peace, whether or not they believe God has called them to do so.

Some people feel that they have to seek a divorce, so that the court can become involved in their financial affairs, if they are unable to agree a way forward themselves. A wife, for example, may feel that she has no alternative other than to divorce her husband in order to secure a share of any property or capital that is in his sole name.

There is an alternative to a divorce which still allows someone to make a claim against the other spouse’s assets, income, property and pension through the courts. This is called a Judicial Separation. The process is very similar to obtaining a divorce and a Petition is filed with the court but ultimately the marriage still exists, it just allows the spouses to separate through the courts and to make a claim in relation to financial matters arising from the marriage.

Equally, some people may not want a divorce but have been able to agree their financial situation following separation. In these circumstances Solicitors can draft Deeds of Separation which can be legally binding upon each spouse without the need to end the marriage or file any documents with the court. Most Deeds of Separation have a clause contained within them to allow a spouse to divorce or judicially separate at a set time in the future, say after the expiration of a two year period of separation. The agreement reached within the Deed of Separation can later be converted into a court Order should the spouses choose to divorce or judicially separate later.

Whatever your religious denomination, whether you wish to pursue a divorce or separation, or simply wish to be left alone to live in peace, Family Solicitors can help you explore different ways to help you , upon marriage breakdown, both with your financial situation and to move on with your life.

Client Corner – Treleaven Ice Creams

Stephens Scown — Wed, 25 Apr 2012 10:48:34 +0000

When Andrew and Mandy Treleaven decided they wanted to sell their successful ice cream company, they had full confidence in using Stephens Scown LLP to broker the deal.

“One of the fantastic things about Stephens Scown is the number of specialist sectors their solicitors are qualified to advise on” says Andrew Treleaven who continues to help manage operations at theEast Looe-based company. “With their dedicated food and drink team, I had the assurance they would understand the sensitivities involved in selling this type of firm.

“We’d received a serious offer of investment for the firm – in other words someone was keen to buy the business. Stephens Scown helped to negotiate the best deal for us as well as making sure we could maintain involvement in the business.”

The additional resource provided by the new owners has resulted in the leasing of new working space which has led to increased production and further opportunities outside of the Westcountry.

He adds, “We’re a local company, and that has always been at the heart of our business. We source the majority of our ingredients from the South West so it was really important, when choosing our legal support, that we have a local firm which understands the value of our brand’s Cornish heritage.”

Andrew is keen to highlight the bonuses of selling, “I’m helping to develop the future of the business which is a nice step back from overseeing all executive decisions as well. My wife is able to concentrate on the area of the business she is most passionate about – flavour development – so we’re both really happy with our decision to sell. The fact that Stephens Scown made the process so smooth significantly adds to our satisfaction.”

Scott Mitchell, partner and commercial property team leader in Stephens Scown’s St. Austell office advised on the deal, helping to complete the business sale agreement, “I was delighted to support such a well-respected local business. It’s fantastic to see how well Mandy and Andrew have embraced the recent changes – I hope it’s a true reflection that we contributed to the deal being completed successfully.”

Andrew, who has been a client of Stephens Scown for nearly 25 years says, “The team there make sense. They don’t confuse you with ‘legalese’ and always explain matters carefully and in detail. In short, they’re pragmatic and very easy to work with. I have no reservations in recommending them to friends, family and business associates and will continue to employ the firm as my legal advisors. In fact, I’m currently using their property team for another deal.”

Treleavens is a traditional Westcountry business, producing luxury, hand-made ice cream using local ingredients. Using an artisan method, they are one of the few Cornish producers to have won the prestigious Triple Gold for their Salty Peanut ice cream at the Great British Taste Awards 2011.

With a dedicated team of six, the company counts both Rick Stein and Jamie Oliver as clients and has a highly regarded reputation in the area. The mouth-watering flavours on offer range from a traditional vanilla ice cream to a Campari and Clementine sorbet.

Andrew says, “We’ve been making ice cream for ten years and I’m tremendously proud of our products. We’re constantly developing new flavours and working to increase awareness of our brand. Our focus now is to maintain the high level of quality we’ve achieved and basically continue to do what we’re doing already! ”

Stephens Scown has a specialist team of lawyers able to serve the needs of food and drink producers across the South West. The team are able to share knowledge, connections and experience across the three offices inExeter,Truroand St Austell.

Head of the food and drink team, Simon Gawler says: “We take the time to get to know our clients and we understand the issues they face. It means we can pool our knowledge and experience and be more proactive coming up with ways to help.”

For more information about Treleavens Ice Cream visit www.treleavens.co.uk.

Scott Mitchell and Simon Gawler at Stephens Scown can be contacted on 01392 210700.

Client Corner – The Moorland Garden Hotel