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 1st 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.

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.