About Elizabeth Baker

Elizabeth is our Business Development Manager. She has a degree in both English Literature and Law from Glasgow University. After graduating in 1983 she served her traineeship as a solicitor in Oban. When she was admitted as a solicitor her first job was at Mitchells Roberton in 1985 so she is a well known face. She spread her wings and joined other firms along the way and had a successful law practice under her own name for some years. She returned to Mitchells Roberton in 2011 and works primarily to enhance the marketing of our firm. With her excellent links with small business and the media in the greater Glasgow area, she is well placed in the role and generates a good deal of referrals and new business. Elizabeth is a people person and naturally connects with both staff and clients. Elizabeth has two grown up children and loves walking her dog, travelling and reading literature.

A new Bill to tackle psychological domestic abuse has been published

The Domestic Abuse (Scotland) Bill aims to strengthen the law against people who psychologically abuse their partners using coercive and controlling behaviour.

For the first time, the Bill will create a statutory offence of domestic abuse by recognising the damage which non- physical abuse can cause. Such behaviour could include subordination, humiliation, isolating a partner from friends, relatives and sources of support and controlling or monitoring their day to day activity.

First Minister Nicola Sturgeon met survivors of abuse at the Glasgow Young Women’s Movement (YWCA) as the Bill was introduced to Parliament.

Ms Sturgeon said: “ I am proud that as a society, we’ve come a long way from believing that domestic abuse is only a physical act. The truth is that the psychological scars left by emotional abuse can have devastating effects on victims and this government will work hard to make sure perpetrators face the justice they deserve.”

“This Bill will help our police and prosecutors hold abusers to account- but importantly, it also shows those who have suffered abuse that we stand with them and will take the steps needed to help them.”

Kara Brown, Director of YWCA Scotland added “The Young Women’s Movement is proud to be part of a country breaking ground through new progressive legislation.”

“We welcome this legislation as a critical tool to reduce stigma, raise understanding and encourage survivors of mental, financial and physical abuse to come forward.”

Should you consider a postnuptial agreement?

Marriage or civil partnership is a relationship that most of us will enter into at some point in our lives. Pre and post-nuptial agreements can be an effective and simple way of protecting the interests of both parties within such partnerships. Generally both types of agreement will determine the division of assets if a marriage or civil partnership breaks down.

In fact there is a growing interest in postnuptial agreements -similar to a prenuptial agreement but made after a marriage or civil partnership has already been entered into.

Postnuptial agreements are most appropriate in certain circumstances:

  • Where someone is to receive (family) wealth during the marriage or partnership and wants certainty about what would happen to the capital if the relationship failed:
  • Where one spouse or partner intends to take time out of work and wants financial security during that period or subsequently: or
  • The parties considered a prenuptial agreement but did not get round to it and there may have been unequal wealth coming into the relationship, it may be a second marriage with  the divorce process the first time around being harrowing or there may be children of a previous marriage.
  • There could be a family business to think about so that control of the business is preserved within the family in the event of a relationship floundering.

There are, however, some common misconceptions that often deter people from giving postnuptial agreements serious consideration namely:

  • They are only for the rich. This is not true.
  • They are not legally enforceable. In Scotland prenuptial and now postnuptial agreements have been a legal norm for quite some time and enforceability should not be an issue if the agreement is correctly drawn up.
  • That such agreements undermine a relationship. Many believe that the modern reality is that a well-made pre or postnuptial agreement can be viewed as a solid foundation for a marriage or civil partnership by introducing clarity and transparency. That said there will be many who believe that a marriage or civil partnership should be based on trust and will remain reluctant to enter into such a formal agreement their vows remaining more paramount to considerations of avoidance of future disputes.

To have and to hold from this day forward
For better for worse
For richer for poorer
In sickness and in health
To love and to cherish to the exclusion of all others
For as long as we both shall live.

What do you think?

We are pleased to welcome an aspiring solicitor to our firm

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This year’s trainee Marcus Downie is settling in to his new position in our Residential Conveyancing Department. During his two year traineeship he will gain an understanding of client’s needs and have the opportunity of working in different areas of law including  commercial property, private client and civil litigation.

In the summer of 2013 Marcus began working with us initially helping with the administrative tasks relating to the merger with Donaldson Alexander Russell and Haddow. He then returned the following summers to assist with legal work in various departments before commencing his traineeship in 2016.

As a Mitchells Roberton trainee Marcus will learn how to deal with people who may be going through a stressful situation and need guidance and support. He will also gain an understanding of how to work as a team member and communicate effectively with colleagues; know when to ask advice from someone more experienced; and understand the importance of building up a network of contacts.

Mark McGorm our Partnership Director said: “We are committed to investing in our people and believe in helping our staff succeed”.

Grey Hair in Barlinnie

Some time ago Glasgow Chamber of Commerce organised one of their Behind the Scene Events this time to Barlinnie Prison. I suppose most of us have little idea what to expect in visiting a prison but I left with ambivalent feelings which were pretty strong.

Barlinnie is of course a large local prison receiving prisoners from the courts in the west of Scotland. Very few prisons have gained such notoriety as Barlinnie has, in its long and murky history. It is one of the oldest functioning prisons in the world meaning the longstanding Victorian building has been holding ne’r’do’wells for more than 132 years. In January 1987 a riot in the prison made worldwide news with five staff being taken hostage but eventually being let go with little or no harm done. It is also famous for its “Special Unit” which opened in 1973 and closed in 1993 where some of the most violent offenders were offered opportunities to attempt to rehabilitate themselves.  Not everyone went to Barlinnie to serve a prison sentence and between the years of 1947 and 1960 10 people were hanged including one of Scotland’s most notorious serial killers Peter Manuel. In 2002 one of the world’s most revered leaders Nelson Mandela visited Barlinnie to speak to Abdelbaset al-Megrahi to help to secure his release.

But here we were on a wintry morning having signed in, handed in our mobile phones, handbags etc and going through the equivalent of airport security to go into the prison for our guided tour which included cells, food hall, medical facilities, a testosterone filled gym, hairdressers, kitchens, work training areas , gardens and meeting prisoners.

It was like entering a micro society of males. So it probably is no surprise that prisons face the same challenges in terms of demographic population as society in general with the prison population becoming increasingly elderly. In a recent article published in the Sunday Herald it was highlighted that offenders aged over 65 in custody had increased from 88 in 2010/11 to 152 by October 2016,with those aged 60-64 increasing from 92 to 136 and those aged 55-59 growing from 150 to 265.

As the article states “All of this is at a time when the prison population showed a slight decline, mainly due to a reduction in young offender numbers. As the years pass, it will no longer be troubled young men but convicted old men who’ll pose more issues for our prisons”

We cannot bury our heads in the sand and ignore the fact that there is an increase in offenders in prison for crimes of historical sexual abuse and in the light of the recent scandals in football there may be much more to be exposed of a very dark past in our society. Given the judgemental attitudes in prison life, protecting offenders due to the nature of their crime where angry young men would love to punish the dirty old men as they would see it, can be extremely challenging let alone dealing with the specialist care frail and elderly prisoners may need. Some young prisoners will have been victims of abuse, with a culture of denial hiding it and for many their pain is articulated in anti-social behaviour.

When I left the prison I felt saddened with a sense of hopelessness. Prisons reflect society in many ways not just as regards age. It is I believe time to look anew at our prisons for young as well as old.

This opinion is entirely my own.

The Tumbling Lassie Ball 2017

I just received an email regarding the Tumbling Lassie Ball 2017 in aid of victims of modern slavery and people trafficking. The name of the Ball comes from a little known case Reid v Scot of Harden decided in the Court of Session in 1687. It was about a little girl, a stage gymnast, who ran away from her manager, a Mr Reid, because she was physically worn out by her work, dancing as part of his travelling stage show. She had taken shelter with Scott of Harden and his wife but Reid sued the Scots claiming he had bought the girl from her mother and that she belonged to him. The Scottish Court of Session refused Reid’s claim with the case report declaring “But we have no slaves in Scotland, and mothers cannot sell their bairns.”

Yet centuries later we have modern slavery. The definition of this taken from Modern Slavery Facts-Walk Free is “when one person possesses or controls another person in such a way as to significantly deprive that person of their individual liberty , with the intention of exploiting that person through their use , profit, transfer or disposal”.

Here are some very unpalatable facts also contained in an information sheet by the Walk Free Foundation.

  • 8 million people are enslaved
  • 68% are subject to forced labour
  • Nearly 1 in 3 detected victims of slavery is a child
  • Slavery is illegal in almost every nation on earth but still exists everywhere
  • Over half victims of slavery are women and girls
  • Slave labour contributes to the production of at least 136 goods from 74 countries worldwide.
  • The majority of victims are trafficked by someone they know and trust
  • Victims of slavery can be as young as 5 or 6 years old.

On the 28 May 2016 The Guardian published an article “A Slave in Scotland: I fell into a trap-and I couldn’t get out”. In 2009 Abdul Azad left his wife and baby son in Bangladesh expecting to start work as a chef in a restaurant in London. This was arranged by Shamsul Arefin whom he had met after responding to an advert in a Dhaka paper offering jobs as a chef in the UK. With the promise of a good life and a better job Azad borrowed £15,000 from moneylenders and raised another £5000 by selling his family land, his business and finally his wife’s jewellery to pay Arefin his sponsorship fee.

When Azad arrived in London he was told by Arefin to get a coach to Glasgow and then another bus to Ballachulish where he was taken to the Stewart Hotel. He spent months there as the sole employee , cleaning, cooking and gardening for up to 22 hours a day seven days a week for which he was never paid more than £100 a month which was just enough to send something home. Other Bangladeshi men began to arrive at the hotel to be treated as Azad having also paid large amounts of money to Arefin for sponsorship.

One day Arefin had left the hotel and the trafficked men took the one bus to Fort William and walked into the Citizen’s Advice Bureau and asked for help. A few weeks later the hotel was raided by the UK Border Agency and Arefin’s sponsor licence was revoked.

The story however does not have a happy ending. The men got the help of a case worker Jim Laird of Migrant Help and the Home Office agreed that they could stay in the UK on short term temporary visas if they agreed to be witnesses in a criminal investigation into Arefin and the Stewart Hotel. It took five years for the criminal case to come to trial. In July 2015 Shamsul Arefin was found guilty of human trafficking under the Asylum and Immigration Act and was given a three year prison sentence. But this conviction did little to help his former workers who are still fighting to stay in the UK while they try to claim compensation or be able to work to pay off their debts back home. As the article has said the men are “All terrified that their lives, and those of their families, will be at risk if they are forced to return, unable to pay their debts.”

The proceeds from The Tumbling Lassie Ball 2017 will be shared between TARA which works to support victims of trafficking in Scotland and the International Justice Mission, which works with local lawyers in the developing world to fight slavery.

I hope that the Ball will be a resounding success.

New legal arrangements for private tenancies and court procedures

Small claims and residential leases are amongst the few legal documents that many people try and draft themselves. Over the next six months all of these will be changing, with the replacement of Assured and Short Assured Tenancies by a new single “private residential tenancy” (potentially from the end of the year) and the creation of Simple Procedure for civil court claims up to £5,000 (starting 28 November).

Though the style tenancy documents are still under consultation, it is clear that the new paperwork in both areas is designed to be used by the public without needing a solicitor. There is even to be a “Model Tenancy” so landlords will have a standard lease which should be ‘good to go’ for most situations.

As a lawyer who specialises in these areas, I may not need a new career just yet however. Easy to use and understand documents is only one issue. For tenancies, decisions are needed on the various optional clauses and what best applies to the situation. For Simple Procedure, completing the form with all the needed information may still not answer whether there is a strong legal claim or a proper defence.

Although these documents should be straightforward to fill in, once you add in that the new procedures are quite different in both areas, and that tenants have much stronger rights under the new tenancy, legal advice still needs to be considered once the changes come into effect.

If I can be of any help at all please call Joel on 0141 552 3422 or email joel@mitchells-roberton.co.uk

This article was written by Joel Conn and appeared in the December/January edition of the Westender Magazine

A Move Too Far

When we set out to live “happily ever after” we are certainly not considering that “ever after” might end sooner than expected and that “happily” is only a word and not necessarily an enduring experience. But as life would have it “ever after” does sometimes end in divorce and difficult child contact issues, with one or both parents suffering from a no win choice- stay together for the sake of whatever can be justified as a good reason to stay together, or head towards divorce and suffer the effects of what divorce may impose not only on the psyche of the child but also the parents.

When a relationship breaks down, wanting to start a new life is an understandable goal for those involved. The question of contact with children can be problematic but if one parent decides they want to start afresh in a new county, country or even on a new continent aiming to take the children with them, then the effect on contact with the children for the non-resident parent can be huge.

So when a couple split up what rights do they have if they wish to relocate or indeed if they want to prevent their children being removed abroad?

In theory ,any parent with parental rights and responsibilities under the Children (Scotland) Act 1995 can under Scots law move a child anywhere within the UK without the consent of the other parent but if the matter is disputed a court decision is required. Any parent wishing to remove their child from the UK must obtain the consent of the other parent before doing so, if that parent also has parental rights and responsibilities. This is the case whether travelling internationally for a holiday, to visit family or to relocate permanently.

If the consent of the ‘left behind’ parent is refused then an application must be made to court seeking permission to relocate with the child out with the UK.

A court’s decision to allow a relocation involves a delicate balancing exercise in which the welfare of the child is always the paramount consideration. It supercedes that of the resident parent being in closer proximity to a support system or a job with increased pay.

The facts and circumstances of each case will be taken into account.

  • A reasonably and carefully framed child relocation plan is essential and it must be one which is realistic.
  • The threat of relocation on contact with the non resident parent is of considerable importance. The application for leave to remove must be genuine and not a ploy to exclude the other parent from the child’s life.
  • The effect of relocation on the child’s contact with extended family in Scotland or the benefits of having a relationship with family in another country will also be taken into account
  • The child’s wishes, depending upon the age of the child and their level of maturity will also be taken into account but are unlikely to be determinative. Children over 12 years are presumed mature enough to give their views but there is some case law to suggest that children younger than that might still be able to have their thoughts taken into account.

If a parent were to relocate without a specific order or consent of the other parent there would still be a remedy for the ‘left behind’ parent. Such relocation of the children would be a wrongful removal of the children under the Hague Convention on the International Aspects of Child Abduction. A removal is wrongful when it breaches rights of contact in the place where the child is habitually resident.

If you are planning to relocate or if you fear that your former partner is making plans to leave the country with your child, advice at the earliest stage should be sought. Our Family Law Department can help – http://www.mitchells-roberton.co.uk