Fantastic news Sydney Mitchell has won Law Firm of the Year in the 5-15 partners' category in the Birmingham Law Society Awards 2018. A great achievement!  Thank you to all the partners and staff who made this achievement possible.

Partners Fahmida Ismail, Sarah Archer, Kam Majevadia, Tracy Creed, Dean Parnell and Mauro Vinti accepted the award on the night presented by Emma Jesson and the category sponsored by Tony Rollason (Landmark Information Group).

Fahmida Ismail commented:

What an excellent result, recognising the hard work contributed by every single person in the firm in making us exceptional and being recognised by the Birmingham Law Society as Law Firm of the Year.

We are all extremely proud to continue to serve our clients to the highest standard.  Birmingham has such a lot to offer businesses and individuals and Awards like this just continue to show that we have great quality firms and people here in Birmingham.

Sydney Mitchell specialist teams include employment, commercial property, company and commercial services, litigation and insolvency. Private client teams include family law, residential property, dispute resolution and wills and probate, contentious probate, tax and trusts and personal injury.

Sydney Mitchell previously won this award in 2008, 2011, 2013, 2014, 2015 and it is a fantastic result that the firm has won the award in 2018.

Well done to all the winners in the Birmingham Law Society Awards 2018  - full list link attached

http://www.birminghamlawsociety.co.uk/2018winners

If you would like help on any legal matters, please call 0121 698 2200 or email enquiries@sydneymitchell.co.uk or fill in our online enquiry form

Tactical manoeuvring designed to ensure that big money divorce cases are heard in England, where judges are perceived as being more generous, does occur. In one case, however, the High Court cleared a wife of any such cynical conduct.

The former couple were both German nationals, but had lived in England for some years prior to the breakdown of the marriage following the wife’s discovery that the husband had had an affair. She petitioned for divorce in England, just over a month before her husband lodged a parallel petition in Germany.

In arguing that the divorce proceedings should take place in Germany, the husband claimed not to have been properly served with the English petition. He also asserted that the wife’s petition was an abuse of process in that, at the time it was issued, she held no genuine belief that the marriage had irretrievably broken down. She was alleged to have lodged the proceedings simply to ensure that the divorce would proceed in England in the event that a divorce proved necessary.

In rejecting those arguments, however, the Court found that the wife had clearly been shattered by the discovery of the husband’s affair. Her petition was genuine and was designed to be served immediately and to bring the marriage to an end. A delay in serving the petition was largely due to an administrative error and the husband was fully aware of the English proceedings before he lodged his own petition in Germany. In the circumstances, the English courts had jurisdiction to consider the wife’s petition.

Please contact Karen Moores on k.moores@sydneymitchell.co.uk for advice on this or other related Family Law matter.

The Advisory, Conciliation and Arbitration Service has produced revised guidance on overtime which takes account of recent court decisions that have indicated that all overtime worked should normally be included when calculating a worker's statutory holiday pay entitlement for the four weeks' annual leave required under the EU Working Time Directive (WTD). The exception to this is overtime that is worked on a genuinely occasional and infrequent basis so that it does not qualify as 'normal remuneration'.

The guidance examines the following topics:

• The difference between voluntary, compulsory and guaranteed, and compulsory but not guaranteed overtime;
• Ensuring compliance with the Working Time Regulations 1998 as regards how much overtime can be worked;
• Pay when working overtime;
• Overtime for part-time workers; and
• The impact of overtime on holiday pay calculations.

There are also links to further information on working hours, the National Minimum Wage and calculating holiday pay.

Whether a worker is required to work overtime depends on their contract of employment. The precise terms governing the practice should either be included in the contract itself or set out in the staff handbook.

As the statutory leave entitlement in the UK is 5.6 weeks, many employers find it easier to also include overtime when calculating holiday pay for the extra annual leave over and above the minimum entitlement under the WTD, even though they are not legally obliged to do so, as it makes the process simpler and easier to understand.

The detailed guidance can be found at http://www.acas.org.uk/index.aspx?articleid=4249

For help or advice on this or other related employment law matter, please speak to Samantha Glynn on 0121 746 3300 s.glynn@sydneymitchell.co.uk

Going abroad on holiday or to live is becoming a common occurrence for many children. Parents may be offered positions abroad, either for a specific time or with endless possibilities of a permanent move. Likewise, grandparents may have chosen to move to a warm climate with a more relaxed way of life and promises of frequent long holidays for their family.

Although these changes can be viewed with a mixture of excitement and fear, if both parents agree, then their children can explore new vistas.

However, if the parents are no longer residing together there are many issues which may arise that need to be addressed. Karen Moores, family law solicitor explains the legal implications of taking your children abroad if you are divorced or separated.

Taking a child on holiday

The necessity to obtain permission to take a child out of the UK is not commonly known. It often depends on what Children Act Orders have been made, if any, and applies whether it is a day trip to France, a fortnight to Florida or the whole of the school holidays with relatives in Pakistan.

Consideration should first of all be given as to who has parental responsibility. If both parents have parental responsibility and there are no Child Arrangement orders (residence orders) or other restrictions in place, then neither can take the child on holiday outside the United Kingdom without the written consent of the other parent or any other party with parental responsibility. If consent is refused, an application to the Court will need to be made for permission.

The situation is different where one parent has a Child Arrangement Order. A person with a Child Arrangement Order (Residence Order) can take a child abroad for up to a month without the written consent of the other parent. However, it is good parenting to endeavour to agree the arrangements in advance; if consent is unreasonably withheld then an application may be made to the Court.

If the mother alone has parental responsibility and there are no child arrangement orders concerning the child, permission is not strictly needed by her to take a child abroad on holiday. However, again it is responsible parenting to consult and reach agreement with the other parent. Of course this does not stop a father without parental responsibility applying for parental responsibility and then objecting to the temporary removal of the child.

In almost all cases it is best to agree holiday or similar arrangements in advance to avoid misunderstandings, problems with contact, accusations of abduction and other applications to the Court. In the normal course of events permission for a child to go abroad is invariably given by a Court. Often details are required stating where the child will be staying, giving the date of departure, return and details of flights along with contact telephone numbers. If however there are suspicions that the child will not be returned, especially if the child is going to a non Hague Convention Country, then security will be necessary.

If grandparents and other family members want to take a child abroad, permission will be needed from both parents with parental responsibility and not just from one parent.

All of these issues may be dealt with at the local Court, however, if the approved holiday requires consideration of the law and procedures in foreign countries, then a Judge of the High Court may deal with such applications as consideration will need to be given with regard to putting in place specific orders. This may include mirror orders, notarised agreements and significant sums of money placed in a bond to be released upon the child's return. There have also been cases where family members, not just the person taking the child abroad, have been required to enter into a solemn declaration guaranteeing the safe return of the child.

The Court would also look at the risk of non return along with the magnitude of the impact on the child of any non return. It is therefore evident from previous Judge's decisions that they take account of each individual circumstance, the age of the child and detailed protective steps if there is a significant fear of non return after a trip abroad.

For further information and questions on taking your child/children abroad, contact us today.

Concerns of abduction

It is not unusual, particularly in families with international connections, for either parent to be anxious that the child will not be returned. These doubts may arise prior to the child leaving on holiday or indeed where the parent and child are returned late after a contact visit or if it has been difficult to get in touch with the other parent at any stage. If there is an immediate risk, port alert will be required. If there is time to secure an application to the Court for an order prohibiting the removal of the child from the jurisdiction without notice being given to the other parent, this should be done quickly as it can be crucially important to prevent the child leaving the UK. Any delay in an application can result in the child being taken out of the jurisdiction and may then result in great difficulty in locating the child and securing their return.

Nevertheless, if it is known that the child has been taken to a Country within the European Union there are considerable resources and facilities in place to track and locate a child in the hope of securing a return before departure to the rest of the world.

Abduction is known as a failure to return a child after an agreed period abroad. As stated above there are protective steps which can be taken if there is a fear of a non return after a trip abroad and legal advice should always be sought promptly to address anxiety about any concerns of an abduction. Information such as names, addresses, photographs and descriptions of people and places where it is likely that the child could be taken should be gathered as soon as possible. Clearly, this evidence may only be available if there is a reason to suspect that the child is being taken to other family members or friends who reside abroad.

If you have any concerns about abduction and need some legal advice on the issue, contact our family team.

Relocating abroad

A parent needs the permission of the other parent or a Court Order to take a child permanently abroad. This is known as a relocation application or leave to remove.

In some cases it is appropriate to oppose the relocation application but in others it may be wise to consider putting energies into legal representation to ensuring very good future contact before the relocation proceeds. If there are well thought out plans, with good reasons given to the Court for relocation, they will generally allow relocation. This however, does not mean that a parent opposing relocation of their child should immediately give up.

When considering opposing relocation applications it is essential to consider all aspects of a child's life. The Court will hear evidence as to the child's educational progress, family and support network, activities that they are involved in along with the impact of losing contact with the wider family. Consideration will also be given by the Court as to what more could the one parent offer the child if they continue to reside in this jurisdiction. If the child is to remain in Europe where the country has signed up to the appropriate conventions, there will be certain protection and enforceability of orders for contact. Even if a child has been permitted to go abroad, certain safeguards can be put in place to ensure that good contact continues. This may include extended staying contact during the school holidays and consideration as to travel arrangements, the use of emails and web cams.

Enforcement is another important issue that is required to be looked at before a child leaves the jurisdiction as often if there is a breach of an agreement or an Order these may have no validity abroad and may therefore not be relied upon. Therefore notarised agreements, mirror orders, bonds, religious oaths and other safeguards to ensure compliance with arrangements should be considered. Contact Orders made in England may not automatically be recognised or may require separate Court procedures and all of this must be done before departure.

A mirror order is an order made in the courts of the country of relocation.  This is identical to the order made before the UK courts. Therefore the advantage for the left behind parent is that because the order becomes an order of the foreign state, local enforcement is available.

There are therefore many issues that have to be considered as far in advance as possible. Legal advice from a Solicitor, preferably who has experience in such matters, should be taken so that due consideration may be given to all the possibilities that may arise and precautionary measures put in place.

Many children go abroad on holiday to visit family and friends or indeed to emigrate and it is a positive experience for them. Ultimately wherever the children is residing, it is usually in the best interests of that child to have regular, quality and contact with both parents. If this is an issue that you require further assistance or advice on please contact us today.

Leading Midlands Law Firm Sydney Mitchell gives a helping hand to parents who are feeling the pain when faced with the prospect of losing their children.

The family department in the Birmingham office has expanded their team to provide help and advice to families that are faced with complexities involving disputes regarding children.

Amanda Holland, Associate Lawyer in the City Family Team comments:

The idea came about because our family team became increasingly frustrated at being unable to help parents who were not eligble for Legal Aid but clearly needed some level of legal assistance, but were unable to afford the costs involved in our dealing with the whole case.

So they gave up and tried to represent themselves which often left them at a disadvantage or in some cases parents gave up completely and lost all contact with their children.

The client can chose which package they need to suit their budget and which stage of the process they need help with.  This could simply be help completing court forms.  Alternatively, it might be assistance at court.

The Family Team based at Sydney Mitchell’s Birmingham office are: Amanda Holland, Nigel Mears and Miranda Buttler.

Miranda Buttler, Legal Assistant, added:

This innovative package for clients will make legal advice more accessible in bite size chunks. The office is in the heart of Birmingham City Centre and within walking distance of the Family Court at Birmingham.

Sydney Mitchell Private Client teams include family law, residential property, dispute resolution and wills and probate, contentious probate, tax and trusts and personal injury. Sydney Mitchell’s corporate teams include employment, commercial property, company and commercial services, litigation and insolvency.

More information about this service... click here

For help and advice on this or other related Family matter contact Amanda Holland on 0121 698 2245

Lucy Bluck, a member of Solicitors for the Elderly at leading West Midlands’ law firm Sydney Mitchell comments on the findings of a new report produced by SFE (Solicitors for the Elderly) and an independent think tank, Centre for Future Studies.  The report states that UK residents are leaving medical and care decisions to chance. The report looks at the ever-increasing number of people living with dementia which, combined with the failure to plan ahead for mental incapacity, exposes a looming crisis.  The study found that:

• 98% of people in the West Midlands leave important health and welfare decisions to chance
• By 2025, it is estimated that more than 13 million people who are at risk of mental incapacity will not have put safeguards in place appointing someone to assist with or make decisions on their behalf
• 71% would like a family member to be able make medical and care decisions on their behalf in the event that they were unable to make such decisions themselves
• 81% have not  discussed their preferences for end of life medical treatment and care wishes
• 36% admit to having made no provisions at all, such as a will, LPA, pension or funeral plan
• A staggering 70% of people incorrectly believe that their ‘next of kin’ will be able to make medical and care decisions if they are no longer able to .Without the necessary provisions in place, potential life-changing medical and care decisions can be taken away from loved ones
• 80% of those questioned in the West Midlands are worried about becoming mentally incapacitated and losing the ability to make decisions for themselves
• 60% believe that being on the NHS organ donor register ensures that organs are automatically donated following their death; however this is not the case
• Only 2% of those surveyed in the West Midlands by SFE have a health and welfare LPA in place

Coalition of partners join forces to warn of ‘incapacity crisis’ led by SFE, including Baroness Ilora Finlay, Alzheimer’s Society, Dying Matters, Age UK, Anchor, and SOLLA

What is a Lasting Power of Attorney (LPA)?

An LPA is a powerful legal document, which allows a person (or ‘donor’) to choose one or more individuals (known as attorneys) to handle their affairs in the event that they are no longer able to do so themselves, for example if they lose mental capacity. Attorneys are usually trusted family members or friends, but people can also select a legal professional as their attorney. 

An LPA can only be put in place while a person has the mental capacity to do so. It’s important to plan ahead and get your wishes down on paper as early as possible to ensure that whoever you choose to manage your affairs can retain control, should you lose capacity.

There are two types of LPA: a health and welfare LPA (H&W LPA), and a property and financial affairs LPA (P&F LPA). The former covers things like choices around care plans, medical treatment and end of life wishes.  The latter deals with the management of property, other assets, bank accounts and bill payments.

There are currently 928,000 Health and Welfare LPAs registered with the Office of the Public Guardian (OPG) across England and Wales, compared to the 12.8 million people over the age of 65 who run the risk of developing dementia – a difference of nearly 93%.

The forecast shows the disparity will continue, leaving millions in limbo. By 2025, it’s calculated that 15.2 million people will be at risk of mental incapacity and it’s estimated that 2.2 million health and welfare LPAs will be in place. 

SFE is urging the nation to act now to avoid this incapacity crisis by planning ahead in case of mental incapacity.

It is crucial to have a conversation with loved ones in order to make your specific medical and care wishes known – such as, where you are cared for, whether you wish to be an organ donor and whether or not you would want to be resuscitated in certain situations– otherwise your preferences can not be taken into account.

The campaign calls on people to act now and start a conversation with loved ones about end of life topics to remove the stigma surrounding the discussion and then prepare a Lasting Power of Attorney giving the people you have chosen the power to make those decisions

Lakshmi Turner, Chief Executive of SFE, said:

“Most of us do not like thinking about, let alone talking about, death, disability or disease, despite the fact that it touches all our lives – but it is essential that we do so.

“Whilst it’s great that more and more of us are putting wills in place and establishing plans for finances and assets, far too few of us are planning ahead for our health and care needs and wishes, leaving this to chance.

“It’s time to set the record straight. Planning ahead by talking to family or friends shouldn’t be seen as doom and gloom; it’s about having a positive conversation about welfare, empowering your loved ones and making the decision-making process easier for everyone.”

Jeremy Hughes CBE, Chief Executive of Alzheimer's Society

“We welcome this initiative. Lasting powers of attorney for health and welfare too often get overlooked.

“People with dementia have the right to make choices about their care, just like anyone else. Making someone they trust their attorney for health and welfare is one of the ways people can do this. A health and welfare LPA provides reassurance to them and the act of creating one can start useful conversations about the future with family and friends.”

For help or advice on this or other private client matters, please speak to Lucy Bluck l.bluck@sydneymitchell.co.uk 0808 166 8860

For help and advice contact Sundeep Bilkhu on s.bilkhu@sydneymitchell.co.uk or call 0808 166 8974.

One powerful reason why you should always seek legal advice before making your will is to ensure you meet your responsibilities to those who depend on you financially. In one case on point, the High Court effectively rewrote the will of a wealthy landowner who cut his long-term partner out of his £1.5 million estate.

The couple had been living together as man and wife for over 40 years. When he was in hospital shortly before his death, aged 94, he had told her not to worry as she would be well looked after. However, he left her nothing in his final will – he had made about ten others previously – and instead bequeathed his entire estate to two of his tenants who had been kind to him during his final years.

In a letter of wishes attached to the will, he expressed a determination that neither his partner nor her four children should inherit any part of his fortune. He stated, incorrectly, that she had her own resources and was financially comfortable. In fact, she had been left with modest savings of about £2,500 and was otherwise entirely dependent on benefits. In those circumstances, her lawyers launched proceedings under the Inheritance (Provision for Family and Dependants) Act 1975, seeking reasonable provision from his estate.

In upholding her claim, the Court noted the duration of the relationship and the care that the woman had given to her partner as his health declined. She had worked without pay on his farm and in his business, and assisted in caring for his mother before she died. In those circumstances, the terms of his will failed to match up to the moral and legal responsibilities that he owed her as a dependant.

The Court ordered that a cottage worth £225,000 should be transferred to the woman from the estate. She was also awarded almost £190,000 in cash to cover the costs of refurbishing the cottage and other expenses. The Court noted that the tenants, as the man's chosen beneficiaries, would still inherit the lion's share of his estate.

If you have been deprived of benefiting from the estate of someone on whom you were dependent, contact Kamal Majevadia or Hayley-Jo Lockley regarding the possibility of making a claim. k.majevadia@sydneymitchell.co.uk or h.lockley@sydneymitchell.co.uk 0121 746 3300

There can really be no excuse for a modern employer not to have in place comprehensive anti-discrimination policies that are fully understood by all workers. In one case that illustrates the consequences of failing to comply with the law in this respect, a transgender sales assistant who was subjected to playground-style bullying whilst working for a major retailer has been awarded almost £50,000 in compensation (De Souza E Souza v Primark Stores Limited).

The worker had been dressing as a woman on a permanent basis for almost 15 years before the retailer employed her. Although her male birth name appeared on her passport and other documentation, she made it clear during her interview that she wished to be addressed by her preferred, female name. Both names were, however, entered on the retailer's computer system and, despite her protests, one of her supervisors persistently called her by her birth name.

The woman had been in the job for about three months when her transgender status became widely known amongst her colleagues. A series of incidents followed, in one of which a co-worker commented on her deep voice and sprayed male perfume in her direction, causing her to cough. In another, when she was fixing her makeup in the women's toilets, a colleague commented that there were 'no ladies in there'. She had also overhead colleagues referring to her as 'evil' or 'a joke'. She became so upset by her treatment that she ultimately resigned.

After lawyers launched proceedings on her behalf, an Employment Tribunal (ET) found that she had been constructively dismissed after enduring harassment and direct discrimination due to her gender identity. Despite her complaints, including to the police, her employer had done nothing to assist her, merely telling her to calm down and that she was drawing attention to herself.

She had been bullied out of a job she loved and the injury to her feelings was severe. The discrimination had made her feel insecure about her gender identity with the result that she had been prescribed anti-depressants and was unable to work for a considerable period following her dismissal.

She was awarded total damages of £47,433, made up of £20,000 for lost earnings, £25,000 for injury to feelings and interest. The ET recommended that the retailer put in place a training regime and a written policy instructing its managers how to deal appropriately with new or existing staff who are transgender or who wish to undergo gender reassignment.

Employers should make sure they have up-to-date anti-discrimination policies in place and that these are effectively enforced. Contact Samantha Glynn on 0121 698 2200 if you would like advice on this topic.

Under the Pensions Act 2008, every employer in the UK has a duty to enrol certain staff into a pension scheme and contribute towards it.

Employers are reminded that the minimum required contribution levels to auto-enrolment pension schemes or qualifying workplace pension schemes (based on a worker's 'qualifying earnings') increase from 6 April 2018.

From that date, the employer minimum contribution rate is 2 per cent and the staff minimum contribution rate is 3 per cent.

There will be a further increase from 6 April 2019, when the employer minimum contribution rate will rise to 3 per cent and the staff minimum contribution rate will rise to 5 per cent.

The scheme rules or agreements will need to be amended to ensure it continues to meet the qualifying criteria.

If a pension scheme does not increase its minimum contribution levels in line with the statutory requirements, it will no longer be a qualifying scheme for existing members and cannot be used for automatic enrolment.

Pension scheme trustees and providers, employers and payroll and software providers should ensure they have done all that is necessary to comply.

Further information and detailed guidance for employers can be found on the website of the Pensions Regulator at http://www.thepensionsregulator.gov.uk/doc-library/increases-in-minimum-contributions-automatic-enrolment.aspx.

We can assist you in reviewing your pension scheme arrangements to ensure your statutory duties are met.

Contact Samantha Glynn on 0121 698 2200 or email s.glynn@sydneymitchell.co.uk