Shared residence is an issue that is becoming more and more important, and which can cause considerable confusion. I have therefore been waiting for a report of Re K (Shared Residence Order), the judgment of which was given on the 4th April. I have now seen a short report (citation: [2008] All ER (D) 55 (Apr)), and I think it is of interest, particularly regarding the relationship between shared residence and contact.

Briefly, the facts were that the child spent approximately 60% of his time with the mother and 40% with the father. The father applied for this to be increased to 50%, and sought a shared residence order. The district judge found that the slight benefit to the child of the increase in contact with his father was outweighed by the disruption to a regime that seemed to be working well, and therefore refused to increase the contact. He then went on to separately consider the issue of shared residence, and refused to make the order, after referring to the additional contact being 'required' to lead to a shared residence order. The father appealed unsuccessfully to a circuit judge, and then appealed to the Court of Appeal.

The Court of Appeal found that the district judge should have heard both issues together, ruling first on the appropriate division of time, and then whether that division should be expressed in terms of a shared residence order or a contact order. The district judge's decision not to increase the contact was within his discretion, and therefore the contact would not be increased. However, he had erred in treating that issue and the question of a shared residence order as standing or falling together. A shared residence order was appropriate, and would therefore be made. The mother had argued that the father would use a shared residence order to interfere with her role in relation to the child, but no such 'malign intent' on the part of the father had been established.

Read More...

Here's an interesting local service that I've just become aware of: Medway Positive Parenting Network is a 'local service directory for children and families' that 'enables parents, carers and professionals to access a wide range of support services and information for parents and families in the Medway area, 24 hours a day'. The site includes information on divorce and separation and details of many local agencies including CAB, Family Mediation Service, N.S.P.C.C. and Relate. An extremely valuable resource, although I'm not sure whether a similar service is available elsewhere.

Read More...

The Judiciary website has published a speech (PDF format) given by Sir Mark Potter in Israel on the rights of children to be heard. I wonder if this means that male children in that country will have a say on whether or not they are circumcised? After all, unnecessary circumcision would surely be classed as abuse if it were not shrouded by the 'legitimation' of religious delusion.

[Thanks again to Current Awareness for the link.]

Read More...

This religious madness doesn't need any further comment:

Read More...

I've just received an email from Kent Family Mediation, detailing a new service that they are launching for parents who live apart. From June they will be offering parenting workshops to 'inform and support' all such parents:

"The 3 hour workshops will provide an opportunity to discuss, amongst other things, what children are feeling and saying about separation and divorce in their lives; current research on the impact of separation and divorce on children; how to communicate effectively. The workshops will be a safe place to share and learn, focusing on ‘children first’."

Parents will be able to attend the workshops either jointly or separately. The first two workshops will take place in Sittingbourne, but others are planned for venues across Kent later in the year.

Read More...

Jacqui Gilliatt has already posted about Lord Justice Ward's comments the other day about the impotence of the courts to help fathers to see their children if 'vengeful mothers' stood in the way, both on her own blog and on the Family Law Week blog, but I can't let it be.

Lord Justice Ward called the situation a 'public scandal', and Jacqui Gilliatt indicates another: the Children & Adoption Act 2006 was passed nearly two years ago and would provide the courts with significant new powers in relation to contact orders, but there appears to have been no word from the Government for the last year as to when the relevant provisions will be implemented.

Would the Act have made any difference to the outcome of the case in which Lord Justice Ward was sitting? This seems unlikely to me. The Act includes various provisions, including enforcement orders (essentially requiring the parent in breach of the contact order to do community service), the power to order one parent to pay the other compensation for any financial loss caused by the breach, and the ability of the court to request a CAFCASS officer to monitor compliance with contact orders without the parents' consent, but would such powers have helped the court here? The problem, of course, as pointed out by Lord Justice Ward, is that in the end the welfare of the child is always paramount, and it would often be too distressing for a child to force them to have contact with a parent against whom their mind has been completely poisoned.

So, do I think that the Act is a waste of time? Certainly not. I'm sure that the additional tools that it will provide will assist the courts in many cases, and help to ensure that a considerably higher proportion of its orders are complied with. All of which, of course, is subject to the caveat that the Government actually implements it.

* * *

Update: The Ministry of Justice has now published a consultation paper seeking views on draft court rules and forms to support the implementation of the remaining provisions of the Act. Thanks, as so often, to Current Awareness for this.

Read More...

In the post this morning I received a copy of Separation and Divorce - Helping parents to help children, a booklet published by Resolution, which 'provides parents with key information and supports them in adopting a child-centred approach to their separation and divorce'. As Resolution state: "Parents and children who have access to good information and resources at an early stage are better equipped to manage the transition from being a family under one roof to being a family in two separate homes." The booklet is written by renowned parenting expert Christina McGhee, and may either be purchased by Resolution members, or viewed (in pdf format) here.

Read More...

Jacqui Gilliatt has written an excellent post regarding the fraught and much-argued over issue of equal parenting time. As Jacqui says, equal parenting does happen, but so does just about every other permutation of time division between parents. She goes on to set out practical examples, and finishes off with some general advice for parents to consider.

Recommended reading for all parents involved in contact disputes.

Read More...

I've often been asked over the years whether a parent can be forced to have contact with his/her child. My answer has always been 'no', but a recent German case gives pause for thought. I am extremely grateful to Victor Dewsbery who translated and provided me with the following report:

"In the case in question, the man is married and has two children with his wife. Several years ago he had an extramarital affair with a childhood girlfriend, and a child was conceived. After the inevitable crisis he managed to save his marriage, but any reminder of the relationship with his former girlfriend posed a threat to the stability of the marriage. The mother of the extramarital child tried to force him to have contact with their son, but he refused, arguing that this would jeopardise his marriage. There were even suspicions that the former girlfriend wanted to use the case to revive the relationship. The matter went to court, and the legal battle has now been going on for several years (the child is now nine).

The higher regional court in Brandenburg (itself an appeal court) ordered the father to see his child every three months on pain of a fine of 25,000 Euros, but the father appealed to the German constitutional court in Karlsruhe, claiming that the ruling would jeopardise his marriage and infringe on his personal rights. And his solicitor argued that if he had had any say in the care of the child from the outset, he would have given it for adoption.

In today's ruling, the constitutional court basically ruled in his favour, but not for the reasons he proposed. The argument of the court was based on what is good for the child. Under German law, the child has a right to have contact with both parents, but today's ruling stipulates that this normally stops short of the use of legal force - on the grounds that in many cases it would not be good for the child to have contact with an unwilling parent. So this father is not obliged to have contact with his child (under the German legal system, the constitutional court has referred the case back to the court in Brandenburg for a final ruling, but the constitutional court's ruling on this issue is binding)."

Interesting stuff. I certainly agree with the decision of the Constitutional Court, which seems similar to how an English court would view the matter.

Read More...

A certain well-reported case went before the Court of Appeal last week. Over the weekend, I realised that I hadn't seen any report of the outcome, so I did a news search for the parties' names. Nothing new came up, and now I know why. The Court of Appeal has, somewhat late in the day, banned publication of their names, in order to protect their teenage son. Accordingly, I can now only refer to the case as B v B, and I am grateful (once again) to Current Awareness for providing this link to a report of the case in The Guardian yesterday. I will not repeat the facts of the case - see the report - but suffice to say that the Court of Appeal ruled that the lower courts had erred in trying to share out the assets roughly equally when all of the wealth had been brought into the marriage by the wife, and therefore awarded Ms B a greater than half share.

Read More...

It is extremely heartening to hear that the National Union of Teachers is considering calling for faith schools to be abolished and integrated within a secular state education system, in a motion to be debated at the union's annual conference. As supporters of the motion state, faith schools undermine community relations by segregating children in accordance with their parents' religious beliefs. They also indoctrinate children in those beliefs and some at least teach such nonsense as creationism and 'intelligent design' as credible alternatives to evolution and other scientific theories. The time has come for a secular state to have a secular education system.

Read More...

Feeling in a generous mood, I thought I would again respond to some of the search queries that have recently found their way to Family Lore. Once again, my Disclaimer (see the sidebar) applies to what follows.

how do i get a court order to stop my wife from taking the net proceeds from sale of house

Presumably, the house has already been sold and is/was owned solely by your wife, in which case you can apply to the court for an injunction order restraining her from taking the money. If it has not been sold yet then you can register a matrimonial home rights notice at the Land Registry, which will have to be removed before the sale can be completed - you will only agree to its removal once you are satisfied that the net proceeds will not be distributed until their division has either been agreed, or determined by the court. If the house is or was owned jointly, then the conveyancer dealing with the sale should not distribute the net proceeds without the agreement of both parties, or a court order.

what is a draft consent order

And, by the same searcher:

is a draft consent order legal document

A consent order is simply an order, the provisions of which have been agreed by the parties. The term most commonly refers to financial/property orders in divorce proceedings. A draft order is usually prepared by one of the parties' solicitors, agreed with the other party's solicitor, and then sent to the court for approval. If the court approves the draft, then it will make an order in those terms. The question then arises: is an agreed draft consent order enforceable? The answer is that it probably is, unless it states that the agreement contained in the order will only be binding upon the parties in the event of the court making an order in its terms.

who killed shafilea ahmed

We don't yet know, but the police are investigating a number of possible leads, following a recent appeal on the BBC Crimewatch programme.

lawyer deliberately makes it worse for their client

Oh dear. Sounds like this could be a matter for the Legal Complaints Service.

csa liability order can't pay

A liability order enables the Child Support Agency to take action to enforce payment of child support. What happens next depends upon what type of enforcement action the Agency decides to take. For example, they could instruct a bailiff to take possession of the non-resident parent’s belongings and sell them to raise the money the non-resident parent owes, they could take enforcement action in a county court, or they could apply to a magistrates court for the non-resident parent to be committed to prison. Note that on a committal application the court must consider the non-resident parent's means, and whether there has been 'wilful refusal or culpable neglect' on their part.

what to do if you have been named as the person involved in adultery

If you have been named as a 'Co-Respondent' in divorce proceedings, then you will have been served with a copy of the divorce petition, together with a form of acknowledgement, which you should complete and return to the court, stating (amongst other things) whether or not you admit the alleged adultery. If you do, then the court could order you to pay all or part of the Petitioner's costs of the divorce. You should seek legal advice if you are not sure how to complete the form.

i want to change the arrangements for our children

The first thing you should do is to try to agree any change in arrangements with the other parent. If this is not possible, would they agree to discuss the matter with you and a mediator? If all reasonable efforts to agree fail, then you may make an application to a court for an appropriate order (which will depend upon the nature of the arrangements which you would like changed).

taking advantage family court

Huh? Who's taking advantage of who, and how?

remarriage legal advice child support

Remarriage by itself does not affect liability for child support, but if the non-resident parent's new spouse has dependent children, then the liability is reduced when the NRP and his/her spouse live together.

english family law wife equal

Yes - of course.

county court procedures decree absolute

The procedure on applying for the decree absolute depends upon whether you are the petitioner or the respondent. The petitioner may apply after six weeks have elapsed since the date of the pronouncement of the decree nisi, by completing a simple application form and paying the court fee, currently £40. The court will then send out the decree absolute. The respondent may apply three months from the date when the petitioner can first apply, but the procedure is considerably different, and may involve a court hearing. Note that if either party applies after 12 months have elapsed since the date of the decree nisi, then they will need to explain the reasons for the delay, whether there has been any resumption of cohabitation since the decree nisi, and whether the wife has given birth to any child since the decree nisi.

what to dress in law court

Well, I wouldn't recommend a black cocktail dress, fishnet stockings and high heels, as an American judge was found wearing recently (albeit not in court), even if you're a woman. I assume that the query comes from a non-lawyer (hopefully lawyers know what to wear), in which case there is no dress code, but I would recommend wearing something smart, such as a suit.

set aside consent order for material non disclosure

I suspect that this query may have come from a lawyer, so I'll be brief (look it up yourself!). Any order, made by consent or not, can be set aside for a material non-disclosure, but before you make the application ask yourself: would the court have made a substantially different order if the disclosure had been made?

grandparent's rights in divorce

Grandparents (presumably of the children of the divorcing couple) have no rights in connection with the actual divorce proceedings. If the query relates to contact with the grandchildren, see this post. Otherwise, the only other scenario in which grandparents may be involved is in any property settlement on the divorce, where they claim to have an interest in the property.

application for an order for disclosure of child's whereabouts

See this post.

application for ancillary relief for dismissal purposes only

These are required with applications for ancillary relief (i.e. financial/property) consent orders (see above) - the financial claims have to be made, so that the court can dismiss them. They are made by completing a Form A, and heading it with the words 'For Dismissal Purposes Only'.

complaints about mediators divorce

The mediation service should have its own complaints procedure. If you are not satisfied with the outcome, then you may make a complaint to the UK College of Family Mediators.

Lastly, a question that I can't answer:

why marry?

Read More...

Families Need Fathers has written a letter to Alistair Darling regarding the 2008 Budget. In it, they draw attention to three areas:

The tax system: They state that it is "unfair and unrealistic" that both Working Tax Credit and Child Tax Credit assume that only one parent needs to be given financial support after a relationship breaks down, as: "Only in a minority of cases is only one parent involved in bringing up a child after separation. It is much more typical that both parents are involved, and necessarily they both incur costs... Both Credits need to reflect these social realities, by allocating the financial benefit pro rata to the genuine parenting costs incurred by each parent".

The benefit system: For the same reasons they consider it unfair that the holder of the Child Benefit book is viewed by the Department for Work and Pensions (and the Child Support Agency) as the 'primary carer' of a child for benefit purposes: "Child benefit should be allocated equitably and only then should it operate as a passport to other benefits."

Court administration: Interestingly, and perhaps controversially, they propose that family law cases should not be eligible for legal aid: "This only serves to strengthen the adversarial culture which splits up children from their parents after divorce and separation". They also point out that the recent fee increases "have placed an unreasonable burden on many applicants, who are going through a highly stressful experience and are often among the financially excluded".

Some very good points, including some I've made here before, but I'm afraid I don't expect the Chancellor to pay much attention.

Read More...

Sorting out arrangements for children when their parents separate can be an extremely frustrating process for lawyers. In the vast majority of cases the parents should be able to agree arrangements without recourse to lawyers or the courts, but all too often they fail to do so, either because they don't understand the principles involved, or they have a different agenda, such as using the children against the other parent, or manipulating arrangements to achieve a better financial/property settlement. So, I thought it might be useful to set out some guidelines to help parents resolve matters by agreement:

• Firstly, think of practical considerations. If one parent works full-time and the other does not, then the one that does not may be in a better position to look after the children. If one parent has suitable accommodation for the children and the other does not, then the children would obviously be better off residing primarily with the parent with suitable accommodation, at least until the other parent has somewhere suitable for them to live.
• On the other hand, if all else is equal, consider a shared residence arrangement whereby the children spend equal amounts of time with each parent, especially if the parents do not live too far apart, or too far from the children's schools.
• Consider the wishes of the children. Obviously, many children do not want to be put in the position of choosing between their parents and do not therefore express a clear wish one way or the other, but think about what they would want, such as staying close to their friends.
• Keep arrangements flexible if possible, but ensure that each parent must give the other reasonable notice of any change in arrangements.
• If it has been agreed that the children will reside primarily with one parent, ensure that they have regular contact with the other parent, and that they have the means to contact that parent whenever they wish, for example by phone.
• Above all, keep personal animosity out of the arrangements. You may have strong feelings about the other parent, but don't use the children as a weapon to vent those feelings. For example, the other parent may be in a new relationship and you may not want the children to come into contact with their new partner, but consider whether there are any good reasons to prevent such contact - there rarely are, so long as the children are introduced to them in a sensitive way.

These are just a few thoughts, and are not intended as a comprehensive guide, nor are they 'hard and fast' rules - no two cases are the same, and each should be considered in the light of what is best for those particular children.

Read More...

A question that I'm often asked in the course of children disputes is whether or not each parent has a right to know the other's address. The answer is that there is no rule that one parent must disclose their address to the other. This comes as a surprise to some parents, who believe they have a right to know where their children are living. Having said that, courts do usually prefer addresses to be disclosed unless there is a good reason why they should not, such as a history of domestic violence or harassment. If the address is not disclosed then there should obviously be some means of communication open between the parents, such as telephone or email, save in exceptional circumstances.

What if the 'absent parent' wishes to apply for an order in respect of the children, such as a contact order, but does not know the whereabouts of the children? The answer is that they can apply for an order under section 33 of the Family Act 1986 requiring "any person", such as a relative, to disclose information to the court as to the whereabouts of the children. Note that the order directs that the information be given to the court, and not to the parent. Once the whereabouts of the children is known, the original application can proceed.

Read More...

Family Law Week has just published a report of a most interesting and difficult case decided by the High Court last year.

TJ v CV & Ors [2007] EWHC 1952 (Fam) involved an application by the biological father for contact and parental responsibility orders in respect of his son, who is now part of his sister’s same sex family. He claimed that he, his sister and her civil partner (to whom he donated sperm) had agreed that he would have regular contact with his son, and a role in major decision-making, whereas his sister and her partner maintained that he was merely to have an 'avuncular role'. Mr Justice Hedley made no order as to parental responsibility, fearing that it would "raise false hopes in [the father] leading to frustration and will fuel all the fears of [his sister and partner] leading to conflict". He did, however, make an order for contact four times a year, to recognise his special status as uncle and biological father, but without giving him full parental status, which "would threaten [the sister and her partner] and would not be consistent with their autonomy as a nuclear family".

Mr Justice Hedley concluded: "I confess that I have found this a difficult and perplexing case. It has required the court to tread unfamiliar ground and to make decisions based on what at this stage must be tentative views about the future needs of [the child]. Nevertheless, I am satisfied that the order of the court best serves these needs as they are presently ascertained and understood. The concept of family is both psychological and biological and in my judgment a court would be unwise not have regard to both aspects."

Personally, I think that Mr Justice Hedley got it about right. The father is not just an uncle, but nor is he a parent, in the sense of a person who will raise the child.

Read More...

Inspired by this excellent recent post by Nearly Legal, and in the same spirit of philanthropy, I thought I would do something I don't usually do, and answer some of the questions that have led people to Family Lore over the last couple of days. Naturally, my Disclaimer (see the sidebar) applies to what follows.

does the guilty party pay the costs in a divorce

If the divorce is based upon adultery or unreasonable behaviour, then the court will usually order the 'guilty party' to pay the other party's costs, unless there is already an agreement as to who will pay the costs.

appeal a divorce consent order

It is very unlikely that a court will review a consent order, whether by appeal, or having the order set aside. The most common reasons for such a review are fraud, material non-disclosure, or a new event since the making of the order which invalidates the basis upon which the order was made.

ca legal advice to women marrying rich man

Don't sign a prenuptial agreement!

gays own house who deducts

Who deducts what? If we are talking about the division of property at the end of a relationship, then the rules that apply depend upon whether the parties have entered into a civil partnership. If they have, then the rules are similar to those on divorce: the court can make whatever order it sees fit in all the circumstances. If they have not, then basic property rules apply - i.e. start with what the deeds say.

grandparents rights of contact; and
do grandparents have any legal rights

Yes. See this post.

mother moving within united kingdom and fathers contact; and
a residence order for my child has been granted. can i move elsewhere in the uk

I discussed these issues with a commenter to this post. As I stated there, the general principle is that parents are free to move anywhere within the United Kingdom. If a mother wants to take the children to another part of the UK and the father objects, then he has two options: to apply for a prohibited steps order to stop her taking them there, which will only be granted in exceptional circumstances, or to apply for a residence order, in which case the court will decide whether it is best for the children to remain with him in the same area, or to go with the mother. If the mother does move, the father will still have a right to contact with the children, although obviously the terms of the contact will probably have to be re-negotiated, or varied by the court.

when i divorce how much of my husbands pension will i receive

The answer, as always, is 'it depends', but the starting-point is equal division, so in a long marriage where the wife has no pension and the husband's pension has accrued entirely during the marriage, then the wife can expect to receive half.

can a cohabitee claim maintenance fees free move

Not sure about the 'free move' part of this, but the current position is that cohabitees cannot claim maintenance for themselves.

civil law on breach of a financial settlement retaining an ex spouses personal property

If the settlement has been incorporated into a financial/property order, then you should apply to the court to enforce the order. If no order has yet been made, then make sure it deals with personal property.

I'll finish off with a couple of more abstract questions:

unanswered questions about divorce

Aren't there always?

what is the good recent about take the divorce

What indeed?

Read More...

Following on perfectly from my last post, the Telegraph reports today that Baroness Royall has hinted that the Government may revive proposals to give fertility clinics the power to produce foetuses from cells other than eggs and sperm, which could create children with no biological father. I'm normally in favour of the use of scientific advances in this field, but I have to say that I have serious reservations about denying a child a biological father. Isn't it basic that a child should have a mother and a father, or am I just being old-fashioned?

[Thanks to Current Awareness for the link to the Telegraph story.]

Read More...

For the sake of balance after two contraception-themed posts, I thought I'd do a post about children.

In the Guardian today Jon Henley questions whether a pair of twins really got married by mistake, and had to have their marriage annulled, as revealed by Lord Alton in a House of Lords debate on the Human Fertilisation and Embryology Bill last December. He mentioned the story to support his argument in favour of all children having the right to know the identity of their biological parents - see this post. Obviously, I assumed the story to be true when I wrote that post, but perhaps I shouldn't assume that just because a peer in the House of Lords says that a judge told him something it must be true. Certainly, it is quite a coincidence, and Henley points out that Lord Alton is a "vehemently anti-abortion Roman Catholic", and that he later admitted that he heard about the case from a judge who was "familiar with the case", rather than the judge who dealt with the case. So, have we all been taken in? I don't know the answer, or whether we will ever know, but I guess I've learnt a lesson - question everything.

Nothwithstanding the above, the point of my previous post still stands: I believe that all children have a right to know the identity of their biological parents, irrespective of the circumstances surrounding their conception/birth/early life.

Read More...

The BBC reports today the appalling case of a couple whose marriage had to be annulled after they discovered that they were twins, separated at birth and adopted by different families. I have always felt that every child has a basic right to know the identity of their biological parents, and hopefully this story will help to consign the rules of secrecy to the dustbin of history.

Read More...