Legal News JUNE 2018

Legal

NEWS

JUNE 2018 THE MAGAZINE OF THE CONFEDERATION OF THE SOUTH WALES LAW SOCIETIES

THE CARDIFF LAW SOCIETY BALL SEE PAGE 13 FOR MORE INFORMATION

LEGAL NEWS

CONTENTS

PRESIDENT REPORTS

4

Johnathan Hine

REGULARS

8 Chancery Lane News

FEATURES

10

Challenging Our Unconscious Biases

12

A Sense of Self

13

The Cardiff Law Society Ball 2018

14

Don’t Shoot the Messenger!

At Last Spring Has Sprung!

6

Clive Thomas Passing The Torch

7

Mel Bevan-Evans The Summer Ball

Editorial Board Emma Waddingham - Editor Michael Walters - Secretary Johnathan Hine David Dixon

Editorial copy to Emma Waddingham Email: emma@emmawaddingham.com

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Printed By Stephens & George The articles published in Legal News represent the views of the contributor and are not necessarily the official views of the Confederation of South Wales Law Societies, Cardiff & District Law Society, or of the Editorial Board. The magazine or members of the Editorial Board are in no way liable for such opinions. Whilst every care has been taken to ensure that the contents of this issue are accurate, we cannot be held responsible for any inaccuracies or late changes. No article, advertisement or graphic, in whole or in print, may be reproduced without written permission of the publishers.

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PRESIDENT REPORTS

AT LAST SPRING HAS SPRUNG! I don’t know about everyone else, but I felt that we had a long and dark last winter.

However the weather has changed for the better, even if it is raining as I write this piece.

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here have been several Presidential duties since I last wrote. On 24 March 2018 I was honoured to be invited to the Cardiff branch CILEX annual dinner at the St. David’s Hotel in Cardiff Bay. I had attended this event last year and this year’s event was, if anything, better attended and even more enjoyable that the previous year. We were privileged to be addressed by the National President of CILEX, Millicent Grant.

Awards were presented during the course of the evening, though well staged to be concluded prior to the conclusion of dinner! I confess to bottling out around midnight and leaving the younger generation to the dancing and revelries into the early hours! It was a good evening which I thoroughly enjoyed. It is good to see CILEX going from strength to strength.

On the evening of 27 April 2018 I was honoured to be invited to the Cardiff and District Law Society Annual Dinner. This year a break was made with previous years as regards venue. Eschewing the City Hall in Cardiff, this year’s dinner was held in the new Exchange Hotel in Cardiff Bay. Formerly the Coal Exchange in the docks, this historic building has been given a new lease of life as an hotel.

The dinner took place in the former trading hall of the old Exchange.

Although a hackneyed fact now, the site of the first £1,000,000.00 deal/cheque or whatever you want to call it. Nevertheless, the room is impressive. The paneling and atmosphere is striking. In all, it was an inspired venue for the event. Ably hosted by Colin Jackson CBE, who managed to take in his stride (pun intended!) the various googlies bowled at him (I know I am now mixing the metaphors!) in the form of legalese surrounding the award recipients, the evening was a great success. You can tell that you have enjoyed an event such as this when the first time you look at your watch it is almost midnight! Such was it with me on this evening. I thoroughly enjoyed the evening and my congratulations to the organisers on such a successful event.

Having spent a little time (I did not have a lot in the first place!) thinking about how to conclude this piece, two current issues or trends sprang to mind.

The first follows my recent appearance for the defence at Cardiff Magistrates Court. I approached this with some degree of trepidation, given that the last time I had set foot in a Magistrates Court was about six years ago. I knew that disclosure had taken on a bit of a different format, but the lack of response to my letters and telephone calls to the CPS had not changed. Despite strenuous attempts in the two weeks prior to the hearing to get some form of disclosure, my pleas were met with silence.

Thus I arrived at court without papers and unclear how I obtained them.

A brief conversation with the clerk indicated that I needed a “CJSM” account to obtain “IDPC” from the CPS! Far too many TLAs and FLAs flying around by this point. I was given a telephone number and told to arrange the account. This was 2.00pm on a Thursday. It was clear this was not going to happen quickly. At this point, floundering ever so slightly, I was extremely grateful to Declan McSorley who was in court, saw my predicament and provided a solution in very short order. Declan, if you are reading this piece, my sincere thanks again for digging me out of a hole, even if it was not of my making!

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The whole experience left me profoundly unimpressed with the administration of criminal justice. In conversation with other solicitors that day it appears that it is now routine for disclosure to be given on the day of the first hearing and advocates expected to read, digest and advise on that disclosure on the hoof so that progress can be made at that hearing.

Whilst I am entirely in agreement with swift justice, that should not be at the expense of fairness. Given that I understand that the CPS is supposed to provide disclosure 10 days in advance of the first hearing, but routinely fails to do so due to resourcing issues, it seems to me grossly unreasonable then to foist the consequences of this on the Defendant’s representatives and force them to shoulder the failings of a woefully under-funded system.

Coupled with this is the current situation in the Crown Courts. For far too long the Criminal Justice system in England and Wales as relied to a very large degree on the goodwill, willingness and understanding of the practitioners who appear regularly in the criminal courts. That the criminal justice system is largely funded by the state is not the point. In any civilised society fairness must be the paramount consideration. Not only must justice be done, it must be seen to be done. Treating defence lawyers as second class citizens, both in terms of pay and also in terms of professional courtesy (I am aware of defence lawyers in the Magistrates Courts in some areas of South Wales being referred to as “the enemy” by court staff), is at best counter productive as it erodes the historic trust in the system and the good will that accompanies it. At worst, it will drive lawyers away from the criminal justice field, leaving many defendants unrepresented. Sniping at solicitors in the Crown Court due to a lack of an advocate, in circumstances where the fault for all this lies squarely with central government, is at best picking on the most vulnerable, as they are in court, and the faultless, as the issue is not of their making. I have been both angered and appalled to read in the media of aggressive criticism by Crown Court judges of solicitors caught up in this current dispute and this taking place in open court. Not only is this entirely unprofessional, it seems to me to be an issue for the Lord Chancellor’s department each and every time it occurs. I would encourage anyone affected in this manner not to let such behaviour lie. As one commentator commented recently, there will only be “justice” in the Criminal Justice system when the Defence is favoured with the same resources as the prosecution and police.

The situation in criminal justice is dire. As a profession we must rally round our colleagues who work in this difficult area and make it clear we stand together with them as a united profession. We have weathered worse storms than this in the past and will do so successfully in the future if we stand united. At the end of the day, this is for those in society least able to speak for or defend themselves. We owe them nothing less.

On a lighter note, in the past week there has been considerable publicity to the 100th anniversary of the RAF and also 70th anniversary of the NHS (yet more TLSs alas!). I am a great supporter of both, my great grandfather having been a member of the RFC (the forerunner to the RAF) at the time if morphed into the RAF. Sadly, he did not return from the First World War, but he was one of the first members of the RAF all those years ago.

As for the NHS, who can fault the service, dedication, compassion and professionalism of its staff? The media constantly bombard us with complaints over and comment on the inadequacies of the service. Yet it remains the envy of the world.

There has been a series of live programmes on ITV from A & E in Leeds recently. I confess though initially diffident about watching this but my wife being keen to, the longer it went on the more I was drawn into it. Not by the drama or harrowing stories so much, though those had an effect. More so by the outstanding compassion and dedication exhibited by all who work in the emergency services. We are truly blessed that there are so many people who are prepared to work selflessly for the good of others in often highly stressed and difficult conditions.

positive force for good. We should reflect on this in the darker days, until we can get out of the trees and into the sunshine.

Thus, to quote Max Ehrmann to conclude: With all its sham, drudgery and broken dreams, it is still a beautiful world. Be cheerful. Strive to be happy. l Jonathan Hine President OF THE Confederation of South Wales Law Societies JonathanH@jacklyndawson.co.uk

And that brought me to the conclusion that, in the main, we live in an amazing world that we generally seldom really appreciate. People in the main care about others and that care and compassion is a very powerful

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LEGAL NEWS

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PRESIDENT REPORTS

PASSING THE TORCH I am very honoured to have become the President of Cardiff & District Law Society. I have very big shoes to fill, as Rachelle Sellek did a fantastic job as last year’s President, building on the excellent work of Paul Hopkins in modernising the Society and making it a more engaging and professional organisation.

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am delighted that Rachelle has agreed to take on the role of Honorary Secretary, following the retirement of Richard Fisher. She has an incredibly hard act to follow, as Richard has worked tirelessly for the benefit of the Society for so many years and there were some wonderful and welldeserved tributes to him at our recent AGM. I would like to congratulate Rachelle on the recent Annual Dinner at the Exchange Hotel presented by Welsh athletics legend, Colin Jackson CBE. It was a great success, with the highest attendance for many years, and we have had wonderful feedback from those who were there. I am sure Rachelle would wish me to thank Emma Waddingham for all that she did, despite the small matter of having just given birth to her first child, to make it all happen. So the first thing I have done is to rebook The Exchange Hotel for next year. The 2019 Annual Dinner will be on the 10th May. You all have a year’s notice - please put it in your diaries!

I also attended our annual Charity Golf Day at Radyr Golf club in aid of Ronald McDonald House. It was very enjoyable and the course was excellent...unlike my golf! The winners were Gordon Dadds, ably led by Rupert Thomas. As with the dinner, I have rebooked for next year-the golf day will be on 17th May 2019 at Radyr Golf Club.

The next event is the Managing Partners lunch on the 6th July. Invitations will be sent out soon. I hope by then to be in a position to outline my plans for the year. I want to focus on #LegalCardiff - and hold events to promote, inform, support and hopefully engage Cardiff lawyers. This will include an event on the use of Artificial intelligence by lawyers and also outlining the business opportunities presented by Brexit and the new routes available at Cardiff airport.

Our next social is a Cheese & Wine Tasting Event on Thursday 14th June, 5pm-8pm, Madame Fromage, at Castle Arcade in Cardiff. I hope you all support the event.

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My charity for the year is Wooden Spoon the Children’s Charity of Rugby. I sit on the Wales Committee, so I have seen first-hand the great work that the charity do in funding capital projects to support disadvantaged children from sensory rooms to sports activity areas.

I am looking forward to working with our new team - Senior Vice President, Rachel Harfield, Junior Vice President, Steve Roberts, and of course the evergreen Michael Walters, the super creative Emma Waddingham, and the rest of the Council.

I am also very grateful to our wonderful sponsors - Yolk Legal Recruitment, Penguin Wealth and LegalinX for their support this year.

My first official engagement will be the Monmouthshire Law Society Ball on Friday 15th June at the Celtic Manor Resort. It is always a fantastic event, and their President, Mel Bevan-Evans, definitely knows how to hold a party!

So I would urge anyone who hadn’t yet got tickets to get them as soon as possible. l CLIVE THOMAS President OF THE Cardiff & District Law Society

Join us for the biggest summer event in town!

We on the Committee are very busy finalising arrangements for the Annual Ball at the Celtic Manor on Friday 15 June – if you have not already booked your tickets, please do so urgently so that we can finalise numbers. The Ball looks to be a fantastic event, not to be missed!

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am very pleased to say we have Jamie Baulch as our Guest Speaker. He will be answering questions on the night so if anyone has any particular questions for Jamie, please put them forward.

There are some great prizes to be won at the Raffle, all donated from around Monmouthshire and beyond. Some amazing prizes have been offered, including a Week in a Villa in Crete, a weekend in a Trump Hotel in New York, an overnight stay at The Newbridge on Usk with Dinner, lunch with a bottle of wine at The Crown at Whitebrook to name but a few!

Unfortunately, I was away on holiday when the Cardiff & District Law Society Annual Dinner took place and I was very sorry to miss this event – I very much enjoyed the event last year and I have heard this was a great success and a credit to the Committee and Rachelle Sellek. Clive Thomas is now the new President of Cardiff & District Law Society and I have no doubt he will do a great job in this role – we work closely with Cardiff undertaking joint events and it will be good to maintain this connection through Clive as he continues to assist MILS as he has done for many years.

On 1 May I attended Devon And Somerset Law Society Dinner and Legal Awards Event at the Riviera International Conference Centre in Torquay – this was a great event with Mike Tindall was the guest speaker and there was dancing into the night – it was nice to see our own sponsors there, TSR Legal who had sponsored an award on this night.

MILS have discussed an Awards Ceremony as part of our own Annual Dinner/Ball. This is likely to increase in terms of Awards given but this year we have decided on just the Young Lawyer of the Year. Please visit the website and get your nominations in for this Category as soon as possible – time is running out!

this a regular event on a Thursday, perhaps once a month. The Pod is an exciting new venue with a great gin list apart from other beverages!

MILS held the obligatory GDPR course by Jonathan Bray that was well attended on 15 June at The Parkway Hotel in Cwmbran. I think we have all been bombarded with this and of course it has now taken effect!

MILS plan to undertaken many further courses during the year and if any of our members have a specific request for a type of course, we would be pleased to hear from you.

We have been successful in securing Watts Morgan as our Accountant Sponsors for the year and they will be attended our courses and networking events in order to meet with our members. They will also be giving a talk at some point in the future.

Synergy Costs Draftsman has also agreed to sponsor the society and they will be present at the ball and many other events. Senior experts from the firm will provide a talk on Costs at some point during the year too.

I am very much looking forward to seeing you all at the Ball!

Visit monlawsoc.co.uk for more information l Mel Bevan-Evans President Monmouthshire Incorporated Law Society

On 8 May a number of us attended The Pod in Newport for a MILS social event. This was thoroughly enjoyed by all and we are planning to make

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REGULARS

chancery lane The most significant governance reforms for the Law Society have now taken place. The Law Society’s new board has been recruited and has met. Likewise the two executive committees who report to it.

These are the Policy and Regulatory Affairs Committee (PRAC) and the Membership and Operations Committee (MOC). As I write this article the Law Society is interviewing applicants for its law reform committees, all of which are now accountable to PRAC. The only component of the Law Society’s governance which has been immune from change so far is the council.

I’m very pleased about this. Although council is flawed - it is too large, too many elections are uncontested and critics say that the best solicitors don’t stand for election - the alternatives which have been discussed are worse.

Halving the size of council, as the reforming Council Membership committee (CMC) allegedly wishes to do, would make council members more remote from the profession since they would be accountable to much larger constituencies. For instance, the number of seats allocated to Wales would fall from 5 to 2 or 3.

The CMC wishes to make council more representative of the profession.

By this, they mean that the gender split of council, its ethnic makeup, the specialisms of council members and the representation of the places where they live and work should be in proportion to that of the profession as a whole. Actually, not the profession as a whole since the CMC is only interested in solicitors with practising certificates. So the CMC considers that too few council members practise in central London, not enough work in commerce and industry and more of those who work in private practice should be commercial lawyers. Put another way, they believe that too many council members are too old, too white, too male, work on the High Street, in criminal legal aid and come from outside the M25. Metropolitan Londoners may hold this opinion but most solicitors would disagree. They consider the Law Society is too London-centric. That is why council will not be reformed.

The desire to make council more representative of the profession is deeply flawed. Council members are chosen through election. People stand for election if they are interested and have the time to do the work. Elections are democratic. Democracy produces quirky results. Any attempt to guarantee that a democratic election produces a meritocratic result is tyrannical and will fail. Council members are not representative of the profession. Nor should they be. The profession would be in deep trouble if they were. But council members represent the profession. They are activists. Most solicitors are not. They simply wish to be left alone to do their jobs and to earn a decent living for doing so. There is nothing wrong with that attitude but it is not a characteristic of an effective representative.

April council meeting One aspect of the reforms is that there should be fewer council meetings as more decisions are taken by the board instead of council. Another is that consideration is being given to holding meetings on the weekend so they won’t disrupt work. That is all very well, but weekend meetings disrupt weekends and family life. The April meeting took place on a Friday and Saturday. The experiment was not successful. Fewer council members attended this meeting than usual (though this may have been because we were given short notice of it) and of those who came, some were present only on Friday and others only on Saturday.

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We didn’t have a conventional business meeting so it has not been reported in the Gazette and we didn’t meet in the council chamber. Instead, it was a “strategic planning event”. We spent our time amid the marble pillars and shining chandeliers of the splendidly Victorian Common Room. Groups of us encircled round tables, rather like King Arthur and his knights and ladies, searching for the Holy Grail of an agenda which leads to a prosperous future. We listened to soothsayers read the runes which foretold of the issues facing the profession and its future with the assistance of PowerPoint presentations. Project-leaders give us guidance on strategy. We were informed about the Society’s education and learning framework. We embraced the need to engage with our membership. Periodically we broke out into discussion mode, which required us to remain in our seats and chat to table-mates about what we’d just heard before reporting the general drift of our conversations to the rest of the room. Everyone could contribute to the discussions, which was good, and useful work was done to gather ideas to be further refined and prioritised at the next council meeting. But there were too many inputs, outputs, embraces, offerings, propositions and workstreams for my liking. Even worse, every one of them was going forward. Why speak such conceptual gibberish?

Solicitors’ Qualifying Examination (SQE) In my last article I expressed hope that the Legal Services Board (LSB) would reject the SRA’s outline regulations for the SQE. Unfortunately the LSB approved the regulations but made it clear that it would have to approve further SQE regulations which will provide greater detail of the SQE regime. If one believes that the devil is always in the detail, these further regulations will be truly satanic for the outline regulations, which attracted criticism from so many quarters, were diabolical enough. One crumb of comfort is that the LSB has stated that the SRA will have to deal with the issue of providing the SQE in the Welsh language when it submits the next SQE regulations for approval.

Sarah Watkins - new council member I will be trying to sabotage (I mean “improve”, of course!) the SQE when the new regulations are subject to consultation but I shall do so on a freelance basis as I will have left council by then. My successor is Sarah Watkins of NewLaw. Sarah will become the first female council member for South Wales at the Law Society’s AGM on 5 July. As Sarah is a practitioner, normal service will be resumed and the experiment of a having a university lecturer as council member will have ended. I hope Sarah will enjoy serving as your council member as much as I have done.

Local solicitors and the Bar’s boycott of criminal legal aid work A sadly recurrent theme throughout my tenure as council member has been the determination of successive governments to dismantle the legal aid system. The attacks are concentrated on criminal legal aid these days as so little remains of the civil legal aid scheme which paid for my caseload 30

years ago. The bar’s boycott of new publicly funded work since 1 April is an understandable consequence of its members’ wish to fight for a properly funded and remunerated criminal justice system.

Nevertheless, it poses difficult ethical and financial questions for solicitors firms which have advocates with higher rights of audience in criminal courts.

Should they decline work too? Should they, or will they, take over a formerly instructed barrister’s advocacy duties? What is in the best interests of the client? Will another firm (or the Public Defender Service) poach their client if they don’t do the advocacy in the Crown Court? And what will judges do if a solicitor with higher rights doesn’t appear?

I understand Trudy McBride is writing an article which addresses some or all of these questions. She knows and understands these issues much better than I, so I shall leave it with her. But I will say that it is wholly unacceptable for judges to resort to publicly criticising and bullying a solicitor, CILEX or any other employee of a solicitors’ firm in open court if a client is left unrepresented in the Crown Court because of the bar’s boycott. The difficulty is not caused by the solicitors’ profession or by any partner or employee of a solicitors’ firm. Public (or private) judicial bullying of this sort is not only contrary to the rule of law but it corrodes the rule of law.

Wayne Griffiths You know you’re getting old when your contemporaries retire. I don’t often see Wayne Griffiths but I smile whenever I see him. He retired from Devonald Griffiths recently and will be sorely missed by the legal community of South Wales which he has adorned for 40 years. Have a great time in retirement, Wayne.

Richard Fisher Richard Fisher retired from the council of Cardiff & District law society on 17 May, after 33 years’ service. During that time he served as Honorary Secretary, President, editor of Legal News, and organised the annual dinner for decades. Add his work for the Solicitors’ Benevolent Associations and the Confederation of South Wales Law Societies and you see what a colossus he has been for the local profession. That is why he won the Simon Mumford award in 2017. For those of us who have had the privilege of working closely with Richard, future council meetings will seem strangely empty as he won’t be there. We will miss him. l David Dixon DixonD@cardiff.ac.uk Twitter: @saldixie

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FEATURES

Challenging our unconscious biases Rachel Harfield, an employment lawyer at Slater & Gordon (Cardiff) and Vice President of the Cardiff & District Law Society, discusses the rise of ‘implicit’ or ‘unconscious bias’ in the workplace and what it means for employers and lawyers.

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Unconscious bias” or “implicit bias” is becoming a bit of a buzzword. So what does it mean? Our implicit attitudes are views and opinions we hold that we may not be aware of. They are evaluations that are automatically triggered in our brains when we encounter different people or situations.

Without our even being aware of it we may be drawn to people who look like us or share our values, often called affinity bias. An example would be being drawn to someone with a similar educational background. Or we can transfer a positive trait onto someone without actually really knowing anything about them (for example perceiving those who dress conservatively as being more capable). This is often referred to as a “halo effect.”

outcome. Female hirers were as likely to unconsciously discriminate against the female applicants as their male counterparts were.

It is very hard to admit it; but everyone has unconscious biases. Our brains receive an overwhelming amount of information day in, day out from what we read, hear, and see in the media, from others, and in our general daily lives. We cannot process everything so our brains compress and group information. It allows us to make rapid judgments about new people and situations. Our brain uses short cuts to speed up decision making, and unconscious bias is a by-product. There are times when quick decision making can be useful, for example, if faced with a dangers situation – friend or foe? – fight or flight?

• Offer staff training.

But it affects decisions and can be particularly damaging in the workplace when we rapidly judge people categorised as part of our “out-group” compared with those categorised as part of our “in group.” It’s not a good way, for example, to make decisions about recruitment, promotion or staff development and leads to a less diverse workforce and firms missing out on talent. And should we not as a profession strive to represent at all levels the communities in which we are based?

Why are we increasingly hearing about unconscious bias in the legal profession? The SRA figures for August 2017 show women making up 48% of all lawyers in law firms but when broken down further women make up 59% of non-partner solicitors, compared with just 33% of partners. On 8 March 2018 the Law Society of England and Wales released the largest ever international survey of women in law. The largest perceived barrier to career progression identified by respondents was unconscious bias.

A 2012 study into applications for laboratory managers found that with an identical application randomly assigned to female and male names, the male applicants were selected as significantly more hireable and were given higher salaries and more career mentoring than the female applicants. The striking thing about that study was the gender of the selector did not affect the

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Unconscious bias is, of course, not just a gender related issue. If we want to narrow these inequality gaps it is important we understand unconscious bias and what we can do to moderate it.

Some steps we can all consider taking include: • Being aware of unconscious bias. Or be brave and test yourself on the online Harvard University implicit association test. Occasionally stop and challenge your own thinking and whether generalisations are creeping in.

• Don’t rush important decisions or take them when you are overly tired or stress. Research has shown these all increase the chance of unconscious biases creeping in.

• Plan job application processes. Advertise in places where everyone has an equal chance of applying. Can you consider using a standard application form rather than a CV so that everyone is submitting the same type of information? Can you shortlist anonymously by removing data such as name, educational establishments, and monitoring data?

• Set objective criteria, apply them objectively and justify the decisions based on evidence (and record the conclusions). Set weightings and stick to them so that you can’t subconsciously manipulate the process by moulding the criteria /weightings as candidates are seen.

• Challenge your own justifications. Assessing candidate’s ability to “fit with the team” may be more subjective than you may initially think.

• Have a diverse selection panel and don’t interview alone.

• Try to work with a wider range of people and get to know them as individuals. Research has shown that where workplace representation of a minority group reaches a critical mass of around 15% of the whole workplace group, there is far less stereotyping taking place as people get to know people as people. l

FEATURES

A family’s unexpected discovery changes the way the estate is distributed Where do you turn when a person has died without a valid Will and the family cannot tell you all the information needed to administer the Deceased’s estate?

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ven when the family believe they can, do you execute the administration process, relying solely on the family testimony available at that point? Invest countless hours in trying to establish the family and piece together a family tree? Or do you enlist a specialist to check the facts, because they might just uncover information that could change the facts of the case altogether? Elsie Wrights’ case illustrates why instructing a professional genealogist to verify facts is always best practice.

Elsie Wright was born in 1930 in Ilkley, West Yorkshire and she married George Strong in 1966. Elsie and George never had any children and she passed away in a nursing home in 2012, two years after the death of her husband, without leaving a Will. With no children, Elsie’s two nephews, David and Robert, believed themselves to be the sole heirs entitled to their aunt’s estate. Their mother Helen, Elsie’s only sibling, had passed away many years ago.

With such a simple family history, the solicitor assumed that the estate administration would be a straightforward matter, but, having a thorough approach to his work, he pursued clarification using Fraser and Fraser’s Family Tree Checker service. This service involves reviewing the existing documents, certificates and family tree and checking the details against the available transcribed databases to provide an expert genealogical opinion on its accuracy. In this case, the story had just begun.

By 1960s standards, Elsie was an old bride at the age of 36, and this sparked the interest of our Case Manager. Further research delved into Elsie’s past and uncovered an unexpected discovery. Elsie was previously married at age 23, and that marriage had resulted in the birth of a son named David.

This was a revelation that could potentially change the way Elsie’s estate would be distributed. It was previously understood that Elsie had no children and her estate would be shared between her two nephews. The discovery led the search for heirs in a new direction.

Our research proved that Elsie divorced her first husband, but what became of the child continued to be a mystery. Elsie’s son appeared to have lived with her for the first year of his life but then no record of him could be found. He had not been formally adopted, and this would mean that, having legally remained Elsie’s son, he would retain the right to inherit her entire estate.

The search continued and revealed a well-kept family secret that would change the nephews’ entitlements to the estate.

Although David had been raised by Elsie’s older sister Helen, he was not her biological child. The woman he knew as Aunt Elsie was, in fact, his biological and legal mother. Following Elsie’s divorce and given the societal pressures of the time, Elsie had given her son David to be raised by her older sister, Helen.

After careful research and expert handling, a case that was brought to us with seemingly clear beginnings, could now be rightfully distributed.

Family secrets, informal adoption, multiple marriages and a lack of research expertise, can all play their part in making research more complex than it originally seems. Fraser and Fraser’s Family Tree Checker service gives you the chance to discuss the complexities of the case with us. We check for inconsistencies, gaps and question marks so that we can advise you on the best way forward. l

Providing specialist research and estate administration support services with speed and accuracy.

Tracing missing beneficiaries is the heart of our business. Through expert knowledge and with international connections we can find the missing next-of-kin and assist with all aspects of estate administration.

Contact us today to see how Fraser and Fraser can assist with you.

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FEATURES

A SENSE OF SELF...

Both the Commons and the House of Lords have recently voted for the UK to be the first to accept the creation of a baby using DNA originating from three different people.

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his IVF (in vitro fertilization) technique is known as mitochondrial replacement therapy and concerns the prevention of certain genetic diseases, which could potentially assist up to 2,500 women of reproductive age in the UK. The popular press, perhaps unfortunately, coined the phrase “three parent babies”, which immediately upped the ante in the debate and brought forth intense discussion involving church and pro-life groups. In particular this has concerned the ethics of this procedure, set against long held fears of designer babies and eugenics. Safety concerns have also surfaced and there have been warnings that any children of this technique could be born sterile or be at risk of cancer and premature aging. There has also been international condemnation where authors have commented that, because these children would have heritable genetic changes, that there are significant risks to the health of future generations.

Mitochondria are present to generate energy for the cell. They come from the mother and have their own genetic material, which sits alongside the germ line DNA of the “conventional” mother and father. The thought that this DNA might constitute parentage (i.e. the third parent) brings forth some interesting legal points. Parenthood has both a genetic and social meaning, although the former is regarded as the fundamental tie between parent and child. This contribution must be both direct and immediate.

To clarify, grandparents provide a quarter of a child’s DNA but are not accorded the status of “half“ genetic parents. The recent proliferation of assisted reproductive technologies has of course complicated matters and given that the donor of the mitochondria is making a direct and immediate contribution of generic material, then in my view, we have a new biological parent. In preparation of this article, I have found it difficult to make the counter argument. Pertinent to this of course, is now the fact that the new (third) parent is a second female parent. Avoiding this issue by trying to claim mitochondrial donation is merely a tissue donation is not adequate. Others may say that the contribution of the third parent to the child’s DNA is low, less than 0.1%, but in the world of genetics, where we are examining disease-causing changes which occur at a frequency of one in three thousand million (the size to the human genome), this is significant. We simply do not know enough to say that the mitochondrial DNA will have no material effect on the characteristics of the child.

In the UK, the mother is the person who carried the child and gave birth, the father is the man who provided the sperm. So what could be the status of the donor of the mitochondria? Is it that they have the same status as a donor of an egg or sperm for IVF or perhaps the status of those who donate blood, organs or bone marrow? Egg or sperm donation is in effect normal reproduction from a genetic point of view but the donation of mitochondrial DNA does not fall into that category; it may create a set of unique parental rights. Equally, mitochondrial donation cannot be considered simply as a tissue donation; there is an impact on future generations, as the DNA will be passed on.

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Since the courts quite rightly take the view that a child should “know” its biological parents, the second female parent may well wish to take an interest in the child (via appropriate application of her Parental Responsibility rights) or they may wish to give up Parental Rights. Their view may change over time; how the donor feels at the time of donation could be very different to how she feels once the child is born. Current provisions under the Human Fertilisation and Embryology Act 2008 do not cover this situation adequately. For example, a Parental Order as it relates to surrogacy (to gain or relinquish parental rights) can only be granted after a child has been born (and then for a fixed period only), not at the point of conception. Perhaps the mitochondrial donor will be able to gain Parental Responsibility via a court order or a formal ‘parental responsibility agreement’ with the child’s birth mother (let us presume that she is the egg donor as well...it gets even more complicated if she is not!).

If the premise of the second female parent is accepted, which I believe it should be, then we are in new legal territory as it relates to assisted reproduction and it is likely that several legislative amendments will be required to provide for mitochondrial donation. l Dr Neil Sullivan, BSc., MBA (DIC), LLM, PhD. General Manager, Complement Genomics Ltd. trading as www.dadcheckgold.com Dr Neil Sullivan is General Manager of Complement Genomics Ltd, which provides the dadcheck®gold service for parentage testing. He is a PhD level molecular biologist with a LLM in commercial law and has a particular interest in consent

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FEATURES

DON’t SHOOT THE MESSENGER! Trudy McBride, Cardiff & District Law Society Council Member and a Criminal Justice practitioner, sends a clear message – just don’t blame her!!

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recently attended a forum kindly hosted by the team at the Law Society offices in Capitol Tower.

I had been called by Sarah Grace to inform the criminal lawyers in this area of the effects of the strike being conducted by the Criminal Bar. As everyone involved in this type of work will be aware the Bar have a real issue with the reduction in their legally aided fees and are refusing all briefs for work with a post 1st April Legal Aid Order. In June they will also be refusing returns.

The overall result is that more and more defendants are appearing in the Crown Court without counsel representing them.

Solicitors are being put under enormous pressure by the judiciary, particularly in the Cardiff and Newport Courts, to represent the clients, either by way of hastily granted rights of audience or if they already have those rights, to appear.

It is clear that all solicitors have rights of audience to represent defendants in the Crown Court on appeals from the lower court and also in respect of committals for sentence. They therefore would be expected to act although they may not feel competent in serious matters that they would ordinarily pass to counsel for the benefit of the client.

Some judges however are said to be insisting that those solicitors within the firm who have higher rights (the qualification) should have PCMH in order to progress the cases. This is all well and good if the solicitors are available to attend and if they have no prior commitments. It became obvious that some solicitors are concerned that they cannot drop all other work (some of which may be work undertaken to comply with the LAA compliance hours).

One solicitor told us of the representative sent by her to assist her client who was humiliated by the judge and told that the firm’s Legal Aid Order would be revoked. This, I would say is not within the remit of the Judge to do but of course I will inevitably stand corrected!

Clearly there will be further problems when trials start to take place and Defendants are on their own without counsel.

Whilst there was sympathy for the Bar there was anxiety amongst solicitors that they are being punished for their action. The room was divided as to whether to come out in support and fear as to the repercussions and adverse effects upon individual firms. Financially as well as emotionally.

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It would be true to say that the Swansea solicitors are having a much easier time than those in Cardiff and Newport and they were consequently happier to lend support and robustly tell the courts that counsel was not available and that their solicitors were not able to assist.

Everyone agreed that they will do their utmost to assist their clients as is their professional duty. Some however are of the opinion that they are being put into a position where their client’s interests are not being best served by them. Certainly no-one wishes to be put in a position where they have to conduct a trial when they feel unable to do so.

What was very clear however was that no one feels that judicial heavyhandiness could or should be tolerated. Solicitors are being treated in a contemptuous way…and the chaos is not of their making.

Whether you be a judge or solicitor, we are all members of the legal profession and a certain high standard of behaviour and courtesy is to be expected of all.

I should add that no judge was mentioned by name and not all judges were the subject of criticism! l Trudy McBride Criminal Practitioner Cardiff and District Law Society

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