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….

http://www.nuffieldfoundation.org/sites/default/files/files/enforcement%20briefing%20paper%20final.pdf

Step-families Day

On the 16^th 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 16^th September (even if you are not in the U.S) take a moment to think about the positives and some time together.

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.  

http://www.independent.co.uk/news/world/americas/hes-not-the-messiah-hes-just-a-little-boy-tennessee-judge-changes-childs-name-from-messiah-to-martin-8757085.html

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.

Costs and control in Divorce

So February is nearly upon us, scary - one month down!

I have struggled this month with diet, exercise and all the new year resolution type things that I was to do but all of that pales into insignificance when I meet new clients struggling with all of that, normal life, children and the prospect of a separation.

Many have been happy that finally they have felt able to do something about the feelings that they have harboured for a long time but even when people have plucked up that courage and taken that step they find themselves trying to deal with a process that is alien to them and the costs that come with it.

I have read in several places over the last month or so that Divorce costs £10,000+ (I have seen that as a statement in itself with no qualification about the level of assets or complexity of the case).

Now whilst I accept that there are some cases that are complex or very contested and which attract alot of legal costs, there are many more that are relatively straightforward and that should not attract anywhere near that amount. It worries me to think that there are people who will shy away from getting the legal advice they need to make an informed decision because of scaremongering about costs.

There is a cost, of course, to obtaining specialist legal advice on Divorce - much as there is a cost to having your car fixed or taking financial advice - but there is also a value to that advice - be it in peace of mind, protection of assets or security for the future.

People going through the process of separation or divorce want control, they want fairness and they want to feel that they are not lost and that they have direction - that is fine but often the sticking point is cost.

In late 2012 I entered a Mediation Partnership with Mediation Worcestershire, along with a few other Solicitors in the area. The concept is that people who attend Mediation to resolve their differences but who naturally require legal advice at some point in that process, will be able to turn to members of the Partnership for that advice at a fixed cost.

The aim is to make sure that couples who are separating have the benefit of control through the Mediation process with access to the specialist legal advice that they need at a cost that is clear.

I am imensely pleased that as a profession as a whole we are trying to ensure that access to legal advice remains open and never will this be more important than post April 2013, when the availability of legal aid for family law cases will be abolished, save for those cases involving Domestic Violence or Care issues.

I know that there is a cost to bear for legal advice but I hope that as this year progresses people do not leave themselves counting the cost of not having had it!

New Year, next chapter?

Whilst this festive period may have been a happy time, for many the added stress, constant planning and financial pressure will have left their relationships at breaking point.  When the New Year comes round and people stand back to assess their lives and relationships, many may decide to separate or Divorce.

Rarely do I find that the Christmas period has been the cause of a relationship breakdown and often separation is something that couples have been discussing between themselves for quite a while. When another year arrives on the calendar people think about a new start, new opportunities and new possibilities. It often seems easier to draw a line in the sand at the end of the old year and try to be optimistic about the future at the beginning of the new one, whatever difficulties you might be facing.

Often, the idea of instructing a solicitor may seem 'too big a step' when all you really want is an understanding of what your options may be going forward and clients frequently tell me that they have delayed getting advice because they were concerned about the costs or fearful about feeling pressured into a certain course of action – presumably having listened to the media’s view of lawyers generally.

I can only imagine that in 2013, with Legal Aid being withdrawn by the government for almost all Family Law matters, the number of people feeling this way will increase. And yet, separation or Divorce is a major life decision and one that you should make with as much information as possible.

I offer a free initial consultation on family law issues and spend time explaining to clients the options and discussing ways forward. I hope that clients leave more reassured and clearer about their next steps and they frequently tell me that this is the case, which is good to hear!

Recently, we developed a range of fixed fee options, again, in the hope of reassuring clients and in anticipation of Legal Aid being withdrawn, to assist the many people that will require advice after April 2013 but simply cannot afford to pay on the basis of an hourly rate. It remains to be seen whether many other firms will take the same line but it I clear that the legal market is changing.

Couples separating will more and more be faced with a vast array of organisations and firms seeking to offer legal advice – they will have to decide, do I get advice from my supermarket, an online organisation or a traditional law firm. Do I want to deal with a call centre, someone over e-mail or do I value my life and future enough to want the person dealing with it all to be accessible, someone I can visit face to face and develop trust in?

So I start 2013 positively, having done all I can to enable our clients to access the advice they need at an affordable cost, and anxious to see how the legal market will change this year.

Bring on the next 12 months!

One too many days of Christmas?

So the festive season is nearly here, there are Christmas displays in shop windows and the build-up has well and truly begun.

Whilst this for many is a happy time of year the added stress and debt can put strain on relationships and cracks may start to appear or become more apparent for those who are not used to spending long periods with their partner or children.

The constant planning and pressure for everything to be perfect can leave couples at breaking point and it is a sad fact that reports of Domestic Violence and people seeking advice for relationship breakdown often double in the post-Christmas period.

With the recession still in force, this year may seem particularly difficult for many but nobody wants to suffer upset at Christmas so how can you try to Christmas proof your relationship?

1. Keep a check on your alcohol consumption – excessive alcohol can frequently lead to people being more aggressive/argumentative or expressing views that they may later regret – alcohol and the pressure of a family Christmas can be a disaster

2. Agree a budget for each family member or for the children and stick to it – financial pressures are one of the biggest strains at Christmas and can be source of many arguments, even in to the New Year when debts need to be paid off

3. If you’re struggling, refusing to speak to one another, whether that is because you simply can’t bear it or because you fear it will cause a row, will see tensions build – try and clear the air about issues as quickly as possible and away from family members.

4. Perspective – with the added stress and pressure the smallest of things can become a source of major irritation. Stand back and count to 10, is it that big an issue? If it is then speak about it, if not, let it go.

It is rare that Christmas is the cause for a relationship breaking down but it can magnify cracks in a relationship and be the last straw – if that is the case, seek out specialist advice in the New Year and remember that friends may be well meaning but they are frequently wrong or influenced by their own experiences.

For those couples already separated, particularly with children, the issue of how to deal with Christmas can raise other difficulties, here are a few tips to help…

1. If you have recently separated, or even if you have been for some time, rely on your friends and family for support. Surrounding yourself with close friends will lift your mood and stop you dwelling on matters.

2. Make Christmas your own – often when there are children involved, a family will have certain traditions done each year. Don’t focus on what has always been done, make your own traditions and memories and move forward

3. Forget the emotion – maybe you are still processing emotions from the breakdown of your marriage/relationship try not to let your children sense that over Christmas. Remember this, as long as children see both of their parents over the Christmas period they won’t be too concerned about who they see on Christmas Day – Christmas starts when the presents start and ends when the presents end – who said Santa can’t leave their presents in 2 houses?

4. Communication is key – when you separate there will be all sorts of emotions to process and you will both be feeling them, not necessarily the same ones at the same time. Communicating with your ex about Christmas presents, arrangements etc. will enable you and the children to have an enjoyable break.

Child Maintenance - Changes ahead.

This month saw a new child maintenance formula introduced for the CSA to calculate child maintenance. There has been little detail published about the new scheme so I thought I’d do a bit on this.

Initially, the scheme will apply to all new cases where there are 4 or more children and will be opened up gradually, with all cases falling under the new formula from early 2014.

The new formula uses gross income instead of net income, which has been used for some time to form the basis of the calculations by the CSA.

It is hoped that in using gross income figures this will avoid delays and make it easier to establish self-employed income, by using tax returns and information submitted to HM Revenue & Customs instead of relying on documentation and information from the parent themselves. It should also help to make it more difficult for parents to minimise the income assessed in order to reduce their child maintenance liability.

The new formula is to be applied in 2 parts, one for the first £800 of gross weekly income (12% for one child, 16% for 2 children and 19% for three or more) and the second for any gross weekly income over £800 (9% for one child, 12% for two children and 15% for three or more). There is a cap of £3,000 per week gross income, beyond which parents shall have to apply to the Court.

There will continue to be reductions in maintenance if the paying parent is financially responsible for other children, is a step parent to other children in his/her household or to take account of overnight stays.

Controversially, there will be a charge for using the CSA to assess and collect child maintenance, whereas at the moment this is free. The charge is likely to come in once the new formula is being applied to all cases.

Consultations on the level of that charge shall end shortly but some critics say that charges may not be affordable for all parents and will see money effectively taken from the children it was meant to support.

Existing cases will not be affected until late 2013 but when they are it will mean that all currently paying parents will be given an opportunity to establish a direct payment to the other parent (even those parents who are paying through the CSA at the moment because of their history of non-payment). The CSA has a direct payment scheme, which would mean that the paying parent can make their payments direct but without the receiving parent having to disclose bank details etc.

Failing any agreement or direct payment, a fresh application will have to be made to the CSA by the parent with care of the children.

Critics of this part of the scheme have suggested that this may allow perpetrators of domestic violence to manipulate or financially control their ex-partners by making direct payments but changing the dates or missing payments, the only other option for the victim to be to apply to the CSA once again and be charged.

The move to use gross income figures is likely to help with accurate assessment and enforcement of child maintenance but the proposed charges may, for many, be an obstacle to obtaining a secure financial future for their children, which ironically is exactly what the child maintenance scheme is supposed to achieve.

As with many of these things, the devil is in the detail so I think we’ll have to wait and see how it all works in practice.

A stable future?

It has been recently reported that by 2047 families headed by married couples will be in the minority, at just 49.5%, if the current rate of decline in marriages continues. The think tank calls for additional government focus and support to ensure family stability, the breakdown of which costs society an estimated £44billon per year.

The proportion of families headed by a married couple has declined by 5% in the last 10 years and cohabitation has increased by some 3%. I have posted earlier about the marriage foundation, which extols marriage as the gold standard. There certainly are studies to support that cohabiting relationships are less stable than married ones.

And yet, I wonder how much impact any government schemes or proposals would really have in turning the tables and encouraging people to marry. There is talk of need for a Government department for families to tackle family breakdown and introduction of a transferable tax allowance for married couples to promote marriage.

Financial incentives to marriage are not, in my opinion, likely to make a difference. I cannot think that the vast majority of people marry for tax or any other financial benefit that they might receive from the state and if they do, how stable is their relationship likely to be in the future?  Are those people then to be discouraged from separation even in the most distressing of circumstances because to do so would be financially disadvantageous? Is that how we see our future?

The CSJ comments that more must be done to strengthen families in the poorest communities to ensure social recovery and economic growth – will financial incentives such as transferable tax allowances make marriage more appealing in these communities? How does this sit with cuts to state funded benefits impacting on many families up and down the country and increasing the pressure on them?

If stability of marriage, or any other relationship, is the goal then I do think there needs to be more done on a deeper level – to encourage people to work through problems or communicate more effectively – how or if the government is placed to do that is questionable.

The real difficulty may be that society as a whole has changed and that future generations view their lives very differently. Relationships now take on many forms and I wonder whether younger generations will hold marriage to be the “gold standard” whatever incentives or support there is?

The fact is that, unless and until sufficient is done and public opinion is swayed, cohabitation will continue to increase, leaving many people in precarious positions on separation and without any real understanding of their legal rights.

Following the logic of the CSJ, perhaps education on cohabitation and its various potential legal/financial pitfalls might persuade more into marriage instead?!

Real life drama – Part 1

Ok, so I admit it – I do watch soaps at home – Emmerdale and Coronation St are my guilty secrets – I still struggle to believe that so much drama can happen in one small village/street…

Anyway, for those of you not aware, recently Emmerdale has seen its fair share of family breakups – children caught in all of them – and Coronation St. sees an abusive relationship play out, baby in tow.

The current storylines highlight issues that we see frequently when families separate and so I shall go through them and the legal points they raise over a couple of posts…

1. The Step-family and removal from the jurisdiction

Marlon fathered baby Leo with his then partner Rhona – they separated when she was pregnant and she formed a relationship with Paddy, whom she married. All was well and Marlon was seeing Leo (who has Downs Syndrome) regularly. Paddy was offered a job in New Zealand and they all agreed to go with Leo. Marlon changed his mind and wanted baby Leo to stay in the UK – all hell broke loose….

There are several issues that this potentially throws up. Firstly, Marlon and Rhona were not married when Leo was born – unless Rhona named Marlon on Leo’s birth certificate (which from memory she did) he would not have Parental Responsibility for Leo and she would be the only person to have this. This would have meant that there would be nothing legally to prevent her changing his name, removing him from the jurisdiction or taking other important decisions in his life without consulting Marlon.

Paddy’s status in Leo’s life as his step-father is also an issue. Simply marrying Leo’s mother does not of itself provide Paddy with Parental Responsibility for Leo. Marlon (assuming he has PR) and Rhona could have agreed to execute a PR Agreement to provide Paddy with PR for Leo but unless they did that he would have to apply to the Court for an Order to obtain PR.

This doesn’t affect matters day to day because Rhona has PR for Leo and it is unlikely that Paddy would ever have to make any important decision for Leo alone – consider though if Rhona were to die – Paddy would almost certainly need PR were Leo to remain with him.

Marlon commenced Court proceedings for Residence of Leo when he changed his mind about leaving for New Zealand and the Court granted an interim order to prevent any removal called a Prohibited Steps Order. Rhona left the jurisdiction with Leo anyway. Not only has Rhona breached the terms of the interim Order that the Court made, she also has committed an offence under the Child Abduction Act if Marlon has PR and she removes Leo for more than a month.

She also is potentially is liable to be prosecuted for “child abduction”.

To some that seems odd on the basis that Leo is her child but “child abduction” is the wrongful removal or retention of a child. That removal or retention is considered “wrongful” where it breaches the rights of custody of the other person, institution or other body under the law of the country in which the child was habitually resident immediately before the removal/retention.

Where that has happened, the Hague Convention will come into play – assuming that the other country, where the child has been removed to or retained in, is a signatory.

New Zealand is a signatory of the Hague Convention and, as Marlon had Parental Responsibility for Leo (being named on his birth certificate) his rights of custody had been breached. The term “rights of custody” do not necessarily refer to who the child was living with – there has been case law on this point that has established that it is a wider term that can encompasses both rights given by Court Order, PR and where care is being given on a daily basis and for all intents and purposes a person is exercising PR and caring for the child, irrespective of any Court Orders.

The other argument in this case could be that Rhona had in any event breached the Court’s rights of custody – as there were pending proceedings for Residence of Leo in front of the Courts here and in removing the child, she has interfered with the Court’s right to determine Leo’s residence.

Marlon’s correct course of action would be to approach the Central Authority for Child Abduction, who will in turn contact the Central Authority in New Zealand to secure Leo’s immediate return to England….whether he has done so or not is something I am not clear on, having missed a few episodes recently!!

………

Parenting on Separation – endless decisions

There was a case reported in the press recently about a 10 year old girl who wanted to be baptised. The child was living equally between her separated parents, her mother remained of Jewish faith and her father had converted to Christianity after the breakdown of his marriage to the child’s mother, having been of Jewish faith before that.

The child’s mother had issued an application to prevent the child’s baptism going ahead and considered that the child should be made to wait until she was 16 years old before making such a decision – the child’s father considered that the child knew her own mind and that she should be allowed to be baptised now, as was her wish.

Ultimately, whilst there was no jurisdiction for the Court to order that the baptism take place, it refused to prevent the baptism happening and the judge felt that the child’s best interests would be served by starting her baptism classes as soon as possible.

It struck me when looking through the judgement of this, admittedly, unusual case that despite any separation, there are an almost incalculable number of decisions that parents will need to make for children as they grow up. The vast majority of these will need to be made jointly, both because joint decisions ultimately must be better for children but also because Parental Responsibility necessitates consultation when significant decisions are made for a child, such as schooling, religious upbringing, medical care etc.

Disputes concerning a child’s religious upbringing are probably less common than say disputes over schooling but such disputes are not uncommon – even the Cruise v Holmes divorce settlement included clauses to limit the child’s involvement in the father’s following of Scientology as his “religion”.

Also sometimes before the Court are disputes over whether a child should be given certain medical treatment, for example where one parent is a Jehovah’s Witness and will not consent to the giving of blood.

It is fairly common for parents to have differing opinions on various topics but the difficulty with separated parents is how those differences are communicated, acknowledged, discussed and dealt with.

Surely better that potential areas of dispute are considered early on by both parents – at least then they can identify where they differ in their opinions and where perhaps they will need some assistance  in the future – court based or otherwise –if those areas become an issue.

The Court devised, some time ago, a way of encouraging separating parents to think about their views and opinions in terms of the child’s upbringing early on – Parenting Plans.

These “plans” take the form of a booklet and include a whole range of different areas relating to the child’s upbringing – some that parents may not even have given thought to or be aware that the other holds particularly strong views on.

The idea was that these plans were given to separating parents at an early stage, either by a Solicitor or perhaps a Mediator to encourage some forethought and discussion – ideally with the outcome that neither parent would need to resort to Court applications.

I am not sure how successful these plans have been or how routinely they are used across the country but I would say that the earlier potential sources of dispute are identified, the more opportunity there is for parents to enter into discussions together to try and resolve matters.

Ok, it won’t be suitable for every family and life is ever-changing – What if the child expresses a strong wish for something contrary to what the parents had agreed together? What if there is a change of circumstances and as a result one or other parent changes their mind about something?

There is, as ever in cases concerning children, no one size fits all solution but early identification and discussion must surely be a positive all round.

Shared Parenting – The proposals…

The topic of the government’s proposal to alter current legislation to reinforce the expectation that, where safe, children should have involvement with both parents formed a post of mine in May.

I am a little behind I’m afraid (hazards of life and work!)

Those of you who read my earlier post will know that my view was (and remains) that the Court and family law system as a whole already works from the starting point that children should have the benefit of a good quality relationship with both parents, where safe to do so. I remain of the view that messing around with current legislation is not necessary and, in fact, potentially more confusing for parents.

Nevertheless, there is now in place a consultation as regards options to achieve the government’s desired result – closing 5^th September 2012.

The governments preferred option is to “require the Court to work on the presumption that a child’s welfare is likely to be furthered through safe involvement with both parents – unless the evidence shows this not to be safe or in the child’s best interests.”

Other options are:

1.      to require the Courts to have regard to a principle that a child’s welfare is likely to be furthered through involvement with both parents.

2.      providing that the Court’s starting point in making decisions about children’s care is that a child’s welfare is likely to be furthered through involvement with both parents

3.      inserting, as an additional factor that the Court must consider, the further involvement of both parents.

In terms of the government’s preferred option, like I say, I know of no Judge or Solicitor who would presume otherwise and I don’t consider that any such amendment to expressly set out the presumption will alter the way in which the Court deals with these types of issues

…but how will this be construed by parents in the heat of court proceedings or separation – ultimately it is this that matters, it is clients and their views or perceptions that drive matters through Court. It isn’t beyond belief that in their minds the proposed presumption will relate to equal division of responsibility and, as part of that, time.

Already there have been comments made in the media that fuel such a thought process - “father’s to get equal access rights” being just one. However much the government makes it clear that equal time is not their focus, it will not be ministers trying to explain that to parents in Court.

The government’s argument for such amendment to legislation is that it will assist separating parents and will mean less cases reaching Court. There appears to have been little given to the fact that some 90% of separating couples never reach Court and the remaining 10% ordinarily involve multiple issues and problems.

How will introducing some starting point or presumption help those parents?  it is more likely to further entrench them against each other, leading to longer cases, more hostility and argument over what constitutes sufficient “involvement” with the child.

I have seen several cases where parties’ parenting styles have been different (neither worse nor better than the other but different) with one parent seeking at every opportunity to involve themselves when the children are with the other, criticising the other’s approach – where will the line be drawn?

Further, there appears to be little thought given to how the proposed presumption of “co-operative parenting” will be rebutted. How will the Court identify those cases in which the presumption should not apply? What guidelines are there to be?

Fundamentally, I wonder where the government’s evidence for the necessity of such amendments comes from. There is certainly a perception amongst some people that the Family Courts are biased in some way towards one parent but no evidence that that perception is based on fact. Where is the need for amendment?

Are we to legislate now just to remove or deal with people’s perceptions, however inaccurate they may be?

That will be next to impossible in Family law, where the Court’s quite rightly have wide discretion to act with the child’s welfare as their paramount consideration. Almost every case will see someone come away without all that they wanted and a “perception” that the Court has favoured the other – this seems to be despite all that the judges do to make it clear that their focus is the child.

One thing is clear, the government is set on this course irrespective of the views of Family law professionals or the conclusion of the Family Justice Review – we can only hope that, whichever option is chosen, clear information is given to parents to avoid further incorrect perceptions being formed.

Divorce?...What’s the rush?

When couples separate often the last thing they want to think about is Divorce.  Their focus is on sorting out the financial issues or arrangements for the children, which are often more important to them.

Clients often say to me that really the "Divorce" element of their separation isn't that important to them immediately and some even would say that they don't like the idea of such finality when they have just separated (despite intending to remain apart and clear about their wish to separate).

If agreement about financial matters can be reached then issuing proceedings is not immediately necessary and parties may choose to delay issuing a Divorce Petition and enter into a “Separation Agreement”. The purpose of a Separation Agreement is to set out the financial arrangements clearly and in such a way that it will be upheld by the Court later on.

Most commonly the intention of parties dealing with a break-up in this way will be to issue Divorce proceedings and apply to the Court for the terms of their agreement to be incorporated into a legally binding Court Order at a later date – usually after they have been apart for a period of 2 years. That allows time for emotions to be worked through, people to move on and for the Divorce then to be dealt with amicably and at a time when the parties feel more ready to deal with it.

Separation Agreements cannot be used where there is dispute between the parties as to how assets are to be divided. If Mediation cannot resolve the dispute or it cannot be negotiated then Court proceedings might be needed to determine matters. Financial proceedings cannot be brought without Divorce proceedings first being issued and, in some circumstances therefore, an immediate Divorce is necessary.

The same goes for cases in which there is some urgent need for the Court to intervene, perhaps where assets are being dissipated.

There are emotional benefits to dealing with separation in this way but Separation Agreements are not a “quick fix”. Separation Agreements are not legally binding and will require the Court's approval (which may only be given once Divorce proceedings have been issued and the Decree Nisi granted) to become so. 

They must be approached and prepared properly to hold weight with the Court and ensure a fair outcome and it is important that both parties provide detailed financial information to one another and have the opportunity of taking independent legal advice.

So... consider it as an option and take advice about whether it might be possible in your case.

The Divorce Hotel – where checking in can lead to a quick exit?

Already up and running in 6 “high-end” hotels in the Netherlands the “Divorce Hotel” concept may be making its way to our shores in early 2013 if its creator has his way.

The idea is that couples wanting to separate amicably and quickly check in on a Friday (into separate rooms!) and over the course of the weekend negotiate their marital finance settlement, children issues and Divorce with the help of mediators and lawyers, who are provided as part of the flat fee package (I shall leave aside the issues about how experienced the lawyers may be – vis a vis fitting it all into a fixed package, the choice of lawyer and whether the client can work with them etc. etc.)

I understand that 17 couples have tried this concept in the Netherlands and all but 1 have apparently been successful in their attempts to negotiate settlement and leave all but divorced at check out on the Sunday.

Also understood is that couples who apply to go to the Divorce Hotel are screened beforehand to rate their chances of success with only 1 in 3 being accepted. Taken with the reports that the creator of the concept is negotiating with television companies in the U.S to launch a reality series, the cynic in me wonders whether the screening has more to do with the perceived success of the concept than any genuine attempt to identify couples who would do more damage to each other and any children as a result of their inability to negotiate.

That aside, I wonder whether this kind of service is what the British public want or need.

I understand that the concept came about as a result of its creator having witnessed what by all accounts was the stressful and acrimonious divorce of his college friend. The driving motivation is to reduce hostility between the parties and deal with matters quickly for a fixed fee but the implication appears to be that if couples choose the more traditional route of instructing their own solicitors, they are somehow going to become more hostile and matters will be dragged out for months at a vast cost.

I am painfully aware of the perception that the general public have about the legal profession but I do think that there are a great number of family law solicitors who want to do the best for their clients and who offer an excellent service. Of course there is a cost to the service, expertise and knowledge provided by solicitors but, when you consider the often complex nature of the assets being dealt with and the fact that we are talking about people’s future security and balance that against the costs, I don’t consider those excessive.

Add to that the increasing number of fixed fee arrangements for Solicitors’ services and the availability of Mediation already on Divorce and Separation and I wonder what the Divorce Hotel is offering in addition.

Of course it offers luxury surroundings and the promise that matters will be resolved over the course of a weekend but is the luxury enough to prevent parties feeling pressured.

I know that parties make their “booking” with the best of intentions to remain amicable and reach agreement but I cannot believe that they will have really thought through every issue that is likely to be touched upon or discussed. I can’t believe that at some point relations won’t become fractured, perhaps as a result of the other raising a point that they hadn’t considered before – what then of the 48 hour timescale?

Also of concern is that parties don’t have sufficient time to process the information and think through their decisions – even traditional Mediation allows significant time to make sure that parties have advice and are able to process information. My experience of clients tells me that they, even those who have been separated for some time, are emotional about the process of Divorce or Separation and this impacts enormously on their decision making abilities.

I cannot imagine that the number of major decisions that would be needed, to deal with financial settlements and issues concerning children, could be made properly in 48 hours – irrespective of the intentions of the parties to remain amicable.

Can this be the pressure that people want on their Divorce?

Of course, it might be that the couples’ financial arrangements are simple and there are no children involved – meaning less major decisions to be made but, if that is the case, why bother with the hotel stay, why not discuss matters together or with the help of mediation services already available – why not do some of the paperwork for the Divorce yourself or with the guidance of a Solicitor to speed things up or cut costs.

I have no doubt that, as we progress through this year and into next, separating couples will be bombarded with different options and different service providers, all vying to deal with their matters – be those online services, Co-op legal services, fixed price packages (of varying quality and degree), national umbrella brands or the Divorce Hotel model.

To have options is good – no one option will suit all people – but what you must be clear on when facing such issues as Divorce and financial negotiations is your priorities and emotions. Only being aware of both will lead you down the route most appropriate for you.

The Marriage Foundation – on solid ground?

The recently launched Marriage Foundation, brainchild of Paul Coleridge, High Court Judge, aims to champion long-lasting, stable relationships within marriage and establish marriage as a “gold standard” to which people should aspire in terms of their personal relationships.

The foundation speaks of the benefit of marriage in terms of higher income and accumulation of wealth, improved health and happier relationships when compared to those relationships outside marriage. The foundation also notes the legal protection afforded to married couples in terms of their financial entitlements and the intentional act of commitment that marriage requires – as opposed to people “sliding into relationships that prove unstable”.

I must say, it is unusual for a member of the judiciary to so publicly raise such an issue and to seek to do something about it but is the foundation on solid ground?

The statistics are notable, a lowering in the rate of marriage, an increase in cohabitation, a higher proportion of cohabiting couples separating than that of married couples and 70% of young offenders coming from single parent families (no specific mention of whether that was as a result of a breakdown of marriage or cohabitation).

Cross-national studies show that “much can be done to improve child wellbeing through economic and other supports where the institution of marriage has seriously weakened and cohabitation has become common. But even in nations that have the most extensive welfare measures, such as the Scandinavian countries and France, a substantial gap in child wellbeing remains between those children who grow up in intact families, and those who do not… all the evidence we have shows that individuals fare best, both in childhood and in later life, when they benefit from the economic and emotional investments of their natural parents who reside together continuously and cooperate in raising them.” Popenoe, D. 2009. Social Science and Public Policy. Vol 46, Number 5, pp. 429-436. – that is not to say married or unmarried but both natural parents.

It is estimated that the cost to society in this country from family breakdown amounts to £44bn per year.

And yet, I am concerned by some of the statistics and whether in fact it is not simply marriage that must be aspired to but a stable and committed relationship (be that within marriage or not).

Certainly it is the case that married couples account for the majority of births, some 54% (cohabitants contributing 40%) and a larger proportion of cohabiting couples separate than married couples, 59% as against 20% but is it just too simplistic to suggest that advocating marriage as the “gold standard” will help solve the problem?

There are certainly some benefits to marriage, from the point of view of legal status and rights that flow as a result of marriage, that are not present with cohabiting couples, whether they understand it or not.

One of the aims of the foundation is to educate people about these issues, presumably with a view to encouraging marriage as a concept, but surely people who enter a marriage do so for reasons other than the legal status and financial protection that it provides. I doubt that if a bride or groom were asked why they were marrying that this would spring to mind! How successful then will such education be in encouraging people towards marriage, bearing in mind the other considerations that will also necessarily come into play (cost, personal experience etc.).

The same could be said of the argument that married couples have happier relationships and are healthier – whatever the research says, how likely is it that someone will marry their partner (who they are happy with) simply because they believe that they will be happier or healthier?

Even if there is some success and more people do marry, the Divorce rate rose by nearly 5% in 2010 on the rate for 2009 (the latest available data) – marriage might well be more stable than cohabitation at this stage but being married clearly is no guarantee of stability or of children being raised by both parents.

Far more important, in my view, is people’s attitude towards relationships, the commitment that they have to their partner and their willingness and ability to “weather the storms” that they will suffer married or not.

Willingness to work through problems or weather the inevitable storms cannot, I suspect, be influenced from the outside, save perhaps if there was some penalty or consequence, be that some stigma, financial consequence or otherwise.

It used to be the case in our society that Divorce was seen as something to be frowned upon and the respective parties, as a result, had to go to great lengths to prove that they were the innocent party – society’s perception of you was very important. Those days have passed and whilst Divorce is no means encouraged (nor should it be) the stigma associated with it has gone. I, for one, hope that it never returns.

There remains a financial consequence to separation, of course, perhaps even more severe in these harder economic times and yet the divorce rate rises – the assumption must be that people don’t consider the financial implications of Divorce a sufficient penalty or bar.

The process of Divorce itself is, as Sir Nicholas Wall put it recently, “an administrative process masquerading as a judicial one” – he advocates a case for “no-fault divorces”, a more streamlined process where no blame or fault need be mentioned. The government has no plans to reform the current process at the moment but it appears clear that if there is to be reform, the idea is that the process will become simpler – no incentive there then to get through those storms.

The ability to weather storms and work through difficult and stressful situations is an entirely different matter. There may be methods of improving people’s skills in this area.

I am not aware of any service offered to couples getting married to provide them with the skills they will require or to encourage them to contemplate how they would approach things. The same can be said for couples starting cohabitation or indeed in our society as a whole – these personal skills don’t really feature in any curriculum.

Of course, those couples marrying in church receive some religious guidance from their priest but how much of that involves the teaching of skills and real coping strategies? Those entering civil ceremonies receive no guidance.

Often the first input that couples have, married or otherwise, with such issues arrives when there are already problems and when they themselves ask for help. That is not to say that those relationships cannot be saved and I know of many who have but I suspect that those who ask for or accept help for relationship difficulty are in the minority – most struggling to resolve matters on their own, without the necessary skills and often with children in tow.

Would it not be better to focus on providing the skills and understanding that people will need to make their relationships successful – whether they choose to marry or not? I consider that this would go a long way towards more stable relationships developing.

In terms of the children, it cannot be disputed that those children who grow up with the love and support (financial and emotional) of both parents living together do better generally and the statistics regarding youth crime speak for themselves, with the overwhelming majority of young offenders coming from broken families.

What is less clear is whether it makes any difference, from the point of view of the child, whether their parents are married or not. What surely would make a difference is their sense of security, which they would understand from their day to day experiences of the parental relationship.

Whist I applaude Mr Coleridge and his supporters for raising the issue of family breakdown and support marriage wholeheartedly I remain unconvinced that we can shoehorn society into marriage and suggest that this will mean more stable relationships.

People are unique, their life experiences varied and their resources and needs differing.

Surely education from the start about respect for others, tolerance, persistence and understanding would have more of an impact?

Should I stay or should I go?

I’ve lost count of the number of times clients tell me that they are clear that their relationship has come to an end, for whatever reason, but they believe that they must stay living under the same roof as their spouse or partner, for fear that in leaving the property they will be relinquishing any interest in it or that their interest will in some way be affected.

With so many misconceptions about Family law – a bias towards mothers in Children Act cases and the concept of Common Law Marriage being just 2 that spring to mind, such a belief is not surprising.

It is often possible, of course, to agree that the other party leaves the property or, dependent on their behaviour, to obtain an Order enforcing their exclusion from the property. I leave aside those options in this piece.

My advice invariably is that, if it is financially viable for a client to leave the former shared property and they feel, emotionally or for any other reason that they cannot remain at the property, they should feel no pressure to stay to protect their interest.

It is in very few cases that a party leaving the former shared property in itself has any effect on the overall settlement.  Where a party leaves and then chooses not to deal with financial matters until some significant time after, when the occupying party perhaps has been paying the mortgage for years in the meantime, the occupying party might well have an argument as regards their contribution towards the mortgage, although it would be unlikely to wipe out the other’s claim in its entirety.

Where a marriage has been a long one and a party chooses to leave the former matrimonial home because the situation is untenable – if there are then financial negotiations over the following months, it is highly unlikely that the payment of the mortgage by the occupying party will have any impact on the settlement terms.

Likewise, where there has been a significant cohabiting relationship, the issues and arguments are likely to centre on the course of the whole relationship and not only its end.

It might, practically speaking, be best if leaving the property is done in a planned fashion and if the party leaving takes all of their personal belongings and paperwork (careful just to take your own paperwork or joint paperwork and nothing relating solely to the other party). If we are talking of a joint property, the leaving party will still have a right to enter and occupy the former shared property but my experience is that, if relations are difficult between couples, it is far better to have all of the items that you will immediately need with you when you leave – the rest can be dealt with later on.

What is far more important for a party to consider is protecting their interest if the property they are leaving is held in the other’s sole name.

For cohabiting couples, the non-owning party must rely on areas of trust law and intention is all important.

Registration of a caution with the Land Registry or at the very least some written confirmation that in leaving the property there is no acceptance that any interest is relinquished will be necessary.

For married couples, the situation is simpler. If the former matrimonial home is owned in one spouse’s name the non-owning party may register a Home Right against the property, to secure their interest. If a spouse owns other property (that has not been lived in as the marital home, or is no longer being used for that purpose) advice should be sought about registering restrictions against those other properties as well.

So, my advice….dealing with any Divorce or Separation takes its toll emotionally and it is important not only to have a good support network around you (family, friends, trusted Solicitor etc.) but to live in an environment that will allow you to deal with the variety of issues that will crop up without you feeling pressure, tension or hostility.

If that means leaving the former matrimonial home, and it is financially possible to do so, your interest in the property is in all likelihood not going to be affected and, if you are unsure or if the property is owned in your partner’s sole name, seek legal advice and your interest in the property can be secured in other ways.