A Fair Trial and DIY Law

Government statistics for the period from April to June 2016 show that more than a third of cases in the Family Court have no legal representative for either party. That proportion of unrepresented parties in the Family Court is the highest since the introduction of the Legal Aid, Sentencing & Punishment of Offenders Act 2013 which restricted Legal Aid for family cases. At the time of the introduction of the Legal Aid, Sentencing & Punishment of Offenders Act 2013, approximately 17% of Family Court cases had no representation for either party. That figure has grown to 34%. Cases where both parties are represented have fallen from 40% in 2013 to approximately 27% in the second quarter of this year.

Legal Aid is now only available for Private Family Law cases, such as, contact or divorce, if there is evidence of domestic violence or in child abduction cases. This situation has been compounded by an increase in the time it takes to resolve cases in the Family Courts. The average time for the disposal of a divorce case with financial remedy has steadily increased from 20.5 weeks at the start of 2015 to 24.9 weeks at the second quarter of 2016. Additionally, the workload for Family Courts appears to have increased significantly. Government figures show that 66,328 cases started in the Family Courts in England and Wales in April to June 2016, representing a 10% increase in the same period in 2015.

Against this background, on 30 September 2016, Mr Justice Peter Jackson gave Judgment in the case of Re B (Litigants in Person: Timely Service of Documents) (2016) EWHC 2365 (fam) in which Counsel was criticised and adjournment allowed, for the service of documentation on a litigant in person on the day of the hearing.

In short, this was a final hearing in a child abduction case in which legal documents – Counsel’s Position Statement (14 pages) and 4 Law Reports (100 pages) were given at the door of the Court to a non-English speaking litigant in person (LIP). Mr Justice Peter Jackson commented that “this is unfortunately not an unusual occurrence, and it calls for a remedy”.

In this case, the mother, who wrongly removed the teenager from a convention country to England in February 2016, was the subject of father’s application under the Hague Convention for the return of the child. The proceedings were defended by the mother on the basis that the child objected to the return. The proceedings continued through the Courts in a non-eventful manner and mother appeared as a litigant in person whilst father was represented by Counsel. No specific direction was given by the Court for the timely service of documents on the mother, who was acting without an interpreter.

Mr Justice Peter Jackson, in his Judgment, commented as follows:
“Where one party is represented and the other is a LIP, the Court should normally direct as a matter of course that the Practice Direction documents under PD 27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email, should be specified. Where time permits, the Court should consider directing that the key documents are served with the translation. In cases where late service on an LIP may cause genuine unfairness, the Court should consider whether an adjournment of the hearing should be allowed until the position has been corrected”.

PD 27A is concerned with the preparation of Court Bundles in the Family Division and the Family Court. It governs (in summary) the timetable for preparing and lodging the Court Bundle of papers and states:

“The party preparing the bundle shall provide a paginated index to all other parties not less than four working days before the hearing.

Where Counsel is to be instructed at any hearing, a paginated bundle shall be delivered to Counsel not less than three working days before the hearing.

“The bundle” shall be lodged with the Court not less than two working days before the hearing.

The preliminary documents (including a Position Statement) shall be lodged with the Court no later than 11.00 am on the day before the hearing.

As a practising Solicitor, I can say with some certainty that Solicitors already struggle with the workload and often unrealistic timetables imposed by Court Rules and the Courts themselves. Compliance with PD 27A is difficult.

This situation is further compounded by the amount of LIP’s that are currently attempting to represent themselves in the Family Court in situations where they are unable to afford or secure legal representation.

Conclusion

As a Solicitor, the message is clear. The drafting of a Position Statement prior to any hearing, although helpful to the Court in pointing out the practicalities of a particular case and its history may now not be drafted. If a Position Statement is drafted and is served late, the risks of an adjournment are very real given this recent Judgment. Adverse Costs Orders could follow for the legally represented party. Further, in the case of foreign speakers, who pays for any translation?

This Judgment discourages the preparation of Position Statements which are helpful to the Court.

This Judgment also has implications for timetables given by the Courts themselves. If the Court orders a tight Court deadline for the service and filing of documentation and documents are served or filed late for some other reason, does this in itself not represent unfairness?

What is the position where one party has Legal Aid and the other does not? Is that not unfairness?

I leave you with the case of Re NL (a Child) (Appeal: Interim Care Order: Facts and Reasons) (2014) EWHC 270 (fam) at paragraph 40 where Mr Justice Pauffley expressed the point as follows: “Justice must never be sacrificed upon the altar of speed”.

Paul Summerbell 13.11.16
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

What are care proceedings?

September 2016

A Local Authority has a duty to intervene and start Child Care Proceedings if they become aware that that a child may be at risk as a result of the care that they are being given.

What is a Child Protection Case Conference?

The local authority must hold a meeting called a Child Protection Conference if they have ongoing concerns about a child after their first investigations. The following professionals should take part in a child protection conference:

Social workers, the police, the child’s school, the child’s healthcare professionals (for example, doctor and health visitor) probation services and any other professionals who are involved.

You, as parent, will also be invited to the Child Protection Conference.

What if Social Services think my child is in imminent danger?

If Social Services suspect your child is in immediate danger they can take a number of steps to protect your child, including applying for an Emergency Protection Order which means they can remove the child from your care whilst further investigations are undertaken.

What will happen if Social Services start Child Care Proceedings?

If you are notified that Social Services are starting Child Care Proceedings then it is essential that you contact us immediately.

The first steps

The first steps will involve an initial Court hearing which will take place very quickly after the Local Authority has made the application and an Interim Care Order will be made. We can work with you to ensure you and your child’s best interests are maintained.

What happens at the initial Court hearing?

  • The Court will not usually make any final decisions at the first hearing. The Court can do one ( or more) of the following:
  • Decide whether to make an Interim Care Order (an Order that will say where the child shall live and who will look after them until the final hearing)
  • Appoint a guardian and a solicitor to represent the child in the proceedings
  • Decide whether the case should be transferred to another Court
  • Decide how the case should be prepared for the final hearing

What happens after an Interim Order is made?

After the Interim Order has been made there will be a series of interim hearings. The interim hearings will continue to monitor the child’s living arrangements, who the child sees and how the case will proceed. The Court will also consider whether or not Orders and directions already made should be renewed or changed, taking into account at all times the child’s best interests and safety. It can take up to a maximum of 26 weeks before the case is ready for the Final Hearing. Some cases take longer than this depending on the circumstances of the case. The Court will then hold a meeting called a Case Management Conference where they will decide what evidence it will need for the final hearing and will make further Child Care Proceedings.

What we can do to help with Child Care Proceedings?

Warren’s Family Law have a very experienced team of case workers who deal day in day out with families who are involved with the Local Authority and Social Services.

Speak to us

It is important that you inform us about any problems or aspects of the current arrangements that you are unhappy with and to keep a record of all information about your child and the proceedings.

Public funding

Public funding is available to parents of children who are subject to care proceedings.
It is very important that you speak to us as soon as possible so that we can arrange for representation at the earliest opportunity.

Debbie Smith, Senior Solicitor and Mediator
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Frequently Asked Questions

June 2016

Divorce

How do I get Divorced?

You can get divorced if you have been married for at least a year, have a marriage that is legally recognised in the UK and have a permanent home in England and Wales. The three main steps to getting divorced are:

  • Filing a Divorce Petition – You have to apply to the Court for permission to Divorce. You have to show the Court the reasons your relationship has permanently broken down (i.e. adultery, unreasonable behaviour, 2 years’ separation) (please see our website for further information on the grounds for divorce);
  • Apply for Decree Nisi – The Court will consider the contents of your Petition and decide whether you are entitled to a Divorce;
  • Apply for Decree Absolute – this legally ends your marriage. You have to wait 6 weeks from Decree Nisi before you can apply for Decree Absolute.
How much will it cost?

The Court fee to issue a Divorce Petition is currently £550. You may be exempt from paying the Court fee if you are of low income or in receipt of benefits. When you send your Divorce Petition to the Court you can apply for exemption from paying the fee. The Court will assess your income. You will need to send the Court up to date evidence of your income, i.e wage slips or your benefit entitlement letter.

Please refer to our website for our fixed fees for representing clients in respect of their Divorce.

How long will it take?

The average straight forward divorce can take four to eight months, provided that both parties deal with the Court paperwork promptly.

We are already separated – can I use adultery?

Adultery does not have to be the cause of the breakdown of the marriage. If you are separated and one party has a sexual relationship with a member of the opposite sex, this is adultery and can be used as a reason for the breakdown of the marriage.

Does the cause of the breakdown of our relationship affect our financial settlement or the arrangements for the children?

Generally, no. Whatever the cause of the breakdown of your marriage, does not affect your ability as a parent or your financial needs.

Civil Partnership – We are separating – what can we do?

Dissolving a civil partnership is the same as obtaining a Divorce except that adultery relates to heterosexual couples only and so adultery cannot be cited as the reason for dissolving a civil partnership, although being unfaithful would instead be unreasonable behaviour.

Children

“Custody” and “Access”

The Children Act 1989 changed the arrangements relating to custody, care and control and access, as they used to be called, introducing new arrangements, namely Residence, Parental Responsibility and Contact.

The Children Act has now been changed by the Children and Families Act 2014 which introduces the new Child Arrangements Order. This is an Order determining where the child will live and with whom the child will have contact.

What happens if we cannot agree who our child/children should live with?

When it comes to arrangements for your children, reaching an agreement is best for all involved. The Court will only make a formal Child Arrangements Order if there is a dispute – otherwise no Order will be made. There is a presumption that the Court should not intervene unless it is in the best interests of the child. The Court’s paramount consideration is the welfare of the child.

The Court will also have regard to:

  • the ascertainable wishes and feeling of the child concerned (considered in the light of the child’s age and understanding);
  • the child’s physical, emotional and educational needs;
  • the likely effect on the child of any change in his/her circumstances;
  • the child’s age, sex, background, and any other characteristic which the court considers relevant;
  • any harm which the child has suffered or is at risk of suffering;
  • how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
  • the range of powers available to the court under the Children Act in the proceedings in question.
What is Parental Responsibility?

Parental Responsibility encompasses all the rights, duties and responsibilities a parent has towards their child. In simplistic language this means that any person with Parental Responsibility has a duty and responsibility to take part in the major decisions affecting their children’s life, such as naming the child and agreeing to any change of name, looking after the child’s property, agreeing to child’s medical treatment and choosing and providing for the child’s education. If you have Parental responsibility for a child you don’t live with, you don’t necessarily have a right to contact with them – but the other parent still needs to keep you updated about their well-being and progress.

How do you get Parental Responsibility?

Parental responsibility is shared jointly between all married parents, even after divorce, so long as the child is under 18. Unmarried fathers can acquire parental responsibility either by agreement with the mother of the children or by Order of the Court, and now, if the father’s name is on the birth certificate of the children.

Finances

Do we need to deal with our matrimonial finances when we get divorced?

No, but it is sensible to do so. If you reach an agreement about the division of your assets, this can be approved by the Court as part of the Divorce Proceedings and made into a “Financial Order” to make the agreement binding. No agreement can be considered final, unless it is approved by the Court.
If you do not deal with the matrimonial finances, either of you could have potential claims against the other in the future, even after divorce, including claims against the other’s estate after you die.

The Court takes various matters into account, giving first consideration to the welfare of any children of the family under the age of 18. What is also relevant is the parties’ income and earning capacity, as well as the ages of the parties, the standard of living enjoyed by the family prior to marriage breakdown and any physical or mental disability of each spouse.

Unmarried Couples

I don’t own the house – am I entitled to anything?

Contrary to popular belief “common law” husband and wife status does not exist in law. Cohabiting couples do not have the same rights as married couples.There is very little protection for the weaker party and cohabiting couples find themselves in real difficulty when they separate. Despite the arrangements in place throughout the relationship, one party could end up with nothing. Cohabiting couples have no right to maintenance or a share of the assets, including property and inheritance.

Where cohabiting couples jointly own their home, it is automatically divided 50:50 (unless a deed of trust was entered into at the time of purchase clearly setting out each party’s share). If one wishes to challenge the presumption of the 50:50 split in Court it will be costly and there is no guarantee they would win. If your name is not on the title deeds, you do not own the property. The only protection available would be a Cohabitation Agreement to regulate the parties’ property rights and arrangements for mutual financial support.

What is a cohabitation agreement?

A Cohabitation Agreement regulates the parties’ property rights and arrangements for mutual financial support.

A Cohabitation Agreement would deal with the following:

  • Who owns what and in what proportion;
  • How assets will be divided on separation;
  • The division of home contents and personal belongings;
  • What to do with any savings;
  • How the children will be supported;
  • How to deal with joint debts/accounts;
  • How the day to day finances will be managed, i.e. bills and mortgage payments
Is it binding?

Whilst it is not possible to guarantee the Court will abide by any agreement, if such an agreement is properly drafted and involves independent legal advice, it is likely to be agreed by the Court.

What happens to the children when we separate?

This would be the same as if you were married (see above). If you are unable to reach an agreement as to the arrangements, a Court Application may be your only option.

Mediation

What is Mediation?

Mediation is a forum whereby you and your ex partner/spouse attend with a trained independent mediator with a view to resolving any outstanding disputes in relation to the arrangements for your children or matrimonial finances. The Mediator would be there to listen to both parties wishes and views and give you assistance as opposed to advice. They would seek to help you reach an agreement.

If an agreement were to be reached at mediation, then it would not be legally binding upon either of you. You would both be entitled to seek your own independent legal advice thereafter.

Emma Macdonald
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Can I get Legal Aid?

May 2016

Legal Aid is a payment from public funds available to help meet the cost of legal advice and representation in Court.

Prior to April 2013 most individuals on a low income were eligible for Legal Aid
 to cover most cases of family law, including Divorce, finances, children disputes, cohabitation and separation, care proceedings and domestic violence. You would need to show that you cannot afford to pay for legal advice and representation. The Legal Aid Agency takes into account capital assets, all sources of income, housing costs, dependent children and child care costs. However, representation in care proceedings is non-means tested.

Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO)

In April 2013 major changes to Legal Aid were introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). Following LASPO, the majority of legal aid for private law services has been stopped, save in limited circumstances, only where there is evidence of domestic violence. (Private law services include Children Act applications in respect of contact and living arrangements for the children, resolving financial issues after divorce or in cases of cohabitation and separation).

Legal Aid is now available for the following cases:-

  • Family law cases involving domestic violence or when the child is at risk of abuse from partner;
  • Forced marriage;
  • Child abduction;
  • Care proceedings – Court Proceedings issued by the Social Services Department of the Local Authority where an application is made for a “Care Order” or “Supervision Order” in respect of a child;
  • Mental Health and Asylum cases;
  • Debt/housing matters when someone’s house is at immediate risk

In family law cases involving domestic violence, it will be necessary to provide evidence of the abuse. The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.

The evidence of domestic violence required is either by way of caution/conviction, Injunction/Undertaking, evidence from a health care professional (ie.GP/Counsellor/Psychiatrist), from the refuge or MARAC (Multi Agency Risk Assessment Conference).

“MARAC is a meeting where information is shared on the highest risk domestic abuse cases between representatives of local police, health, child protection, housing practitioners, Independent Domestic Violence Advisors (IDVAs) and other specialists from the statutory and voluntary sectors. A victim/survivor should be referred to the relevant MARAC if they are an adult (16+) who resides in the borough and are at high risk of domestic violence from their adult (16+) partner, ex-partner or family member, regardless of gender or sexuality. The representatives discuss options for increasing the safety of the victim/survivor and turn these into an action plan. The main focus of the MARAC is to manage the risk and managing the behaviour of the perpetrator. Information shared at the MARAC is confidential and is only used for the purpose of reducing the risk of harm to those at risk.”

No evidence is required if you wish to make an application to the Court for an Injunction or if the Local Authority issue Care Proceedings.

Changes to Evidence Requirements

Last month (April 2016) the evidence requirements for domestic violence changed. The Court of Appeal upheld a challenge to the Government’s changes to legal aid for victims of domestic violence, namely that the evidence required had to be no more than 2 years old. The Ministry of Justice have now announced that they are more than doubling the original time limit for evidence, to 5 years. This will assist a much larger proportion of those victims of domestic violence requiring legal aid. The ministry is also introducing a provision for the assessment of evidence concerning financial abuse.

Emma Macdonald
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Enforcement of Child Arrangements Orders

14 March 2016

The law relating to children is found mainly in the Children Act 1989, which has been subsequently amended by several other statutes, most recently, by the Children and Families Act 2014. These statutes are further supported by the Family Procedure Rules 2010.  Part 12 of the Family Procedure Rules 2010 contains the main provisions applicable to applications relating to children.

In all cases involving children, the Court will begin with a consideration of the welfare of the child.  In short, the starting point for the Court is to consider the best interest of the child, which is the Court’s “paramount” concern.  The Court will have regard to the general principle that delay is likely to prejudice the welfare of the child and will not make an order unless it considers that doing so would be better for the child than making no order at all.

In deciding whether an order should be made, the Court will consider:

  1. The ascertainable wishes and feelings of the child concerned.
  2. The child’s physical, emotional and educational needs.
  3. The likely effect on the child of any change in circumstance.
  4. The child’s age, sex, background, and any other characteristics which the Court considers relevant.
  5. Any harm which the child has suffered or is at risk of suffering.
  6. The capability of each of the child’s parents of meeting the child’s needs.
  7. The range of powers available to the Court.

Enforcement of any Child Arrangements Order or indeed any other order made under the Children Act 1989 is fraught with difficulties.  The European Convention on Human Rights places an obligation on the UK Courts to enforce parental rights.  All orders made in England and Wales are enforceable in England and Wales usually by making an application to the Court that first made the order.  The type of order will dictate the type of enforcement.  In the case of a Child Arrangements Order, for example, where a parent refuses to return the child, it is possible to enforce the order in the following ways:

  1. Committal proceedings for a breach of the Child Arrangements Order.
  2. The Court can make an order authorising an Officer of the Court or a Police Officer to take charge of a child and deliver that child to another person.
  3. An order under the inherent jurisdiction of the Court for the High Court Enforcement Officer (Supreme Court) to find and recover a child.

There are a number of difficulties in enforcing Child Arrangements Orders in this way.  For example, the order must be clear and enforceable. An order for “reasonable contact” is not enforceable whereas an order requiring a child to be made available for contact on specific days and at specific times e.g., return the child at 6.00 pm, is clearly defined and thus enforceable.  The Order can be enforced by the attachment of a warning and a penal notice.  This effectively states that if a person does not comply with the order then he may be held in contempt of Court and imprisoned or fined, or their assets may be seized.  Any disobedience of an Order that has a warning and a penal notice attached may result in committal to prison.  However, we must then go back to consider what is in the best interests of the child as the Court’s “paramount” concern.  Generally, committal orders for breach of a Child Arrangements Order are thought to be orders of last resort, and imprisonment is only used in exceptional circumstances.  Whether or not committal to prison is used as a sanction for disobedience of a Child Arrangements Order is debatable and very much specific to the particular circumstances of each case.  It could be suggested that breaches of a Child Arrangements Order on one or two occasions may not result in committal to prison, but continuous and flagrant flouting of a Child Arrangements Order may result in imprisonment.  As mentioned previously, the Children Act 1989 has been amended on numerous occasions and, with the incorporation of Section 11, there are now more robust mechanisms for the enforcement of contact orders. For example, a Court can now order a particular activity or undertaking during the period of contact and require a Court Welfare Officer to monitor a person’s compliance with that activity. The Court can also direct a Court Welfare Officer to monitor whether a person is complying with the Child Arrangements Order and report to the Court.  In order to impose these additional activities, the Court must be satisfied that a person has failed, without reasonable excuse, to comply with the defined terms of the Child Arrangements Order. If the Court is satisfied that there has been a failure to comply with the Child Arrangements Order, without reasonable excuse, the Court may also order that the person in breach of the order undertakes between 40 and 200 hours of unpaid work.

Underpinning all of these sanctions, the welfare of the children must be taken into account.  In other words, whether it is in the child’s best interest for this action to be taken.  The Court must also be satisfied that the order is necessary and that it will secure compliance with the Court order. Additionally, any punishment imposed must be proportionate to the breach.

A person in breach of a Child Arrangements Order may also be ordered to pay for any financial loss suffered by the failure to comply with the Court Order. Finally, the Court has the authority to order the person breaching the order to pay the costs of the person seeking to enforce the Court order.

Conclusion

Underpinning this entire area of law dealing with the enforcement of an order made under the Children Act 1989 is the concept that whatever the Court may do must be done with the best interests of the child in mind.  The child’s interests are “paramount”. In those circumstances, it may not be seen by the Court as appropriate to commit a person to prison as it may not be seen to be in the bests interests of the children for that to happen.  Nevertheless, flagrant and repeated flouting of Court orders may result in imprisonment.  It is far more likely that one or other of the other measures available to the Court will be undertaken prior to that stage being reached.  It is appreciated that this process can be frustrating and can often involve several applications to the Court to prove that a person is continually breaching a Child Arrangements Order and the Court may be very patient in those circumstances in seeking compliance. It is far better that those with the benefit of a Child Arrangements Order seek to work in a constructive manner and negotiate a workable agreement from the beginning.

Paul Summerbell
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Do it yourself

Statistics from the family court (31st March 2016) show that the number of cases with unrepresented parties (Litigants in person) is continuing to rise. Ministry of Justice figures covering the period October to December 2015 show that from the time of its introduction, in April 2013 of the Legal Aid Sentencing Punishment of Offenders Act (LASPO), which effectively removed Legal Aid from many family cases, there has been a significant increase in the number of cases where one or neither party is represented by a lawyer in proceedings. The number of private law cases (between parents and not involving the local authority) without legal representation currently stands at 36%.

The Justice Select Committee has concluded that the introduction of LASPO has led to many vulnerable people no longer accessing justice. A Citizens Advice Bureau publication found that 9 and 10 people who had no choice but to represent themselves as a result of Government changes to Legal Aid claimed that representing themselves adversely affected at least one other aspect of their life. The number of private law family cases started in October to December 2015 was up 8% from the equivalent quarter in 2014.

From April 2013, Legal Aid is only available for private family law cases (such as contact or divorce) if there is evidence of domestic violence or child abuse and child abduction cases (in limited circumstances). Legal Aid remains available for public family law cases (such as adoption).

In financial remedy proceedings the court can make a financial remedy order, formally known as an ancillary relief order. These orders include dealing with the arrangements for the sale and transfer of property, and other financial matters including pensions. The Ministry of Justice figures draw a distinction between an application for a financial remedy (made during the course of divorce proceedings) and orders for financial provision which are not dependent upon divorce proceedings and may be made for children. In October to December 2015, financial remedy disposals were down 10% on the equivalent quarter in 2014, continuing the recent downward trend. This is indicative of the public’s inability to access the court and simply making do.

Standing Alone; going to the family court without a lawyer

The Citizen Advice Bureau publication entitled “Standing Along; going to the family court without a lawyer,” found that 9 in 10 people were forced to represent themselves in court. The majority found self-representation difficult, time consuming and emotionally draining. It also means litigants in person achieve worse outcomes compared with their represented counterparts.

Some of the key recommendations from this report include:

  • Self-represented parties (litigants in person) need access to reliable advice and information to determine the validity of their case; investigate alternatives to court; progress their case through difference stages; represent themselves effectively and deal with outcomes.
  • Support for vulnerable people should be more easily accessed. Victims of domestic abuse should be able to access the legal advice and representation to which they are entitled.

In short, “do it yourself” is, for the majority, a negative experience which impacts on other aspects of their lives. It is time consuming and emotionally draining. It is also, for the majority, a bad experience for court users and results in less favourable outcomes.

The Law Society of England and Wales has also warned that civil legal aid cuts will result in an increase in cost to the tax payer, because a failure to get early expert legal advice can result in people’s problems escalating dramatically when they could have been nipped in the bud. Further, there is an imbalance of power and knowledge when legal advice is solely available to wealthy individuals, corporations and state bodies, and not to ordinary people.

The government has turned to mediation to resolve its problems. However, the latest statistics from the Ministry of Justice (31st March 2016) show that the number of Mediation Information and Assessment Meetings (compulsory now for family cases) continues to fall. The number of MIAMS post the introduction of LASPO in the period October to December 2015 was down 16% on a year ago. The conclusion is that MIAMS remain at around half of pre-LASPO levels.

Conclusion

Since its introduction, LASPO has had a negative impact on the justice system by the government’s own figures. Ministry of Justice figures (31st March 2016) show a marked increase in litigants in person. The CAB report demonstrates the negative impact that it has upon those seeking to access justice. Combined with a government push for mediation and the public’s reluctance to engage with mediation demonstrated by the number of MIAMS dropping dramatically.

In short, “do it yourself” is the only option for many and the majority will be negatively impacted by undertaking their own cases achieving a less favourable result. The Law Society warns of consequences for society generally and specifically for the more vulnerable and less wealthy in society who cannot access the courts and who are denied access to the courts by the introduction of LASPO. The Government promised a review of LASPO within three years of its introduction. In 2016 we have no evidence of any such review.

The legal profession has attempted to respond to these changes with the introduction of “unbundling” services and flexible means of payment. It is not unusual to be able to pay your solicitor on a month by month basis or for your solicitor to act in the background on a piece meal basis. A further attempt to meet this need has been the introduction of “fixed fees” for certain types of case. However, the attempts to seek to alleviate the problems introduced by LASPO have been further frustrated by the Governments increase in court fees. In April 2061 divorce costs have risen from £410 for the issue of a divorce petition to £550. This, despite the Court Service’s assertion that the actual cost of dealing with a divorce petition is in the region of £270.

It seems that the Government is determined to restrict access to the courts and, in the absence of any review of the effects of LASPO, demonstrate its contempt for those members of society whose access to justice and the courts is being denied.

Paul Summerbell
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

DNA Testing

The law has established a presumption of fact that a child born or conceived during a mother’s lawful marriage is her husband’s child. This presumption relates to children conceived prior to but born after marriage as well as children born within the normal gestation period after the marriage has ended. This is often referred to as the presumption of legitimacy. However, this presumption can be challenged by evidence to the contrary. This often occurs in cases of disputed paternity.

The Family Law Act 1986 provides that:

“Any person may apply to a Court for a declaration as to whether or not a person named in the application is or was the parent of another person so named”

The Family Law Reform Act 1969 also says:

“A Court has a discretion to direct scientific testing to ascertain parentage under Section 20 of the Family Law Act 1969”.

The general guidance on the discretion to order scientific testing is that, firstly, the interests of justice are best served by ascertaining the truth and, secondly, that the Court should be furnished with the best available science and not confined to such unsatisfactory alternatives as presumptions and inferences.

It is important to appreciate that the discretion of the Court to order DNA testing does not allow the Court to order an adult to be tested. All it does is permit a direction for the use of tests to ascertain paternity. A person’s consent is required before DNA testing can take place. However, the Family Law Reform Act 1969 provides that:

“Where a Court gives a direction … (for DNA testing and) … any person fails to take any steps required of him for the purpose of giving effect to the direction, the Court may draw such inferences, if any, from that fact as appear proper in the circumstances”.

In order words, where a husband relies on the presumption of legitimacy to declare that a child is his, but refuses to be tested, the inference will be drawn that he is not the father of the child

Conclusion

The Courts cannot compel anyone to be scientifically tested save in certain exceptional circumstances such as a lack of mental capacity. The Court can merely direct that DNA testing take place. If, any person who is directed to be tested, refuses to be tested, inferences can be drawn.

It seems therefore that, in the absence of reasons which could be seen to be just and fair and reasonable to refuse to be tested, it is invariably the case that inferences will be drawn by the Court should someone refuse DNA testing.

Paul Summerbell
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Special Guardianship Order

by Maxine Buck

If you are reading this blog then the chances are you have been invited to make or a considering issuing an application for a Special Guardianship Order (“SGO”) to become a special guardian to a child that you are either looking after or hope to look after for the duration of their minority. You may be a relative, such as a grandparent or an aunt/uncle; you may be a foster carer or a close friend to a family in need.  Whoever you may be, you want to offer a protective and loving home to a child in need.

I will set out in brief an outline of rights and responsibilities of a Special Guardian and the process of the application but I suspect many of you are already familiar with these aspects of the law. The key issues for you often revolve around the support package offered by the Local Authority. The support package will have two elements:

  1. a) practical/therapeutic support; and
  2. b) financial support

The funding element is of particular consideration if, prior to any Order being made, you have looked after a child who was classed as a “looked after child”, in which case you were fostering and were in receipt of the foster carer’s allowance. These issues will be dealt with in more detail below.

What is Special Guardianship?

A Special Guardianship Order gives the holder parental responsibility, which he is entitled to exercise to the exclusion of any other person with parental responsibility BUT it does not extinguish the parent’s parental responsibility. The special guardian will effectively have “super parental responsibility” for all the day to day decisions about caring for the child or young person in his upbringing. Unlike adoption the order retains the basic link with the parents. They remain legally the child’s parents, though their ability to exercise their parental responsibility is limited. They retain the right to consent or not to the child’s adoption or placement for adoption. The special guardian must also take reasonable steps to inform the parent if the child dies.

While a special guardianship order is in force written consent of every person who has parental responsibility for the child or leave of the court must be given:-

  1. To change the surname of the child
  2. To remove the child from the United Kingdom for longer than 3 months

Unlike adoption orders, special guardianship orders can be varied for discharged on the application of:

  1. The special guardian
  2. A local authority in whose name a care order was in force with respect to the child before the special guardianship order was made
  3. Anyone with a residence order in respect of the child before the special guardianship was made
  4. With the leave of the court
    1. The child’s parents or guardians
    2. Any step-parent who has parental responsibility
    3. Anyone who had parental responsibility immediately before the special guardianship order was made
    4. The child (if the court is satisfied that the child has sufficient understanding).

This order tries to achieve stability for a child for whom adoption or long-term fostering is not suitable.

Who Can Apply?

A special guardian must be 18 or over and must not be a parent of the child.

Those able to apply for the orders are:

  1. Any guardian of the child
  2. Any holder of a residence order or anyone listed within s10(5)(b) or (c) of the Children Act 1989
  3. A relative or local authority foster carer with whom the child has lived for one year preceding the application; and
  4. Anyone who has obtained leave of the court to make the application

The court can also make a special guardianship order of its own motion, even if no application has been made. Clearly, in these rare instances, an SGO report would be directed to be filed by the relevant Local Authority and all connected persons would be put on notice.

Procedure

The Application for a SGO will be made to the court using forms C100, FM1 (and C2 if asking for permission to make the application. Since the introduction of the Children & Families Act 2014, proof of attendance at a mediation information meeting is also required in the form of form FM1. You can get the forms from the court or online at www.hmcourts-service.gov.uk. The current fee for the application is £215.00 (as at March 2016).

There are often four main routes to an application coming before the Court.

  1. In the vast majority of cases the Local Authority, in whose area the child resides will be providing assistance before any application is made. Where the child is voluntarily accommodated with, for instance, a grandparent, they will initially undertake a viability assessment and thereafter will seek to support that grandparent to make an application where rehabilitation to the parent is not possible and the parent agrees to the application. The Local Authority will require three months’ notice in advance of any application so that it can undertake its assessment and produce the SGO report. The report can be attached to the application for an SGO.
  2. Foster carers have been encouraged by children’s services to seek SGOs in respect of children in their care. However, the lack of parity vis-à-vis fostering allowance and SGO allowance has deterred many from making taking this step.
  3. The other option emerges in the lead up to or during the course of care proceedings. A relatives or friend will have offered to be assessed as a permanent carer for the child subject to care proceedings.   If a viability assessment is positive and the court directs, an SGO report will be prepared and the Local Authority will draw up a care plan seeking placement under an SGO.
  4. A private arrangement may be agreed between the parent(s) and the prospective guardian.   Where such an agreement is made, before applying, the applicant must give the local authority three months’ written notice of his intention to apply (s.14A(7) Children Act 1989). On receipt of the notice, the local authority must investigate and prepare a report for the court dealing with matters such as the suitability of the applicant to be a special guardian. The Court must receive and consider the report before it can make the order.

The Court must consider the welfare principle (s.1(1) CA 1989), the welfare checklist (s1(3) CA 1989) and the no order principle (s.1(5) CA 1989) when deciding whether or not to make a special guardianship order. Before making the order the court must also consider whether to make a contact order and whether any existing s.8 orders need to be varied or discharged.

The Support Package

The report will include the support package both practical and financial. We often advise clients on the contents of those packages before final orders are made. The key issue often discussed is whether the support package is sufficient to help promote the welfare of the child.

Please note that where the Local Authority fund the costs of legal advice on the contents of the support package in relation to a looked after child they support the application, such funding cannot be means tested. It is essential that prospective carers are aware of their legal rights and obligations where such orders are contemplated.

S.14F of the Children Act mandates the Local Authority to make a range of support services available in their area to meet the needs of people affected by special guardianship. Special guardianship support services include:

  1. Financial support (regulation 3(1)(a))
  2. Services to enable children, special guardians and prospective special guardians and parents of children to discuss matters relating to SGO
  3. Assistance including mediation services for contact
  4. Therapeutic services for the child
  5. Training and respite care
  6. Counselling, advice and information

Services are provided in accordance with the regulations as set out in the SG regulations 2005. The guidance to the regulations is far more useful as it fleshes out the requirements.  https://www.gov.uk/government/…/special_guardianship_guidance).

Financial Support

When considering the financial support package:

  1. firstly, make sure that you are claiming all the welfare benefits you are entitled to. Any financial assessment undertaken by the Local Authority will be based on you receiving the maximum benefits you are entitled to;
  2. secondly, if the Local Authority won’t budge then it’s time to remind them that SGO regulations do provide for discretion. This means that the Local Authority have a discretion as to how much they pay (see below). Many Local Authorities will try to suggest that they have no discretion – well they do, subject to their budgets. The question is whether they will exercise it in your favour.  Talking about money is just as important as discussing what counselling services will be made available. Don’t be embarrassed: a child’s welfare includes financial security.

The question is what qualifies as an exception? Is it a question of who blinks first? What about the interests of the child?

Anecdotally I have seen a local authority capitulate in the face of very determined grandparents who indicated they would refuse an SGO if the local authority did not continue to pay them the special guardianship allowance at the foster care allowance rates. An SGO was the right order to make.

REGULATION 6 concerns the provision of financial support. Guidance states:

“Financial issues should not be the sole reason for a special guardianship failing to survive….Regulation 6 provides that financial support is payable to facilitate arrangements for a person to become the child’s special guardian, where this is considered to be beneficial to the child’s welfare, and to support the continuation of these arrangements after the order has been made.

Regulation 6 also sets out the circumstances in which financial support may be paid to a special guardian.

Where assistance with travel costs is required this may either be given in cash under regulation 3(1)(b), or if the costs are regular, by way of the support package under regulation 6(2)(b).

REGULATION 7 – remuneration for former foster parents.

Where the special guardian or prospective special guardian previously fostered the child and they received an element of remuneration in the financial support paid to them as the child’s foster parent, .. the local authority may continue to pay that element of remuneration for two years from the date of the SGO. The payments can continue for longer than two years if the local authority considers this appropriate.

So – funding can be increased to include an element of remuneration where the prospective Guardian was a foster carer. N.B. This includes anyone where a child was placed with them under s.20 Children Act 1989 or an Interim Care Order and received the foster care allowance.

With regard to duration – such payment usually lasts for the first two years only but can extend throughout the child’s minority where the local authority considers it appropriate.

REGULATION 8 payment of financial support

Can either be paid regularly or in a lump sum depending on the nature of the support required.

REGULATION 9 – Cessation of financial support

Financial support ceases to be payable if:

  1. the child ceases to have a home with him
  2. the child ceases full-time education or training or commences employment
  3. the child qualifies for income support or JSA
  4. the child attains the age of 18 unless he continues in full time education or training

REGULATION 10 – Conditions for regular payment of financial support

The following conditions must be agreed before any payments are made:

  1. the guardian must inform the local authority immediately if he changes his address; the child dies; any of the changes mentioned in regulation 9; or there is a change in his/her financial circumstances
  2. In addition, he will complete and supply the local authority with an annual statement setting out his financial circumstances, needs and resources of the child and address

The local authority may set any other conditions they consider necessary.

REGULATION 13 – Assessment for financial support

“…in determining the amount of any ongoing financial support, the local authority should have regard to the amount of fostering allowance which would have been payable fi the child were fostered. The local authority’s core allowance plus any enhancement that would be payable in respect of the particular child, will make up the maximum payment the local authority could consider paying the family. Any means test carried out as appropriate to the circumstances would use this maximum payment as a basis.”

In other words, the maximum they can pay up to is the foster care allowance plus any uplift on that allowance to take account of special needs. Also note that the maximum is the starting point for SG financial assessments.

In essence Regulation 13 provides for when the local authority has discretion to disregard means and when they must disregard.

The Local Authority may disregard means where they are considering financial support for:

  1. Initial costs of accommodating a child who has been looked after – otherwise known as the “settling-in grant”
  2. Recurring costs in respect of travel.
  3. Any special care needs
  4. Where they are considering including an element of remuneration in financial support payments to ex-foster carers – so that local authorities can maintain the amount paid to a foster carer who goes on to become a special guardian for the transitional period.

REGULATION 18 – review of financial support paid periodically

The Local Authority must review at least annually the financial circumstances of the Special Guardian and “at any stage in the implementation of the plan that the local authority considers appropriate”.

The procedure for assessment as set out in regulations 12 and 13 apply equally to a review for financial support.

Other Services Support

Regulation 3, as already mentioned, states that the local authority must provide support services.  These will include, for instance, support from the family support team and therapeutic services, for instance, which are aimed at promoting the child’s welfare.

Regulation 4 enables a local authority to arrange for these services to be provided by another body.

Regulation 11 provides that the following people must receive an assessment at their request in cases

Regulation 12 sets out the procedure for assessment including guidance on the need to consult the relevant PCT or LEA during the course of the assessment.

Regulation 14 provides that a plan must be prepared if the local authority proposes to provide special guardianship support services to a person on more than one occasion and the services are not limited to the provision of advice or information.

Conclusion

Special Guardianship can offer a child a sense of security and permanence without severing all familial ties. It plugs the gap between adoption and fostering and will doubtless increase in use.

On the finances – Yes, there is discretion. There has to be and each application should be dealt with on a case by case basis. The key is to know the law and present your case in a child focused way. Every penny paid must be justified from the ever dwindling local Authority pot. The key is to be systematic and evidence-based in your approach.

With regard to other support – always scrutinise the report carefully. Make sure that it covers every issue you consider needs addressing. If anything is missing – raise it. Don’t hold back. It is important that you get the best start possible. Don’t be afraid to alert the local authority to new issues which may arise. The local authority is there to assist – use it.

Maxine Buck has advised a number of prospective Special Guardians concerning the support packages offered by local authorities. She understands the concerns of any would be Guardian and is very proactive in seeking a fair outcome for her clients. She can take enquiries nationally (England & Wales). She looks forward to hearing from you.

Essential information can be found in the following

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Is my case Urgent or an Emergency?

by Emma Macdonald, 

Urgent Applications
If you wish to issue an urgent application, for example for a Child Arrangements Order (residence/contact), exclusive occupation of a home or protection from abuse, you need to seek advice as to whether your application may be considered urgent or an emergency.

An “urgent” situation may not be an “emergency”, but it may be time sensitive, requiring an early hearing date.

Listing the Hearing
The Court will decide whether the case should be treated on an urgent basis. An early Court date could be offered but this is not guaranteed. It will depend on your particular situation and the Court’s availability.

When submitting your application, it must be supported by written evidence (your “statement”) setting out the following:
– The factual story and the events leading up to you making your application;
– Details of the Order you are asking the Court to make;
– The nature of the urgency;
– Any risk of violence of harm to you or any children of the family

Notice to the other party
The other party (“Respondent”) should be given notice of the application and the Hearing date. The usual set period of time is 10 clear working days. In an urgent situation the Court still needs to hear both sides so it may decide to reduce the time to give notice to the other party so the matter comes to Court quicker for a hearing.

Emergency Applications
A case could be considered an “emergency” if there is a likelihood of harm to those involved, a risk of violence or a risk of child abduction. In these situations, it is possible to make an application without notice to the other party.

Applications made without notice to the other party
A Solicitor would need to consider whether the application without notice (“ex parte”) to the other party is justifiable based on:
– Seriousness;
– Frequency and currency of misconduct;
– The circumstances of the alleged perpetrator

The objective of the Court is to promote the interests of justice. The impact of a without notice application on the other party must therefore be considered.

Ex parte applications can be made in limited circumstances which can only be avoided by a Court Order being granted immediately, for example in cases of:
– Violence;
– serious threat of violence;
– serious reason to believe a child could be removed from the country

If a Court is to make an Order against a party who has no notice of the application, the Order required should contain the least restrictive provisions necessary to keep the peace pending the next hearing date, “the return date”.

Once an ex parte Order is made the Respondent must be served with the Order and notice of the return Hearing. This Hearing will be arranged to give the other party the opportunity to be heard.

Emma Macdonald
9th April 2015

Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Children Act Proceedings

by Maxine Buck 23rd October 2014

On the 22nd April 2014 the Children and Families Act (“CFA”) 2014 came into force.
The Act covers both private and public children act proceedings. This blog concerns private proceedings, such as applications for residence/who the children live with; contact/with whom the children spend time; parental responsibility and specific issues and highlights the changes that have been implemented.
The CFA 2014 is an updating Act, designed to amend and update the existing provisions contained in the Children Act 1989 and provide for a greater emphasis on mediation as opposed to litigation.
CHANGES IN PROCEDURE
Making an application to the Court
S.10 of the CFA 2014 makes it compulsory to attend for a mediation information assessment meeting “MIAMS” with a trained mediator before an application can be launched. This applies to both financial and children proceedings.
A MIAM will be needed if you are applying for certain orders. These include orders for contact and residence (now known as child arrangement orders), a parental responsibility order, an order giving permission to change a child’s surname or remove a child from the UK or a financial order under Schedule 1 of the Children Act 1989.
There are now three options open to you concerning the MIAMS process:
a) You attend a MIAM and receive confirmation from the mediator that you have attended
b) The mediator confirms on the application form/FM1 that a mediator’s exemption applies; or
c) You or your solicitor confirms on the application form/FM1 that a MIAM exemption applies which is a form of self-certification that attendance at a MIAM is not required.
The last option applies if, for instance there has been violence or the threat of violence between the parties making mediation inappropriate. The last option will be checked by the Court and if it is considered that the certification was invalidly made the court will direct for a MIAMS. Please also note that the CFA now requires Judges to consider referral for mediation throughout the proceedings.
I HAVE ISSUED, WHAT AM I APPLYING FOR?
The terms contact and residence orders are no longer used. S.12 of the CFA brings the two together and calls them “child arrangement orders”. These are defined as:
“an order regulating the arrangements relating to any of the following:
a) With whom a child is to live, spend time or otherwise have contact and
b) When a child is to live, spend time or otherwise have contact with any person
You will therefore be applying for a child arrangements order if it concerns living or spending time with you.
The Court will consider your application as it did before – it will apply the welfare checklist contained in s. 1(3) of the Children Act which are as follows:
(a) the ascertainable wishes and feeling of the child concerned (considered in the light of the child’s age and understanding);
(b) the child’s physical, emotional and educational needs;
(c) the likely effect on the child of any change in his/her circumstances;
(d) the child’s age, sex, background, and any other characteristic which the court considers relevant;
(e) any harm which the child has suffered or is at risk of suffering;
(f) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
(g) the range of powers available to the court under the Children Act in the proceedings in question.
The child’s welfare is always the paramount consideration.
WHAT HAS NOT CHANGED?
S.11 of the CFA has yet to be implemented. This section, when brought into force will introduce an important “presumption” into s.1 of the Children Act 1989 as follows
A court… to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.
“Involvement” means involvement of some kind either direct or indirect, but not any particular division of time.
This presumption, when in force, will apply to the consideration of all child arrangement orders and the issue of parental responsibility.
Children Act proceedings can be daunting. Here at Warrens Law & Advocacy we have the expertise to advise and guide you through the process. We offer a free half hour’s consultation. Please feel free to contact us so that may assist you.
Contact our Family Team for further information.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Are You Entitled to Legal Aid and What is Mediation ?

by Emma Macdonald 16th October 2014

Legal Aid
In April 2013 major changes to Legal Aid were introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO).

Prior to April 2013 most individuals on a low income were eligible for Legal Aid
to cover most cases of family law, including Divorce, finances, children disputes, cohabitation and separation, care proceedings and domestic violence.

Following LASPO however, the majority of legal aid for private law services has been stopped, save in limited circumstances, only where there is evidence of domestic violence. Private law services include Children Act applications in respect of contact and living arrangements for the children, resolving financial issues after divorce or in cases of cohabitation and separation.

Legal Aid is available for the following cases:-
– Family law cases involving domestic violence or when the child is at risk of abuse from partner;
– Forced marriage;
– Child abduction;
– Care proceedings – Court Proceedings issued by the Social Services Department of the Local Authority where an application is made for a “Care Order” or “Supervision Order” in respect of a child;
– Mental Health and Asylum cases;
– Debt/housing matters when someone’s house is at immediate risk

In family law cases involving domestic violence, it will be necessary to provide evidence of the abuse.

The LASPO definition of domestic violence is any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.

The evidence of domestic violence required is either by way of caution/conviction, Injunction/Undertaking, evidence from a health care professional (ie.GP/Counsellor/Psychiatrist), from the refuge or MARAC (Multi Agency Risk Assessment Conference).
“MARAC is a meeting where information is shared on the highest risk domestic abuse cases between representatives of local police, health, child protection, housing practitioners, Independent Domestic Violence Advisors (IDVAs) and other specialists from the statutory and voluntary sectors. A victim/survivor should be referred to the relevant MARAC if they are an adult (16+) who resides in the borough and are at high risk of domestic violence from their adult (16+) partner, ex-partner or family member, regardless of gender or sexuality. The representatives discuss options for increasing the safety of the victim/survivor and turn these into an action plan. The main focus of the MARAC is to manage the risk and managing the behaviour of the perpetrator. Information shared at the MARAC is confidential and is only used for the purpose of reducing the risk of harm to those at risk.”

No evidence is required if you wish to make an application to the Court for an Injunction or if the Local Authority issue Care Proceedings.

As legal aid availability is now extremely limited, what are the alternatives available?

– Family loans;
– Credit cards;
– Commercial loans/Litigation loans (Litigation financing is defined as the process in which a third-party company provides advanced capital to cover litigation costs in exchange for a return on any judgment or settlement);
– Paying privately for advice and assistance on an “as and when” basis, which is one step away from being a litigant in person;
– Legal Services Order in divorce/financial proceedings

LASPO introduced further Court powers, which allows the Court to grant a “Legal Services Order”, which is an Order for one party to make a payment to fund the other spouse’s legal costs. However, before the Court would make such an Order the Court must be satisfied that the person ordered to pay has sufficient money to pay and that you could not obtain any other form of financial support, i.e. by way of loan

What is Mediation ? – MIAMs

Regardless of funding, before an application can be made to the Court, it is now a requirement to attend a mediation information and assessment meeting (MIAM). The idea being to see if mediation can resolve your issues without the need to go to Court at all.

The Court wants to know whether mediation or any other non-court dispute resolution has been attempted before an application is issued. This means that before you go to Court you must at least have received information about mediation and how it works.

You will be required to provide evidence from the mediator that a MIAM has taken place, unless one of the exemption rules applies.

You are exempt from attending a MIAM in the following situations:-

– If there is evidence of domestic violence;
– If there are child protection concerns – the child would be the subject of the application and the subject of enquiries by the Local Authority;
– Urgency – if there is a risk to your life, liberty or physical safety or your family or any delay caused by attending a MIAM would cause risk of harm to a child, or there is a risk of unlawful removal of a child from the UK or retention of a child outside England and Wales, or you would suffer unreasonable hardship;
– Previous MIAM attendance – if you have attended mediation (or another type of non-court dispute resolution) in the last four months leading up to making your application relating to the same dispute;
– There is evidence that you are bankrupt and the Court application would be relating to finances;
– If you do not have contact details for your opponent;
– If the application is being made without notice to the other party;
– If either party suffers from a disability that would prevent attendance at a MIAM unless appropriate facilities can be provided by the mediator and all mediators within 15 miles of their home have been contacted;
– If you or the other party are in prison, or are subject to bail conditions not to contact the other person;
– If you or the other party are subject to a licence with prohibited contact requirement in relation to the other person;
– If neither you nor the other party are habitually resident in England and Wales;
– If a child is one of the prospective applicants

At your initial appointment, the Mediator will discuss with you whether you are eligible for legal aid for the mediation process.

Conclusion

Legal Aid is only now available in very limited circumstances unless there is written evidence of domestic violence.

The alternative to legal aid is to privately finance your case or do it yourself.

Unless you are exempt from the rules about Mediation, before you can go to Court you must at least attend a MIAMS meeting with a Mediator.

Contact our Family Team for further information.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Changing a Child’s Name

by Maxine Buck, 9th June 2014

A child formally acquires his/her name upon registration of his/her birth. Occasionally one of the parents of the child will want to change the child’s name, commonly surname. This often occurs following the end the parents’ relationship or the formation of a new relationship.

No parent can cause the child to be known by a new surname without either the written consent of every person with parental responsibility or the leave of the Court. Where no agreement can be reached, the person who wants the name change needs to make an application to the Family Court under the Children Act.

When deciding this issue, the Court’s paramount consideration is the child’s welfare. It will reach its decision by applying the welfare checklist under s. 1(3) of the Welfare Checklist along with the guidance of the leading cases of Dawson v Wearmouth and Re B.

The Welfare Checklist:

a) The ascertainable wishes and feelings of the child concerned (considered in light of his or her age and understanding).
b) His or her physical, emotional and educational needs.
c) The likely effect on him or her of any change in circumstances.
d) His or her age, sex, background and any characteristics of his or her which the Court considers relevant.
e) Any harm which he or she has suffered or is at risk of suffering.
f) How capable each of his or her parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting his or her needs.
g) The range of powers available to the Court under this Act in the proceedings in question.

It will also apply the No Order principle under s.1(5) of the Act which presumes that no order should be made unless it considers that doing so would be better for the child than making no order at all.

Dawson v Wearmouth

In summary, the case of Dawson v Wearmouth stated:

a) the registration of a change of a child’s surname is a profound and not merely a formal issue
b) Disputes of this nature must be referred to the Court for determination
c) The welfare checklist is to be applied to assist in the determination of the matter.
d) A change of name would require valid countervailing reasons
e) The No Order principle should apply unless the factors in the case tip the balance

“Each case depends upon its own facts. In any given case all the facts and circumstances relevant to the welfare of the child need to be taken into account and weighed up against each other. Whether or not any one factor tips the balance one way or another will vary from one case to another”. – Lord Noble, Dawson v Wearmouth

Conclusion

An experienced solicitor will assist in identifying those factors which will tip the balance either in favour or against the making of an order. Very often, the Judge is assisted by parties submitting carefully drafted skeleton arguments setting out the application of the law to the particular facts of the case, making submissions on behalf of the parent as to why an order should, or should not be made.

The change of a child’s surname is a profound issue. In reality, the Court would only entertain the application on one occasion. It makes sense therefore to instruct experienced solicitors to ensure that the application, whether made or opposed, leaves no stone unturned in bringing to the attention of the court all the issues to be addressed before the decision is made.

Contact our Family Team for further information.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Child Maintenance

by Emma Macdonald, 29th May 2014

Child Maintenance

Child Maintenance is regular financial support payable when parents have separated to help towards the child’s living costs. A parent who does not live with their child still has a financial responsibility for the child.

Child maintenance applies to children under 16, or under 20 if they are in full time education (A Level or equivalent) or under 20 if the parent receives child benefit for them.

The parent who does not have day to day care of the child is the “paying parent”. The parent with day to day care of the child is the “receiving parent”.

From 25 November 2013 the Child Support Agency as we know it only handles existing cases. A new statutory Child Maintenance Service (CMS) has been set up.

Child Maintenance Service

The CMS will calculate how much the paying parent is liable to pay. The CMS can also collect the payments for the parent with care of the child.

The CMS are also able to:
– Find the absent parent if their whereabouts are not known
– Resolve parentage disagreements
– Arrange for the paying parents to pay
– Pass payments onto the receiving parent
– Re-assess payments when changes in circumstances are reported
– Take action if payments are not made
Fees
The Government plans to introduce application fees, collection fees and enforcement charges in 2014 for parents who use the CMS. The view is that this will encourage parents to work together to arrange child maintenance instead of using the CMS or the Court. There are no charges for parents with cases managed by the Child Support Agency.
These plans are not yet set in stone, but the proposals are that there will be:
– A £20 application fee for applying to the statutory scheme
– A 20% collection fee on top of their usual child maintenance amount for paying parents using the Collect & Pay service
– A 4% collection fee deducted from their usual child maintenance amount for receiving parents using the Collect & Pay service
– A range of enforcement charges for paying parents who don’t pay child maintenance in full and on time
What happens if the paying parent does not pay?

The CMS contact the paying parent to ascertain why they haven’t paid, arrange for arrears to be paid and/or warn them of the action they can take.

If action needs to be taken, the CMS can:
– take money from the paying parent’s earnings
– take money from the paying parent’s bank account – they do not need permission to do this
– apply to the Court

The Court is able to:
– send the Bailiffs to the paying parent’s address and seize items to sell to get the money owed
– send the paying parent to prison
– collect money from a 3rd party to pay the arrears
– force the sale of property

Disputes as to parentage

If someone denies they are the parent of a child, the CMS will ask them for evidence showing they are not the parent. If they are unable to provide evidence showing they are not the parent, the CMS can ask both parents to take a DNA test.

The CMS can presume parentage if the person named as the parent:
• was married to the child’s mother at any time between the conception and birth of the child (unless the child was adopted)
• is named on the child’s birth certificate (unless the child was adopted)
• has taken a DNA test that shows they are the parent
• has legally adopted the child
• is named in a court order as the parent when the child was born to a surrogate mother

If the CMS presumes parentage the person named as the parent has to pay this until they can prove that they are not the child’s parent. If they prove they are not the parent, any payments made after the date they first denied they were parent are refunded. The receiving parent may also be asked to pay back any maintenance received. Refunds depend on the circumstances of each case.

Family Based Arrangements

These are also known as family arrangements, voluntary arrangements and private agreements. Parents can agree child maintenance arrangements between themselves to decide how to financial support their children.

The advantages of a family based arrangement are that it is private and quicker and easier to sort out as there is no paperwork to deal with. There are no fixed rules so you can be flexible and arrangements are easily varied. It is also completely free to set up.

This could mean fewer arguments between separated parents, which can help you work together for the sake of the children, which is always in their best interests.

How much?

There is a statutory scale of payments which determines what the “paying parent” must pay, based on the amount of gross income earned. There is also a means of reviewing decisions of the CMS.

Contact our Family Team for further information.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

International Child Relocation (Removal from the Jurisdiction of the UK)

by Paul Summerbell, 7th May 2014

We recently dealt with an emotional case involving the relocation of children from the UK to Australia. Whilst the details of the case are heart breaking, we did secure, on behalf of our client and anyone else involved in the relocation of children outside the UK, a very helpful summary of the governing principles on external relocation cases from Mr Justice Mostyn of the High Court which may be of some general guidance to anyone involved in such a difficult situation. The case link to enable anyone to read the full Judgment is as follows: http://www.bailii.org/ew/cases/EWHC/Fam/2013/292.html

The summary of the main points in this case are as follows:

  1. The only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all of the considerations, however powerful and reasonable they might be.
  2. The guidance given by the Court of Appeal as to the factors to be weighed in search of the welfare paramountcy, and which directs the exercise of the welfare discretion, is valuable. Such guidance helps the Judge to identify which factors are likely to be the most important and the weight which should generally be attached to them, and, incidentally, promotes consistency and decision making.
  3. The guidance is not confined to classic primary carer applications and may be utilised in other kinds of relocation cases if the Judge thinks it is helpful and appropriate to do so.

The guidance suggests that the following questions be asked and answered (assuming that the Applicant is the mother):

  • Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?
  • Is the mother’s application realistically founded on practical proposals both well researched and investigated?
  • What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
  • Is the father’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?
  • What would be the extent of the detriment to him and his future relationship with the child, were the application granted.
  • To what extend would that detriment be offset by extension of the child’s relationship with the maternal family and homeland.

Conclusion
In other words, (a) is the mother’s wish (mother or father could be Applicant) to relocate overseas genuine? If yes, the Judge deciding the issue must next move on to whether the mother’s (b) wish to relocate abroad is more than fanciful based on a well-researched and investigated proposal? This would include questions such as does she have a job, somewhere to live, schools for the children etc.

The next question is somewhat more complicated and, to some degree, involves a subjective judgment of the (c) impact on any refusal to relocate would have on the mother as the primary carer or single parent of the children. Questions of support and family networks/extended family would be relevant here. The Court will then ask itself whether (d) father’s opposition is genuine and motivated by concern for the children and their welfare or some other issues such as controlling the family. If the children were to move abroad (e), what would be the effect upon father? Questions such as the frequency of contact between father and the children and what arrangements can be made for contact are relevant here. Finally, what advantage is there to the children and their relationships with their maternal family and perhaps even homeland, in offsetting any detriment the child may suffer in its relationship to the father?

These are all very difficult questions for the Court to determine but it is safe to say that there is no presumption in favour of the parent wishing to relocate outside the UK. Any decision of the Court would involve a factual evaluation of the individual case and value judgments place on information given to the Court. Not one of the questions outlined above will ultimately determine the whole issue but rather inform the Court and the Judge of the overall circumstances of the case and hopefully inform a final decision.

Any application made by a parent to relocate overseas is therefore not a foregone conclusion. Any parent wishing to relocate would have to fully investigate and secure employment, accommodation, educational needs for the children etc., before any application can be made and must have evidence of employment, accommodation and education. A parent remaining in the UK would have to establish a genuine concern for the child’s welfare in relocating to demonstrate to the Court that it is the child’s welfare which is his or her concern and not any thoughts for their own feelings.

In this difficult and sensitive area of law, we place this judgment somewhere along the lines of the Judgment of Solomon. Any decision will hopefully be in the child’s best interests, and making the best arrangements possible for the parent remaining in the UK to maintain a relationship with the child or, alternatively, refusing any wish to relocate and doing so in the best interests of the child and not necessarily the parents.

We hope you have found this case of use, should you find yourself in this difficult position.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

So you think you don’t need a lawyer?

by Paul Summerbell

There is a legal obligation in proceedings for a Financial Order following divorce, for each person to give to the other, evidence of their financial circumstances. In many cases, this is in the hope of reaching a financial agreement that would avoid Court proceedings or an expensive and lengthy trial and thus reduce the legal costs associated with divorce generally. The most essential element in this financial disclosure is the negotiations that take place to reach any form of settlement. If a settlement is achieved then the terms of any agreement must be incorporated in a clear manner in a Consent Order which must be subsequently approved by the Court.

It all sounds very straight forward so far but recording the terms of settlement in a clear manner, in a Consent Order, is not as easy as you might first think. There are a number of factors that may need to be considered, which includes the input of an experienced Solicitor, pointing out issues to the client which they may not have considered. For example, what if someone loses their job? What about the joint debts? Who has agreed to pay what? Has everything been included? A lesson in how important it is to record everything in the agreement, is exemplified by the case of Hamilton v Hamilton (2013). In this case, on separation, there were two children of the marriage for whom the wife was the primary carer. The main assets were the matrimonial home and the wife’s business, valued at £1.5m. As part of the agreement between husband and wife, the wife agreed to pay to the husband “the following lump sums” consisting of five payments on five different dates amounting to £450,000.00. It was agreed on payment of the first lump sum that the husband would transfer his share of the matrimonial home to the wife and there would subsequently be a clean break between the parties.

The first lump sum was paid by the wife but she then only paid part of the second lump sum. The wife thereafter sought permission to appeal the terms of the Consent Order. The wife lost that appeal but despite this, no further payments were received by the husband. The husband issued enforcement proceedings against the wife. The wife issued proceedings for a variation of the Consent Order. The wife claimed that despite the wording of the Order, it amounted to a “lump sum payable by instalments” and is therefore capable of variation. The husband maintained that the Court had no power to vary a series of separate lump sum payments. In order words, was this situation “a series of separate lump sum payments” or a “lump sum payable by instalments”? The distinction might seem narrow but the fact remains that a Court has no power to vary a series of separate lump sum payments but it does have the power to vary “a lump sum payable by instalments”.

Despite the Consent Order having provided for the payment of a series of separate lump sums, the Judge nevertheless concluded that what led up to the making of the agreement, allowed him to take the view that this was a lump sum by instalments. As a result, the wife was given more time to pay and her application for variation was successful.

Do you still think you don’t need a lawyer?

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.