Archive for June, 2015

Home is where the……Court says it is!

Friday, June 26th, 2015

Dont sing when your winning
The Supreme Court, the highest Civil Court in the United Kingdom, has recently made a very important decision on the interpretation of the Hague Convention in regard to “habitual residence” in matrimonial cases. This has significant ramifications not only for UK citizens who live abroad on an ex-patriate basis, but also foreign nationals who live in the United Kingdom on a similar basis, writes Graham A. Garden.

The important point in this case is the Court’s interpretation of the “habitual residence” of the children who are the subject of the action as, in terms of the Hague Convention, in the event of a dispute between parents of children, the children should be returned to the place where they were habitually resident, if they are living in another place, or should remain in the place where they are living if that is their habitual residence.

The Hague Convention’s aim is “to secure the prompt return of the children wrongfully removed to or retained in any contracting state”.  The Courts are given no discretion on this matter and where a child has been wrongfully removed or retained from his or her habitual residence and proceedings are commenced within one year, the relevant state shall order the return of the child forthwith.  Many will have read or heard of “International abduction cases”, and the purpose of this Convention is to deal with such cases.

In the case of AR v. RN, the decision turned on whether the Court should order the return to France of two little girls who had been living with their mother in Scotland since July 2013, following the end of the parent’s relationship.  The children were born in France and their father is a French citizen who has lived in France all of his life and has a small business in France.  The mother is a British/Canadian citizen who was born in Canada of a Scottish mother.  She works from home for a Canadian employer and she and the father have never been married.  Until July 2013, the family lived in France, visiting Scotland from time to time.  In July 2013, the mother and her children came to live in Scotland, with the agreement of the father.  It was agreed that they would do so during the mother’s twelve month maternity leave with the intention that, at the end of that period, they would return to France.  It was a matter of agreement that the mother and children would live in Scotland for a period of about a year from July 2013.  The elder child attended the local Nursery School in Scotland and the father visited the family for several days each month.  The mother and children joined the father for a holiday in France during this period.

The couple’s relationship ended in November 2013, at which time the mother sought a Residence Order in respect of the children and Interdict against the father removing them from Scotland.  The father sought an Order for the return of the children to France maintaining that the mother had “wrongfully” retained the children, within the meaning of the Hague Convention.  The father argued that the children were habitually resident in France immediately before 20 November 2013.

When the case first called before the Outer House of the Court of Session, the Judge took the view that the children were still habitually resident in France, based on the fact that the move to Scotland had not been intended by both parents to be permanent.

The Inner House i.e. the Appeal Court in Scotland, reversed that judge’s decision on the basis that shared parental intention to move permanently to Scotland was not an essential element in any alteration of the children’s habitual residence and concluded that the children were habitually resident in Scotland at the material time. This decision was appealed to the Supreme Court which dismissed the Appeal before it, stating that stability of residence, rather than its degree of permanence, was important.  Lord Reid stated “There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.  Habitual residence is therefore deemed to be a question of fact which requires an evaluation of all relevant circumstances.  The purposes and intentions of the parents are merely two of the relevant factors which must be taken into account.  It is necessary to assess the degree of integration of the child into a social and family environment in the country in question.”  The Court concluded that the children were habitually resident in Scotland within the meaning of the Convention.

This decision potentially raises many interesting questions amongst the ex-patriate community in Scotland and for UK citizens who live in a state which contracts to the Hague Convention, in the event of the breakdown of their relationship, when the question of the residence of the children is in dispute.

For further information on this, please feel free to contact Graham A Garden (01569) 763555, g.garden@jgcollie.co.uk or any of the other members of our Family Law Team, Duncan Love (01224) 581581, d.love@jgcollie.co.uk, Susan Waters (01224) 581581, s.waters@jgcollie.co.uk, or Jenni Sutherland (01224) 581581, j.sutherland@jgcollie.co.uk.

Pensions – “You’ve never had it so good?”

Friday, June 26th, 2015

Pensions
The pension freedom reforms introduced by Chancellor, George Osborne, are now 2 months in and although this overhaul is still being applauded, there is a concern that some will be tripped up by the new rules and make a decision that could cost them both now and in the long run.

However, before we get into the nuts and bolts of these new freedoms, it is worth pausing to accentuate the tax breaks afforded through pension planning to individuals and employers on contributions, fund growth and at retirement. Tax relief at individuals’ highest marginal rates, corporation tax relief for employers, the ability to carry forward unused annual allowances from the previous 3 tax years just scratch the surface of the tax advantages in terms of financial and taxation planning.

Now, back to pension freedom – what does it essentially mean? It allows over-55s to take control of their own retirement savings and spend, save or invest them as they wish.

Yet, serious risks are looming, like paying far too much tax and the possibility of treating the pension fund like a cash windfall and spending the entire fund.

Unwary individuals who are either still working or about to retire could overpay tax, miscalculate their state pension entitlement or lose benefits.

Workers used to simply paying the basic rate of tax through employers might not realise that dipping too freely into their pension pot from age 55 will more than likely put them into the higher rate tax bracket.

Those on means-tested benefits should also take care about cashing in their pensions in case this makes them ineligible for state support.

Meanwhile, there is a risk that some people will overestimate their state pension and run down their pension savings before realising they are due less from the Government than anticipated. The pension freedom changes coincide with a major revamp of the state pension introducing a new flat weekly rate payment and the need to have made full NI contributions for 35 years to qualify for the maximum benefit.

There has been a great deal of anticipation and discussion about the freedom April brought in terms of being able to withdraw cash from pensions but it is imperative that people think carefully before doing this.

Many people will have spent decades building a pension or accumulating pension pots so they need to make sure it does what it is supposed to do – pay for you in retirement. The right thing to do with your pension will depend on your own circumstances but the first step is to seek independent financial advice to help understand all your options.

Pension freedom is a major sea change and the devil is in the detail and that is why it is vital that factors like taxation treatment, investment risk, morbidity, mortality and death benefits need to be considered, so that it allows for an informed decision to be made of how best to use pension saving throughout retirement.

The foregoing is meant for general guidance and please note that tax services provided by James & George Collie Financial Management Limited are not regulated by the Financial Conduct Authority.

For  further information or to discuss your pension planning, please contact our financial advisers by email at FSDepartment@jgcollie.co.uk

Don’t sing when you’re winning:

Friday, June 26th, 2015

Dont sing when your winning
the colourful and short history of the legislation widely known as the ‘Football Banning Order’

With the end of the Scottish domestic football season for the 2014/15 campaign, many will be wondering what to do with their weekends and contemplating how to fill the void.  Many players are jetting off on their well-earned end of season break and many managers are contemplating shuffling around their existing squad for the upcoming new season.

The Scottish Parliament may also potentially be looking towards doing the same in the near future in relation to a revamp of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act (2011).   This is the legislation which has brought us the much reported ‘football banning order’.  Our Jamie Robertson provides an overview of the situation as things stand currently.

The success and intention of the abovementioned legislation has been called into question in recent months.  The University of Stirling are set to publish a report into the perceived widespread failings of the legislation, which was the first bill ‘railroaded through the Scottish Parliament in 2011’ according to independent MSP Margo MacDonald.  Indeed there seems to be widespread condemnation as to the effectiveness of the legislation, given that there is currently a 4,500 strong (and growing) petition to have the legislation repealed by the football supporters group, Fans Against Criminalisation.  They cite amongst the reason for their petition, that the legislation stifles their right to freedom of expression.   Those who have had the misfortune to attend football matches where unsavoury songs have been sung would completely refute these claims, but there is, from a legal point of view, a thin line to be trodden between what could be viewed as ‘friendly banter with the opposition fans’ and those songs, chants, statements or other forms of communication, verbal or electronic that could incite hatred or otherwise breach the legislation.

The very need to have this legislation is a damning indictment of the darker side of football, however the success of this Act itself when viewed objectively and fairly, is mixed. Only 74 convictions were secured out of 161 cases which called before the criminal courts last year; that’s only a 48% success rate for convictions.  Those who are against the legislation would state that this shows there is a need for better honing of its intent, as when challenged under Article 7 of the European Convention of Human Rights (the right to know the charges against you) the alleged offences do not appear to hold sufficient water to satisfy the requirements if said Article.  This stance is backed by the Scottish Human Rights Commission, which stated that when being passed through the Scottish Parliament, it ‘lacked a degree of legal certainty’.  However, lawmakers and enforcement officers would no doubt refute the above assertions and state that any successful conviction under the act is in the public interest and that the legislation is fit for purpose.  The reasonable man can clearly see both sides, and would not wish for there to be any situation whereby this kind of legislation is necessary.  However, on balance, the next time you are revelling on the terraces of your chosen teams ground, we would advise that you err on the side of caution and simply whoop and holler along with the vast majority of your fellow fans!

Should you require any more information on these matters please contact our Jamie Robertson by email at j.robertson@jgcollie.co.uk or any member of our Court Department.

Over the Garden Hedge

Friday, June 26th, 2015

Over the hedge
A good relationship with our neighbours is something most of us want and most of the time most of us enjoy, however, when things do go wrong they have a tendency to go very wrong.

One of the most contentious – but thankfully rare – differences between neighbours relates to hedges and more particularly to high hedges. Boundary fences or walls will usually require planning permission if they exceed 2m in height. There is no such requirement for hedges no matter how high they are or may become.

After public consultation, the Scottish Government felt that there was a need for legislation to deal with disputes relating to high hedges and hence the High Hedges (Scotland) Act 2013 was enacted. The Act came into force on 1 April 2014 and makes provision about “hedges which interfere with the reasonable enjoyment of residential properties”.

The Act doesn’t regulate the height of all hedges throughout the country nor does it make it illegal for the owner or occupier of property to allow a hedge to exceed 2m in height.

Its objective is to provide a means for the settlement of disputes where neighbours have been unable to resolve matters amicably between themselves and without the need to resort to litigation.

This is achieved in the Act by (a) giving home owners or occupiers a right to apply to the relevant local authority for a high hedge notice and (b) empowering local authorities to make and enforce decisions in relation to high hedges within their local areas.

The Act is intended to be a last resort and emphasises this by stating that applicants for a high hedge notice “must take all reasonable steps to resolve matters in relation to the high hedge” before making any application to the relevant local authority. Applicants must also have regard to any guidance issued by the local authority in question. The Scottish Government has issued Guidance to all local authorities but has also allowed each local authority to issue their own detailed guidance to applicants within their area. An application fee is also payable to the relevant local authority.

What is a high hedge?

A high hedge is defined in the Act as a hedge which:

  1. is formed wholly or mainly by a row of two or more trees or shrubs,
  2. rises to a height of more than 2m above ground level, and
  3. forms a barrier to light.

A hedge will not be regarded as forming a barrier to light if it has gaps which significantly reduce its overall effect as a barrier at heights of more than 2m. Additionally, no account will be taken of the roots of a high hedge.

Application for a high hedge notice

If an owner or occupier of a domestic property considers that the height of the high hedge, situated on land owned or occupied by another person, adversely affects the enjoyment of the domestic property which an occupant of that property could reasonably expect to have, then he may apply to the relevant local authority for a high hedge notice.

As mentioned earlier, before making any application for a high hedge notice an applicant must take all reasonable steps to resolve matters in relation to the high hedge with the party concerned and also must have regard to any guidance issued by the relevant local authority. He must also pay the fee demanded by the relevant local authority. Aberdeen City Council currently charges a fee of £382.00.

Consideration by the Local Authority

The local authority must dismiss any application where it considers that the applicant has not complied with his duty to take all reasonable steps to resolve the matter amicably with his neighbour or where the application is considered to be frivolous or vexatious. If the application is dismissed then the local authority must notify the applicant of its decision and the reasons for reaching its decision.

If the local authority does not dismiss the application then it must give every owner and occupier of the neighbouring land in question a copy of the application and a notice informing the person, to whom the copy is given, of various matters, including (a) that the local authority is required to make a decision on the application and (b) that the person has a right to make representations to the local authority in relation to the application within a period of 28 days.

When the 28 day period has expired the local authority must decide whether the height of the high hedge adversely affects the enjoyment of the domestic property which an occupant of that property could reasonably expect to have, and, if so, whether any action to remedy the adverse effect or to prevent the re-occurrence of the adverse effect (or both) should be taken by the owner.

Decision by the Local Authority

If the local authority decides that no action is to be taken then it must advise the applicant and the owner and occupier of the land in question of the decision; the reasons for the decision and that there is a right of appeal by the applicant to the Scottish Ministers.

If the local authority decides that action should be taken it must specify a reasonable period of time within which the action is to be taken and decide whether any action to prevent the re-occurrence of the adverse effect should be taken by the owner in relation to the high hedge. In reaching a decision the local authority must have regard to all the circumstances of the case including, in particular, the effect of the high hedge on the amenity of the area and whether the high hedge is of cultural or historical significance. The existence of a Tree Preservation Order has no effect in relation to any action which the local authority decides is necessary.

A high hedge notice

If the local authority decides that action is to be taken then it must issue a high hedge notice which will, amongst other things: identify the high hedge and the land upon which it is growing; the domestic property adversely affected by the high hedge; state the date upon which the notice is to take effect; set out the action which must be taken by the owner of the land in question and advise that there is a right of appeal by the owner to the Scottish Ministers.

The high hedge notice must be complied with by the owner of the land in question and is binding on successive owners.

This is not intended to be a definite statement of the law and hence if you have any questions or if we can help in any way in regard to enforcing the high hedges legislation please contact John Sinclair by email at j.sinclair@jgcollie.co.uk or by telephone on 01224 581581

Moving On Up

Friday, June 26th, 2015

Moving on up
Taking a look at the Aberdeen Solicitors Property Centre (ASPC) you many notice that there is a larger than normal number of “high value” properties on the market, homes valued over £400,0000, and particularly properties over £700,000, throughout Aberdeen and Aberdeenshire.

Since 1 April 2015 a higher tax has been payable due to the introduction of the Land and Buildings Transaction Tax.  This additional cost of buying higher value properties, as well as the particular market conditions affecting Aberdeen and Aberdeenshire, such as a recent spate of jobs marked “at risk” and the announcement of redundancies in the oil industry have together had the effect of lowering demand for higher value properties.  Properties in this category are taking longer to sell and achieving sale prices at valuation or in some cases less.  Prices do however continue to remain relatively steady despite the current conditions.

However this article is not all bad news, at least not for everyone, since now could be an excellent time for some to “move on up” the property ladder.

Mortgage interest rates are at an all-time low, resulting in more first time buyers entering the market, looking for entry level properties to get their foot on the ladder and also resulting in more buy-to-let opportunities.  Lower value properties, especially those that have been maintained in a good and tidy condition are still receiving good prices due to demand, resulting in this section of the market continuing to remain more buoyant.

Taking a snapshot then, with lower value properties faring better than medium and higher value properties, now could be the time to move on up the property ladder and benefit from the current market conditions.

There is a good chance that you could sell your lower valued property at a price above valuation and buy a medium or higher valued property at a reasonable price, at valuation or even less.
For further information on the property market or buying or selling your property, Mark Allan, Senior Solicitor can be contacted on 01224 581581 or by email at m.allan@jgcollie.co.uk.