Wednesday, 6 November 2013

Enforcement of Child Contact Orders

This has long been a difficult and emotive area of family law – on the one hand the need for Court Orders to be upheld both for confidence in the family law system and the ordered Contact to take place (especially as the Court will have considered that to be in the best interests of the child in making the order in the first place) and on the other the available penalties, how practical they may be and the impact on the child’s welfare in using them.

These types of matters are in the minority but, as you might imagine, are the most intractable with the emotional distress to the parties and to the children at its highest.
The Court may consider a breach of an Order as contempt of Court and this makes available to it fines or imprisonment. The Court may also change a child’s residence. The problem with these options is how practical they are in the circumstances and the potential impact on the carer and, therefore, the children. Ultimately of course it is not likely to do much for the children improving their relationship with their non-resident parent, who they may even view as to blame for their other parent being imprisoned/fined.
Thanks to the Children and Adoption Act 2006, unpaid work and financial compensation may also be used as means of enforcing Orders…. but how does the Court actually deal with these matters.
A recent study funded by The Nuffield Foundation and published in July this year has sought to gather information on these types of matters and their outcomes – a good thing too given the lack of any real analysis to help steer legislation.
Most enforcement applications are brought by fathers as a result of Contact breaking down completely, although there were cases brought for enforcement because the parent with care of the children was late for Contact or sessions were being missed. 59% of cases studied were brought back to Court within 1 year of the original order.
Although most people probably believe that the main reason for Contact Orders being breached is as a result of the unreasonable behaviour or implacable hostility of the parent with care, in fact the study found that these matters made up just 4% of the studied sample of cases.
Most common were cases of parents in significant conflict – either through a lack of any trust or where they were in competition – meaning that they were entirely unable to work together. Next common were those cases where one or both parties raised issues of risk, be those alcohol, drugs, mental health or domestic violence and 10% of cases saw older children rejecting all or some of the ordered Contact in a reasoned way, citing the behaviour of the non-resident parent or their lack of sensitivity as an issue.
Most of the cases were dealt with by the Court setting out a timetable for Contact but also putting in place measures to encourage the parents to work together, be that mediation, parenting education courses etc. but the Court also dealt with matters by setting out a new timetable for any Contact, assessing risk issues by way of drug testing or by restricting Contact to supervised Contact and by seeking the views of the children involved and following those.
In 9% of the cases sampled, the Court sought to ensure compliance with the original order by way of punitive action. These were largely restricted to the cases of implacable hostility, which formed the smallest % of cases sampled.
The study finds that largely the Court alters its way of dealing with these matters depending on the reasons for the case returning to Court and in the vast majority of matters, the Court deals with them appropriately. Given that most enforcement cases centre on the parental conflict or risk issues, it is positive to note the Court’s focus on co-parenting, protection and problem solving as opposed to pure punitive measures, which almost certainly wouldn’t assist.
Interestingly enough, the study found that too much focus is placed on quick case progression at the expense sometimes of addressing the underlying issues causing the dispute – I can only imagine that this is not going to improve given the stripping of resources and increase in the Court’s caseload with Litigants in Person but perhaps I am being too pessimistic, the single family Court is on its way and there is every chance this will streamline matters and free up time for the Courts….

Monday, 21 October 2013

Family Mediation Reduction

It has been recently reported that since the cutting of Legal aid in April 2013 there has been a dramatic drop in the number of divorcing or separating couples opting for mediation, according to the latest government figures.

Mediation Information and Assessment Meetings (MIAMS) fell 47 per cent in the past year, despite guidance that all divorcing couples should attend such sessions before commencing proceedings. It is not currently obligatory for couples to attend Mediation but that is set to change with the introduction of the Children and Families Bill next year, which may result in increased numbers attending Mediation but who will be left to provide these services by then? Will Mediation Services survive the drop in their income?

But, that aside, why are people failing to attend Mediation – especially given that, amongst all of the legal aid cuts, Mediation has survived with legal aid still available for those who qualify financially.

I suspect that, despite the government seeking to justify the cuts at the time by reference to legal aid remaining available for Mediation, there has been little real promotion of this since, by the media or the government.

Divorcing couples now know or believe that legal aid is not available to them and I expect that they (wrongly) consider that this goes for Mediation as well. In addition, the number of people taking legal advice on Divorce is very likely to have reduced, as people fear the cost and this, in turn, is likely to have an effect on the number of referrals by Solicitors to Mediation services. 

And yet, Mediation is a hugely powerful process in the right cases and can allow clients to retain control over the discussions, the timeframe and ultimately their agreement. It can lower the overall costs of a matter dramatically and ease the emotional fall out.

A joint partnership between lawyers and Mediators is, I believe, one structure which would assist – in the absence of the media/government/legal aid agencies promoting the availability of Mediation and whilst we wait for the introduction of compulsory MIAMS next year, surely the promotion of Mediation by the profession would help.

The client’s aims are, ordinarily, to achieve a fair outcome as quickly as possible and to limit the emotional and monetary expense – a combination of Mediation and legal advice can achieve this in most cases and more fixed fee partnerships between mediators and solicitors of the kind we are party to in Worcester would, in my opinon, be a good place to start.

Friday, 13 September 2013

Step-families Day

On the 16th September it will be National Step Family Day in the U.S – there is not, as far as I am aware, an equivalent day in the UK.

One in three American citizens live in a stepfamily and 30% of children in the U.S are currently growing up in a stepfamily. In the UK in 2008, more than 10% of families with dependent children were step families and stepfamilies were the fastest growing type of family. It has even been previously estimated that there are more step families than “nuclear” families.

Having a step-parent suggests that the family has previously been through a divorce, which will have been a huge ordeal, especially for the children, and the changes and emotions that are felt when a new step-parent comes into the family can be difficult. Resentment, anger and divided loyalty can see previously amicable relationships damaged with the consequences felt by the children and all involved.

And yet there are many step families who work hard with these issues every day, foster good relationships between the children and new step parent and between the adults involved and who, despite the difficulties, remain together and provide a stable environment for the children in the family unit.

So, if your family is a step family, on the 16th September (even if you are not in the U.S) take a moment to think about the positives and some time together.

Wednesday, 28 August 2013

Interest in Cohabitation?

Recently, a client of mine said that he “knew that after 6 months of living with his new partner, she would gain an interest in his property”.

I asked my client where he had heard this information and he told me that he had been speaking to a friend who had told him as much.

This is not the first time that I have had to put clients straight about their position on cohabitation and it is a mystery to me where these snippets of “advice” stem from but in short I informed my client that a cohabitee does not gain any automatic right or interest in property after a set period of time.

The key to a non-owning cohabitee seeking to claim any interest in a property lies in a 2 stage approach;

1)     The non-owning cohabitee proving a common intention of the parties to share the interest in the property

2)     Quantify their interest either by inference from their conduct or by imputing what the Court considers fair

This can be particularly complicated but the area of trusts is used to deal with hurdle 1 and in their boiled down states these are:

1.      Express Trusts – i.e. some evidence in writing of the parties’ intentions as regards interest in the property – quite unlikely in a situation where one party alone owns the property

2.      Constructive Trusts – i.e. where the non-owning cohabitee shows that there was a common intention that they have an interest in the property (either through their conduct or that there was some agreement between the parties) and that they had relied on that intention to their detriment

3.      Resulting Trusts – i.e. the non-owning cohabitee made some contribution to the purchase price of the property that they intended would gain them some interest in the property

Trust arguments are complicated and disputes between cohabitees can be costly. The best piece of advice to any client of mine with such issues would be to carefully consider with your new partner any financial contributions that they make towards the purchase or any property, mortgage payments or any outgoings/renovations/extensions on the property and make a clear record of what payments are for and whether it is intended at all that these payments will mean that the new partner has any interest in the property and, if so, how much.

Review any financial arrangements relatively frequently and certainly if they are to change at all to make sure that your agreement is up to date and good evidence.

Thinking about these issues at the outset makes it much easier to resolve matters if the relationship fails.

Tuesday, 13 August 2013

What’s in a name?

Yesterday saw a case reported from the Tennessee Courts which involved 2 parents who could not agree on their child’s surname and who, as a result, issued an application for the Court to determine the matter.  
Unfortunately for the parents, in deciding the matter, the judge learnt of the child’s first name (on which the parents did agree, presumably) being Messiah. The Court has ordered that the child’s first name be changed to “Martin” and that both parents’ surnames be used as the child’s surname, leaving the child’s name now as Martin DeShawn McCullough.
Whether the mother’s appeal against the change of the child’s first name will be successful remains to be seen, the mother alleging that the judge took more account of her own religious beliefs than considering the child’s interests or the parents’ right to choose a name for their child.
But what this case does highlight is just one of the issues that might arise between parents of children who are separated and have different views.
In this country, if both parents have Parental Responsibility for their child (the mother gets that automatically on the child’s birth and the father may obtain it either by being married to the child’s mother, entering a Parental Responsibility Agreement or being named on the child’s birth certificate post December 2003) then there are certain things that cannot be done without both parties’ consent and several decisions in which both parents should be consulted/have a say.
The changing of a child’s name is one action that cannot be taken without the consent of all people with Parental Responsibility for that child and, if parents cannot agree, then an application to the Court for a “specific issue order” will be necessary.
The Court will have to have regard to the “Welfare Checklist” as with all applications concerning children and balance the following, taking into account that the child’s best interests are paramount in these kinds of applications:
a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
I have made several such applications on behalf of clients over the years and whilst there are exceptions, notably where association with a particular name is likely to cause the child distress or harm or where change to incorporate a particular name is likely to be against the child’s best interests, the Court has favoured the incorporation of both parents’ surnames into the child’s name, sometimes hyphenated, sometimes not.
That appears to be because this allows the child’s link with their biological parents to be kept intact – which in terms of a child understanding its paternity and history can be very important, perhaps even more so if a child is having limited or no contact with one parent.
It appears that the Court in Tennessee has come to the same conclusion in this recently reported case.

Wednesday, 10 July 2013

Summer – Will it become too heated?

Finally, some sunshine and high temperatures after the distinctly too cool Spring and soon enough schools will break up, children will be off for the summer….

The pressure that many can feel to have the “perfect Summer”, to spend time with family, arrange and host BBQs and other events and ensure that the children have plenty of days out and fun activities can lead to tremendous stress and fractured relationships.

It has long been acknowledged that there is a noticeable link between holiday periods and the number of enquiries that Solicitors receive about Divorce following those and whilst many consider that a bad joke I can assure you that for the clients that I see it is anything but.

Now I am not suggesting that one less than perfect Summer leads to Divorce, families and relationships are far more complex than that, but it can be a significant stressor on a relationship that perhaps is already in difficulty or on couples who are not seeing eye to eye.

There are some things that you can consider to make the whole period less stressful. Try the following:

1.      Plan in advance and acknowledge what you can and can’t do – limit the number of BBQs or events you are going to host over the holidays and “book” them in early, speak with other parents at School or with family members about their plans early so you don’t feel pressured to accept any last minute invites.

2.      Make a note of local activities for children or for you and your partner that will keep you all interested. If you have different interests, acknowledge those and plan activities accordingly.

3.      Arrange for the children to spend time at their friends’ homes – I’m sure their parents will gratefully accept if the reverse is also offered and it will allow you some time alone or together as a couple to discuss any issues without the children around.

4.      Pencil in some relaxation or free time so that you can do as you please – talk to your partner, accept that last minute invite if you want to, spend time as a family at home.

5.      If you are really struggling to speak with your partner without arguing then don’t. Take time to walk away and compose yourself and raise any issues when you are both calmer and away from any family members or children.

6.      Perspective – it’s Summer, yes we don’t have great weather all the time and you want to make the most of it but the memories that I have of Summer, both in my childhood and adulthood, are not of what the weather was doing or even what I was doing but who I was with and the atmosphere that there was – make that your focus.