Family Law Cafe | How are disputes over arrangements for children decided?

Parenting should of course be a joint venture, involving both the mother and the father. And the fact that the parents may have separated shouldn’t change this, unless the court specifies otherwise.

The joint nature of parenting is regularly recognised by judges, and any parent who takes the view that they are entitled to make important decisions regarding their children without reference to the other parent is likely to be criticised by the judge.

Which is exactly what happened in a case in the Family Court at Milton Keynes, the judgment in which was published recently.

The case concerned an application by a father for a child arrangements order in relation to his two children, who were then aged 10 and 9.

The judicial criticism stemmed from the history of the matter, which was as follows:

1. In May 2019 the court ordered that the children should live with their mother and see their father on alternate weekends, and half of the holidays.

2. In November 2019 a financial provision order was made requiring the father to provide a housing fund for the Mother in the sum of £410,000. The order recorded that the intention was that “any property chosen must be in the jurisdiction and within a reasonable distance of the children’s school”.

3. On the 1^st of September 2021 the mother removed the children from their school in Redhill, without telling the father. She also failed to inform the court at a hearing on the following day.

4. Unbeknownst to the father, the mother had entered into a tenancy agreement for a property in Buckinghamshire, unilaterally moving the children away, and from their school.

5. The mother then failed to give the father her new address.

6. The father returned the matter to the court, and in October 2021 contact was agreed, with the children being handed over at Watford Junction Train Station.

7. On the 7^th of December 2021 the mother emailed the father’s solicitors and informed them that she would not be travelling to Watford Station after the Christmas holidays, as the cost was too demanding.

8. At the next hearing the arrangements for collection and handover were changed such that the mother would take the Children to East Croydon, and the father would return them at the end of contact.

9. At a hearing on the 6^th of May 2022 the Mother sought to reduce contact to indirect contact only. The judge commented: “I get the strong impression that she has sought to deprive a relationship between father and children.”

10. In October 2022, the mother lost the use of a car and said she was no longer able to facilitate contact. Instead, she told the father that he could pick them up at any time. The father works in Surrey, and to collect the children driving from work the drive to the mother’s home would take two and a half to three hours. The mother said she simply did not have the funds so could not afford to take the children to East Croydon.

The father returned the matter to the court again, applying for a variation of the child arrangements, and the judgment concerned this application.

The judge was not at all happy with the mother’s behaviour, pointing out that she had an obligation to ensure that contact took place in accordance with the existing orders – if she wanted to change an order it was for her to make an application to the court to vary it.

The judge said that the mother chose to move, without discussion with the father, to an isolated village in Buckinghamshire. She did not ask the father, or the Court. He went on: “She cannot now come to the Court and say ‘because of the decisions I made without asking the Court or the father, I am not able to facilitate the contact and the father must come here’.”

The judge also said this: “The history of the mother making decisions about contact has to cease. There should be no imbalance between the parents, they both have parental responsibility and their voices are equally loud and should be equally heard. But the father having parental responsibility is not enough for this mother: she has not recognised that his involvement in significant decisions is as important as hers. The mother appears to consider she has the ability to make decisions of some import for the children without the need for his involvement.”

The judge therefore made a shared ‘lives with’ order, to send a message to the mother, stating that the children would live with their father on alternate weekends. The mother would have to take the children to Redhill station, with the father responsible for returning them.

The judge also stated that if the matter were to come back before him then he may have no choice but to consider that the only way the children will see both parents is by the arrangements being swapped, with them living with their father, and seeing their mother on alternate weekends.

You can read the full report of the case here.

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As we explained here last month, a finding of domestic abuse against a parent does not automatically bar that parent from seeing their child.

But the abuse will most certainly have a significant bearing upon any decision by a court relating to arrangements for the child.

This was clearly demonstrated by a recent decision of the Court of Appeal.

The decision concerned an appeal by a father against an order that he should have no face-to-face contact with his three-year-old son, for an indefinite period.

The background to the case was that the parents began their relationship in 2016, when the mother was aged 18 and the father 43. The relationship turned sour with violence on both sides, and as it was ending, the mother became pregnant and the child was born in early 2021. The parents briefly cooperated, but by the time the child was two months old, the position was again volatile.

In September 2021 the mother stopped the father from having unsupervised contact, after he had reported her to social services.

The father took the matter to court, and at a fact-finding hearing the court found that the parents’ behaviour had been “very poor indeed”, and that they had lost sight of the damage that attacking each other might do to the child.

Specifically the court found, amongst other things, that the mother could resort to physical violence, and that the father had engaged in coercive and controlling behaviour that included constantly criticising and belittling the mother, and on a number of occasions using physical violence.

Meanwhile, the father was having supervised contact with the child, which was generally of good quality and was enjoyed by father and son.

Despite this, the judge decided in December 2023 that all face-to-face contact between the father and the child should cease, taking the view that the risk of harm to the child from continuing direct contact, given the volatility of the parents’ relationship, was greater than the harm he would experience by it ceasing. There would therefore be indirect contact only.

The father appealed, to the Court of Appeal.

Giving the leading judgment Lord Justice Peter Jackson looked at the approach the court should take to contact in cases where domestic abuse is a feature and found that: “the court must approach the fundamental welfare assessment that underlies every decision with full alertness both to the inherent value of the parent-child relationship and to the significance of any harm that a contact order may entail for the child or for the parent with care. Where these considerations conflict, the court must identify the best solution for the child or, where there is no good solution, the least worst one.”

That was what the judge had done. Having found that there was both a real and a perceived risk of harm to the mother arising from the father’s attitude, she was entitled to consider that the current level of contact was unsustainable.

The father’s appeal was therefore dismissed.

The final words of Lord Justice Jackson’s judgment are telling and should, perhaps, be heeded by all separated parents. He said:

“I accept that it seems unfair that, where both parents are responsible for the situation they have created around their child, the relationship between the child and one parent has to suffer. That is the unfortunate consequence of extreme family situations of this kind, which sometimes demand that priority is given to the relationship between the child and the other parent in an attempt to prevent even worse outcomes.”

You can read the full report of the appeal here.

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It is not unusual for a separated parent to want to change their child’s name.

But a child’s name may only be changed with the agreement of anyone who has parental responsibility for the child, or the permission of the court.

If the court is asked for permission to change the child’s name it will decide the matter by reference to what it believes to be best for the child’s welfare. This will involve consideration of such matters as the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding), the likely effect of any change, and any harm that the child may have suffered or is at risk of suffering.

Note that reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.

Note also that where the child’s parents were not married to each other, the mother has control over registration of the child’s surname. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between the father and the child, and the existence or absence of parental responsibility may be relevant.

An example of a change of name application occurred in a recent case that took place in the Family Court at Watford.

The application was made by the father, who wanted to change the child’s surname to add his surname, hyphenated with the mother’s surname.

The parents had been in a relationship, and had one child together, who was born in 2014.

The mother registered the child’s name, using her surname. The father was not included on the birth certificate, so did not have automatic parental responsibility.

In 2015 the father issued proceedings seeking a parental responsibility order, which was duly made in 2016.

Last year the father issued his change of name application.

After considering the matters referred to above the court decided to refuse the application.

The reasons for the refusal included the length of time that the child had been known by their present surname (any change of name application should ideally have been dealt with by the court in 2016) and, crucially, the fact that the child did not wish the name to be changed. The court was satisfied that the child’s wishes should be respected.

You can read the full report of the case here.

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The law makes it clear that it is generally in a child’s best interests to have a relationship with both parents. This is known as the “presumption of parental involvement”.

But what if one parent has been found to have seriously abused the other? Is it then still in the child’s best interests to have a relationship with the abusive parent?

As we will see in a moment, under the law as it stands at present the answer is: “it may be”.

In other words, a finding of domestic abuse against a parent does not automatically bar that parent from seeing their child.

But an MP is trying to change that, at least for most cases.

The MP is Kate Kniveton. For the last five years Ms Kniveton has been involved in a high-profile dispute with her former husband Andrew Griffiths, who was himself an MP, over arrangements for their child, who is now some five and a half years old.

In the course of the dispute the court made some very serious findings of domestic abuse against Mr Griffiths, including that he had physically and verbally assaulted her, and even that he had raped her. The court also found that he had been abusive towards the child.

Despite these findings Mr Griffiths still pursued his application for contact with his child, and the court initially decided that Mr Griffiths should continue to have contact, at a contact centre.

The final hearing of the application took place before Mrs Justice Lieven in the High Court in January.

As Mrs Justice Lieven pointed out in her judgment, the law does provide guidance for the court in child arrangements cases where there are findings of domestic abuse. This states that the court should only make an order for contact if it is satisfied that the safety of the child and the parent with whom the child is living can, as far as possible, be secured before, during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.

Having regard to this guidance Mrs Justice Lieven ordered that there should presently be no direct contact between Mr Griffiths and his child.

Ms Kniveton is now calling upon the government to change the law to bring about a presumption of no contact between an abusive parent and their children.

Justice Minister Mike Freer has confirmed that a review into the presumption of parental involvement will be published by “late spring or early summer”.

You can read the report of the final judgment in Ms Kniveton’s case here.

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Feelings can run high when separated parents try to sort out arrangements for their children.

But sometimes a parent might resort to extreme measures to get their way by inventing false allegations. And if they think things are going against them, they may stop cooperating with the court.

Such actions are unlikely to end well. An extreme example of what can happen in such circumstances occurred in a recent case that took place in the Central Family Court in London.

The case concerned a dispute between parents over arrangements for their daughter, who was born in 2019. The case was described as “very sad” by the father’s barrister, a description with which the judge agreed.

The proceedings began in 2020 when the father sought contact with his daughter, who was then living with the mother.

The mother responded by making various allegations of abuse against the father, including that he had sexually abused her eldest daughter (by a different father). Most of those allegations were found to be untrue by the court and grossly exaggerated by the mother. The allegation of sexual abuse was found to have been falsely and maliciously made with no justification at all.

Shortly before the final hearing the mother made an allegation to the police that the father had sexually abused his own daughter. This was investigated by the court and once again it was found that the mother had wrongly accused the father.

Following that finding the mother made it clear that she would, regardless of whatever order the court made, refuse to allow the child to have any contact face-to-face with her father until she was an adult.

Having been given ample opportunity to reflect on that position, the mother maintained her stance. The court therefore made an Interim Care Order with the support of the Local Authority, with an interim plan for the child to move from her mother’s care to her father’s. That happened shortly afterwards.

The mother then stopped cooperating with the court entirely, including failing to file a witness statement, as directed by the court. She told the court that this was a deliberate choice, as she decided there was no point in complying.

At the final hearing the court decided that the child should remain with her father, as living with her mother would expose her to an extremely high risk of significant emotional harm.

The court also decided that, until there was some shift in the mother’s thinking, she should only have supervised contact with the child at a contact centre.

However, the mother made clear to the judge that she would not attend the contact centre, and would not communicate with the father in any way for any purpose. The judge therefore reluctantly decided to make no order for contact.

In addition, in the light of the mother’s “utter fixation” on the deliberately false narrative that she had pursued against the father, combined with her repeated non-compliance with court orders, the judge made a prohibited steps order preventing the mother from removing the child from the father’s care or from any organisation, education provider or individual into whose care she is entrusted by the father, without written agreement.

Lastly, the court made an order that the mother should pay the father’s costs, in the sum of £26,000.

You can read the full report of the case here.

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When considering whether to make an order in relation to a child the court must have regard in particular to a number of factors, one of which is the ascertainable wishes and feelings of the child concerned, considered in the light of their age and understanding.

The effect of this is that, in general, the wishes of the child will have a bearing upon the court’s decision, and the weight to be given to their wishes will increase as they get older.

The importance of the wishes of children was demonstrated in a recent case in the High Court.

The case concerned a father’s application for the summary return of his two children from England and Wales to Qatar. At the time of the hearing of the application in November the older child, a girl, was 15 years old and will be 16 next summer, and the younger child, a boy, was a month short of his 13^th birthday.

The family, of Egyptian origin, had lived in Qatar since about 2008. Their marriage broke down and they were divorced in 2017, since when the children have been living with the mother.

From around 2021 the older child began expressing a wish to study in England or the USA. The mother sought to raise this idea with the father, but he rejected it.

Notwithstanding this, the mother pursued the idea of relocation, and in July 2023 she brought the children to this country, intending it to be a permanent move.

In August the father issued an application in the High Court in London, seeking the return of the children.

The judge hearing the application found that the wishes of the children were the factor of magnetic importance. Both of them spoke negatively about both Qatar and their father, and expressed the firm view that they did not wish to return.

The judge was also concerned that that the voices of the children would not be fully heard under Qatari law if they were returned.

He concluded: “The reality in this case is that I am looking at the welfare of two intelligent and articulate children, one of whom is approaching her 16^th birthday, who are expressing strong, clear and consistent views that they do not wish to return to Qatar. Those views … must be given great weight in the balance that I have to strike. To order a summary return of these children to Qatar in the face of such views would in my judgment be wholly contrary to the children’s welfare.”

Accordingly, the father’s application was dismissed.

You can read the report of the case here.

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Unfortunately, parental separation can sometimes result in the breakdown of the relationship between a child and one of their parents.

And in a recent sad case a father took the breakdown of his relationship with his daughter to the logical conclusion, by applying to the court to terminate his parental responsibility for the child.

But whilst the judge granted the application, he did warn the father of the possible consequences of doing so.

The circumstances behind the father’s application were as follows. The child was born in 2012. We are not told when the parents separated, but we are told that the child was made subject to a care order in 2015.

At some point the father’s contact with the child stopped. The father did recently apply to the court for contact with the child, but the application went nowhere, in particular because the child indicated that she did not wish to see her father at the moment.

The father then applied to terminate his parental responsibility, essentially to reflect that he has no present relationship with his daughter.

The judge hearing the application discussed with the father how the application would look from his daughter’s point of view, including the position after she reaches the age of 18, for example, and how the granting of the application may affect her thoughts as far as the father was concerned in the future.

Despite these matters, the father advised the judge that he wished to proceed with the application.

As with any application relating to a child the judge had to consider what was best for her welfare.

He concluded that it could not be in accordance with the welfare of a child for a father to hold parental responsibility if he does not wish to, and intends not to exercise any future responsibility or part in her life.

Accordingly, he was satisfied that the child’s welfare was met by terminating the father’s parental responsibility, and he made an order to that effect.

Whilst one can have great sympathy for a parent whose child tells them they don’t want to see them, terminating parental responsibility is obviously a very serious step, that shouldn’t be taken lightly.

Any parent in such a position should clearly seek expert legal advice as to their options, before taking any action. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

You can read the full judgment in the case here.

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Most children are lucky enough to have a close relationship with their grandparents, but what if the grandparents are unable to see their grandchildren? What rights do the grandparents have in such a situation?

Difficulties in grandparents seeing their grandchildren can occur as a result of the breakdown of their relationship with the parents or, more commonly, the breakdown of the parents’ relationship, where the grandchildren then live with the parent who is not their child.

Whatever the situation, there are certainly steps that the grandparents can take to (re-)establish contact with their grandchildren.

The first step, of course, is to try to agree contact with the parents if they are still together, or if they are separated, with the parent with whom the children live.

Such an agreement can be reached directly, through lawyers, or via mediation, if both parties agree to mediation.

But if agreement is not possible then the grandparents can apply to the Family Court for a child arrangements order allowing them to have contact with the grandchildren.

Such an application is essentially the same as a child arrangements application made by a parent, save for one important factor: Before the grandparents can proceed with the application they must first obtain the leave (or permission) of the court to make the application.

When considering whether to grant leave, the court will have particular regard to the nature of the application, the grandparents’ connection with the child, and any risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it.

This means that a parent can oppose the grandparents having leave and slow down the process or even end the application without a full hearing. This is different to the position in other jurisdictions including Scotland and the government has discussed reform but this has not proceeded as yet.

If leave is granted the main application will continue, and the court will decide what, if any, contact the grandparents should have with the grandchildren. As in applications by a parent, there are a range of orders the court can make including indirect, direct and for overnights and holidays.

The court will make the decision in accordance with what it considers best for the welfare of the grandchildren. Specifically, the court will consider such matters as the ascertainable wishes of the children (considered in the light of their age and understanding), the children’s needs and the capability of the grandparents of meeting those needs, and any harm that the children are at risk of suffering.

In most instances the court will consider that contact with their grandparents is likely to be good for the children’s welfare. It is therefore likely that a contact order will be made, although the amount of contact will again depend upon what the court considers best for the grandchildren.

If you are a grandparent seeking contact with your grandchildren then you should seek expert legal assistance. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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There are various situations where someone adopts a family member’s child, but perhaps the most common is the step-parent adoption, where the child’s parent has remarried or entered into a new relationship and their new spouse or partner wishes to adopt the child.

So what is involved in adopting your partner’s child?

The first thing to consider is the eligibility of the child. To be adopted, the child must be under the age of 18 when the adoption application is made, and must not be (or have ever been) married or in a civil partnership.

The second thing is that the child’s other birth parent normally has to consent to the adoption, unless they cannot be found (which is not unusual in step-parent adoptions), they are incapable of giving consent (e.g. due to a mental disability), or the welfare of the child requires that their consent be dispensed with by the court.

If the other parent does not consent then it is strongly recommended that you seek expert legal advice before proceeding, including upon the possible alternatives to adoption, such as obtaining parental responsibility for the child, or a child arrangements order stating that the child should live with you.

In order to adopt the child you must be over 21, married to your partner or in an enduring relationship with them, and the child must have lived with both of you for at least six months prior to the application.

As to the procedure, before you can apply to the court for an adoption order you must first notify the local authority in writing of your intention to apply, at least three months before the application is made.

The local authority will carry out an assessment and provide the court with a report to help the court decide whether an adoption order should be made.

As to the adoption application itself this is made by completing an adoption application form and sending it to the court with supporting documents and the court fee.

The court will then then fix a first directions hearing, at which it will give directions as to what should happen next, including when the local authority should report, what steps should be taken to find the other birth parent if their whereabouts are not known, and when the final hearing should take place.

If the court decides that an adoption order should be made it will make the order at the final hearing.

If you wish to adopt your partner’s child we can find you a legal expert to assist you, working with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Surrogacy arrangements, when a woman carries and gives birth to a baby for another person or couple, are becoming increasingly common, and are recognised by the Government as a legitimate way to build a family.

However, the law on surrogacy remains rooted in the 1980s.

Recognising that there may be a need to modernise the law, the Law Commission of England and Wales and the Scottish Law Commission undertook a review of the law. Their report, published in March this year, proposed reforms to improve the law

The present law

Under the present law the surrogate mother is the child’s legal parent at birth, even if she is not genetically related to the child.

In order to become legal parents the intended parents have to apply to a court for a parental order, within six months of the child’s birth.

The surrogate mother must give consent to the making of a parental order, no earlier than six weeks after the birth of the child.

The process of obtaining a parental order can typically take six months to a year to complete, during which time the surrogate is the child’s legal parent. Obviously, this doesn’t reflect the reality of the fact that the child is living with the intended parents, and can affect their ability to make decisions about the child.

The proposed reforms

The Law Commission recommends an entirely new pathway to legal parenthood, which it believes will work better for children, surrogates and intended parents.

The new pathway will allow intended parents to be legal parents from the birth of the child, provided that certain eligibility conditions are met, instead of having to wait months to obtain a parental order.

The pathway would allow the surrogate to withdraw her consent, from the point of conception until six weeks after the birth of the child, although if she withdraws consent after the birth the intended parents will be the legal parents at birth, and she would need to apply for a parental order herself if she wished to gain legal parental status instead of the intended parents.

Surrogacy agreements under the new pathway will be overseen and supported by non-profit Regulated Surrogacy Organisations, which will in turn be regulated by the Human Fertilisation and Embryology Authority.

Clearly, these reforms would make substantial changes to the law, and would completely alter the route to legal parenthood for anyone seeking to have a child via surrogacy. Whether the proposals will be implemented is a matter for the Government, and we are currently awaiting their response to the report with great interest.

The Law Commission’s report can be found here.

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New research has shed light upon the experiences of parents and other adults who go to court to sort out arrangements for their children.

The research, carried out by the Nuffield Family Justice Observatory (‘NFJO’), focused on the adults involved in these cases, how their characteristics may affect their needs when they go through court, and the type of information and support that could improve their experiences.

The research came up with seven key findings:

1. That court is a last resort for separating families. The research found that only a small percentage of separating parents go to court to sort out arrangements for their children, most families preferring to avoid court due to costs, stress and concern for their children’s well-being. This is important. Court proceedings should always be seen as a last resort, with the parents making every effort to resolve their differences by agreement, whether directly, through lawyers, or via mediation.

2. That families in these cases are often facing deprivation. Research shows that the majority of families involved are from the most deprived areas, with limited access to resources affecting the level of support available to adults and their court experience.

3. That while most people in these proceedings are white, there is an over-representation of people from some other ethnicities. The NFJO says that evidence suggests that women from ethnic minorities often have worse experiences in court due to the impact of cultural stereotypes.

4. That not all people involved in these proceedings are parents. Ten per cent of applications are made by grandparents and other non-parents. We have previously discussed this, here.

5. That many families going through court have experienced health issues. The NFJO say that adults involved in these cases have a higher likelihood of experiencing mental health issues before they go to court, including depression, anxiety and self-harm. They are also more likely to have substance misuse problems.

6. That a growing number of adults in these proceedings are representing themselves in court. This is due to legal aid being removed back in 2013. Unsurprisingly, the research found that the court experience of these people is often negative, although it can be improved if legal professionals take time to support them, and if they have an understanding about court processes.

7. Lastly, that domestic abuse is an issue for many families involved in these cases. Sadly, not an unexpected finding. The NFJO says that victims of domestic abuse often have negative experiences in court, including concerns about being believed, as well as worries for their physical safety and mental well-being. However, research shows that legal professionals can improve victims’ experiences through actions such as understanding domestic abuse, actively listening to victims, and involving court independent domestic violence advisors, who provide support for abuse victims. Legal aid is available to victims of abuse, who can therefore seek expert legal advice.

It is hoped that these findings will be used to help improve the experiences of parents involved in these proceedings.

The research paper can be found here.

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Allegations of parental alienation are commonly raised in disputes between parents over arrangements for their children, and the issue is regularly discussed, by academics and others.

This has led to parental alienation being referred to in some quarters as a ‘syndrome’, as if it requires some sort of quasi-medical diagnosis.

And this in turn has led to parents alleging alienation seeking that diagnosis from experts appointed by the courts.

But whilst it may be appropriate in certain cases to seek the views of an expert, for example to undertake a psychological assessment of the parents, it is for the court rather than the expert to determine whether parental alienation has occurred, as a recent case has confirmed.

In the case the father was alleging that the mother had sought to alienate the children against him, and the Children’s Guardian sought the permission of the court to appoint a psychologist to undertake a psychological assessment of both the parents and the children.

The court granted the application.

The mother appealed, in part on the grounds that the instructions to the expert made it clear that they were being asked to provide an opinion about parental alienation, and that this was contrary to recent guidance given by the President of the Family Division.

The President had recently made clear that parental alienation was not a syndrome capable of being diagnosed, but was rather a question of fact for the court to determine.

The appeal court agreed with the mother. The judge stated:

“The decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. It is the Court’s function to make factual determinations necessary to inform welfare decisions for the child, not to delegate that role to an expert. The identification of alienating behaviours should be the Court’s focus, where it is necessary and demanded by the individual circumstances of the case for the Court to make such factual determinations leading to final welfare decisions for the child.”

Accordingly, the mother’s appeal was allowed, and the order permitting expert evidence was set aside.

You can read the full judgment here.

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After parents separate one of them may wish to relocate with their children to another country, for example because they have close connections with the other country, or because they have obtained employment in that country.

In such a situation the parent wishing to relocate will either have to obtain the agreement of the other parent, or the permission of the court.

Obviously, relocation can have serious implications for the children, and their relationship with the parent ‘left behind’.

In deciding whether to grant permission the court will be guided primarily by the welfare of the children. In other words, the court will decide whether the children’s welfare will be best served by them remaining in this country, or by them moving to live in the other country.

When making this decision the court will take into account such factors as the ascertainable wishes of the children, the children’s needs, the likely effect upon them of the move, and any harm that they are at risk of suffering, either by remaining here or by moving.

There are also other factors that the court should bear in mind, such as whether the plans of the parent making the application are genuine and realistic, and the effect upon that parent of refusing the application. However, such factors will always be secondary to the welfare of the children.

The way that all of this works was demonstrated by a recent case in the Family Court at West London.

In the case the mother wished to relocate with the children to another country. The country was not identified in the judgment of the case, only referred to as ‘country X’.

The father is British and the mother is a national of country X.

The mother wished to relocate because of the unsustainability of her living arrangements in this country, and the benefit of the children being able to relocate with her to country X, such as having free tertiary education there.

The children were bilingual and were familiar with country X, having spent significant time there.

Since separating the mother had been dependent on the support of friends, and could not afford to rehouse herself and the children in private accommodation. She and the children would live with her mother in country X.

She also felt that her employment prospects here were not good, but was optimistic that she could obtain employment in country X.

In any event the mother also claimed that the family had been planning to relocate to country X by about 2024.

The father opposed the application.

After considering the matters referred to above the judge decided that the welfare of the children would be best served by them relocating with the mother to country X.

The judge found that meeting the children’s needs would suffer if permission was refused and the mother compelled to continue to raise the children in this country. Refusing permission would likely negatively impact on the children and on the separated parental relationship.

In contrast the judge found it much easier to visualise the welfare needs of the children being met in a consistent and predictable manner whilst in X, whilst at the same time enjoying extensive and valuable time with their father.

Accordingly, the judge granted the mother permission to relocate. He also made orders with regard to the children’s contact with their father following the relocation.

You can read the full judgment here.

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Abducting a child to another country is obviously one of the worst things that a parent can do, causing not only extreme stress for the other parent but also potentially serious harm to the child’s welfare.

And so it is that the 1980 Hague Convention on Child Abduction, recognising the harmful effects of abduction, establishes procedures to ensure the prompt return of abducted children to the state of their habitual residence.

Almost half of all countries of the world are signatories to the Convention, including the UK, the EU, North America, most of South America, and much of the Far East.

If a child is abducted to one of those countries then an application can be made under the Convention to the courts of that country for the summary return of the child to the country of their residence.

And only in limited circumstances will such an application be refused, for example where there is a grave risk that his or her return would expose the child to physical or psychological harm.

Note that an order that a child should be returned to their home country does not decide the long-term arrangements for that child, only that the child should be returned – such decisions should be made by the courts of the home country.

The workings of the Convention were clearly demonstrated by a recent case that took place in the High Court in London.

The case concerned a father’s application to the court here for the summary return of two children aged 12 and 10 to the Republic of Ireland. The mother had brought the children from Ireland to England in December last year, without the knowledge or consent of their father.

The mother accepted that the father did not consent to the children living in England, but opposed the application on two bases: firstly that the children objected to being returned to Ireland, and secondly that being returned would expose the children to grave risk of harm, or an otherwise intolerable situation.

But the High Court did not accept the mother’s arguments.

The court was completely satisfied that returning each child to the jurisdiction of the Republic of Ireland would not expose either of them to a great risk of physical or psychological harm, and would not otherwise expose them to an intolerable situation.

The children did object to returning to Ireland, but their objections were significantly outweighed by the factors in favour of return, such as their family and other connections in Ireland.

Accordingly, the court ordered that the children be returned to the Republic of Ireland.

But the mother was not prepared to leave the matter there. She then applied to have the return order set aside.

The court, however, saw no reason to set the order aside.

The judge found that the mother had inexcusably plotted to abduct the children to England by deception, and said this:

“The Hague Convention 1980 is one of the greatest and most effective conventions in international law. It was devised by a community of nations to counter and correct precisely the kind of behaviour [the mother] has so flagrantly demonstrated.”

The mother’s set aside application was therefore dismissed.

The judgment on the father’s application can be read here, and the judgment on the mother’s set aside application is here.

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Many separating parents are strongly of the belief that their children should spend equal time with each parent.

And quite often it is the case that such an arrangement is best for the children.

But sometimes a parent is so certain that they should enjoy equal time with their children that they will pursue such an outcome at all costs, even when others, including the court, do not consider it best for the children’s welfare.

Such actions will of course prolong the dispute between the parents, which in itself will be likely to cause harm to the children.

And an unreasonable pursuit of equal shared time can have even worse consequences for that parent, as a recent family court case demonstrated.

The case concerned arrangements for a child born in 2009.

Unfortunately, her parents had been in dispute over arrangements for her for 10 years which was most of her life.

An order made in 2012 divided her time over a fortnight with eight nights spent with the mother and six nights with the father.

In 2016 an order was made splitting her time nine nights to the mother and five to the father.

And in October 2020 the court made an order that the child live with her mother and spend three nights a fortnight with the father.

Then, following non-compliance with that order by the father, the mother issued further proceedings in 2021. The court suspended the 2020 order and replaced it with an order for the father to have supervised, indirect contact only.

The father made it clear that he would not take up any form of supervised contact, and that he intended to publish information from the proceedings. The father was also breaching the court’s order by meeting the child, by waylaying her on the way to or from school.

Another hearing took place in June 2022, when the court rejected the father’s argument that the child should share her time equally with each parent. Instead, it made an order in similar terms to the October 2020 order.

Matters then took a turn for the worse. The father continued to see the child outside the times set out in the order, told the court that he would not keep to the terms of the order, and in July he assaulted the mother, in the presence of the child.

The court suspended the June order and ordered that the father have indirect contact only. The father did not take up this indirect contact.

The child, meanwhile, unsurprisingly indicated that she wanted the litigation to stop.

The case went back before the court in January this year. By this time the court was also considering the father’s imprisonment for contempt of court.

The judge at the hearing stated: “What is surprising and concerning is that father was not able to work with the order from October 2020 which was an order which gave a substantial amount of time for [the child] to spend with both parents, a very normal order in these sorts of proceedings. Father was focused instead on his conviction that the right order was for [the child] to have half her time with each parent, and he was not prepared to accept less.”

Taking everything into account, the judge decided the right decision for the child was that there be no direct contact and the father to have ‘letterbox contact’ only with the child, enabling him to write to her, or send a card or a present, once a fortnight. The father remained under threat of imprisonment if he breached the order.

The judge also made an order barring any further applications relating to the child without the permission of the court, until she reaches the age of 16.

You can read the full report of the case here.

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There is a commonly held belief that the Family Court favours mothers when deciding upon arrangements for children.

But this is simply not true. The court’s decision will be based upon what is best for the welfare of the children, not upon any bias in favour of one particular parent.

And that may well mean that the court will decide in favour of a father rather than a mother, as was demonstrated in a recent case that took place in the Family Court at Oxford.

The case concerned two boys, aged 12 and 9. The father (as we will describe him) was not actually the biological father of the younger boy, but had treated the boy as his own.

The parents (as we will call them) separated in 2016, and initially the boys lived with their mother, spending regular time with the father.

However, social services became involved with the family in 2019, following concerns about the level of conflict between the parents about arrangements for contact, and about the boys in their mother’s care – the mother was finding it difficult to put in place positive parenting strategies, in part due to her own mental and physical health needs.

Early in 2022 the mother was having a difficult time emotionally, and asked the father to look after the boys. They therefore moved to live with him, although the mother later sought to have them returned to her.

The local authority and the father had become very concerned about the boys’ welfare in their mother’s care at this time and in June the father, with the support of the local authority, applied to the court for an order that they remain with him.

The court decided the matter by reference to the ‘welfare checklist’ of factors that it should take into account when considering what is best for the welfare of children.

Amongst those factors the court found that:

1. The boys had said very clearly and consistently over a long time that they would like to stay living with their father, and the court was satisfied that they were expressing their true wishes and feelings, and had not been influenced by the father, or anyone else.

2. The mother had not shown that she was able to meet the boys’ needs.

3. If the boys were to go back and live with their mother they would be at risk of suffering significant harm.

4. The boys were happy living with their father, his partner and her children, and had made excellent progress whilst living with them. A move back to their mother’s would be disruptive, and would undo a lot of that progress.

In the circumstances, the court decided that it should make an order that the boys should live with their father and his partner.

You can read the full judgment in the case here.

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Court proceedings regarding arrangements for your children can obviously be extremely stressful. But as a recent case demonstrates, it is absolutely essential that you keep your feelings to yourself, as the father in the case found to his cost.

The father was applying to the court for a child arrangements order allowing him to have contact with his one year-old son.

But for reasons we don’t know, the father chose to be extremely abusive to everyone else involved in the case, including the mother, the mother’s lawyers, the Cafcass officer, social workers, and even the judge’s clerk.

He also put abusive and untrue posts about the mother’s solicitors on social media, leading the firm to institute civil proceedings against him.

In addition, the father failed to file any of the evidence which he had been ordered to file by the court.

Needless to say, things did not go well for the father.

The judge found the father’s behaviour to be so extreme that she considered that the child would be at risk from the behaviour.

She was also of the view that continuation of the proceedings would allow the father another way of subjecting the mother and her family to further abuse.

The judge said that she also had to take into account that it would not be reasonable to expect any professional to play any part in the father’s contact, because of the abuse that they would likely receive.

In the circumstances the judge decided to dismiss the father’s application, without allowing it to proceed to a full hearing.

In addition, the judge made an order barring the father from making any further application for a period of one year, without first obtaining the permission of the court.

The case is a demonstration not just of how not to conduct yourself in court proceedings, but also of what the court can do in response to such behaviour.

Before finishing this post it should be stated that, as mentioned, we don’t know what was behind the father’s behaviour. Was it just his nature? Or was he perhaps frustrated by the workings of the family justice system? Or was there some other reason?

We will never know, although of course whatever the reason it could not justify or excuse the behaviour.

If you want to read the full judgment you can find it here (warning: strong language).

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It is sadly not unusual for the police to be involved when a family separates, particularly when there are allegations of domestic abuse.

But what if there are ongoing court proceedings relating to a child of the family? What court papers can be shown to the police?

The question arose in a recent High Court case.

The case concerned a father’s application for contact with his child. The mother made a number of allegations of domestic abuse against the father.

The court held a fact-finding hearing, at which ten of the allegations were found to be proved.

Notwithstanding this, the court ordered that the father should have contact with his child.

Sometime after this the mother made a complaint to the police that the father was harassing her. The police visited her and she showed certain documents from the court proceedings to the police, including a Cafcass report.

Finding out about this, the father sought to bring proceedings against the mother for contempt of court, by breaching the rules as to what documents she could disclose to the police.

As the judge himself complained, the rules covering what parties can lawfully disclose to the police are extremely complicated, and we will not attempt to set them out in full here.

In simple terms, the rules say that unless the court has permitted wider disclosure only the judgments and orders of the court may be shown to the police. Other court documents, such as Cafcass reports, may not be shown to police officers, unless they are specialist child protection officers (which they were not in this case).

After carefully weighing all of the relevant factors, the judge refused the father permission to bring contempt proceedings against the mother, for a number of reasons that need not be listed here.

However, the judge did admonish the mother for her conduct, explaining that it was absolutely forbidden for her to show the (non-specialist) police officers any documents from the contact proceedings, other than judgments or orders. If she wanted to do so then she needed to obtain an order from the court allowing it. That is what the law says, and that is the law that must be obeyed.

Contempt of court is a serious matter, which could result in a prison sentence. Obviously things could have ended much worse for the mother in this case.

The lesson is clear: if in doubt as to what court documents you may show to the police, take legal advice.

You can read the full judgment here.

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Where the local authority are not involved, most applications to the family court for orders concerning children are obviously made by one of the parents of the child or children concerned.

But new research shows that a tenth of applications are made by people who aren’t parents.

The research explored the types of orders being applied for, and the characteristics of the people involved. It was published by the Nuffield Family Justice Observatory, which undertakes research aimed at improving the family justice system, and carried out by the Family Justice Data Partnership, a collaboration between Lancaster University and Swansea University.

The research highlighted that this minority of cases is actually a very sizeable group, with around 5,500 such applications made each year in England, and 300 in Wales.

Most of those applications were made by grandparents, who accounted for 58% of all non-parents involved in England, and 63% in Wales. Other people involved included step-parents, foster carers, special guardians and intended parents (in surrogacy cases).

As to the types of orders being applied for, these were mostly for child arrangements orders, i.e. orders that the child live with, or have contact with, the applicant(s). These accounted for 56% of applications in England and 59% of applications in Wales.

A special guardianship order was applied for in 7.9% of applications in England and 6.0% in Wales.

5.7% of applications in England and 2.3% in Wales were for a parental order (surrogacy), and 5.2% of applications in England and 2.2% in Wales were for a parental responsibility order.

16% of applications in Wales were for adoption, primarily made by step-parents.

The research clearly demonstrates not just the number of non-parents making these applications, but also the importance they place upon obtaining these orders.

And it should be borne in mind that non-parents may have other hurdles to overcome, compared to parents. For example, whilst parents can apply for child arrangements orders at any time, grandparents and others must first obtain permission to apply from the court.

In the circumstances, it is strongly advised that anyone wishing to make one of these applications should first seek expert legal advice. We can find an expert who can assist you via our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Commenting upon the research, the lead author Dr Linda Cusworth of Lancaster University said: “While non-parent cases represent just 10 per cent of private law cases, they involve thousands of people and potentially high levels of need and complexity. Yet, to date, the private law reform agenda has focused on separating parents, overlooking the needs of this wider group of families.

“This is the first population-based study to explore these types of private law applications in England and Wales. We have examined the diversity of applications and the individuals involved, enabling a better understanding of their circumstances to increase the evidence base. We hope this report will promote useful discussions, and help practitioners and policymakers to focus on how best to meet the needs of families.”

You can find the full report of the research here.

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A recent Family Court judgment provides warring parents with a warning about the possible effect of their actions upon their children, and what the court might do to protect the children’s welfare.

The case concerned three children, one aged 8 and the other two aged 6. As the judge explained at the beginning of his judgment, their parents had been locked in litigation about their welfare for more than two-and-a-half years – a very substantial share of each of their young lives.

The judge continued:

“Their parents find common ground on almost nothing about the history of their relationship or anything about the children’s welfare. They present to the court a voluminous list of issues, touching on almost every part of the children’s lives. The sad reality of this situation, the court will find, is that each of the parents has compromised their children’s best interests and there is a very real risk each will continue to do so.”

It is not necessary here to go into the details of the case, or the issues that the court was (on this occasion) being asked to determine. Suffice to say that the court decided that it had to take steps to protect the children from the harmful effects of their parent’s litigious behaviour.

And the way to do that was to make orders barring the parents from making any further applications to the court in relation to the arrangements for their children, without first obtaining the permission of the court to make the application.

When considering whether to make barring orders the judge looked at the behaviour of the father and the mother.

As to the father, the judge said that he had engaged in what he called ‘lawfare’. He said that the father’s behaviour was oppressive. He considered that he was superior in his parenting to the mother, and would very likely issue applications to vary the court’s orders in very short order when the point arrived where he believed the mother had fallen short of his standards.

As to the mother, the judge found that she did not fully accept the importance of the father in the children’s lives, and she was also likely to issue further applications to reduce the children’s time with the father when they communicated even trivial levels of unhappiness, or she believed the orders had run their course.

The children had been subject to a high level of emotional harm through the proceedings, the objects of the parents’ conflict. Any further proceedings would likely be significantly harmful to their emotional wellbeing, going beyond the usual acrimony in cases of this kind.

In the circumstances the judge found that the children’s welfare required that he make barring orders against both parents, restricting their abilities to make further applications to the court in relation to the arrangements for the children. The orders would last for long enough for the children to complete two full academic years of school, that being the least amount of time they would need to move on from the conflict they had faced.

The lesson from this judgment is quite clear: when sorting out arrangements for your children you should make every reasonable effort to avoid conflict. You may hold strong views about what is best for your children, but that does not necessarily mean that your way is the only way. Parental conflict is likely to do more harm to your children than anything.

And do not make repeated applications to the court unless absolutely necessary. If you do, then the court may take steps to prevent your children suffering further harm.

The full judgment in the case can be read here.

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Most applications for child arrangements orders (i.e. orders setting out with whom the child should live, and if with only one parent, what contact the child should have with the other parent) are, of course, made by one of the parents of the child.

But what if the child themselves wished to apply for an order regulating with which parent they should live, or what contact they should have with the other parent? Is that possible?

The answer is that it is indeed possible, although the child will first need to obtain the leave, or permission, of the court to make the application.

The court may only grant leave if it is satisfied that the child has sufficient understanding to make the proposed application.

A rare example of this in action was reported in a recently published judgment of the High Court in London.

The case concerned a 15 year old girl who wished to apply for a child arrangements order permitting her to live with her mother for the majority of the time.

She had essentially been living with her father since 2016, but her parents had since then been in conflict over where she should live, and she had actually wanted to live with her mother for some years.

She therefore applied in early 2020 for leave to make a child arrangements application. Initially the court refused leave, but she appealed against that decision.

Her father recognised that as every day passed she was becoming more mature, and he therefore accepted that the appeal should be allowed, which it was.

The girl proceeded with her child arrangements application.

Hearing the application in July 2021, Mrs Justice Judd felt it was right that she should accede to the girl’s wishes and feelings given her age, intelligence, and how long they had endured.

Accordingly, Mrs Justice Judd made an order providing for the girl to spend the majority of her time living with her mother.

She did however point out that when the girl reaches the age of 16 she will, from the perspective of the court, be able to choose her own living arrangements. It was therefore agreed that the order should not go beyond the end of the school year in 2022.

The full report of the judgment can be found here.

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As is well known, there is a general rule in civil court proceedings that the unsuccessful party will be ordered to pay the successful party’s legal costs.

Because of this rule many people will enter into family court proceedings under the impression that if they win their case the court will order the other party to pay their costs.

But this is not necessarily true.

By their nature family court proceedings differ considerably from other types of civil proceedings. Often it is not even appropriate to talk in terms of ‘winners’ and ‘losers’, especially where children are involved.

In the light of this difference the rules relating to costs in family proceedings are not the same as the rules that apply to other types of civil proceedings. In fact, for most types of family proceedings the ‘loser pays winner’s costs’ rule does not apply.

The basic rule in family proceedings is simply that the court may make such costs orders as it thinks just.

And the court will rarely, for example, think it just for a costs order to be made in a children case, unless one party’s conduct of the case was so unreasonable as to merit the making of a costs order against them.

As to financial remedy proceedings, the rule is slightly different. It states that the court will not make an order requiring one party to pay the costs of another party, but may do so where it considers it appropriate, because of the conduct of a party in relation to the proceedings (whether before or during them).

In deciding whether to make a costs order in financial remedy proceedings the court will have regard to a number of matters, including any failure by a party to comply with court rules or orders, any open settlement offers made (not any offers made ‘without prejudice’), and whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.

Not all financial remedy proceedings are covered by this rule, for example applications for maintenance pending suit, applications to enforce financial orders, and applications for financial provision for a child.

Finally, we mentioned above that for most types of family proceedings the ‘loser pays winner’s costs’ rule does not apply. There are two types of family proceedings to which it does apply: inheritance claims against the estate of a deceased person, and trusts of land cases, mostly commonly used to resolve property disputes between cohabiting couples, to request the court to determine shares in the property, and whether or not the property should be sold.

Whether you are likely to recover your legal costs from the other party is obviously a matter that should be considered before commencing court proceedings. You should therefore seek expert legal advice before going to court.

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You can contact us for advice and guidance with no obligation. We can work with you to provide the best outcome in your family law matter.

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Allegations of ‘parental alienation’ arise quite frequently as an issue in disputes between parents over arrangements for their children.

The most common scenario is when one parent is seeking contact with a child, who lives with the other parent. The parent seeking contact will allege that the other parent has alienated the child against them, in order to thwart a contact application.

The ascertainable wishes of the child is one of the factors to which the court must specifically have regard when deciding any question relating to them. So if the child expresses a clear wish not to see one parent that can have a significant bearing upon the outcome of the case.

But there can be some confusion as to what exactly is meant by the term ‘parental alienation’. Some, for example, consider it to be a diagnosable syndrome (‘Parental Alienation Syndrome’, or ‘PAS’), akin to a medical condition, rather than just a question of the behaviour of one of the parents, and the effect of that behaviour upon the relationship between the child and the other parent.

There is, in fact, no ‘official’ definition of parental alienation. However, Cafcass use the term ‘alienating behaviours’, which it defines as: “circumstances where there is an ongoing pattern of negative attitudes, beliefs and behaviours of one parent (or carer) that have the potential or expressed intent to undermine or obstruct the child’s relationship with the other parent.”

And comments by the President of the Family Division in the course of a recent judgment have further clarified the matter.

The case related to the use of an unregulated psychologist as an expert on parental alienation. The Association of Clinical Psychologists (‘ACP-UK’) were a party, and in their skeleton argument they stated:

“Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.”

The President stated that this paragraph deserves to be widely understood and, he strongly urged, accepted. He said:

“What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”

Obviously, if the Court does find that a parent has alienated a child then this will have a significant bearing upon the outcome of the case, and could even result in a finding that the child’s welfare would be best served by them moving to live with the ‘alienated’ parent.

You can read the President’s full judgment here.

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It is sadly not at all unusual for both parents involved in a dispute over arrangements for their children to make adverse allegations about the behaviour of the other parent.

And sometimes the allegations may be invented or exaggerated, either to support that party’s case, or to undermine the allegations made by the other party.

Of course, the court will have to determine the truth of the allegations, if they are relevant to the issues. How it does this was illustrated in a recent Family Court case.

The case concerned an application by a father for the court to decide how much time his three children should spend with him. He alleged that the mother had pursued a campaign of parental alienation, to turn the children against him. He therefore asked the court to order the mother to cease the campaign, and to take steps to remedy the effects of the parental alienation, so that his relationship with his children could be healthier and more normal.

In response, the mother alleged that the father had inappropriately chastised the children, that he exercised coercive and controlling behaviour to the mother in and surrounding contact, that he displayed emotionally dysregulated behaviour in the presence of or towards the children, and that he abused or intimidated the children.

In order to determine the truth of these allegations the court fixed a ‘fact-finding’ hearing, to hear the evidence of both parties, and decide where the truth lay (there were in fact two such hearings, the findings made on the first one having been set aside on appeal).

As the judge explained at the hearing, each parent had to prove the allegations they made, on a balance of probabilities.

She said that the evidence might come from a number of sources, but the parents’ evidence was of course of the upmost importance. It is therefore essential that the court forms a clear assessment of their credibility and reliability. Each parent considers that the other parent is not telling the truth about some of the events. However, witnesses can lie for many reasons, and their recollections of events may vary. Further, just because they are found to have lied about one thing does not mean that they have lied about everything.

She found that the mother’s allegations were true and the father’s allegations about parental alienation were not true.

Obviously, these findings would be taken into account at the final hearing, when the court decides how much time the children should spend with the father.

You can read the full judgment here.

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When parents separate it is of course not unusual that one of them may wish to relocate with the children to another part of the country.

It is clear that a parent may not move a child to another country without the consent of the other parent (provided they have parental responsibility), or the permission of the court. But what is the position regarding an internal relocation?

The answer depends upon whether there is a child arrangements order in place, and whether you are the parent with whom the child lives.

If there is no order in place, you may relocate to another part of the country without the consent of the other parent, or the permission of the court. However, it is strongly recommended that you do seek the other parent’s consent or, failing that, the permission of the court.

Similarly, if there is an order and the child lives with you then you may relocate to another part of the country without the other parent’s consent, unless the terms of the order specifically prohibit it. However, you are still obliged to provide the other parent with contact as required by the order, and once again it is strongly recommended that you do seek the other parent’s consent or the permission of the court.

Lastly, if there is an order and the child does not live with you then you would require the consent of the other parent if you wished to relocate to another part of the country. If consent is not forthcoming then you would need to ask the court to vary the child arrangements order.

So the next question is: if you need its permission to relocate, how does the court decide the matter?

The answer was illustrated in a recent family court case, in which the mother wished to relocate with the children, whose care was shared between both parents, from London to Somerset.

The judge explained that the court must decide whether to grant permission on the basis of what is best for the welfare of the children. This involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options is best for the welfare of the children.

In this particular case the judge found that the children’s welfare was best met by them remaining in London. He made this decision, notwithstanding the wishes of the children to move to Somerset, as he considered that they would suffer emotional harm by permitting their relationship with their father to be damaged by relocation to Somerset.

You can read the full report of the case here.

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Image: Mark Hillary from Serra Negra, São Paulo, Brazil, CC BY 2.0, via Wikimedia Commons

In an important new report the charity JUSTICE has recommended 43 ‘ambitious but realistic’ improvements to access to justice by separating parents who are unable to agree arrangements for their children.

With regard to the wider family justice system outside of court the recommendations include:

Information and early legal advice: JUSTICE recommends the creation of a single authoritative information website for separating families, and piloting of publicly funded early legal advice for child arrangements problems.

Coordination of legal and non-legal services: JUSTICE recommends the creation of ‘hubs, alliances and networks’ to coordinate services for separating families in the community, including contact centres; courses and workshops; domestic abuse support; legal support; mediation; mental health support; mentoring support; support for children; and other support groups.

A child participation presumption: Throughout the justice system, JUSTICE recommends a new presumption that all children will be offered the opportunity to participate in processes which assist in the resolution of a dispute which concerns them, both in and out of court, in an age-appropriate way. The presumption could be rebutted, for example if the child is too young, or if more harm would be done by involving the child than not.

Non-court dispute resolution: JUSTICE says that in addition to mediation, other non-court dispute resolution processes should be financially supported, including “packages” of support which combine legal help with non-legal help (like counselling). Non-court processes, they say, “need to be better supported to be child inclusive, through parental education, professional practice, and funding incentives.”

As for when cases go to court, the recommendations include:

The introduction of a “case progression officer”: In every case there should be a neutral, legally-trained court employee, who will: provide the family with information at the outset and throughout; manage preparation for hearings if one or both sides are unrepresented; answer queries about the outcome of any hearing; and help a litigant in person with the next steps required of them.

An initial investigation conducted by a “Court Team”: A multidisciplinary Court Team, consisting of the case progression officer, a Cafcass officer, and possibly others, should screen the whole family for risk, provide the family with information, talk to the adults and relevant third parties such as the child’s school, and also consult the child. The investigation could make referrals for support while the family try another process, such as mediation, or it could better prepare the case for the judge/magistrates.

Child participation in court: Following on from the child participation presumption, JUSTICE recommends that the court should have an explicit duty to offer children the opportunity to participate in proceedings, including letting the child meet the decision-maker more often, and giving the child feedback about the outcome and how their voice was taken into account.

Cases should be reviewed as standard: Lastly, JUSTICE recommends that a reviewing officer, normally from Cafcass, should follow up with the family, including the child, after a certain period of time to ask if the final order is working in the best interests of the child. If it isn’t, the same judge could hold a review hearing to consider any changes necessary.

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The Ministry of Justice has published its latest statistics for the work of the Family Court, for the quarter April to June 2022.

The statistics indicate that the court is disposing of fewer private law children cases (i.e. children disputes between parents) and fewer financial remedy cases.

And these figures could have serious implications for the length of time it takes to have these cases dealt with by the court.

As to private law children cases, the number of disposals in April to June 2022 was 26,924, which was down 16 per cent on the equivalent quarter in 2021.

And whilst it is true that the number of applications was down (by 7 per cent) on the equivalent quarter in 2021, the statistics also tell us that these cases are taking much longer to be dealt with.

In April to June 2022, it took on average 46 weeks for private law cases to reach a final order, i.e. case closure. This is up 6 weeks from the same period in 2021, and the highest value since the quarterly statistics were first published in 2014.

This continues an upward trend seen since the middle of 2016, where the number of new cases overtook the number of disposals.

Moving on to financial remedy cases the statistics tell us that there were 9,239 financial remedy applications made in April to June 2022, 71 per cent of which were uncontested, and 29 per cent contested.

The total is down 31 per cent from the same period in 2021, which probably reflects the number of applications returning to pre-pandemic levels, there being a ‘spike’ last year, following the dramatic drop in applications when the pandemic first hit.

But whilst the drop in applications may be welcome, the statistics also tell us that in the quarter there were 8,253 financial remedy disposals events, which is down 26 per cent from the same period in 2021.

Unfortunately, the statistics say nothing about how long the court is taking to deal with contested financial remedy applications, but they do tell us that whilst there were 2,673 contested applications in the quarter, only 2,183 contested applications were disposed of, whether because they became uncontested or were dealt with by the court.

Obviously, having more new cases than disposals is a worrying trend, which could well result in cases taking longer.

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It is rare for the President of the Family Division, the head of the family courts in England and Wales, to express their views in the mainstream media.

So when the current President Sir Andrew McFarlane spoke recently to the BBC, his words were worth noting, particularly for anyone who is, or may be, involved in proceedings in the courts.

Speaking to BBC Radio 4’s Broadcasting House programme, Sir Andrew said that some of the separating couples going to court, particularly to discuss the future of their children, would be better off not going to court.

At the moment, he said, for many couples court is the first port of call, when it should be the last resort, at least where there aren’t issues of domestic abuse or child safeguarding.

Sir Andrew said that his feeling was that about 20% of families who go to court to have a dispute about their children resolved would be better served by at least first of all trying to sort out the dispute in other ways.

He agreed that many parents see such disputes as a legal issue, when it is not. It is a relationship problem that they have, and the law merely provides the structure that, if needed, will resolve the dispute, and impose a resolution upon them.

And parental battles in court inevitably have an impact upon the children involved.

Sir Andrew said that research shows consistently that if you’re the child of parents who are at odds with each other that is unhealthy, and to have a dispute that runs on in the courts is highly likely to harm the child.

And Sir Andrew said that parents are fooling themselves if they say they are not involving the children, or that the children don’t know.

So what is to be done? Sir Andrew explained that the family courts are already piloting new ways of working, and part of that is that early on a social worker will file with the court a ‘child impact assessment’, with the idea of providing a wake-up call to the parents as to the impact of what they are doing on their child.

And of course the parents themselves can do more to try to resolve their disputes out of court, whether by negotiation, through mediation, or by some other means.

Family Law Cafe will help you choose the right option to resolve your family dispute. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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It is a sad fact that many parents become involved in a seemingly never-ending series of court applications regarding arrangements for their children.

A typical scenario might go like this:

The parents are at loggerheads over who the children should live with. Unable to agree, they take the matter to court. The court finds in favour of one of the parents.

Unhappy at this, the other parent takes the matter back to the court, in an apparent attempt to get the court to change its mind. The court does not change its mind, so after a brief interval that parent tries again. And again.

This sort of situation can literally go on for years, with an aggrieved parent taking the case back to the court multiple times. Needless to say, such repeated applications can take an enormous toll on both the parents and the children, to say nothing of the effect upon court resources.

But the court has a way to put a stop to such a scenario: the barring order.

Normally, anyone is free to make whatever application to the court that they wish. However, a barring order restricts that freedom, by saying that a parent cannot make any further applications in relation to their children for a certain period of time, without first obtaining the court’s permission.

The court is unlikely to give permission unless there has been a change in circumstances since the last application.

Barring orders may be made upon the application of one party, or of the court’s own motion.

Until now, barring orders have usually been made in order to protect the children from the effects of repeated applications, by giving them a period of respite.

But new guidance for the courts is giving a different emphasis to barring orders.

The guidance recognises that sometimes the parent making repeated applications is only, or partly, doing so as a means of harassing or controlling the other parent. Unfortunately, all experienced family lawyers will have witnessed this behaviour.

The guidance therefore makes it clear that barring orders may be made not only to protect the child but also to protect the other parent from conduct amounting to harassment, or coercive/controlling behaviour.

The guidance also states that in proceedings in which domestic abuse is alleged or proven, or in which there are allegations or evidence of other harm to a child or other individual, the court should give early and ongoing consideration to whether it would be appropriate to make a barring order at the conclusion of the case, even if an application for such an order has not been made.

To emphasise this the guidance states that children applications “should not be used as a means of harassment or coercive control, or further abuse against a victim of domestic abuse or other person, and the court should therefore give due consideration to whether a future application would have such an impact.”

It is to be hoped that this new guidance will help protect parents from the stress of repeated meritless applications, made with the intention of harassing or controlling them.

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In most cases a parent with whom a dependent child is living can seek maintenance for the child from the other parent, either by agreement or through the Child Maintenance Service (‘CMS’).

But sometimes the CMS isn’t available (for example where the other parent lives abroad), and in any event, proper financial provision for a child can involve much more than just maintenance. In particular, the child will need to be provided with a suitable home, until they grow up.

If you have children to look after and were married to the other parent then you can obtain such financial provision for them from that parent within any divorce proceedings. But what if you weren’t married to the other parent? Can you still get financial provision from them?

The answer is that you can.

Irrespective of whether or not you were married to the parent from whom you are seeking it, you can apply to a court for an order for financial provision for a child. Such applications may be made by a parent, a guardian of a child, or by any person in whose favour a residence order is in force with respect to a child.

There are essentially three types of financial provision orders that the court can make:

1. A maintenance order – As mentioned above, such orders can be made where the CMS isn’t available. They can also be made in other circumstances, such as to ‘top-up’ a CMS payment, where the other parent is earning more than the upper limit dealt with by the CMS (currently £3,000 per week), to cover expenses related to any disability the child may have, or to cover school fees.

2. A lump sum order – Where a lump sum of money is required for the benefit of the child.

3. A property settlement order – Whereby the other parent must provide a home for the child (the property will normally revert to the ownership of the other parent, once the child has grown up).

In considering whether to make a financial provision order the court will take into account: the income, property and financial resources of both parties; the financial needs of the parties and the child; the income, earning capacity (if any), property and other financial resources of the child; any physical or mental disability of the child; and the manner in which the child was being, or was expected to be, educated or trained.

If you would like to apply for financial provision for a child you should seek the advice of an expert family lawyer. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A pilot scheme has been launched at family courts in North Wales and Dorset to test a new approach to dealing with cases involving disputes between parents over arrangements for their children.

The two ‘Pathfinder’ court centres, as they have been dubbed by the President of the Family Division, will trial some of the ideas he set out in a speech he gave last October.

The purpose of the pilots is to assess the use of new practices and procedures to allow for applications by parents in relation to their children to follow a revised court process.

The revised process has a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children.

The pilots will work by allowing judges to review gathered information and request more documentation before a case gets to court. This is intended to avoid the circumstances of the case being debated in the courtroom, which can often exacerbate conflict between parents.

The pilots will also encourage proceedings to be less adversarial, so that more emphasis can be put into investigating and addressing allegations of domestic abuse and other harmful behaviours, rather than allowing confrontation in the courtroom to take place.

In addition the pilots will boost the voice of children at every stage of the process, ensuring they are listened to and their views are taken into account when decisions are made about their futures. It will see children given more opportunity to explain how they feel and, following a court order, to say whether it is working for them.

A more holistic, multi-agency approach is also planned, with the court engaging and developing positive working relationships with key local partners, such as mediators and local authorities.

Lastly, between three months and a year after a ruling is made, in most cases the courts and the agencies involved will carry out a review to ensure decisions made are working well, including assessing whether court orders are being followed and whether additional support is needed.

Commenting upon the pilots Justice Minister Lord Wolfson QC said:

“This government is doing everything we can to protect victims, make them feel safer, and give them greater confidence in the justice system.

“These pilots will help ensure victims of domestic abuse aren’t further traumatised by the court process and that better decisions are made about their and their children’s lives.”

The pilots are due to run until February 2024. If successful, they could well be rolled out across England and Wales, revolutionising the way in which the courts deal with disputes between parents over arrangements for their children.

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When parents separate they will of course understand that they must sort out arrangements for their children, and very often those arrangements will entail the children spending most of their time living with one parent, and then having contact with the other parent.

But what many parents will not be aware of is that sometimes there will be costs associated with that contact, and if the costs are not paid, the contact will not take place. The costs can take various forms, but perhaps the most common is where the contact takes place at a contact centre. The contact centre will charge a fee for this service.

But who pays the costs? A recent case in the High Court has provided some answers.

The case is actually the same one we reported upon here back in December, although then dealing with a different point. As we mentioned in that previous post, the court found that the father had subjected the mother to serious domestic abuse, including rape and coercive control.

The father was having supervised contact with the parties’ child at a contact centre. This contact had been ordered by the court, which also ordered that the contact costs should be shared equally between the father and mother.

The mother appealed against this order, arguing that it was wrong for her, a victim of serious abuse, to have to pay for her abuser to have contact with their child.

In considering the appeal the High Court had to decide firstly whether the court had power to order a party to pay the costs of contact and secondly whether a victim of domestic abuse should be required to share the costs of contact with the perpetrator of that abuse.

The High Court held that there was power for the court to order a party to pay the costs of contact, to ensure that the contact it has ordered should take place.

As to the second question, the High Court held that there should be a very strong presumption against a victim of domestic abuse paying for the contact of their child with the abuser. An order for them to do so should only be made in wholly exceptional circumstances, taking into account all relevant factors, including whether the contact is in the child’s best interests, and whether it would take place without a sharing of the costs.

In this particular case the High Court set aside the order that the mother pay a proportion of the costs of contact.

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In an important judgment the Court of Appeal has authorised the identification of a father, a former Tory MP and Minister in Theresa May’s government, who was found to have subjected the mother to domestic abuse, including rape and coercive control.

The findings had been made by the Family Court at Derby in November 2020. The father had applied to the court for an order that he spend time with his child, who was born in 2018. The mother, who is now herself an MP, made various allegations of abuse against the father.

The judge made the findings at a fact-finding hearing, but decided that they should not be made public, in order to protect the child. The father did not seek to appeal against the findings.

Two journalists applied for the publication of the fact-finding judgment, including the names of the parties. Their application was supported by, amongst others, the mother and the child’s Guardian. The father accepted that the judgment could be published, but argued that the interests of the child made it necessary that he, the mother, and the child should all be anonymised.

The High Court found that the child was unlikely to be affected by the publication, in view of its young age, and the father’s behaviour itself would have a greater impact upon the child’s relationship with the father than the publication. Accordingly, the High Court ordered that the publication could go ahead.

The father appealed, to the Court of Appeal. The Court of Appeal held that the High Court was correct and dismissed the appeal, thereby authorising the publication of the judgment, including the names of the parties.

The decision has been generally welcomed, as very few such judgments are published, and it is hoped that the publication of this judgment will help to show the public how the Family Court deals with domestic abuse allegations, and thereby improve confidence in the system, which in turn might encourage victims of domestic abuse to come forward to the courts.

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Earlier this month we wrote about when the Form C1A was needed, and how it should be completed.

To recap, anyone applying to the court for a child arrangements order, a prohibited steps order or a specific issue order must, if they are alleging that the child/children concerned may have suffered, or are at risk of suffering, domestic abuse, complete a form C1A, setting out details of the alleged abuse.

The point is that when allegations of abuse are made the court is under an obligation to determine the truth of the allegations, and consider whether they should have a bearing upon whatever order the court makes.

Findings of abuse against a parent can result in that parent’s contact with their child/children being significantly limited, for example by the court only allowing them to have supervised contact, or even no direct contact at all.

It is therefore essential that false allegations of abuse are properly defended by the accused parent. Sadly, false allegations are often made by a parent, particularly as they may enable that parent to obtain legal aid.

So how do you defend false allegations of abuse?

Well, the first thing to do is to complete the ‘Response to allegations of harm’ section in the form C1A, and send it to the court, along with your response to the application (form C7). This gives you an opportunity to briefly comment upon the allegations made against you by the other parent.

But it is important to note that, as the form states, you will be given an opportunity to make a more detailed statement later in the proceedings. You do not therefore need to go into detail on the form C1A of why you deny the allegations or, indeed, of any allegations that you wish to make against the other parent (if you wish to make allegations of abuse yourself and the other parent has not, you can complete a form C1A yourself).

In most cases the court will fix a ‘fact-finding’ hearing, when you will be able to give evidence to the court. The court will then decide upon the truth of the allegations.

If you have had false allegations of abuse made against you then you should really seek the assistance of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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If you are involved in family court proceedings of any sort the chances are that at some point in the proceedings you will be required to prepare a written statement in support of your case.

Obviously, a statement is an important document. It sets out the evidence that you intend to rely on and, as such, will have a huge bearing upon the outcome of the case.

But there are right and wrong ways to prepare a statement, and it is essential that your statement is prepared the right way.

Last week the President of the Family Division published a memorandum setting out how such statements should be prepared. The memorandum was aimed at lawyers preparing statements for their clients, but much of what it contains could equally apply to the person actually making the statement.

The President began by explaining what a statement should and should not contain.

Amongst the things that a statement should not do is seek to argue the case, and set out opinions of the person making the statement. These are common errors in many statements.

The only things that a statement should contain are matters of fact, and matters of information and belief.

Matters of fact include past facts (i.e. events which have happened) and future facts (i.e. events which are expected to happen).

However, and this is another issue with many statements, a statement may state only those matters of fact of which the person making the statement has personal knowledge, and which are relevant to the case. All too often statements contain facts of which the person does not have knowledge, and facts that are simply irrelevant

Further, the statement must indicate the source of any matters of information and belief. Evidence about proposed child arrangements or, in a financial remedy case, about the financial needs of a party, will be matters of information and belief. Accordingly, where such evidence of such information and belief is given, the source or basis for that belief must be stated.

The other big lesson that everyone making a statement should take from the President’s memorandum is that a statement must be as concise as possible, whilst not omitting anything of significance.

It is easy to think that the longer the statement, the better it is for your case. This is not true – the judge will not want to read through a long statement, much of which is likely to be irrelevant. As a general standard, said the President, a witness statement should not exceed 15 pages in length (and very often it does not need to be nearly as long as that).

A statement is an important part of preparing a case. It therefore needs to be done properly, preferably with the help of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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As we explained here recently, if you wish to apply to the court for a child arrangements order, a prohibited steps order or a specific issue order then you will need to complete an application form known as ‘Form C100’.

But there is another form that you may also need to complete: the Form C1A.

So when do you need a Form C1A, and how do you complete it?

Sadly, domestic abuse is often a factor in applications for children orders, and when allegations of abuse are made the court is under an obligation to determine the truth of the allegations, and consider whether they should have a bearing upon whatever order the court makes.

Obviously, the court needs to be told about the abuse at an early stage in the proceedings, and this is where the Form C1A comes in. If the children have suffered from, or are at risk of suffering from, harm as a result of domestic abuse you should complete a Form C1A, setting out brief details of the abuse.

And it is important to note that the abuse does not have to have been directed at the child. Abuse of a parent can also be relevant, especially if it is witnessed by a child.

Turning to the form, one of the first things it requests from you is a contact telephone number. However, if you have suffered abuse from the other parent you may have changed your phone number and kept it secret from them, in order to protect yourself. In such a situation you should not give a number on the form, but rather complete a separate Form C8, which gives your contact details to the court, but keeps them private from the other party.

Perhaps the most important part of the form is section 2, in which you give details of the domestic abuse that you and the children have suffered. The form does not give you much space to do this, but don’t worry – you will be given an opportunity later in the proceedings to file a detailed statement and, if the case goes to a contested hearing, to give oral evidence in court.

So you should keep the details quite brief. But you should also keep them relevant. Minor incidents, or things that are unlikely to have a bearing upon the final order that the court makes should be omitted (although you can always refer to them later, if necessary).

A good rule of thumb when considering what incidents to mention is ‘first, last, and worst’. The court will want to know when the abuse began, whether it is continuing, and how bad it is. ‘First, last and worst’ will ensure that the court has this information, although it does not of course mean that other serious incidents should not also be mentioned.

Moving on, the other really important part of the form is section 5, in which you set out what you want the court to do about the abuse, and how you think it should affect any final order that the court makes.

So far as the latter is concerned, the most common effect of a finding of domestic abuse by the court is to restrict the amount of contact that the abusive parent has with the children. This can mean that the contact is supervised (for example at a contact centre), that it is restricted to indirect contact only (for example by telephone or email only), or that there is no contact at all – although this is quite unusual.

Lastly, if you are in fear of meeting the other party at court then you can request the court to take certain protective measures, in section 7 of the form. These include providing you with a separate entrance to the court, providing a protective screen for you in the courtroom so that the other party can’t see you, and even allowing you to give evidence via a video link.

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If you wish to apply to the court for a child arrangements order, a prohibited steps order or a specific issue order then you will need to complete an application form known as ‘Form C100’.

The form can be a little daunting for non-lawyers, so here are some tips to help you complete it.

The first thing you need to tell the court is what order or orders you want the court to make. There are three options:

A Child Arrangements Order – An order setting out with whom the child should live, and if with only one parent, what contact the child should have with the other parent. This is the most common type of order.

A Prohibited Steps Order – An order that no step which could be taken by a parent in meeting their parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. This may be used, for example, to prevent a parent changing the child’s name.

A Specific Issue Order – An order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child, such as which school the child should attend.

You need to tell the court whether you need its permission to make the application. Parents do not need permission but others, including grandparents, do.

Perhaps the most important section of the form is where you tell the court your reasons for making the application.

There may be many things that you would like to say about the other parent of your child, but before you say anything you should ask yourself: is this actually relevant to the issue between yourself and the other parent? The court will not want its precious time wasted on matters that are not relevant.

So what is relevant? Well to give you an idea, there is a list of factors that the court must take into account when deciding whether to make an order relating to a child. These include the ascertainable wishes of the child, the child’s needs, the effect on the child of any change in their circumstances, any harm that they have suffered or are at risk of suffering, and how capable the parents are of meeting the child’s needs.

If you have previously prepared a parenting plan (a written plan worked out between the parents after they separate, covering the practical issues of parenting), this should be sent to the court with the form.

Lastly, you need to tell the court whether the application is urgent, and if so, why. Urgent applications can be heard by the court at short notice and even without informing the other party, although any order made by the court will usually only be temporary.

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In a speech to the Jersey International Family Law Conference last week the President of the Family Division Sir Andrew McFarlane set out his plans for a new approach to the resolution of disputes between parents over arrangements for their children.

The President said that he is concerned in particular that parental disputes are mostly now dealt with by the court, and the current system can often only make the conflict between the parents worse.

The President therefore set out his plans for an improved system, which would aim to resolve parental disputes away from court wherever possible, and where that was not possible to have the courts adopt a less adversarial approach.

These ideas, he said, are to be piloted early next year, in courts in North Wales and Dorset.

Specifically, the pilots aim to develop a new, more investigative, approach which will (among other things) promote all forms of non-court dispute resolution (in particular mediation); test out different ‘pathways’ for cases to take depending upon their type and complexity; develop a ‘Child impact’ statement, so that parents can see from the child what impact or effect the proceedings are having upon them; and facilitate more court reviews after final orders, to reduce the number of returning cases.

Alongside this, the pilot areas will develop the concept of a ‘Family Hub’ which will operate separately from the court, and to which families will be directed as the first port of call, rather than issuing a court application. The Hub will in turn refer parents to local agencies that may be able to help with their problems, to mediation, to a parenting programme, to CAFCASS or, where appropriate, to the court.

The President said that these and other plans were aimed at helping to keep parents out of court when possible, and when not possible to improve the way in which the courts deal with cases.

The President expressed the hope that these and other improvements to the system will be in place across the country before he retires in three years’ time.

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When parents are unable to resolve a dispute over arrangements for their children then one of them may apply to the Family Court for the court to decide the matter.

The Family Court proceedings will follow a procedure laid down by the rules. The first step in the procedure, once the application has been issued, is called the First Hearing Dispute Resolution Appointment, or ‘FHDRA’ for short.

Both parents must attend the FHDRA, and a Cafcass (court welfare) officer will also attend.

So what exactly is a FHDRA?

As the name suggests, the aim of the FHDRA is to provide an opportunity for the parents to be helped to an understanding of the issues that divide them, and to reach agreement.

At the FHDRA the judge, working with the Cafcass Officer, will seek to assist the parents in conciliation, and in resolution of all or any of the issues between them. Any issues that cannot be resolved will be identified, and the Cafcass Officer will advise the court of any recommended means of resolving these issues.

If the parents are able to reach a full agreement then the court may make an order reflecting the terms of the agreement.

If the parents are not able to reach a full agreement then the court will give directions as to how the case should proceed.

Typically, the court will direct that Cafcass investigate the case and prepare a report for the court, usually containing a recommendation as to what final order the court should make.

The court may also direct that a ‘fact-finding’ hearing take place, for the court to decide the truth of any allegations made by either party, for example allegations of domestic abuse.

Lastly, the court will fix a date for the next hearing, assuming there is no fact-finding hearing. This will usually be a ‘Dispute Resolution Appointment’, the purpose of which is to see if the case can be settled by agreement, before a final hearing takes place.

The FHDRA plays a very important role in any children application. In fact, it is arguable that it is the most important hearing in the application – when the future progress of the application, and even its outcome, can be decided.

It is therefore essential that you take expert legal advice before attending a FHDRA. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Almost every unresolved dispute between parents over arrangements for children is referred to the Children and Family Court Advisory and Support Service (‘Cafcass’), which looks after the interests of children involved in family proceedings. Cafcass will investigate the case and report back to the court, usually with a recommendation as to what orders the court should make.

And sadly in many of those cases there are issues regarding alleged domestic abuse. For example, where a father is seeking contact with his children the mother may allege that the father has been abusive towards her. Such cases must, of course, be very carefully handled by all involved, including Cafcass.

Last year the Ministry of Justice set up an expert panel to look into how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. The panel made a number of serious findings in relation to both the processes and the outcomes for parties and children involved in such proceedings.

In response to those findings Cafcass has published an improvement plan which provides key priorities to strengthen its practice with children and families who have experienced domestic abuse, being clearer about how they explain their decisions to them, and improving the effectiveness of their management oversight.

Cafcass Chief Executive Jacky Tiotto said:

“We are committed, alongside other agencies in the family justice system, to improving all of our work with children and families who have experienced domestic abuse. It’s been so important to build on what we heard from the Ministry of Justice’s Expert Panel on Harm, and our own subsequent work to review and understand the quality of our practice and improvements that we need and want to make. We hope that the learning from our listening over the last year is explicit in our improvement plan and our wider learning and development programme. Children and families who experience our support and help deserve the very best from us and we want to offer advice to the family court that promotes the best interests of children and secures their safety.”

Hopefully, the plan will mean will mean a better service for all children and families who have experienced the scourge of domestic abuse.

Obviously, domestic abuse is a very serious issue in cases concerning children, and can have a significant bearing upon the outcome. Whether you are the victim or the alleged abuser you should therefore seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Divorce of course arises from past events that led to the breakdown of the marriage. But that does not mean that the divorce itself must be all about what has happened in the past.

All too often divorcing couples become mired in arguments about the past, but all that achieves is more animosity, more delay and more legal costs.

Of course, it can be difficult to put the past behind you, especially when those events had such a significant effect upon your life. The temptation to raise past events in divorce proceedings can be overwhelming.

And it doesn’t help when one sees divorcing celebrities dragging up the lurid history of their marriage in the popular media every day. The idea that this is ‘normal’ behaviour by divorcing couples is a trap that is all too easy to fall into.

And many people going through divorce think that the past behaviour of their spouse will be of crucial interest to the court in determining what orders it should make.

But, save where there has been domestic abuse, the court is largely not concerned with past behaviour. The real concern of the court is what should happen in the future.

Let us look at the three main things involved in divorce proceedings: dissolving the marriage, sorting out arrangements for children, and sorting out finances.

It is true that at present if a person wants to get divorced before they have been separated for two years they will need to prove that their spouse has committed adultery or behaved unreasonably. But the court isn’t really concerned about these things, only that the marriage has irretrievably broken down. And findings of adultery or unreasonable behaviour will usually have no bearing whatsoever upon other matters, such as children and finances.

And when no-fault divorce comes into force, now expected to be next year, then it will not be necessary at all to show why the marriage broke down.

Arrangements for children are all about the future: deciding how best the children should spend the rest of their childhood. Of course, past events may be relevant to that decision, but in the vast majority of cases they do not change the simple position that children should continue to have as full a relationship as possible with both parents.

Lastly, sorting out finances on divorce is in most cases driven by the future financial needs of each party, not about what has happened in the past. In particular, bad past behaviour by one party will be of no relevance to the financial settlement, save in the most extreme of cases.

You can’t change the past, but you can change the future. Divorce is not about what has gone before, but about making a new start, and ensuring you have the best arrangements in place for that future, for yourself, and especially for your children.

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Family Law Cafe provides a genuinely tailored technology-based service, allowing customers to be as involved or as removed as they wish, and to benefit from as much or as little support as they require.

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The Court of Appeal has given guidance upon the approach that the Family Court should take to allegations of domestic abuse when dealing with disputes between parents over arrangements for their children.

As we mentioned here in this post, the court was hearing four linked appeals by mothers involved in proceedings relating to their children, in which the mothers had raised issues of domestic abuse.

As the Court of Appeal pointed out, allegations of abuse are often made by one or both parents in children cases. In fact, it is estimated that at least 40% of such cases now involve allegations of domestic abuse.

When allegations are made, the court must decide, usually at an initial ‘fact-finding’ hearing, whether they are true and what effect, if any, they should have upon the arrangements for the children.

This can obviously be a difficult task, balancing on one hand the safety and welfare of the child, and on the other hand the ‘right’ of the child and parent to have a continued and full relationship.

The guidance given by the Court of Appeal focussed primarily upon the issue of coercive and controlling behaviour.

Coercive and controlling behaviour involves one party seeking to restrict the other, over a period of time. It can take many forms, such as the abuser preventing the other party from spending time with their family and friends, or controlling them by restricting their access to money.

Emphasising the importance of such behaviour, the Court of Appeal said that the courts should prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established, over and above the determination of any specific factual allegations.

The Court of Appeal stated that where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be considered because of their potential relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation (such as an allegation of rape) was so serious that it justified determination irrespective of any alleged pattern of coercive and/or controlling behaviour.

The guidance was welcomed by Lucy Hadley of the domestic abuse charity Women’s Aid, although she expressed concern that it did not go far enough, saying:

“…we are severely disappointed that the Court of Appeal did not call for an end to the ‘contact at all costs’ approach, which is putting women and children experiencing domestic abuse in danger … We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors. We will continue to fight for a change to the presumption of parental involvement in domestic abuse cases – for good.”

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If you are a victim of domestic abuse you should seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The biggest divorce news of the week is of course that Kim Kardashian has reportedly filed for divorce from Kanye West. This latest celebrity divorce has already filled huge numbers of column-inches in newspapers and magazines across the world.

Our fascination for celebrity divorce seems to know no bounds. But can we actually learn anything useful from them? Anything that may be of relevance to ‘ordinary’ people going through marriage breakdown?

Well, sometimes we can, especially when (to the obvious delight of newspaper editors) the divorce gets ‘nasty’. Hopefully, Ms Kardashian and Mr West’s divorce, if it goes ahead, will not fall into this bracket, but sadly many celebrity divorces do, just as do many divorces involving ‘ordinary’ people.

Watching the awful spectacle of a nasty celebrity divorce play out in front of the world’s media must surely act as a warning to all: don’t let this happen to me.

And you don’t have to let it happen. You are in control. There are many things that you can do to avoid an unpleasant divorce. We have given much of this advice here previously, but it merits regular repetition.

Put the animosity of the breakup behind you – Obviously, many marriage breakdowns involve considerable animosity, and a simple mistake that parties make is to carry that animosity over to the divorce proceedings.

This can take many forms, from making irrelevant allegations against the other party, to seeking unrealistic outcomes. All of which will, of course, simply add to the stress, cost and time that the case will take to resolve.

Obviously, it is easy to say that animosity should be left behind, but hard to do it. However, all parties should try.

Concentrate on what is important – The important things in a divorce case are firstly sorting out arrangements for any dependent children and secondly sorting out the financial settlement.

But all too often parties will get side-tracked by other matters, or by matters that they think are relevant to children or finances, but actually are not. And this is where our next point comes in:

Follow advice – Take the best legal advice you can, and follow it. Your lawyer will tell you what is important or relevant, and what is not, and will ensure that you concentrate on the issues that really matter.

We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Consider mediation – Lastly, remember that court proceedings are not the only way to resolve a family dispute. Try to resolve the matter by agreement, and if that is not possible, consider using mediation as a way of resolving matters.

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The family courts are, of course, open to all, irrespective of means or social status. However, a new piece of research indicates that the users of the courts are not spread evenly across all strata of society.

The research was carried out by the Nuffield Family Justice Observatory, which aims to support better outcomes for children, by improving the use of data and research evidence in the family justice system in England and Wales.

The research examines trends in demand by parents in England for the family courts as a means of resolving disputes over arrangements for their children.

The research found that separated parents in England who depend on the family courts to resolve such disputes are likely to live in the country’s most deprived areas. It also revealed a clear north-south divide in the number of applications being made, with rates being consistently highest in the North East, North West and Yorkshire and Humber regions, and consistently lowest in London and the South East.

The figures showed that in 2019/20, 30 per cent of applicants lived in the most deprived 20 per cent of the wider population, whereas just 13 per cent lived in areas in the least deprived 20 per cent.

The research also showed that in 2019/20, application rates in the northern regions ranged between 79 and 81 per 10,000 families with dependent children, but were just 44 per 10,000 in London and 59 per 10,000 in the South East.

And despite these findings, there was also evidence of a ‘justice gap’, due to the abolition of legal aid for most private law family matters (i.e. cases not involving social services) in 2013, with a reduction in the proportion of applications brought by people living in the most deprived areas.

Commenting upon the research the President of the Family Division Sir Andrew McFarlane said: “The body of individuals who come to court with private family law problems are disproportionately represented from areas of which that are the most socially deprived… More cases come from the north of the country than the south. Should we be targeting our resources, attempt to engage with people before they come to court in a more specific way that meets the needs of those groups? I think so. Knowing something about who they are from this research is helpful.”

And the Observatory says: “It is critical that policy makers consider the role of deprivation as a factor in private law cases and its interaction with other factors such as conflict, domestic abuse and other child protection issues. This will be an important step in informing, and possibly reshaping, the response to private law need in both the court and out-of-court context.”

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The reader may have noticed in the news that the UK’s transition out of the European Union (‘EU’) was completed on the 31st of December (if not, where have you been?). What you may not realise, however, is that this has significant implications for any family law cases involving the EU.

Just to recap, the UK actually left the EU on the 31st of January 2020. However, there was then a transition period, during which the UK continued to abide by certain EU rules. The transition period ended on the 31st of December.

So what are the implications for family cases involving the EU? (Note that what follows relates only to cases involving the courts of England and Wales.)

There are two main sets of rules that apply to family cases in the EU. One, known as ‘Brussels II’, deals with jurisdiction and the cross-border recognition of judgments. The other, the Maintenance Regulation, sets out rules regarding maintenance cases.

Both sets of rules continued to apply to cases in England and Wales until the 31st of December, but have both now been revoked. This means that they do not apply to any cases starting after the 31st of December.

What does this actually mean? Well, there will be changes in the way it is decided what country’s courts should deal with divorce and children cases, and how court orders relating to such cases made in an EU country are recognised (or not) by the courts of this country. There will also be similar changes relating to maintenance cases, including the enforcement of maintenance orders made in another country.

The details of these changes are quite technical, and are beyond the scope of this post. The thing to take from all of this, though, is that if you are or may be concerned with a family case involving the EU then you really need to instruct an expert family lawyer, who can guide you through the changes. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

Finally, it should be mentioned that the rules relating to international child abduction, and the return of abducted children, have not changed, as those rules are incorporated into our law. If your child has been abducted, or if you believe that they are at risk of being abducted, then you should instruct an expert family lawyer immediately – again, Family Law Cafe can help you find an expert.

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The Family Justice Board, which oversees and directs the family justice system, has produced a statement that summarises the priority actions it intends to pursue in response both to immediate pressures within the family justice system, and to bring about longer-term reform.

The Board says that increasing numbers of children have experienced delay to the court proceedings in which major decisions will be made about their lives. Backlogs in private law cases (i.e. children cases not involving local authorities) have increased by 18% since before the start of the March lockdown. For those cases being heard, the average time to conclude a case is now 29 weeks.

HM Courts & Tribunals Service (‘HMCTS’) estimates that private law cases may not return to pre-Covid levels for another three years.

The Board reports that to deal with these issues HMCTS has recruited approximately 900 additional support staff, with currently around 700 further appointments sought; that approximately £3.5m additional funding has helped Cafcass, which looks after the interests of children involved in family proceedings, increase staffing levels to respond to record levels of open cases; and that a programme of recruitment to increase judicial capacity is ongoing.

The Ministry of Justice has also announced additional ‘Nightingale’ courtrooms, to bolster the national effort to tackle the impact of coronavirus on the justice system.

As to the future, the Board says that immediate recovery priorities include “changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.”

Where appropriate, couples will be encouraged to resolve disputes out of court, for example via mediation, thereby reducing the pressure on the court system.

Another way that pressure may be reduced is by more hearings being dealt with by the court ‘on the papers’, without the parties having to attend court.

Longer term reform plans include a revised system to deal with private law cases, in which issues are identified at an early stage in cases, so that the appropriate resources are allotted to each case. Where relevant, courts will also utilise a ‘problem-solving’ approach to the resolution of cases, whereby the court looks at ways of resolving problems faced by separating families, such as drug and alcohol abuse.

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A multi-disciplinary group of family law experts has recommended that in any dispute between parents over arrangements for children the rights of the children be put first, and that the court should be the last resort in resolving the dispute.

The Family Solutions Group was formed earlier this year, with a brief to give fresh and focused attention to improving the experiences of, and opportunities for, separating families away from the Family Court. The Group’s report What about me?: Reframing Support for Families following Parental Separation, has just been published.

The report observes that the current processes for resolving disputes over arrangements for children (in or out of court) tend to operate largely for parents. The group proposes the creation of a framework of directly accessible community-based services for children and young people whose parents separate, offering them information, consultation, support and representation.

The group also recommends that there be a presumption that all children and young people aged 10 and above be heard in all issue-resolution processes outside of the courtroom.

As to court proceedings, whilst the group acknowledges that the need for swift and unimpeded access to the Family Court is rightly recognised as vital for some families, particularly where there are safety concerns, the group nonetheless reframes how we should consider the arrangements for issue resolution in and out of the court system. Significantly, it encourages all involved in such disputes to recognise the fact that many parental disagreements about children following separation are not legal disputes, and that a legal response may indeed be unhelpful for many families.

Commenting on the report the President of the Family Division Sir Andrew McFarlane said:

“It is thought that about 40% of all separating parents bring issues about their children’s care to the Family Court for determination, rather than exercising parental responsibility and sorting problems out themselves. This figure is both startling and worrying. Where there are no issues of domestic abuse or child protection, parents ought to be able, or encouraged, to make arrangements for their own child, rather than come to a court of law and a judge to resolve the issues.

“The number of these private law applications continues to increase, and the trend is that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be in all cases where domestic abuse or child protection are not an issue.”

You can read the full report here.

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A remarkable case was published last month in which a 41 year-old man sought to make a claim for financial support from his parents. The claim failed, but the case raises the question: when can an adult child make a financial claim against their parents?

Normally of course financial claims for children are made on their behalf by a parent, whilst the child is still a minor, i.e. under 18. However, it is possible for an adult child to make a financial claim against their parents, albeit in very limited circumstances.

Note that this post does not refer to claims by an adult child against the estate of a deceased parent – such claims are not unusual. And nor does it refer to civil money claims by a child against a parent, such as debt claims.

So what ‘family law’ claims can a child make against their parent(s)?

Since 1993 child maintenance claims have of course usually been made under the Child Support Act. However, the Act only provides for child support maintenance claims to be made by a parent or carer of the child – it does not include provision for adult children to claim maintenance for themselves.

There are, however, ways in which an adult child can make financial claims against their parents. In summary, there are provisions under which they can claim maintenance or even a lump sum from either or both of their parents.

But there are limitations to such claims, depending upon what type of claim is being made. We will not go into detail, but two particular limitations apply in all cases: a court can only make an order against a parent if:

1. The child is, will be or (if an order were made) would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while they are in gainful employment; or

2. There are special circumstances which justify the making of an order. ‘Special circumstances’ is not defined, but it is generally thought to refer in particular to cases in which the adult child suffers from a disability. There may, of course, be other types of special circumstance, but it is likely to be very rare for a claim to be allowed on this basis.

In short, the law generally considers that a parent’s financial obligations towards their child cease when the child reaches the age of 18 or, if the child is then still financially dependent upon them, when the child is no longer dependent. The child will usually be no longer dependent when they finish education, unless they suffer from a disability, in which case the dependency could be for life.

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If you are, or may be, involved in making an application for maintenance or financial provision for a child then you should seek expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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A judgment handed down last Friday contains an important lesson for all parents involved in disputes over arrangements for their children.

Such disputes can throw up many issues. Some of those issues will of course be of great importance, requiring the intervention of the court. But many of the issues are actually comparatively trivial, although it may not seem that way to the parents.

In the judgment the judge warned parents against clogging up the courts with unnecessary children applications.

He gave examples of the sort of applications he was referring to (all of which arose before him in the previous month):

“i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction? iii) How should contact be arranged to take place on a Sunday afternoon?”

Other judges, he said, have given him many other, similar examples.

He concluded:

“…the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.”

It is a message that should be heeded by all parents involved in disputes over arrangements for their children: before you rush off to court, stop and think whether you really need to. Can you resolve the matter without going to court, possibly via mediation?

And remember the warning: the courts are very busy – if you waste court time then you could be criticised by the judge, and even sanctioned, for example by being ordered to pay the other party’s costs.

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If you are contemplating making an application to the court in relation to a dispute over arrangements for children then we would strongly recommend that you first seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Image: J Taylor / M4 Bus Lane from Osterley Lane bridge, licensed under CC BY 2.0.

When parents separate the most common scenario is that their children will spend most of their time living with just one of the parents, either by agreement between the parents, or in accordance with a child arrangements order.

Under what circumstances, though, will the court alter this fixed arrangement, ordering that the child should spend most of its time living with the other parent (what used to be known as a ‘transfer of residence’)?

Perhaps the first thing to say is that if the change in arrangements is agreed between the parents, then the court will almost certainly go along with it, although in such circumstances a court order may not actually be necessary.

All about welfare

Otherwise, if the issue of a possible change in living arrangements is contested by the parents then, as always, what the court decides to do will be dictated by what is best for the welfare of the child. The court will decide this by reference to the ‘welfare checklist’, as we explained in this post.

So if the child’s welfare dictates that there should be a change in the child’s living arrangements, then that is what the court will do.

For example, one of the factors on the welfare checklist that the court should take into account is the child’s ascertainable wishes, considered in the light of the child’s age and understanding. Thus if, for example, an older child expresses a clear wish to live with the other parents, and if the other parent has suitable accommodation, then it is likely that the court will order a change of living arrangements.

But perhaps the primary issue that could lead to a change of living arrangements is another factor in the checklist: any harm which the child has suffered or is at risk of suffering. If the court finds, for example, that the child has suffered harm whilst living with one parent then it may order that the child should live with the other parent.

One of the most notable illustrations of this is when the court makes a finding that the parent with whom the child is living has alienated the child from the other parent. In such a case the court may, as a last resort, order that the child should be removed from the alienating parent, and move to live with the other parent.

Of course, whenever it is considering the possibility of ordering that the child should live with the other parent then the court must also consider another of the checklist factors: the likely effect on the child of any change in his or her circumstances. If the court finds that the change could be detrimental to the child, then it will only order the change if that detriment is outweighed by other factors.

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If you are considering a possible change of living arrangements for a child then we would strongly recommend that you first seek expert legal advice. Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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It is of course natural that when parents separate they will both want to spend as much time as possible with their children. This can often lead to situations in which one parent believes that the children should spend most of their time with them, and the other parent insists that the children should spend equal time with each parent.

So when are the courts prepared to make shared care orders?

Before we answer that, a note on terminology.

A shared care order is actually a type of child arrangements order. A child arrangements order specifies “with whom a child is to live, spend time or otherwise have contact, and … when a child is to live, spend time or otherwise have contact with any person”. Technically, therefore, when we talk of shared care orders, we are actually referring to shared ‘live with’ orders.

Note that this does not necessarily mean equal sharing time between each parent. It just means that the child spends substantial time living with each parent.

Note also that an order that a shared care order is not required to acquire equal status with the other parent, as some parents assume. A parent with a ‘lives with’ order and a parent with a ‘spends time with’ order (i.e. a contact order) have equal parental responsibility, assuming that they already both have parental responsibility, as is usually the case.

Shared parenting presumption

What the law does however state is that when a court considers arrangements for a child it should presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare. This is known as the ‘shared parenting presumption’.

Once again, however, the presumption does not mean that the child should spend equal amounts of time with each parent, just that each parent should play as full a role in the child’s life as the court thinks appropriate.

Considerations for the court

Obviously, there are practical matters to consider before making a shared care order. Both parents must have suitable accommodation, in particular sleeping accommodation, and must not live too far from the child’s school.

Otherwise, it really just boils down to what is best for the welfare of the child, as in every case concerning child arrangements. In deciding what is best for the child’s welfare the court will consider the ‘welfare checklist’, as explained in this post.

It used to be considered that shared care orders were only appropriate if the parents remained on good terms with one another, as shared care can require greater cooperation between the parents. However, it is no longer considered that this should be a requirement for shared care, and such orders are now made even in cases where the parents no longer have a good relationship with one another provided, of course, that the court thinks that this would be best for the child.

The last thing to say is that there is nothing special about equal shared care, whereby the child spends exactly half of its time with each parent. The court will not be specifically seeking to achieve this where it thinks shared care is appropriate and, indeed, equal time orders are comparatively rare. As always, the exact time the child should spend living with each parent is determined by reference to what is best for the child’s welfare.

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If you are considering seeking a shared care order then we would recommend that you seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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If there’s one truism about the law, it’s that a court order is worthless if it can’t be enforced.

Getting a contact order (that is, a child arrangements order providing for you to have contact with your child) may involve a considerable expenditure of time, stress, and expense. But getting the order may not be the end of the story. You must also be prepared to enforce the order, if the other parent does not comply with it.

So how do you go about enforcing a contact order?

Well, there are a number of options, but the system can be quite confusing, as the court will not necessarily take the enforcement option you request. We will therefore keep things simple, by setting out the main options that the court has on any application to enforce.

The first thing to say is that before it takes any enforcement action the court will take a number of steps, including ascertaining the facts, considering the reasons for any non-compliance with the contact order, and considering the welfare checklist, as explained in this post.

The things that the court can do when it hears an enforcement application include the following:

1. Refer the parents to a Separated Parents Information Programme (‘SPIP’). A SPIP is a course which helps the parents understand how to put their children first while they are separating, including helping parents learn the fundamental principles of how to manage conflict and difficulties.

2. Vary the child arrangements order, which could include a more defined order and/or reconsidering the contact provision or the living arrangements of the child.

3. Make a contact enforcement order. This is an order imposing an ‘unpaid work requirement’ on the person in breach of the contact order. The enforcement order will mean the person has to do between 40 and 200 hours of unpaid work, monitored by the probation service.

4. Make an order for compensation for financial loss, where the person seeking to enforce the order has suffered financial loss as a result of the failure to comply with the contact order, for example, where the cost of a holiday has been lost as a result of a contact order being broken.

5. Fine the person in breach of the contact order.

6. Lastly, the court can make an order committing the person in breach of the order to prison, although this is unusual, and such an order would normally only be made as a last resort, following several blatant breaches of the order

If you are considering applying to a court to enforce a contact order then we can put you in touch with an expert family lawyer to assist you in making the application. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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There are many misconceptions about what is relevant when the court considers what order or orders to make in relation to a child, and having such a misconception can obviously be damaging to a parent’s case.

It is therefore important to know what factors the court takes into account before making a decision. The factors are set out in what is known as the ‘Welfare Checklist’.

The paramount consideration when a court determines any question with respect to the upbringing of a child is the child’s welfare, and in deciding how the child’s welfare is best served the court will have regard to all of the circumstances of the case, in particular the factors set out in the Checklist.

Those factors are as follows:

1. The ascertainable wishes and feelings of the child concerned. These are considered in the light of the child’s age and understanding, thus they are unlikely to be given much weight by the court if the child is very young. However, as the child get older they will be given greater weight, so that with a much older child their wishes could even be decisive.

2. The child’s physical, emotional and educational needs. This really refers to any special needs that the child may have, rather than their general needs. Examples might be special health needs, or special educational needs.

3. The likely effect on the child of any change in his or her circumstances. This can be an important factor if the court is considering the possibility of the child moving to live with the other parent, or re-introducing contact between the child and a parent, after a long period when there was no contact.

4. The child’s age, sex, background and any characteristics of his or hers which the court considers relevant. Note, however, that there is no rule that specifies that a child of a certain age or sex should live with one particular parent.

5. Any harm which the child has suffered or is at risk of suffering – clearly, the court will take into account any harm that a child has suffered at the hands of one parent, or the risk of any such harm occurring in future. Thus, for example, the court might order that any contact between the child and the parent be supervised initially, to minimise the risk of harm.

6. How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs. This is only rarely likely to be relevant, and certainly does not imply any bias towards either mothers or father, but there may be cases in which there may be questions over the capability of a parent.

7. Lastly, the court must consider the range of different types of order available to the court in the proceedings in question. We will not go through the full range of available orders here – suffice to say that the court can make any order that it considers to be appropriate. In particular, it should be noted that the court is not limited to making just the types of order(s) that the parents have applied for.

In addition to the above, the court should also presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare.

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If you are, or may be, involved in a children case then we would recommend that you seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Juliane Liebermann on Unsplash

The legal world is changing, perhaps more quickly than ever in history. Ways of doing things, written in stone for decades, if not centuries, are being swept away.

The Covid 19 pandemic may have accelerated them, but these changes have been underway for some time, and are surely inevitable.

We are talking about the move towards conducting family law work online. We are seeing this in particular with remote court hearings due to the pandemic, but before the pandemic there was already a move towards making applications to the court online.

Until recently if you wanted to make an application to the court you had to do so on paper. You then either had to go to the court to issue it, or you had to post it to the court. All of which involved unnecessary work and delay – for example, if the court was not happy with the paperwork, it would post it back to the sender, the sender would have to amend it, and then return it to the court.

Now the age of paper applications is coming to an end. One of the latest manifestations of this is the online child arrangements application.

Back in February the Ministry of Justice and HM Courts & Tribunals Service (‘HMCTS’) launched a new online service enabling parents and their legal representatives to apply to the court digitally to make child arrangements.

The new service is more convenient, faster and avoids many of the errors or omissions that paper applications used to contain, by picking them up during the online process. When it was launched Richard Goodman, HMCTS Change Director commented:

“For parents, it can often be a stressful, challenging time when trying to arrange visits to see children and this system is designed to make that process as straightforward as possible.

“As the court reform programme progresses, we will continue introduce services that make the justice system easier to navigate and more efficient for all those that use it.”

It is already possible to issue divorce proceedings online, and soon almost all family law business will be conducted online (although many hearings will take place in court buildings again, once the pandemic is over).

All of this of course fits in perfectly with Family Law Cafés vision of how family business should be conducted in the twenty-first century. There is no reason now why family law litigants should be required to physically contact their lawyers every time they need information or advice regarding their case, or to rely on the postal service when they wish to take a step in the proceedings.

The modern way to conduct a family law case is online, from wherever you are, whenever you wish.

If you require advice regarding sorting out arrangements for children, Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Austin Distel on Unsplash

Parental relationship breakdown can obviously lead to problems in relation to contact between children and (one of their) parents. But it can also create a rift between the children and their grandparents, particularly on the side of the parent with whom the children are not living.

What rights do grandparents have in such a situation?

Well, firstly it is not appropriate to talk of ‘rights’. A grandparent (and even a parent) does not have ‘rights’ in relation to the (grand)child. It is all a question of what is best for the children, as we will explain in a moment.

But grandparents are not in the same position as parents. Before they can apply to a court for an order allowing them to have contact with their grandchildren, they must first obtain the leave (or permission) of the court to make the application.

When deciding whether to grant leave the court must have regard in particular to two matters:

1. The grandparent’s connection with the child. This means that a grandparent who has had a close relationship with the child is more likely to be granted leave; and

2. Any risk there might be of the proposed application disrupting the child’s life to such an extent that the child would be harmed by it. This could, for example, mean that a serious rift between the grandparent and (one of) the parents could be a factor, but it really boils down to the issue of the child’s welfare.

These matters may give the impression that many grandparents will be refused leave to apply for contact with their grandchildren. However, that is not the case. It is actually quite rare for a leave application to be refused.

Once leave has been obtained the grandparent can proceed with their application for a contact order. As indicated above, the court will decide what contact to order, if any, by reference to what is best for the welfare of the child.

In most cases the court will consider that the welfare of the child will be best served by the child continuing to have a relationship with their grandparents. Accordingly, most applications by grandparents are successful, although obviously one would expect the amount of contact ordered to be less, or less frequent, than the contact that might be ordered in favour of a parent.

If you are a grandparent seeking contact with a grandchild then we can put you in touch with an expert family lawyer to assist you in making an application. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Johnny Cohen on Unsplash

The Family Court has a range of orders available to it when deciding what arrangements should be made for a child. Most of these orders are fairly self-explanatory, but there is one in particular that gives rise to considerable confusion: the special guardianship order.

So what exactly is a special guardianship order, and what does it do?

Special guardianship orders are for situations when it is not possible or appropriate for the child to reside with its parents, or one of them. They are therefore made in favour of other relatives, or people who are not related to the child at all.

In such situations the court has a number of options: for example, it could make an adoption order, or a child arrangements order, regulating arrangements relating to with whom the child should live.

But sometimes something else is appropriate. An adoption order may be too final, shutting the parents out of the child’s life. And a child arrangements order may not give the person with whom the child is living sufficient ‘independence’ from the parents, who would still have a say in all decisions relating to the child.

Note the reference to with whom the child is living. Special guardianship orders are often made in favour of someone with whom the child is already living, such as a relative or foster carer. They can also be made in favour of others, including any guardian of the child, anyone who has the consent of all those with parental responsibility for the child, and anyone who has been given permission by the court to apply for a special guardianship order.

So what is the effect of a special guardianship order?

Firstly, the child will live permanently with the special guardian, although they will normally retain a relationship with their birth family, including having regular contact with their parents.

Secondly, the special guardian will have parental responsibility for the child. The child’s parents will continue to have parental responsibility, but it will be limited, meaning that the special guardian will be able to take many decisions relating to the child, without needing the approval of the parents (unlike the situation where a child arrangements order is made).

Thirdly, the special guardian will have an additional ‘protection’ in that whereas if a child arrangements order were made then the child’s parents could apply as of right to vary or discharge that order, when a special guardianship order is made the parent must first obtain the leave of the court before making any such application.

In short, an order gives the special guardian a status in relation to the child that is greater than a child arrangements order, without severing the child’s links to the parents, as an adoption order would do.

Special guardianship orders usually last until the child is 18 years old.

Obviously, this is just a very brief overview of the law on special guardianship. If you are considering applying for a special guardianship order then you should seek the advice of an expert family lawyer. Family Law Café can put you in touch with such an expert – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Steve Shreve on Unsplash

As any Family Law Café customer will know, technology can be a blessing, reducing the stress involved in family disputes, by ensuring that you can request answers to questions and have access to documents, whenever you wish, and wherever you are.

But technology can also be a curse if its user is not careful, as a High Court judge recently discovered.

Mrs Justice Judd was dealing with a very sad child care case in which the child’s brother had died after suffering a catastrophic head injury. A fact-finding hearing was fixed, for the court to decide who, if anyone, was responsible for the injury.

The hearing was a ‘hybrid’ one, as are many hearings during the pandemic, taking place with some parties in court and other parties taking part remotely, via video link.

The child’s mother appeared in court. In the course of her evidence she complained of feeling unwell, on one day with back pain and blurred vision, and on the next day she said she had developed a cough. The hearing was stopped, and the mother allowed to go home.

The judge then returned to her room, and her laptop was brought to her. The judge then had a conversation with her clerk on the telephone, in which she made pejorative remarks about the mother, suggesting she was feigning illness to avoid answering difficult questions.

Unfortunately, the conversation was heard by the parties who had been taking part in the hearing remotely, as the video link on the laptop was still open.

The mother asked Mrs Justice Judd to recuse (i.e. excuse) herself from the case on the basis of bias. However, Mrs Justice Judd refused. The mother appealed against that decision.

The Court of Appeal allowed the mother’s appeal, finding that Mrs Justice Judd’s remarks about the mother would lead a fair minded observer to conclude that there was a real possibility that she was biased.

Accordingly, the case was remitted back for rehearing, before a different judge.

The case is obviously an example of when a judge should recuse themselves for possible bias, but it also has a moral for all of us: when using technology, make sure that anything that is private or confidential remains just that. Whatever technology you use for such matters should be kept secure, and if necessary password-protected. And remember to log out of secure sites like ours when you have finished using them!

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Photo by Kari Shea on Unsplash

The Ministry of Justice has announced a ‘major overhaul’ of how the family courts deal with domestic abuse.

The overhaul is in response to a report by a panel of experts which looked at the risk of harm to children and parents in cases involving disputes between parents about the arrangements for their children. The panel raised concerns that victims of domestic abuse and children were being put at unnecessary risk.

The new measures announced by the Ministry included:

– Giving an automatic entitlement for special measures in the courtroom for victims of domestic abuse going through the family courts, such as separate waiting rooms, separate building entrances and protective screens to shield them from their alleged abuser in court.

– Giving judges stronger powers to prevent abusers repeatedly dragging a victim back to court over child arrangements.

– Trialling an investigative, problem-solving approach in private family law proceedings, in order to reduce conflict. This could see judges decide what evidence to investigate, rather than both parties presenting their cases against each other.

– Reviewing the presumption of ‘parental involvement’ and whether the right balance is struck between the risk of harm to children and victims, with the right of the child to have a relationship with both parents.

Commenting on the measures Dame Vera Baird QC, Victims’ Commissioner for England and Wales said:

“This panel of experts has dug deep to understand, and address, the serious harm to domestic abuse victims and their children caused over many years by the presumption of contact, and the intensely adversarial process present in the family courts.

“With children’s voices rarely heard in these proceeding and even more rarely heeded, victims and children are in need of better protections from abusive perpetrators.

“I welcome the report, its recommendations, and the implementation plan which will help to address these, and other concerns. It has my full support. And I call on the government to action this as a matter of urgency.”

You can read the report here.

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If you would like to know more about protecting yourself from domestic violence and abuse, Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Jordan Whitt on Unsplash

Surge in cases

It has been reported that lawyers have been inundated with inquiries from separated parents arguing about where their children should stay during the Coronavirus lockdown. The report suggests, amongst other things, that some parents are using the lockdown as an excuse to stop the other parent from seeing their children, citing the risk of the children catching the virus as a reason.

So what can you do if the other parent is stopping you from seeing your children, in breach of a contact order (i.e. a child arrangements order specifying when your children are to live, spend time or otherwise have contact with you)?

Well, there are a number of ways to enforce a contact order. However, before we look at some of them, we should make a couple of points.

Initial considerations

Obviously, enforcing a contact order involves taking your case back to the court and asking the court to enforce the order. The family courts are still operating under the lockdown, but unfortunately the lockdown and social distancing rules are having a serious effect upon the amount of cases that the courts can deal with. You may therefore have to wait considerably longer than usual for your case to be heard, and this situation is likely to last for some time to come.

The second point is that, as we mentioned here recently, the President of the Family Division has specifically stated that where parents do not agree to vary the arrangements set out in a child arrangements order, but one parent is sufficiently concerned that complying with the arrangements would be against current public health advice, then that parent may vary the arrangement to one that they consider to be safe. However, that parent must bear in mind that if the case subsequently goes back to court the court is likely to look to see whether they acted reasonably and sensibly, in the light of official advice.

Enforcement methods

If you ask the court to enforce the contact order the court will want to know why the order has not been complied with, and may considering varying the terms of the order to ensure future compliance. This may also involve reconsidering the children’s living arrangements.

Otherwise, if there is no good reason why the other parent has not complied with the order then the court can take various actions, including:

1. Making an enforcement order, requiring the parent in breach of the contact order to do between 40 and 200 hours of unpaid work.

2. Making an order requiring the parent in breach to compensate you for any financial loss you have suffered as a result of the breach.

3. Imposing a fine on the parent in breach of the contact order.

4. Lastly, in the most serious cases, the court can commit the parent in breach to prison for contempt of court.

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Obviously, the above is just a very brief outline of the law. For further advice in relation to your own circumstances, including how to go about applying for enforcement, you should consult an expert family lawyer, before taking any action. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click here, and fill in the form.

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Photo by Szilvia Basso on Unsplash

The Coronavirus pandemic has imposed major restrictions upon our movements. The UK is now in ‘lockdown’, with most people being restricted to their own homes, save for certain limited purposes. Even when we do leave our homes, we must adopt ‘social distancing’, keeping at least two metres away from anyone not from our own household.

But what if you are separated from the other parent of your children? We already know that in such cases children under 18 can be moved between their parents’ homes, but how exactly might the lockdown affect your child arrangements?

Child arrangements come in many forms, and exactly what type of arrangement you have will dictate how it will be affected. We have therefore divided child arrangements into five broad categories, as set out below.

However, before we look at those categories, here are three basic principles, as set out in guidance published last week by the President of the Family Division Sir Andrew McFarlane:

1. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.

2. Where parents do not agree to vary the arrangements set out in a child arrangements order, but one parent is sufficiently concerned that complying with the arrangements would be against current public health advice, then that parent may vary the arrangement to one that they consider to be safe.

3. Where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child, for example remote contact via telephone or Skype.

Shared care, including holiday arrangements

This is where your child spends substantial amounts of their time with each parent.

Obviously, any change in such arrangements could have a significant effect upon the child, and should therefore be considered very carefully. Try to agree arrangements with the other parent, and if you have to act unilaterally then bear in mind that you may ultimately have to explain your actions to the Family Court.

Many child arrangements orders include provision for the child to spend longer periods of time with a parent during school holidays. However, schools are of course now closed, and there are therefore no school holidays. In such circumstances it may be best to suspend school holiday arrangements.

Overnight contact

This is where the child spends most of their time with one parent but has overnight, or ‘staying’, contact with the other parent, for example one or two nights a week.

For the purposes of Coronavirus, the situation here is really very similar to shared care, and the same principles therefore apply.

Visiting contact

This is where the contact takes place during the daytime only.

If the visiting contact involves going to the other parent’s home, then again similar principles apply to those above, although any alteration in the arrangements may not have such serious implications for the child.

However, some visiting contact takes place outside the other parent’s home, for example taking the child to the park, or to some other public place. Obviously, the present restrictions upon movement may affect those arrangements.

Supervised contact, including at a contact centre

Sometimes contact has to be supervised by a third party, for example when it takes place at a contact centre. Obviously, this may not currently be possible, if the supervisor is not available. The National Association of Child Contact Centres reports that the Coronavirus outbreak has had an impact on the availability of some but not all child contact centres. For more information, see here.

Indirect contact

Contact need not of course be direct between parent and child. It can be indirect, for example by telephone, Skype, email, messaging or plain old letters and cards.

Here of course there is some good news: indirect contact is virtually unaffected by the Coronavirus. In fact, it should be encouraged, especially where direct contact is stopped or restricted.

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Obviously, the above just sets out some general principles and guidance. For further advice in relation to your own circumstances, you should consult an expert family lawyer. Family Law Café can put you in touch with an expert – call us on 020 3904 0506, or click the ‘Sign up’ button at the top of the page, and fill in the form.

You can read the President’s guidance here.

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Photo by Daiga Ellaby on Unsplash

Everyone is of course seriously concerned about the Coronavirus, and the restrictions that it is putting upon our lives. But what if you are contemplating divorce proceedings, or are in the midst of existing proceedings. How will the virus and the Government’s response to it affect you?

We are still here for you

Family Law Café continues to provide a full service, and we intend to do so for the duration of this emergency.

If you are an existing client then you can contact us as usual.

We are still taking on new clients, who can get in touch with us as outlined below.

And our service is online, so you can access it without having to leave your home. For further details of how our service works, see this post.

Expect delays

The courts are continuing to function. However, court hearings are now being conducted remotely, where possible.

In view of this, and possible court staff shortages as a result of the virus and the measures taken in response to it, you can expect cases to take longer.

Divorce proceedings can proceed entirely online, unless they are defended.

Children arrangements

Obviously, the restrictions upon movement will affect children arrangements between separated parents. The Government has, however, made clear that where parents do not live in the same household, children under 18 can be moved between their parents’ homes.

Of course, special care will need to be taken, and in some cases existing arrangements may have to be suspended. If you cannot agree matters with your (former) spouse, then you should seek legal advice. The President of the Family Division has issued guidance on compliance with child arrangements orders, which can be found here.

Financial remedies

You should also seek advice if you are concerned about the effect of the reduction in value of assets as a result of the financial instability caused by the virus.

Settlements that have not been finalised will normally take into account the current value of assets.

It is possible that settlements that have recently been finalised could be reopened, if there has been a significant change in the value of assets. However, this would be unusual – if you think it may apply to you, you should seek urgent legal advice.

Get in touch

For further information and advice upon any of the above matters, contact us. If you are a new client, call us on 02 03 9 04 05 06, or click the ‘Sign up’ button at the top of the page, and complete the form.

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Photo by Viktor Forgacs on Unsplash

Divorces are taking longer than at any time since December 2014, when the Ministry of Justice began publishing quarterly Family Court statistics.

The latest statistics, for the quarter April to June 2019, show that for those granted Decree Nisi in that period, the mean average time from the date of the divorce petition was 33 weeks, up 5 weeks from the same period in 2018, and the mean time from the petition to Decree Absolute was 58 weeks, up 3 weeks compared to the same period in 2018.

The statistics also show a decrease in the number of divorce petitions issued. There were 28,144 divorce petitions issued between April and June 2019, down 13% from the same quarter in 2018. Financial remedy applications also decreased by 5%, but private law children applications (primarily for child arrangements orders) increased by 3% compared to the equivalent quarter in 2018.

Private law children applications are also taking longer. In April to June 2019, it took on average 28 weeks for private law cases to reach a final order, up 3 weeks from the same period in 2018.

Elsewhere, other statistics published by the Ministry of Justice revealed that more family cases are being resolved by mediation. In the quarter April to June 2019 mediation starts increased by 22% and outcomes increased by 13%, compared to the same period last year.

You can find the Family Court statistics here.

If you would like advice about taking divorce proceedings, Family Law Café can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: Calendar, by Dafne Cholet, licensed under CC BY 2.0.

The summer holiday season is now in full swing. It can be a fraught time for separated parents, who have to make arrangements as to with whom the children will stay over the school holidays, and possibly also where they will go, for example where permission is required to take them abroad.

The best advice is of course to sort out holiday arrangements for children well in advance of the school holidays. That way, if it is simply impossible to agree the arrangements, then at least there will be time to ask the court to decide the matter.

Sometimes, however, it is just not possible to sort things out in advance, for example where a situation arises at the last minute. Previously agreed arrangements may also break down.

What do you do in such circumstances? What are your ‘rights’? Do you need the agreement of the other parent? If so, what is the best approach to take when dealing them? What if you can’t agree matters? And what matters are sufficiently urgent for the court to deal with them at short notice?

To answer these and any other questions you may have you should seek expert advice from a specialist family lawyer, as soon as possible. Family Law Cafe can help you find that advice. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image: beach, by ECraig4, licensed under CC BY 2.0.

A public call for evidence, or consultation, has been launched on how the family courts protect children and parents in private law children cases concerning domestic abuse and other serious offences. The call for evidence is part of a three-month project overseen by a panel of experts, aimed at throwing a spotlight on how the family courts manage the safety and well-being of children when there is a risk of domestic abuse.

Specifically, the call for evidence will focus on private family law proceedings. Amongst the questions it will ask are:

• How Practice Direction 12J, which relates to child arrangement cases where domestic abuse is a factor, is being applied. This includes its interaction with the presumption that involvement of both parents in the life of the child concerned will usually further the child’s welfare.

• How ‘barring orders’ are being used. These prevent further applications being made without leave of the court. Such applications could be used to re-traumatise those who’ve faced abuse.

• What is the impact on the child and parent victim where child contact is sought by someone alleged to have, or who has, committed domestic abuse or other relevant offences.

Justice Minister Paul Maynard said:

“Domestic abuse destroys lives, which is why survivors and their children must have every confidence that they will be protected in the family courts.

“Just this week we introduced legislation that will ban abusers from cross-examining their victims in the family courts, and throughout our review we will be engaging with victims across the country to make sure we are doing all we can to protect them further.

“The review – ordered by ministers in May – will also consider the level of encouragement victims are given to raise concerns, the standard of domestic abuse information shared with courts, as well as looking to better understand the different types of coercive control.”

You can find the consultation here.

If you are involved in a children case in which domestic abuse is a factor, you should seek expert legal help. Family Law Cafe can provide this. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal.

Image: parent/child shadow, by Anders Andersson, licensed under CC BY 2.0.

How to cut through court delays

Last week a headline appeared in a national newspaper declaring: “Long court delays lead to boom in private divorces”. But what exactly is meant by the term ‘private divorce’?

Of course, there is no such thing as a ‘private divorce’. Divorces are dealt with by the court, and that cannot be circumvented. However, parts of the processes connected with divorce can be dealt with privately, by the agreement of the parties.

The primary reason for agreeing to deal with matters privately is that, as the newspaper headline indicated, they can often be dealt with much more quickly than they would be dealt with by the court. Often, court hearings are fixed some way into the future, and then it is not unusual to find that the judge is too busy to deal with the case on the day fixed for the hearing, leading to further delays.

To get around this, many litigants are agreeing to go private in order to progress matters more quickly. The most common examples of this relate to financial remedy proceedings connected to the divorce.

At an early stage in financial remedy proceedings a ‘Financial Dispute Resolution’ (‘FDR’) appointment takes place, at which the judge will try to help the parties settle the matter by agreement, failing which they will give directions as to how the case should proceed. For a fee the parties can appoint a specialist family lawyer to carry out the FDR privately, usually much more quickly than the court would deal with it.

Another example is arbitration, whereby a trained family arbitrator will make a final decision on a family dispute, which will be binding upon the parties, just the same as a court’s decision. Again, arbitration is likely to be much quicker than waiting for the court to deal with the matter. For more detail about the arbitration process, see this post.

If you would like more information about private FDRs and arbitration, Family Law Cafe can help. To book a free initial consultation with us click the green button at the top of this page and fill in the form, or call us on 020 3904 0506.

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Image: PRIVATE, by Tristan Ferne, licensed under CC BY 2.0.

A new film starring Dame Emma Thompson has led to a call for the mandatory provision of independent advocates for children.

The film, The Children Act, is based upon a novel by Ian McEwan, and explores a fictional case concerning a 17 year old boy suffering from leukemia. The boy’s doctors want to perform a blood transfusion, but his parents, who are Jehovah’s Witnesses, object. Thompson plays the judge who has to decide whether or not the transfusion should go ahead.

The children’s charity Coram say that decisions relating to the welfare of children are often made by courts and public bodies without the children concerned being given a proper opportunity to put forward their views. This, they say, could be addressed by the provision of independent advocates, who could also provide the children with the necessary legal advice.

Commenting upon the issues raised in the film, and the complexities of cases in the family justice system, Kamena Dorling, Group Head of Policy and Public Affairs at Coram, said:

“A judge can consider the views of the child in a variety of ways: these could be ascertained from the child and included in a report to the court compiled by a Cafcass (Children and Family Court Advisory and Support Service) adviser after speaking to the child and their parent/s; through separate legal representation; through talking to the judge directly; and through the child giving evidence in court.

“The latter happens rarely and there is no automatic right for a child to attend or speak at court. In recent years, there has been debate as to how the family justice system can both safeguard children and ensure that they are able to participate meaningfully in legal proceedings. The previous President of the Family Division, Sir James Munby, has highlighted the lack of visibility of children within the system.

“Coram is committed to ensuring that children are encouraged and supported to express their views – not just with a legal framework that allows theoretical access to the court, but within the entire system. Children must understand their rights, the legal process they are going through and should be supported by their parents and/or the state every step of the way. They should be able to get legal advice if they need it. All support should be tailored to the individual child, with their welfare the top priority.

“Coram is calling for the mandatory provision of an independent advocate enshrined in law for all children and young people receiving or seeking care or support from the state.”

Family Law Cafe broadly agrees with the proposal, but wonders whether, in an already over-stretched family justice system, the necessary resources will be available to put it into effect.

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Image of Emma Thompson by Justin Harris (Flickr) [CC BY 2.0 ], via Wikimedia Commons.

The Child Poverty Action Group (‘CPAG’) has published its latest Cost of a Child report, showing what it costs to raise a child to age 18, based on what the public thinks is a minimum standard of living.

The report says that the overall cost of a child (including rent and childcare) is £150,753 for a couple and £183,335 for a lone parent.

Note that this is a minimum. For most parents, the actual cost is likely to be considerably higher.

Note also that the figure is higher for lone parents (including, of course, those who have separated from the other parent), due to the increased difference that the presence of a child makes to a single adult’s budget, compared to the difference a child makes to a couple’s budget.

The report serves as a reminder of the importance of ensuring that proper financial provision is made for any dependent children when their parents separate. This does not necessarily just mean that the non-resident parent should pay the appropriate amount of child maintenance. Special expenses such as school fees will also need to be considered. And if the non-resident parent is on a particularly high income then it may be necessary to go to court to obtain an order ‘topping up’ the amount that the Child Maintenance Service requires them to pay.

As the CPAG report indicates, the total cost of raising a child can be enormous. Accordingly, if you are a parent with care of children it is essential that you receive proper advice as to what the other parent should be paying. Family Law Cafe can help you find that advice. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

You can read the full CPAG report here.

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Image: CPAG

The singer Lily Allen has revealed that, as part of the arrangements following her separation and divorce from Sam Cooper, she and her ex-husband share ‘custody’ of their two children. Ms Allen says that the children spend alternate weeks with each parent, allowing her to concentrate fully on her work in the studio when they are with their father. She says that she and her ex-husband are still really friendly, and that the arrangement worked out as it did because the children go to a school equidistant from the houses where she and her ex-husband live.

But could such an arrangement, whereby the children share equal, or nearly equal, amounts of time with each parent, work for you?

Shared ‘custody’ arrangements are not in fact that unusual, although that term is strictly now incorrect, as the law no longer uses the word ‘custody’ in relation to arrangements for children – ‘shared care’ is now a more accepted term.

It is possible, although quite rare, for a court to impose a shared care arrangement upon the parents. More often, such arrangements are agreed between the parents. The reason for this is obvious: shared care arrangements are most likely to work where, as with Ms Allen, the parents remain on good terms with one another. They also obviously rely upon practicalities, such as both parents having suitable accommodation for the children and, again as with Ms Allen, both parents living reasonably close to the children’s school(s).

If you are able to agree a shared care arrangement with the other parent, then it is not normally necessary to have the arrangement incorporated into a court order.

If you would like any further advice about shared care then Family Law Cafe can assist. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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Image of Lily Allen by Warner Music Sweden [CC BY 3.0], via Wikimedia Commons.

Last week MPs debated in the House of Commons the issue of grandparents’ contact with their grandchildren. The debate was moved by Nigel Huddleston, Conservative MP for for Mid Worcestershire, who said that: “Unlike some other countries, grandparents in the UK have no automatic rights to see their grandchildren, and vice versa.”

Mr Huddleston said that if they cannot agree contact with the child’s parents then grandparents must apply to the court for a child arrangements order, first seeking the leave of the court to do so. The whole process, he said, can be time-consuming and costly.

Mr Huddleston, supported by other MPs, called for two amendments to the law. Firstly, that the requirement for grandparents to obtain the leave of the court to make an application be removed, and secondly that the child’s right to have a relationship with their grandparents be enshrined in law by extending to grandparents the presumption that, unless the contrary is shown, involvement of both parents in the life of the child concerned will further the child’s welfare.

The Ministry of Justice indicated that it would consider any proposals for helping children maintain involvement with grandparents.

For a brief summary of the current law on grandparents’ rights, see this post.

If you are a grandparent seeking contact with your grandchild(ren), Family Law Cafe can help you. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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Image: the adventure of grandchildren, by Bruce Tuten, licensed under CC BY 2.0.

In a speech given at the Law School, University of Edinburgh, on 20 March the President of the Family Division Sir James Munby outlined his views on the future of family courts, and reform of family law.

The speech, entitled Changing families: family law yesterday, today and tomorrow – a view from south of the Border, began with an outline of the history of family law in England and Wales since Victorian times. Sir James then moved on to what he called “perhaps the greatest challenge facing the family courts”. This, he said, was the need for family courts to become problem-solving courts, dealing with the underlying issues behind children disputes, rather than just deciding what should happen to the child in future. What was urgently required, he explained, was:

“…a fundamental re-balancing of the family court towards what ought to be its true role as a problem-solving court, engaging the therapeutic and other support systems that so many children and parents need.”

Sir James then concluded his speech “by examining a few of the parts of family law most pressingly in need of statutory reform.” These included the introduction of property rights for cohabitants, no-fault divorce, reform of the law relating to financial remedies on divorce, reform of the rules about access to and reporting of family cases (to counter the charge that we operate a system of secret justice), and giving judges the power to prevent the cross-examination in person by alleged perpetrators of domestic violence of their alleged victims.

Family Law Cafe welcomes all of these ideas, and hopes that they come to fruition in the near future.

You can read the full speech here.

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Image of Old College of Edinburgh University by Kim Traynor (Own work) [CC BY-SA 3.0], via Wikimedia Commons.

The Supreme Court has allowed an appeal by a mother against a decision to allow the father’s appeal against the refusal of his application for the summary return of the couple’s two children to Australia.

Until 2015 the couple had been living in Australia with the children. By the end of 2014 their marriage was in difficulties. The mother, who holds British citizenship, wanted to make a trip to England with the children. The father agreed to an eight-week stay. The mother and the children came to England on 4 May 2015, where they have since remained. Discussions between the mother and father resulted in the father agreeing to an extension of the eight-week visit up to a year.

On 2 November 2015 the mother applied for British citizenship for both children, without telling the father. Eventually, in June 2016 the mother told the father that she intended to stay in the UK with the children.

The father made an application under the Hague Convention for the summary return of the children to Australia. However, the High Court refused the application, on the basis that by then the children had become habitually resident in in England and Wales, so that mandatory summary return was unavailable under the Convention. The judge held that there was no principle of ‘anticipatory retention’ under the Convention, which meant that the mother could not have wrongfully retained the children prior to the expiration of the parties’ agreement. He also found that the mother had not, before the expiry of the agreed year (which he determined was at the end of June 2016) made any act of anticipatory retention, even though she may have decided to retain the children in this country before then.

The father appealed, to the Court of Appeal. The Court of Appeal upheld his appeal, saying that there was a principle of anticipatory retention.

The mother appealed against that decision, to the Supreme Court. The Supreme Court found that anticipatory retention (which it called ‘repudiatory retention’, i.e. an intention to repudiate the agreement to return the children after one year) is possible in law. However, the court found by a majority of 3 to 2 that in this case the retention had not occurred before June 2016, as the mother’s ‘internal thinking’ could not alone amount to a repudiatory retention – an overt act by her was also required (their Lordships accepted the finding of the judge at the first hearing that, when she made the citizenship application in November 2015, the mother had not possessed the intention to keep the children in this country). By June 2016 the children had become habitually resident in this country, so the Convention did not apply. The mother’s appeal was therefore allowed.

Lords Kerr and Wilson gave dissenting judgments, Lord Kerr expressing misgivings about repudiatory retention requiring an overt act by the travelling parent.

You can read the full judgment of the Supreme Court here.

Family Law Cafe welcomes the clarification on anticipatory/repudiatory retention, although is concerned that their Lordships were not unanimous on the question of what amounts to repudiatory retention. Obviously, this can be a complex issue, and if you require expert advice as to how the decision may apply to your case, then we can help you find a specialist . To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

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Image: UK Supreme Court, by Alex F, licensed under CC BY 2.0.

The Children and Family Court Advisory and Support Service (Cafcass), which looks after the interests of children involved in family court proceedings, is shortly to begin trialling a new process to deal with cases involving parental alienation.

Cafcass says that parental alienation, whereby one parent ‘brainwashes’ their child against the other parent, occurs in significant numbers of the 125,000 cases it deals with each year. Sarah Parsons, the assistant director of Cafcass, says that the new process, which could result in parents who try to turn their child against the other parent having the child taken away from them, is intended to send out “a very clear, strong message”.

Under the process, Cafcass caseworkers will be given a new set of guidelines called the ‘High Conflict pathway’, which will itemise the steps they must take when dealing with cases of suspected alienation. Alienating parents will be offered a 12-week intense ‘positive parenting’ programme, which is designed to help them put themselves in their child’s position, and give them skills to break their patterns of behaviour.

If this doesn’t work then psychiatrists, psychologists and mental health experts will be brought in. However, if the alienating parent continues to perpetuate the abuse then they could have their child removed from them and placed with the other parent. In extreme cases, the alienating parent could even have their contact with their child terminated.

A trial of the process will begin soon. The trial will be evaluated in the Spring, after which it is expected to be rolled out across the country.

Family Law Cafe says: parental alienation is a terrible thing that can have devastating consequences for all involved especially, of course, the child. Clearly, it should be treated by the system with the utmost seriousness. Whether this new process is the best way to deal with it, only time will tell. What is clear is that it will be even more important than ever that both parents have the best possible legal advice, whether they are the ‘victim’ parent, or the parent accused of alienating the child. Family Law Cafe can help you find that advice – to contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.

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Image: Silhouette mother and child, by Wyncliffe, licensed under CC BY 2.0.

Confused by the jargon? Family law, just like all other areas of law, is full of legal jargon, so here are some plain English definitions for some of the terms that you are likely to come across if you are involved in family court proceedings:

Arbitration – A process whereby the parties agree that their case will be decided by a trained arbitrator. For further details, see this post.

Ancillary Relief – An older term for Financial Remedies – see below.

Cafcass – The ‘Children and Family Court Advisory and Support Service’ – look after the interests of children involved in family court proceedings.

Child Arrangements Order – An order setting out arrangements relating to with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person. For further details, see this post.

Clean Break – A financial settlement that dismisses all financial claims (in particular for maintenance) by either spouse against the other, thus achieving a ‘clean break’ between the parties.

Consent Order – A court order made with the agreement of both parties. Usually refers to an order setting out an agreed financial settlement following divorce. Note that the order must still be approved by the court, which is not obliged to approve it merely because the parties agree.

Co-Respondent – The person named by the Petitioner as having committed adultery with the Respondent. The Co-Respondent is a party to the divorce proceedings.

Cross Petition – A document filed by a Respondent to a divorce who wishes to defend the divorce and petition themselves, alleging that the breakdown of the marriage was due to a different reason to that alleged by the Petitioner.

Decree Absolute – The order finalising the divorce.

Decree Nisi – The order stating that the Petitioner (or the Respondent, in the case of a divorce proceeding on a cross petition) is entitled to the divorce.

Desertion – Separation without consent or good reason, and where the deserting spouse has no intention of returning. Desertion is actually very rare.

Directions – Orders of the court, usually setting out how the case will proceed.

Financial Dispute Resolution Appointment – A hearing within an financial remedies application, at which the parties should use their best endeavours to settle the matter by agreement, with the help of the judge.

Financial Remedies – The financial settlement in connection with divorce proceedings.

Injunction – An order requiring a party to do, or to refrain from doing, certain acts. In family law, most commonly refers to orders restraining domestic violence or abuse.

Irretrievable Breakdown (of marriage) – The ground for divorce. Must be shown by proving adultery, unreasonable behaviour (see below), two years’ desertion (see above), two years’ separation with the other party’s consent, or five years’ separation. For further details, see this post.

MIAM – A ‘Mediation Information and Assessment Meeting’. A meeting at which it is assessed whether the case is suitable for mediation (see below). In most cases, it is necessary to attend a MIAM before making an application to the court.

Mediation – A process whereby a trained mediator will help couples agree arrangements for children and/or a financial settlement.

Non-Resident Parent (‘NRP’) – The parent with whom the child or children is/are not residing. A term usually used in connection with child support.

Parental Responsibility – For an explanation of what parental responsibility means, see this post, and for details of how it is acquired, see this post.

Parent With Care (‘PWC’) – The parent with whom the child or children is/are living. A term usually used in connection with child support.

Periodical payments – Another term for maintenance.

Pension Sharing Order – An order transferring all or part of one party’s pension to the other party. For further information, see this post.

Pension Attachment Order – An order stating that one party will receive part of the other party’s pension when the other party receives it. Again, for further information, see this post.

Petitioner – The party who issues the divorce proceedings.

Property Adjustment Order – An order adjusting the ownership of matrimonial property, for example increasing a party’s share in the matrimonial home from 50% to 75%.

Respondent – The party who did not issue the proceedings. Note that the Respondent to an application for financial remedies could also be the Petitioner in the divorce proceedings.

Unreasonable Behaviour – Behaviour by one party such that the other party cannot reasonably be expected to live with them. This is one of the five ways of proving that the marriage has irretrievably broken down, for the purpose of divorce proceedings. For further details, see this post.

Without Prejudice – Words used in an offer of settlement to ensure that the offer cannot be shown to the court if it is not accepted. If the offer is accepted the protection of ‘without prejudice’ is gone.

Of course, if you are in any doubt as to what a word or phrase means, then you should seek legal advice.

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Image: Confused, by Ben W, licensed under CC BY 2.0.

The Ministry of Justice (‘MoJ’) has announced that some Designated Family Judge areas are piloting ‘settlement conferences’ in cases concerning arrangements for children. In a settlement conference, a family judge adopts an inquisitorial approach in order to encourage cooperation between the parties, with a view to helping them identify solutions and reaching an agreement that is in their children’s best interests.

Settlement conferences take place with the consent of all the parties. The judge hearing a settlement conference will be different to the judge that may hear the final hearing. They will be specially trained in facilitating settlement conferences.

The judge will not impose any duress or pressure on any parties. Settlement implies that all parties will be in agreement to fully resolve some or all issues. If they are able to reach an agreement on all issues the case will end and a court order will be drafted reflecting the agreement. The judge cannot make any orders without the agreement of the parents or carers.

The pilot actually began in June 2016, and will last until the MoJ has collected sufficient information on the approach to inform a decision on the future of the pilot.

Family Law Cafe fully supports any initiatives designed to help parents resolve disputes over arrangements for their children, and looks forward with interest to the evaluation of the pilot.

Image: Ministry of Justice Plaque, by Simon Gibson, licensed under CC BY 2.0.

It has been reported that, when they divorced in 2012, Tom Cruise insisted that his wife Katie Holmes agree (amongst other things) not to date in public for a period of five years. In return, Ms Holmes apparently received £3.6 million in child support, plus £3.8 million for herself.

Whether such an agreement was really entered into, and if so why, we may never know. Whatever, we are now, just over five years later, seeing photographs in the popular and celebrity media apparently showing Ms Holmes out with her new partner, actor Jamie Foxx.

So, could such an agreement happen over here?

Well, it is certainly quite possible for the parties here to enter into an agreement of this nature. The problem, however, might come should the party agreeing not to date in public does so, and the other party seeks to enforce the agreement through the courts. Would the courts here be prepared to enforce such an agreement?

This seems somewhat doubtful. Restraining a person from dating in public is a restriction upon their liberty, and it is difficult to imagine a circumstance in which a court here would consider such a restriction to be justified, and certainly not for such a long period as five years.

Even if the agreement was intended to protect Cruise and Holmes’ child Suri, that does not necessarily mean that the court would uphold it. One of the other matters that Mr Cruise reportedly insisted upon was that Ms Holmes not let any boyfriend near Suri. It is not unusual here for one parent to want to stop the other from bringing their child into contact with a new partner (and perhaps even from finding out about a new partner). However, the court will normally only agree with such a restriction if it were shown that coming into contact with a particular new partner was detrimental to the welfare of the child. A blanket restriction banning contact with any partner would not usually be considered appropriate or necessary.

In short, if you want your ex to enter into such an agreement here, be prepared for problems if they don’t keep to it!

Familylawcafe.co.uk assists you on strategy, looks after you and uses smart technology for your convenience.

Image: Tom Cruise & Katie Holmes, by Jay Tamboli, licensed under CC BY 2.0.

A case this week has highlighted a problem with surrogacy that has previously been considered by the President of the Family Division, Sir James Munby.

When a child is born as a result of a surrogacy arrangement only the surrogate mother and (usually) her husband or civil partner, if she has one, are legally the parents of the child, even if the surrogate mother is not the child’s biological parent. This situation can be rectified by the biological parents, who will be bringing up the child, applying for a parental order, which has the effect of transferring the legal status of parents from the surrogate mother (and her husband/civil partner) to the biological parents.

The problem is that, as the law stands at present, a parental order can only be applied for by two people. An application by a single person is not allowed. In a previous case the President declared that this situation is incompatible with the human rights of a single biological parent and the surrogate mother. The Government is therefore considering changing the law to allow single applications. However, until the law changes, the problem remains.

In the case this week, M v F & SM (Human Fertilisation and Embryology Act 2008), a single applicant was seeking a parental order. The situation was that the child was born as a result of a gestational surrogacy arrangement between the applicant and her male partner. Their gametes were used to create an embryo that was then implanted in the surrogate mother. As soon as the child was born the surrogate mother surrendered him into the care of the applicant.

Unfortunately, during the course of the pregnancy the relationship between the applicant and her partner broke down. The partner has indicated that he does not wish to be involved in the child’s upbringing. Accordingly, the applicant did not have anyone else with whom to seek a parental order.

The case went before Mr Justice Keehan in the High Court. Unable to make a parental order, he approved the continuation of an order (at least until such time as the law is changed) whereby the child was made a ward of court, with care and control of him being granted to the applicant and the surrogate mother being prohibited from removing him from the applicant’s care.

You can read the full report of the case here.

Image: Embryo week 9-10 by lunar caustic, licensed under CC BY 2.0.

If you are unable to agree arrangements for your children following separation from the other parent, then you will need to apply to the court for a ‘child arrangements order’. The term is still fairly new (it was introduced in 2014, replacing ‘residence’ and ‘contact’ orders) and many people are not familiar with it. What exactly does it mean?

A child arrangements order is defined as an order regulating arrangements relating to any of the following:

(a) with whom a child is to live, spend time or otherwise have contact, and

(b) when a child is to live, spend time or otherwise have contact with any person.

In other words, a child arrangements order can set out how the child’s time is shared between the parents (and anyone else, for example grandparents), and also what other types of contact (such as telephone calls, Skype messaging, and so on) each parent is to have with the child. The order can specify that the child should live with both parents (at different times), or that they should live with one parent and have contact with the other.

There is a difference between an order specifying that the child is to live with a parent and an order saying that a parent is to have contact with a child. The parent with whom the child is to live may take the child abroad for up to a month without the agreement of the other parent, or the court, whereas a parent who just has contact may not remove the child without the other parent’s agreement, or a court order.

Child arrangements orders last until the child reaches the age of sixteen years or, in exceptional circumstances, until they reach the age of eighteen.

The principles that the courts use to decide what to do on an application for a child arrangements order are set out in this post.

If you require further details regarding child arrangements orders, Family Law Café can help you find the advice you need. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: parent/child shadow, by Anders Andersson, licensed under CC BY 2.0.

It is the nightmare of many separated parents: the other parent takes your child to another country without your permission and refuses to return them. What can you do to prevent international child abduction, and to get your child back if it has already happened?

If your child has not yet been removed from this country then there are a number of steps that you can take to prevent their removal, including:

• Obtaining a child arrangements order stating that the child should live with you.

• Obtaining an order from the court prohibiting the other parent from removing the child from the country.

• Contacting the Passport Office to request them not to grant a passport to the child without your permission.

• Contacting your local police station – if the police are satisfied that there is a real threat of abduction within the next 48 hours, they can contact the National Ports Office and ask them to alert all UK points of departure to try to prevent the abduction.

If your child has already been taken out of the country then what you can do to have them returned depends upon the country to which they have been removed. If the country is a signatory to the Hague Convention on Child Abduction then you can make an application under the Convention for them to be returned immediately. A list of signatories can be found here. If the country is not a signatory then you may have no alternative than to take court proceedings in that country.

If you believe that your child may be abducted to another country, or that it has already happened, then you should instruct a family lawyer immediately. Family Law Café can help you find a specialist in this complex area. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image of the Peace Palace at The Hague, by Arne Hulstein, licensed under CC BY 2.0.

We have previously explained what parental responsibility is. In this post we will explain how it can be acquired.

The mother of a child automatically acquires parental responsibility when the child is born, irrespective of whether she is married to the father.

If the father of the child was married to the mother at the time the child was born, then he will also automatically acquire parental responsibility.

An unmarried father of a child can acquire parental responsibility in the following ways:

• For children born since the 1^st December 2003, by being registered as the father on the child’s birth certificate;

• With the agreement of the mother: he and the mother must sign a ‘Parental Responsibility Agreement’ and complete certain formalities, including sending two copies of the agreement to The Central Family Court in London;

• By obtaining a child arrangements order providing that the child should live with him – the court will also grant him parental responsibility; or

• By obtaining a parental responsibility order. The court will normally make such an order, unless there is a good reason why it should not (note that the objection of the mother is not in itself a good reason).

Other people can also obtain parental responsibility, for example:

• A step-parent, by entering into a parental responsibility agreement with the biological parents, or if the court makes an order giving them parental responsibility;

• Anyone else who has a child arrangements order naming them as the person the child should live with, for as long as the order is in force;

• The adoptive parents, if the child is adopted (the biological parents will lose parental responsibility); and

• Someone who has been appointed as the child’s legal guardian.

If you require further information regarding parental responsibility, Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: Penguin Parents, by Christopher Michel, licensed under CC BY 2.0.

‘Parental responsibility’ is a term that anyone involved in court proceedings relating to a child is likely to come across frequently, but what exactly does it mean?

Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. Such a general description is not, however, particularly helpful.

There is no ‘official’ or comprehensive list of ‘parental responsibilities’, but the following are generally accepted as being included:

• Duty to maintain – a duty that carries on, of course, even when the child no longer resides with that parent, irrespective of the other parent’s circumstances. Note that a parent without parental responsibility can still be required to pay child maintenance.

• Education – including choice of schools and the right to receive information from the school as to the child’s progress, such as copies of school reports.

• Religious upbringing – obviously, only usually an issue when the parents do not share the same religious faith.

• Medical treatment – although where emergency treatment is required, it is submitted that most parents would not expect this to be withheld until the other parent is consulted.

• Choice of surname – can only be changed with the agreement of the other parent or by a court order, where the other parent has parental responsibility.

• Taking children abroad – again, the agreement of the other parent with parental responsibility is required, or a court order.

• Consent to adoption – a child can only be adopted with the consent of any parent having parental responsibility, or if the court dispenses with that consent.

As will be seen, these are mostly major issues. Having parental responsibility does not actually make a lot of difference when it comes to day to day matters. In particular, it does not give one parent the right to interfere with the day to day arrangements that the other parent makes for the child.

When two parents both having parental responsibility cannot agree upon a particular matter relating to their child, either may make an application to a court for a ‘specific issue order’, whereby the court decides the matter. The court will decide what is best for the child, having regard to the ‘welfare checklist‘.

If you require further information regarding parental responsibility, Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.

Image: Father, by 白士李, licensed under CC BY 2.0.

What can the court do if you have a contact order, or a child arrangements order providing for you to have contact with your child/children, and the other parent is not complying with the order?

There are a number of steps that the court can take to enforce a contact order, including:

• Imposing a fine upon the other parent. A fine can only be imposed if the contact order included on it a ‘penal notice’, stating that the order must be obeyed and that a breach of the order can be punished by a fine or imprisonment.

• Committing the other parent to prison for contempt of court. Again, a penal notice must have been included on the order.

• Making an enforcement order, imposing an ‘unpaid work requirement’ on the other parent, similar to the community service order used by criminal courts. The court can only make an enforcement order if it is proved that the other parent has failed to comply with the contact order without reasonable excuse, for example that the child was ill.

• Making a financial compensation order, requiring the other parent to pay financial compensation to you for any losses that you incurred as a result of the failure to comply with the contact order, for example travel expenses. Again, there must be no reasonable excuse for the failure to comply with the order.

Note that enforcement and financial compensation orders cannot be made unless the contact order included on it a warning notice saying that the order must be obeyed, failing which an enforcement or financial compensation order can be made. All contact orders made since 2008 should include such a notice.

If you require further information regarding enforcement of a contact order, Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: Father & son, by Robyn Jay, licensed under CC BY 2.0.

Sadly when families break up grandparents are sometimes stopped from seeing their grandchildren by the parent looking after them. What rights do they have to re-establish contact?

Grandparents do not automatically have the right to have contact with their grandchildren, but they can apply to a court for a child arrangements order granting them contact, in the same way as the other parent can. As with applications by parents the overriding consideration is the welfare of the child, but it is generally recognised by the law that contact with grandparents is a good thing for children, unless there is a compelling reason that makes it against the child’s interests. The amount of contact that a court is likely to grant a grandparent usually depends upon how big a role the grandparent has previously played in the child’s life.

There is one procedural difference between a parent applying to a court for contact and a grandparent applying. A parent can apply as of right, but a grandparent must first obtain the leave (or permission) of the court to make the application. In considering whether to grant leave the court will take into account such matters as the grandparent’s connection with the child and any risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it. Leave is granted in most cases, but having to apply for it can add to the stress, delay and costs involved.

If you would like advice regarding seeing your grandchildren, Family Law Café can help you find it. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: Chatting with Grandpa, by Kelley Conkling, licensed under CC BY 2.0.

Parental alienation, whereby one parent ‘brainwashes’ their child against the other parent, is “a form of neglect or child abuse”, according to Anthony Douglas, the Chief Executive of the Children and Family Court Advisory and Support Service (‘Cafcass’), which represents children in family court cases.

Mr Douglas has stated that the deliberate manipulation of a child by one parent against the other has become so common in family breakdowns that it should be dealt with like any other form of neglect or child abuse. He said: “It’s undoubtedly a form of neglect or child abuse in terms of the impact it can have. I think the way you treat your children after a relationship has broken up is just as powerful a public health issue as smoking or drinking.”

He went on: “There isn’t a specific criminal law that outlaws parental alienation in the UK. But we do have family law and through assessments and enforcement proceedings, we do have the ability to send parents to prison or give them community sentences, but this is hardly ever the case because ultimately the punishment on the parent will rebound on the child.”

Judges are beginning to recognise parental alienation, which is leading to some children being removed from the offending parent. However, such a course of action “is fraught with difficulty”, according to Mr Douglas.

If you believe that you may be a victim of parental alienation then Family Law Café can make sure you find the help you need – to contact us click the Contact link above and fill in the form, or call us on 0208 768 2278.

Image: Pareja (Couple) by Daniel Lobo, licensed under CC BY 2.0.

Cohabiting couples do not have the same rights as married couples when their relationship breaks down (there is no such thing as a “common law marriage”). In particular, they cannot ask the court for maintenance for themselves or to adjust ownership of property, in the same way as can be done in a financial settlement following divorce.

So what legal rights do cohabitees have?

The first thing to say is that cohabitees have similar rights to married couples in respect of arrangements for children and child maintenance. They can apply to a court for an order setting out the arrangements, such as with whom the children should live, and they can apply to the Child Maintenance Service for child support maintenance for the children.

If there are any children then the parent looking after them can also apply to the court for an order for financial provision for them. This provision can take various forms, but the most common type of order is one allowing the parent and child to occupy a property, such as the property where the parties lived together, until such time as the child grows up or ceases full-time education. Note that such an order will not have any bearing upon the ownership of the property. Accordingly, if the property belongs solely to the other parent, then it will revert to them when the order has run its term.

The general rule regarding property on cohabitation breakdown is that it will remain with whoever owns it. Accordingly if for example the house in which the parties lived is owned then what happens to it depends upon what the deeds say. Thus if the deeds say it is owned jointly in equal shares then each party will be entitled to half. On the other hand if the deeds say it belongs to just one of the parties, then that party will be entitled to the entire property. What the deeds say will be followed unless the other party can successfully show that they are entitled to a share, or a greater share, for example because there was an agreement to that effect. Such claims can be very difficult to prove.

If necessary a party claiming a share in a property can apply to a court for an order that the property be sold, so that they can realise that share.

The above is only a very brief summary of what can be a very complex area of law. If you require further details Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: Law by Woody Hibbard, licensed under CC BY 2.0.

Most family disputes on divorce or relationship breakdown, such as disputes relating to finances or arrangements for children, are resolved out of court. In fact, contested court proceedings should be used only as a last resort, if you are unable to resolve the dispute by agreement.

Most agreements are reached either between the parties direct, or more commonly in negotiations between their lawyers.

If it is not possible to agree matters direct or between lawyers then there are three main other possibilities to consider before issuing court proceedings (or even after proceedings have begun). These ways of resolving disputes are often referred to as ‘Alternative Dispute Resolution’. They are:

⋅ Mediation – Whereby an independent trained mediator will help the parties try to reach an agreement. Mediation will normally involve several ‘round the table’ meetings between the couple and the mediator. If the parties are able to reach an agreement then the mediator will prepare a document setting out the terms of the agreement, and send copies to the parties. If, on the other hand, the mediator does not believe that there is any possibility of an agreement being reached, then they will bring the mediation to an end. Note that any agreement reached in mediation is not binding – the parties are entitled to take legal advice upon the terms of the agreement before it is finalised, for example by a court order. Note also that mediation is completely voluntary, and not all cases are suitable, for example, most cases where there has been domestic violence. There is a fee for mediation, although legal aid is available, subject to eligibility. Since April 2014 it has been compulsory to attend a Mediation Information and Assessment Meeting (‘MIAM’), at which it is assessed whether the case is suitable for mediation, before taking a family dispute to court.

⋅ Collaborative Law – Collaborative law requires each party to instruct a specialist collaborative family lawyer, i.e. a lawyer who has undergone special training to do collaborative work. Once this has been done, the parties and the lawyers sign an agreement to work together as a team to resolve issues without going to court. If either party should then start court proceedings, the collaborative process will end and the collaborative lawyers will cease to act for either party. Once the agreement has been signed, the parties and their lawyers will then attend four-way ‘face to face’ meetings, at which they will endeavour to reach a settlement. If a settlement can be reached, the lawyers will draw up an agreed document that is then submitted to the court, for approval.

⋅ Arbitration – Whereby the parties agree that their case will be decided by a trained arbitrator (the parties can also have their own legal advisers). The decision of the arbitrator will be legally binding, and may be made into a court order. The arbitrator will charge a fee, which will normally be shared between the parties. Advantages to arbitration over court proceedings include that the process is usually much quicker, that it is usually cheaper and that it is confidential.

If you would like any further information about Alternative Dispute Resolution Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: Handshake man – women, by Flazingo Photos, licensed under CC BY 2.0.

What are the basic principles that are used by the court to decide disputes between parents over arrangements for their children?

The first principle is that when a court determines any question with respect to the upbringing of a child, the child’s welfare must be the court’s ‘paramount consideration’.

In deciding whether to make an order the court will have regard to all of the circumstances and in particular the following points, which are often referred to as the ‘welfare checklist’:

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of the child’s age and understanding);

(b) the child’s physical, emotional and educational needs, for example special health needs and special educational needs;

(c) the likely effect on the child of any change in his or her circumstances, for example where the court is considering the possibility of changing the child’s place of residence;

(d) the child’s age, sex, background and any characteristics of his or hers which the court considers relevant;

(e) any harm which the child has suffered or is at risk of suffering;

(f) how capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;

(g) the range of different types of order available to the court in the proceedings in question. The court can make any order that it considers to be appropriate – it is not limited to just the types of order(s) that the parents have applied for.

The court should presume, unless the contrary is shown, that involvement of both parents in the life of the child concerned will further the child’s welfare.

If you require further details of these matters, or advice as to how they may apply in your case, Family Law Café can help. To contact us click the Contact link above and fill in the form, or call us on 020 3904 0506.

Image: Take my hand, by Stephan Hochhaus, licensed under CC BY 2.0.