Parental Irresponsibility – The Case of Re H-B

It’s tough being a parent. For parents whose relationship has broken down, bringing up children whilst separated can be harder still. The recent appeal in the case of Re H-B (Contact) highlights just how badly separated parents can behave towards one another, in the process inflicting major damage towards their children that may last for many years to come. The case makes very depressing reading, whether as a family lawyer or a simple bystander. It highlights that occasionally, “family cases present problems that regrettably the courts cannot solve despite all their endeavours” and that solving those problems, “so often lies in the hands of the parents.

The background to the case is quite straightforward. The parents met in 1993 and were together for 10 years. They have 2 children, being J (who was 16 at the time of the appeal) and K (who was 14 at the time of the appeal). After their parents separated, the children lived with their mother and had regular contact with their father including staying with him on alternate weekends. He also assisted with the school runs. The tragedy of this case is that these parents clearly were capable of making child arrangements that worked well and allowed the children to maintain proper relations with both of them. Unfortunately, a single event in 2008 appeared to change all that.

The father had remarried in 2008 and in June of that year an incident occurred between J and the father’s new wife. In short, the new wife grabbed J and pushed her down on the sofa. J was only aged 9 at the time and it was accepted that the incident would surely have been frightening for J. The father did not appear to intervene effectively to prevent the incident and when confirming his version of events to the police, minimised the seriousness of the same. The mother was clearly unhappy at what had taken place. She applied for an order for the children to live with her and for contact between the children and their father to be suspended.

It did not take long for all sorts of allegations to be levelled at the father by the mother. There were complaints that he bombarded the children with telephone calls and he was criticised for behaviour at a school bonfire event. The children indicated that they did not wish to see him. Expert involvement concluded that the children required therapy and the father should maintain indirect contact with them in the interim. He was also advised to write a letter to the children, apologising for the events of June 2008. Whilst he did so, his apology was a conditional one and he refused advice to amend his letter. His letter was never sent as a result. The father was criticised for being stubborn. The mother was criticised for refusing to accept assistance and advice from professionals.

Therapy ended in February 2010 when J made allegations of sexual abuse by her father. The conclusion of the local authority that investigated the allegations was that the mother was the source of the allegations. It was by now clear that this was a complex and difficult case. The judge did not believe that further therapy would be helpful for the children. Instead, he wanted a finding of fact hearing to determine whether there was any truth to the allegations made by the children and the mother. It is hard to fault the logic of the judge here – his concern was that it could be highly damaging for the children to receive therapy on the basis that allegations are true when they are not.

The judge’s findings were given in December 2010. He concluded that most of the allegations made against the father were untrue. He could not say for certain where the false allegations came from but felt it was most likely that the mother was to blame. He was also critical of the father’s conduct. In short, “both parents were behaving with ridiculous hostility to each other.” It seems clear that the judge was hopeful that by addressing the parents directly, the message might sink in that they were both to blame.

Neither parent really appeared to accept that message. The father, perhaps frustrated but certainly misguided, did little to help himself. He sent postcards to the children including phrases such as “see you soon” and removed child benefit monies from a bank account. By the latter part of 2011 it was clear that the children were entrenched in their hostility towards their father and his family. The judge concluded that the proceedings should be brought to and end. Further therapy was tried but was delayed in getting underway and ended prematurely as the children were said to be reluctant to attend.

The father returned the case to the court arena in late 2012 and a further hearing took place in September 2013. The judge was again critical of both parents. The father was criticised for “startlingly unwise” behaviour. The mother was condemned for failing to support and promote direct contact and therapy for the children. The judge summarised the situation as follows:

“these parents are simply not able to organise themselves responsibly in relation to the father’s contact and they bear the burden of knowing that, between them, they have destroyed the relationship between these children and the father and his family.”

With reluctance, the judge concluded that he simply could not order the restoration of direct contact between the children and their father. The father appealed that decision but subsequently withdrew the appeal so the parties could try mediation. Mediation failed to resolve matters. It appeared that the father was unable to accept that the children did not wish to see him. A further hearing took place in July 2014. Once again, the judge did not hold back from criticising the parents:

“In my opinion the mess that these parents have made of their shared responsibility for their children is a disgrace. I predict that it will only be in later life that the manifestations of what these parents have done to their children will become apparent as the children struggle to function as adults following the skewed childhood that their parents have both chosen to give them.”

The judge, once again, concluded that to order direct contact between the children and their father would be futile. He made an order for indirect contact only, once every 2 months. The father was to be kept informed of their progress at school and could visit their school when the children were not present. As the father still planned to continue fighting his case through the court arena, the judge made an order preventing the father from making any further applications regarding the children without first obtaining permission from the court.

The father appealed against that decision. The Court of Appeal dismissed the appeal. They could find absolutely no criticism of the judge’s conduct and wholly endorsed the approach he had taken to a complex case. The President of the Family Division commented:

“…the stark truth is that responsibility for the deeply saddening and deeply worrying situation in which J and K now find themselves is shared by their parents and by no-one else.”

Whilst the President condemned both parents for creating and causing the situation, he was very clear that it was only the mother who now held the ability to move matters on. He plainly addressed her within his judgment and felt it was now her duty towards the children to recognise her failings towards the children and make every effort to restore their relationship with their father. It appears that the judge was less than hopeful that the mother would take those words to heart. He warned her that, sooner or later, the children would become fully aware of their parents’ failures and this could lead to them being estranged from both of them. The President described that outcome as one “that haunts me in cases like this.” It is hard to disagree.

A bitter pill to swallow

Much media attention was generated by the decision of the Supreme Court in the recent case of Wyatt v Vince. Sensationalist newspaper stories proclaimed that ‘the floodgates have opened’ for former wives to make financial claims against their former husbands (and vice versa), even when many years have been and gone from the date of their divorce.

It is important that in the face of the above claims, a reality check is imposed. Firstly, the facts of the case are truly exceptional. Ms Wyatt (whom we will call the wife to keep things simple) and Mr Vince (whom we will call the husband) were married in 1981. They had a rather unconventional (some might say hippy) lifestyle and spent periods of time together and apart. However, in 1992 the wife started divorce proceedings and the divorce was completed at the end of October 1992. It would be fair to say that at that point in time, neither the husband nor the wife had any assets to their name.

There still exists a common misconception that when parties are divorced, the completion of their divorce brings to an end the ability of either party to make financial claims against the other in respect of their marriage. This may be the case in other jurisdictions (and it may appear perfectly logical) but the laws of England and Wales say otherwise. We don’t know whether or not the wife made any financial claims against the husband in her divorce petition. No copy of the petition appears to have survived. However, it actually doesn’t matter. The crucial thing is that the wife did not remarry after the divorce. Her ability to make financial claims against the husband remained live.

It may have been the case that in 1992 there was no money available to either party but the husband fared far better than the wife after their divorce. From very humble beginnings, the husband developed a business specialising in the commercial supply of wind energy and achieved remarkable success. His company, Ecotricity Group Ltd, was valued at over £57m at the time of the recent court proceedings. The wife was not so fortunate and her own assets were extremely modest. However, fortune and fame tend to go hand in hand and in 2011, the wife made an application for financial provision from the husband, including interim payments to fund her legal costs of the application.

The husband was, understandably, less than impressed. A period of over 19 years had passed since their divorce. Why should he have to pay the wife anything when all of his wealth and success had been generated after their marriage came to an end? The husband applied for the wife’s claim to be struck out. The High Court did not agree and they ordered him to pay interim payments to the wife to fund her legal costs. The husband appealed successfully at the Court of Appeal. The wife then appealed herself, this time to the Supreme Court.

The issue that the Supreme Court was asked to consider was not: ‘it is fair for a former spouse to make a financial claim against their former spouse once 19 years have passed since their divorce?’ Instead, it was whether or not the Family Court has the ability to strike out such a claim as amounting to, essentially, an abuse of process because there is no reasonable prospects of success. In simple terms, the Supreme Court was not asked to rule upon the merits of the wife’s case (more of that later) but upon her ability to make a claim in these particular circumstances.

The husband’s case was that in matters such as debt, contract and personal injury cases, the civil Court has the specific power to strike out claims that are without merit. It has the power to give summary judgment against a party where it appears clear that their case stands no realistic prospect of success and it would be unfair for it to proceed to a final or full hearing. Given the facts, the husband suggested that a similar approach should be applied by the Family Court over his wife’s case.

To the surprise of many, the Supreme Court rejected the husband’s case and the view taken by the Court of Appeal. In an unanimous decision, the Supreme Court held that the approach taken by the civil Court was ‘incompatible’ with that of the Family Court. Their view was that the wife’s claim was legally recognisable and any similar claim should not be treated as an abuse of process solely because it has no real prospect of success. The Family Court can certainly strike out an application, but not before its merits have been properly considered. There had been no proper consideration of the wife’s application, so they said.

The husband has described the decision as ridiculous and it is fair to say that many family lawyers (and no doubt many husbands) would agree with him. The wife was no doubt ecstatic at the decision but one imagines that her own legal team will be at pains to emphasise to her the following:

  • The Supreme Court described her application as facing ‘formidable difficulties.’
  • She has not been awarded anything yet.
  • She may not receive anything at all.
  • Her suggestion that she was entitled to a sum of £1.9m was described as ‘out of the question.’

The wife’s claim is now set to proceed to a hearing where the parties will be instructed to use their best endeavours to negotiate a settlement without the need for the court to make a final decision. The eventual outcome of this case will be fascinating but in many ways, the extremely unusual facts mean that caution is required. It is a rare case indeed when parties divorce with nothing and 19 years later, one of them turns out to be a multi-millionaire.

It does, however, remain common that when parties divorce, no steps are taken by them to formally resolve financial matters between them. There are, in reality, a number of reasons for this:

  • There are no assets available for division.
  • The parties ‘trust one another’ and don’t feel it necessary to take formal steps.
  • The parties do not obtain legal advice at the time.
  • The parties cannot afford to obtain legal advice.
  • One party wants to obtain a consent order to resolve matters but the other party does not.

The exact reasons that apply to Ms Wyatt and Mr Vince have not been clearly established; one suspects it was the fact that there was nothing to divide between them in 1992 that is most likely. Neither of them could ever have imagined that the husband would have such amazing success in his future endeavours. Wyatt v Vince is far from an everyday situation for a previously divorced couple. Its facts are unlikely to be repeated on a regular basis. It does, however, serve as a warning and wake-up call for those couples who did not formally resolve financial matters at the time of their divorce. Prevention is usually better than the cure. As Mr Vince is finding out, the cure can be a very bitter pill to swallow.

If you are unsure where you stand after your divorce, get in touch with us.

Be careful what you wish for – the case of SC v YD

The High Court has recently heard an interesting case on whether an earlier ‘agreement’ between two parties can be admitted as evidence in subsequent court proceedings between them.

The case of SC v YD begins back in early 2013. The parties (described as mother and father) had been in a lengthy relationship of over 17 years. They were not married. They had five children whom were aged between 16 and 6 at the time of the recent hearing. The relationship ran into difficulties and in October 2012 the father informed the mother that he was worried they were drifting apart. He wanted the two of them to continue to live together with the children in the family home and hoped that they could resolve their differences. The family home was solely owned by the father and valued at between £2.5m and £2.75m. It was mortgage free. The father had total assets valued at around £14.5m. The mother had very limited assets, mainly comprising of a modest flat bought for her by the father.

In late February 2013 the mother returned from a trip to New York. The father presented her with a document. This was entitled “Agreement between SC and YD.” It was dated 24 February 2013 and was drawn up by the father. The document, referred to as ‘the agreement’ specified the following key points:

  • That the parties wanted the family home to remain a base for the children for as long as was possible;
  • That the father hoped the parties could share use of the family home until the youngest child (aged 5 at the time of the agreement) joined a weekly boarding college at the age of 13;
  • That the family home would not be sold before the end of February 2016;
  • If the family home was sold after the end of February 2016, the mother would receive half of the sale proceeds;
  • That the mother would retain her modest flat.

It should be pointed out that the mother did not sign the agreement. It was also accepted that neither party had received any legal advice when it was presented to her. The mother was distressed to read the document and refused to sign it.

The parties subsequently separated in April 2013 and the mother started court proceedings very shortly thereafter. During the course of the proceedings, the mother sought permission to rely upon the agreement. Specifically, she wanted the content of the agreement to form part of the evidence that the court would consider at a forthcoming final hearing to be heard in July 2014.

The father opposed the inclusion of the agreement as part of the evidence. No doubt by that point his position had hardened during the course of prolonged litigation. His argument was that the agreement was privileged, namely because it was a genuine offer to settle litigation between the parties. The issue was decided originally by a Deputy District Judge. He heard submissions from the parties’ legal representatives and ruled that the agreement could be admitted as evidence. The father sought permission to appeal the decision of the Deputy District Judge.

The matter came before the High Court on 17 June 2014. It was accepted that in order for the agreement to attract privilege, the following criteria must be met:

  • The document should be written in an attempt to resolve actual or pending litigation between the parties, and;
  • It must be inferred from the context of the document that there was an offer of settlement for which a party who made the offer can claim privilege.

The High Court agreed with the decision of the Deputy District Judge. Their reasoning was identical to that of the Deputy District Judge. Put simply, in late February 2013 neither the mother nor the father were seeking to resolve actual or pending litigation. There was no real dispute between the parties at that point in time and therefore the agreement was not an effort to resolve a dispute. The agreement was not privileged and it could therefore be admitted as evidence. The father was refused permission to appeal.

The main lesson of the above is that if there is even limited contemplation that a separation is possible, prompt legal advice can be invaluable. The father was essentially a victim of (from his perspective) unfortunate timing in this particular case. Had he presented the agreement to the mother after the parties had separated, it is possible that the court would have reached a different conclusion.

Conversion of Civil Partnerships into Marriage

Parliament is shortly expected to approve regulations that will allow existing couples in civil partnerships to convert that civil partnership into a marriage.

From 10 December 2014, couples can covert their civil partnership into a marriage simply by attending at a local register office and providing evidence of their identity and their civil partnership. Of course, this doesn’t stop couples from entering into more elaborate celebrations at other registered venues, including religious premises, to mark that special occasion.

For a period of one year, couples who entered into a civil partnership before 29 March 2014 will be exempt from paying the £45 fee to covert their civil partnership into a marriage.

Once the conversion has taken place, couples will be issued with a marriage certificate. Importantly, this will show that the marriage should be backdated to the date when the original civil partnership took place.

Since same sex marriage was introduced on 29 March 2014, there were over 1400 marriages between same sex couples up to the end of June 2014. Statistics dating back to the end of 2012 revealed that there were nearly 60,500 couples in civil partnerships. Given the time limited ‘free offer’ to covert a civil partnership, registry offices and other venues could be set for a busy 12 months or so.

Family Law 2025

In Back to the Future Part II, Marty McFly gets into a large spot of bother by visiting the year 2015 in a time-travelling Delorean, purchasing a historical sports almanac and subsequently disrupting the entire space-time continuum. I can’t see this article having quite the same effect. Still, all of us involved in family law would probably agree that the last few years have brought dramatic changes to the way we work and many more are probably on the horizon. Some of them have been positive (compulsory MIAMs, the Single Family Court, greater judicial continuity) and others much less so (LASPO and CCMS to name but two). Further change strikes me as inevitable but predicting exactly what lies in store for family law practitioners is difficult.

What follows is certainly not a complete ‘wish list’ of what I hope private family law looks like in 2025. I do hope that some of my predictions come to fruition; others strike me as sadly inevitable and depressing. All of us appreciate that there is no panacea for the complex range of problems that arise from family breakdown and disputes. Improved technology and administration can assist lawyers, judges and other professionals in our work but they can only take us so far.

Divorce

Divorce and dissolution is now dealt with by regional ‘Divorce and Dissolution Centres’ in a similar way to current regional hearing centres for Children Act applications. The court fee is £1000 unless you are fee-exempt or apply for a consensual divorce (see below).

Most applications are dealt with electronically. Improved administration at Divorce and Dissolution Centres means that most applications for a decree nisi/conditional order are dealt with within 2 weeks.

After intensive lobbying and pressure, no-fault consensual divorce/dissolution has been introduced for couples that have been separated for a period in excess of 3 months, where both have attended a ‘Dissolution Information and Assessment Meeting’ (DIAM) and where both consent to a decree of divorce/dissolution. The court fee for such applications is £500.

Orders for costs in fault-based divorce/dissolution proceedings remain commonplace. To the frustration of lawyers, the judiciary continue to ignore whether a party has complied with the Family Law Protocol when considering a contested order for costs.

Financial Relief

Pre-marital agreements are increasingly commonplace with around 25% of couples entering into the same before marriage. Such agreements are automatically binding where:

  • Both parties have received independent legal advice;
  • Both parties have made full and frank disclosure;
  • The agreement was signed at least 3 weeks before the marriage.

However, the Family Court can still entertain applications for ‘top up’ financial relief where a binding agreement exists.

For couples without the benefit of a pre-marital agreement, s.25 of the Matrimonial Causes Act 1973 has been repealed. There is a presumption that a fair division of the matrimonial assets is an equal division. The bar for rebutting that presumption appears to be low. Income orders (excluding child maintenance orders) are subject to a time bar of 5 years with no possibility of an extension.

The court fee for issuing applications is now £1000 unless a party is fee-exempt. If a case proceeds to a final hearing, a further court fee of £2000 is payable, to be divided equally between the parties. Such fees have led to an increase in arbitration as a quicker (and perhaps cheaper) means of resolving disputes.

London is no longer the divorce capital of the world.

Unmarried Family Property

Despite ongoing pressure, successive governments have refused to introduce legislation reforming this area. Lawyers throughout England and Wales continue to report clients seeking advice upon ‘common law marriage.’

Child Maintenance

The Child Support Act 1991 has been repealed and with it the entire calculation system based upon solely assessing the income of the parent without care. The Child Support Act 2021 shamelessly adopts the existing Australian model by considering the combined incomes of both parents, their ability to pay and the degree to which care of the child is shared between parents. The collection and enforcement of child maintenance payments is dealt with by the Child Support Agency once again.

Private Law Children

Child arrangements orders remain in existence and have proven to be generally successful.

MIAMs remain largely compulsory before making an application. Each family hearing centre has a dedicated Mediation facility. If the MIAM filed with the application indicates that mediation did not take place because only one party attended or that mediation broke down, part of the FHDRA involves further discussion with the parties over the benefits of mediation and if viable, mediation will take place on the day of the FHDRA.

As with financial relief cases, the court fee for issuing applications is now £1000 unless a party is fee-exempt. If a case proceeds to a final hearing, a further court fee of £2000 is payable, to be divided equally between the parties. Arbitration is used as an alternative method of resolving disputes but remains far more popular for financial relief cases.

Payne v Payne has been held not to be good law owing to the unfair emphasis on the parent seeking leave to remove the child.

Legal Aid

LASPO remains in force and despite miniscule amendments to acceptable evidence for the domestic abuse gateway, continues to cause untold misery for many people upon the breakdown of marriages and relationships.

All legal aid applications, administration and billing are now dealt with electronically via an improved version of CCMS. Complaints over technical problems with the system remain common. Fees remain incredibly low and the number of firms undertaking legal aid work continues to shrink. Lawyers go on strike in 2023 calling for LASPO to be repealed.

Summary

The reality is that none of us now what family law will look like in just over a decade. As with the current system, some of it is likely to be good and work well. Other parts of it will, almost inevitably, remain flawed and deeply frustrating to lawyers.

At the end of the day, nobody knows the consequences of the breakdown of a family better than family lawyers. We all recognise that ‘one-size fits all’ solutions are not appropriate and that couples and individuals undergoing emotional turmoil are not always capable of sitting down together and calmly and rationally resolving arrangements for the children or the future of the family home.

History tells us that flawed legislation is inevitable when the views of lawyers undertaking work at the sharp end are ignored or marginalised in the decision-making process. Home Information Packs and LASPO are just two examples. All lawyers could see that these measures had ‘disaster’ written over them in large print and they still came to pass. Whatever changes are afoot in the next 10 years or so, I do hope that the views of family lawyers remain paramount in shaping those changes.

The 4 to 8 year itch

Recent statistics (albeit for 2012) published by the Office of National Statistics (ONS) provide a fascinating insight into how modern society in the UK appears to view the idea of marriage. They also give us a rough idea of how likely a divorce might be and when it is most likely to take place.

Perhaps the most surprising thing to note is that the marriage rate is on the increase. During 2012, over 262,000 couples tied the knot. This marks an increase of 5.3% upon 2011 figures.  The average age for men getting married was 36.5 years, compared with 34.0 years for women. Tellingly, the largest percentage increase in the section of the population getting married was for those aged between 65 and 69.

So, what can we learn from the above? Well, romance doesn’t appear to be dead after all. The increase in the number of marriages does come as a bit of a shock after several years of this figure decreasing. Whilst 67% of all marriages were first marriages for both partners, 15% were remarriages for both partners and 19% were to couples where one of the partners had been married previously but subsequently divorced.

If marriage is on the increase though, there is little sign that divorce is losing out. Sadly, according to the ONS around 42% of marriages now end in divorce. Since 2010 the divorce rate has remained steady. The ‘key period’ for divorce, according to the ONS, lies between the 4th and 8th anniversary for married couples. There were 13 divorces per hour during 2012 – a total of 118,140 – with women being granted 65% of all divorces. Around 54% of all divorces granted to women were based upon allegations of unreasonable behaviour on the part of men.

So, the above figures suggest that there may well be some element of truth to the idea of the ‘7year itch.’ They also indicate that men should be on their best behaviour once that initial ‘honeymoon period’ of marriage has run its course. So, as a husband who recently celebrated a 5th wedding anniversary (after nearly forgetting it), I have been warned. ‘Happy wife, happy life’ as they say…

Our Family Department is always ready to offer advice upon separation and divorce. We continue to offer a 30 minute free appointment to all new clients. If you are contemplating separation or divorce, please get in touch.

Disputes regarding children

Whenever parties cannot agree arrangements over their children, it must be stressed that court proceedings should be the last resort. Contrary to common perception, going to court is not glamorous nor is it guaranteed to provide an outcome that ensures long-term stability for the children. Court proceedings are often stressful, time-consuming, unpredictable and expensive.

For the above reasons, any decision to start court proceedings should be made with caution and professional expertise is recommended. Too many court applications are presented where negotiations, mediation or discussion can resolve matters. However, there are clearly situations when these options are not appropriate or fail to resolve matters. In those circumstances, court proceedings are the only option.

Powers of the Court

The court has very wide powers in relation to children but there are four common orders relating to children. These are: child arrangements orders, parental responsibility, prohibited steps and specific issue. In all cases, the court must carefully consider which type of order is appropriate:

Child Arrangements Orders

These orders have recently been introduced and now replace contact and residence orders. They can specify with which person a child should live and how/when the person who caring for a child should make that child available to visit or stay with another person. A Child Arrangements Order could specify that a child should live with more than one person or could specify that there should be no contact between a child and another person. As such, the wording of any Child Arrangements Order should always be carefully considered and followed.

Many parents already have a contact or residence order for their child or children. The introduction of Child Arrangements Orders does not mean that these existing orders are no longer valid. They remain capable of enforcement and should be adhered to. However, if any party affected by such an order wishes to vary it, the court would have to make a new Child Arrangements Order in place of the existing order.

Parental Responsibility

This provides a person with a recognised right to have a full say in all the issues concerning a child’s upbringing.  Such issues could include the health care that a childreceives, their ongoing educational arrangements or theirreligious orientation.  All mothers have parental responsibility but fathers do not always have this responsibility. An unmarried father may acquire parental responsibility by registering the birth, via an agreement with the mother or by making an application at court.  It is also possible for the step-parent of a child to obtain parental responsibility in some circumstances.

Prohibited Steps Order

This order can be obtained where the court wishes to restrict the exercise of parental responsibility. For example, the court can prevent a parent taking a child outside of England and Wales if there is a risk of harm occurring. Such orders should only be made in rare circumstances owing to the impact they have.

Specific Issue Order

This order is made when there is a dispute over how parental responsibility should be exercised. For example, the court can decide upon whether a child should attend a specific school or go on holiday to a specific country. Again, such orders are not made very often

Which order should be made?

In order to decide whether any order should be made, the court will consider the welfare checklist. This is detailed within the Children Act 1989 and refers to the following:

  1. the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);
  2. the child’s physical, emotional and educational needs;
  3. the likely effect on the child of any change in their circumstances;
  4. the child’s age, sex, background and any other characteristic which the court considers relevant;
  5. any harm which the child has suffered or is at risk of suffering;
  6. 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;
  7. the range of powers available to the court under the Children Act 1989 in the proceedings in question.

A central principle of the Children Act is the ‘no order’ principle. This means that the court will only make an order if that order is better for the child than not making any order. There is a presumption that the court should not intervene unless it is in the best interests of the child to do so. When the court does intervene, the main consideration is the welfare of the child and the court recognises that delay is likely to be harmful to a child’s welfare.

Agreement and Mediation

In most cases, the first step is to write to the other party involved in the dispute to see if an agreement can be reached without the need to involve the court.  In the overwhelming majority of cases, mediation must be tried to help with this objective and an application to the court cannot be made until mediation has been considered.

First Hearing Dispute Resolution Appointment

Once a court application has been issued, the court will allocate it to the most appropriate local court. This is usually the court closed to where the child or children live. They will also decide which level of judge should deal with the case. Finally, the court will list a First Hearing Dispute Resolution Appointment (FHDRA).

At the FHDRA the court will, with the assistance of Cafcass (see below) try to resolve matters between the parties. If this is not possible, the court must identify the issues and what directions are needed to progress the application.

Cafcass

Cafcass are the Children and Family Court Advisory Support Service.   Their main role is to give advice to the court and provide information, advice and support to children and their families. Cafcass officers will usually be at court to assist the parties at the FHDRA stage and will assist the court in reporting on cases where there are concerns over the welfare of children. If a Cafcass report is ordered during your case, it is important that you co-operate fully with the reporter as their recommendations have a strong impact on the outcome of a case.

Enforcing an order

It is not unknown for a person to disobey or ‘breach’ a contact order made within Children Act proceedings. If this occurs then the court can consider punishing the person at fault by ordering them to pay financial compensation or perform community service. Cafcass may also be asked to monitor the situation and report back to the court if necessary.

In very serious cases, a person may be fined or sent to prison if they continually disobey court orders. These powers are used rarely owing to their extreme impact. Where there is a continual history of a parent flouting court orders, the court must strike a balance between punishing the parent at fault without compromising the welfare of the children involved. This is often far more difficult than first appears.

All change? The Children and Families Act 2014

The Children and Families Act 2014 has now gained Royal Assent and will come into force on 22 April 2014. The Act introduces several changes affecting how the courts in England and Wales should approach disputes between parents who are unable to agree on arrangements for their children. On the face of it, these changes appear to be quite extensive. However, a close examination suggests that this may not actually be the case.

The first change is that the Act introduces a presumption that when parents are separated, the involvement of both parents in the lives of their children should be promoted. When the Act was debated through Parliament, it was once thought that this presumption would be more extensive. Pressure groups such as Families Need Fathers wanted a presumption that shared care arrangements between parents would be promoted. This was seen as unworkable and unwise.

The key question is whether the new presumption actually changes how the courts are likely to approach parental disputes. Time will provide us with a definitive answer but many lawyers suspect that the new presumption will only have a limited effect. Why?

  • For many years the courts have followed the principle that they should normally promote contact between a child and a parent seeking contact with their child.
  • The courts have generally upheld the principle that it is in the best interests of children to have firm relationships with both of their parents.
  • Any presumption can be argued against. If it is clear that a parent seeking contact with a child poses a risk to that child or the other parent, the courts must continue to ensure that the welfare of the child takes priority.

So, many lawyers are perhaps accurate when they describe the new presumption as merely a form of ‘window dressing.’ If so, it raises the question of why the presumption was introduced in the first place.

The second change introduced by the Act is in the terminology to be used by the courts in making orders over parents who are unable to agree upon arrangements for their children. Even now, many parents commonly refer to terms such as ‘custody’ and ‘access’ in this area. This ignores that the Children Act 1989 abolished those terms. Instead, the two common orders that the courts have made in this area over the last few decades are:

  • Residence orders – these define with which person a child is to live. A child can reside with more than one person and this is known as shared or joint residence.
  • Contact orders – these provide that a person with care for a child (often via a residence order) should make a child available to see another person. Contact can be on specific days/times or could simply be ‘reasonable contact’ depending upon the individual circumstances.

The trouble with the above terms is that inadvertently, many parents believed that a ‘two tier’ system of parental orders was created. Holders of residence orders felt that they had control and power over their child or children. Parents with contact orders (often fathers) often felt like they were ‘second class’ parents and resented the apparently higher status of the parent with a residence order. Parties who emerged from the court process in this way often felt like ‘winners’ and ‘losers’ depending upon the order they obtained.

The courts have not been blind to these feelings. One way in which the courts have tried to equalise any feelings of discontent has been by making an increased number of shared residence orders. The rationale behind this was logical. If both parents emerge from court with a residence order, neither one will feel that they have won or lost. This all sounds well and good but the reality seems to be that shared residence orders were sometimes made when objectively, they were not strictly appropriate. In cases where parents were locked in conflict, they often became a sticking plaster, designed to ease any feelings of anger and animosity by creating an apparently level playing field.

The above illustrates that the language used by the courts is enormously symbolic and important when it comes to parental disputes. It seems that the new Act recognises this too. As from 22 April 2014, residence and contact orders will cease to exist. Instead, we have the rather bland (but very neutral) new term – the child arrangements order. This means that in future, no parent will emerge from court with a residence or a contact order. It will be the specific detail contained in the child arrangements order that is crucial in setting out the exact nature of the arrangements for any child.

It is difficult to predict whether the new terminology of the child arrangements order will lead to a reduction in the number of parents leaving the court process feeling unhappy and marginalised. Many parents who have gone through the court process have nothing positive to say about it. Delay, expense and inefficiency are all common complaints in this respect. Can changing some words really make a difference?

This leads us to the third major change introduced by the Act. However, one could say that this is not a change at all. Since 2012 it has been a requirement that in most circumstances, a parent seeking a residence or contact order must have attended a Mediation Information and Assessment Meeting (MIAM) before they can start court proceedings. This ‘requirement’ has turned into something of a shambles. There have been vast differences in how courts up and down England and Wales have dealt with this requirement. Some have been commendably strict. Others have been extremely ‘relaxed’ with the idea.

The intention of requiring parents to attend MIAMs was that it should lead, in theory, to a significant reduction in the number of parents who issued court proceedings regarding their children. The reality is that it has not. There are a variety of reasons for this but the government remains of the view that whenever possible, mediation and other forms of dispute resolution should be promoted. Court proceedings should be the last resort.

The new Act stresses that it will be ‘compulsory’ for parents to attend a MIAM before they can issue court proceedings, save for a limited number of exceptions.  It is expected that courts will apply this requirement strictly but one could argue that they should have been doing so since 2012. Will this change lead to a reduction in the number of parents who turn to the courts? It is hard to say. The government’s strong promotion and support of mediation services is well intended. However, parental disputes can be extremely complicated and the drastic cuts to Legal Aid have left many parents unsure over their options and which way to turn.

Our Family Department is always ready to offer advice upon all types of parental disputes including residence, contact and parental responsibility. We continue to offer a 30 minute free appointment to all new clients. If you are contemplating such an agreement, please get in touch.

A step closer to pre-nups?

The Law Commission has recommended to the Government that ‘qualifying nuptial arrangements,’ such as pre-nuptial or pre-marital agreements, should be legally binding in England and Wales.

At present in England and Wales, couples that intend to marry but wish to regulate their financial affairs in the event of separation and divorce can enter into a pre-nuptial agreement. However, those couples face uncertainty over whether their pre-nuptial agreement would be upheld by a court in England and Wales. The Law Commission propose that in future, all qualifying nuptial agreements should be upheld provided certain safeguards are met. Those safeguards are:

  • The agreement must be contractually valid and enforceable.
  • The agreement must be signed by the parties and witnessed as a deed.
  • The agreement must contain a statement signed by each party that they understand that the agreement will restrict the court’s discretion to make financial orders.
  • The agreement must be made at least 28 days before the parties marry or enter into a civil partnership.
  • At the time the agreement is formed both parties must have received relevant information about the other party’s finances and independent legal advice upon the contents/implications of the agreement.

The proposals have been widely recommended by family lawyers and organisations such as Resolution. For many, they are long overdue.

Our Family Department is always ready to offer advice upon pre-marital agreements. We continue to offer a 30 minute free appointment to all new clients. If you are contemplating such an agreement, please get in touch.

I want a divorce now!

As the dust settles on the festive period, family lawyers often associate January with a sudden and sharp increase in the number of people seeking divorces. For a variety of reasons, Christmas and New Year can often mark a ‘crisis point’ for couples whose marriage may be in difficulties. This is well understood by family lawyers. The financial pressures of Christmas put a strain on most families’ finances. Spending time with close and extended family is not always easy. People may drink more than they are used to. It can all combine to be a ‘perfect storm’ for a lot of couples.

For those couples that unfortunately endured a difficult Christmas, seeing in the New Year may bring with it a decision and determination that their marriage should be brought to an end. However, the decision to initiate divorce proceedings should never be taken lightly. The only ground for divorce in England and Wales is that the marriage must have ‘irretrievably broken down.’ In this context the key word is ‘irretrievably.’ A miserable time at Christmas may increase existing tensions in a marriage but it should not automatically lead to a decision that all efforts to salvage the marriage are pointless.

When a family lawyer acts for a party who wishes to start divorce proceedings, there is a duty upon that lawyer to send to the court a Statement of Reconciliation. This document confirms to the court whether the lawyer has advised that party over the prospect of reconciling with their spouse and if so, whether they have been given the details of a counsellor or other person who could help with that potential reconciliation. It is not our job to force anybody into attempting reconciliation but we would be remiss in our duty as lawyers if we did not ask those key questions.

Services such as Relate are readily available to couples that are struggling in their marriage and are perhaps contemplating divorce. Marriage counsellors would be the first to say that they do not offer a magic wand to resolve problems in a relationship. However, the professional help and support they offer can sometimes make the difference for couples who wish to try their best to salvage their marriage.

Our Family Department is always ready to offer advice upon marital difficulties. We continue to offer a 30 minute free appointment to all new clients. If you are contemplating divorce or unsure of your legal position, please do get in touch.