Marilyn Stowe Family Law Blog is an Award-winning family law & divorce blog covering family law news, information and guides on the divorce process, financial settlements, cohabitation, prenups, wills, trusts & more.
It’s been a thought-provoking week in family law with some sobering statistics about childhood vulnerability in England and the failure to prosecute cases of FGM. John Bolch joins us on the blog to discuss these and more in his weekly family law review.
Over 2 million children living in families with substantial complex needs
Anne Longfield, the Children’s Commissioner, has published her second annual report into childhood vulnerability in England. The report details the numbers of children who are growing up in England with vulnerability and risks that could affect their lives, well-being and life chances. It reveals that there are over 2 million children in England living in families with substantial complex needs, and that of these 1.6 million children have no established, recognised form of additional support. The report estimates that 825,000 children are living in a family with domestic violence and that over 100,000 children are living in a family with the so-called ‘toxic trio’ of domestic violence, mental health and alcohol or substance abuse.
Commenting on the report the Commissioner said: “Supporting vulnerable children should be the biggest social justice challenge of our time. Every day we see the huge pressures on the family courts, schools and the care systems of failing to take long-term action. The cost to the state is ultimately greater than it should be, and the cost to those vulnerable children missing out on the support can last a lifetime.” Clearly, failing to put resources into supporting these children is a false economy, as the huge current number of child care cases shows.
Failure to prosecute cases of FGM
There is a newly recorded case of Female Genital Mutilation (‘FGM’) every two hours in the UK, according to the latest NHS statistics on the subject. The statistics revealed that there were 6,195 women and girls treated for FGM in the past financial year, and that of those 4,495 were newly recorded cases. Of the 6,195 women and girls, 85 cases of FGM took place in the UK. I agree with the comments of Leethen Bartholomew, head of the National FGM Centre, who said: “Shockingly, the figures confirm that dozens of women and girls born in the UK have undergone FGM, despite the practice being illegal for over 30 years. Yet there still hasn’t been a single successful prosecution to hold perpetrators to account. FGM is child abuse and it’s vital that we work with affected communities to change hearts and minds about the practice. Agencies must also work better together to prosecute those who fail to protect girls from this type of abuse.” Quite.
Father gets a total of £50,000 in a compensation case against the Home Office
The Home Office has agreed to pay a total of £50,000 compensation after a three-year-old girl was left in care while her father was unlawfully detained for three months under immigration powers. In June 2017, after the father had served a prison sentence for wounding, the Home Office ordered him to be detained pending his deportation, despite a local authority recommending that he be reunited with his daughter so that he could care for her.
In July 2017, a family court judge endorsed the local authority’s plan for the father to look after his daughter, saying that if he was not released within four months an application would be made for the girl to be placed for adoption. Despite this, the Home Office moved the father to an immigration centre in Dorset, hundreds of miles from the place where his daughter was in care. He was released after three months in immigration detention, just days before his daughter was due to be placed for adoption. The Home Office admitted at the High Court that the detention of the father was unlawful, as it breached both the department’s own policies and the father and daughter’s right to family life.
The Home Office will pay £40,000 damages to the father for “false imprisonment” and “disruption” to contact with the child and £10,000 damages to the child.
The DWP publishes its response to the consultation on a new child maintenance strategy
And finally, the Department for Work and Pensions (‘DWP’) has published its response to its consultation seeking views on a new child maintenance compliance and arrears strategy. The new strategy will include the introduction of a new power to allow the Child Maintenance Service to calculate a notional income from assets held by a paying parent, so that wealthy parents do not avoid their responsibilities by reducing their income from which child maintenance is usually calculated. New powers will also be introduced to allow deduction of maintenance from joint and business accounts, and to remove passports from parents who fail to pay what they owe.
Clearly, these new powers will be welcome and should help ensure that parents pay what they should, although how far they will go to alleviate the problem of non-payment is not so clear.
I note also that the response confirms that the DWP expects to write off nearly £2 billion in historic Child Support Agency arrears owed to parents.
Telling your children, you are getting divorced or separating is not easy and requires some sensitive handling. This is certainly a conversation there is no script for however, some planning will go a long way.
Our specialist children lawyers at Stowe Family Law take great care to resolve a wide range of issues regarding child(ren) arrangements. Every case is different and our lawyers adapt their approach to the circumstances of the case to ensure a resolution which places the children’s interests as the paramount consideration.
It is always preferable to resolve matters by consent, even if that involves the advice and assistance of a lawyer. However, the practicalities surrounding this are often very difficult, with parents and family members being unsure about the way to approach it with the children.
After dealing with many cases, the below sets out some points and tips to take into consideration.
These have been written with younger children in mind, but the concepts can be applied to children of all ages. Needless to say, that any separation or dispute between their parents can have a profound effect on a child of any age.
The below is only intended to be a guide, as of course, every case is different. If there are any safeguarding concerns, you should seek immediate advice specific to your case, as the below is unlikely to be appropriate.
Timing is important
First things, make sure any decision to separate is final. Changing your mind further down the line may be confusing and upsetting.
Pick the right moment (well as close as you can get), when people are relaxed and calm. Avoid bedtime or school drop-off. You need to be able to answer all their questions and have the time to support them. Lots of hugs help.
Tell them together
Any separation is even tougher on children if their parents are not on good terms. Try and sit down to tell them together. By doing so you are helping them to see that it is a joint decision and that you both care and are still in their lives.
Keep it simple
Young children don’t understand adult relationships. They may not know what separation or divorce means. So, keep your language simple and talk openly and honestly, leaving them out of any conflicts which may arise.
Be clear about what will happen practically and changes to day-to-day life for the family. Children need structure and routine to feel safe. Explaining the changes will help prepare them. Many parents will make a planner for the wall so the children can easily check when they are seeing each parent.
Make it clear it’s not their fault
Children often think it’s their fault if their parents argue, so take time to reassure them that this is not their fault at all. Explain gently that separation is a difficult decision for adults and that it happens to a lot of families.
Telling them it is tough at first but that things will get better, helps them to understand this is not forever; life and the family will move on.
Don’t play the blame game
However, tempted you are to put your side of the story across, it will not help the situation. Don’t make it about who has done what. The most important thing is helping them to adjust and show them that you are both still there for them.
Don’t tell them everything – just what they need to know
In most cases, children don’t need to know the finer details. Hearing about an affair, financial worries, and other arguments will only cause more anxiety.
Finally, reassure them. Not just in this conversation but throughout the process. Love, security, safety and clear boundaries throughout the divorce process will help your children to deal with the divorce the best way they can.
Need some advice?
Our family solicitors will guide you through a separation/divorce and advise on the best options for you and assist with resolution of any questions or disputes which may arise in relation to the children.
To make an appointment and speak with a specialist lawyer, please make an enquiry here and someone will get back to you as soon as possible.
I wrote here only recently about the perils of not engaging with the court, a phenomenon that sadly arises with considerable frequency in family law proceedings. In fact, only a day after that post was published I came across another case that illustrates all too clearly just how disastrous such a course of action can be.
The case, O (A Child: Fact Finding Hearing – Parents Refusing to Participate), involved public law child care proceedings, but one can easily envisage a parent in a private law case about arrangements for a child taking a similar stance to the parents in this case. In fact, I have come across many such cases over the years.
I suppose that there are people who refuse to recognise the authority of the court in all areas of law, but it does seem more prevalent in the field of family law. Perhaps it is the way that family law seems to interfere with the very way in which private lives are led. Many people have very strong views about how they should lead their lives, and take exception to the courts telling them what to do. This is particularly so where one of the parties is dominant within the family, and used to getting their own way.
That appears to have been the scenario in this case. The judge, His Honour Judge Bellamy, noted that the family’s health visitor had found that the father presented “as a controlling and domineering partner”. She went on: “he was overpowering in saying what he thought, above [the mother’s] voice, interrupting her at times, to express himself. His verbal presentation was loud, that his opinion was right.”
The health visitor’s description of the father mirrored Judge Bellamy’s own experience of him in court. He said: “I formed the view that the decision that both parents should be unrepresented was a decision taken by the father and that it was a decision the mother has felt obliged to accept. Although she may understand that her interests would be better served by being legally represented, the father’s domination of her has meant that she has been unable to act in her own best interests.”
It is not necessary for the purposes of this post to go into the detail of the case. It related to a one-year-old child, who was found to have suffered serious injuries, as a result of which the care proceedings were instituted. This judgment concerns a fact-finding hearing to ascertain the cause of those injuries.
Sadly, as indicated above, the parents chose to be unrepresented for almost the entirety of the proceedings, despite free legal aid being available to them, and despite Judge Bellamy encouraging them to seek representation. Further, they did not attend court on a number of occasions, including at any point during the fact-finding hearing.
As Judge Bellamy stated, given that the parents genuinely desired that the child should be returned to their care, the way they approached the proceedings was “curious”. Again, I won’t go into details, but an example of the parents’ behaviour was that, whilst not engaging with the court, they chose instead to engage in public protests relating to the actions taken by the local authority, including one occasion when the mother was seen outside the council building holding a placard which read “The Derby City Council and Royal Derby Hospital tortured me and stole my baby for adoption”.
Judge Bellamy commented:
“The parents’ failure to engage defies all logic. The effect of their failure to engage could prove to be catastrophic for them and for the son whom they clearly love very much indeed.”
He concluded by finding that the child’s injuries were non-accidental, and were caused by either the mother or the father. He said:
“In making that finding I acknowledge that had the parents engaged with these proceedings, including giving evidence at this finding of fact hearing and had they taken advantage of their entitlement to specialist legal representation provided at no cost to themselves, the outcome of this hearing could conceivably have been different. However, the court can only arrive at its conclusions on the basis of the evidence before it.”
In the light of the parents’ behaviour, there was concern that the parents may publish the judgment, in a form that would identify the child. Judge Bellamy, therefore, made an injunction ordering them not to do so. Upon being informed of the injunction, the father stated that he still intended to publicise the judgment, and the mother agreed. The father also stated that he did not recognise the court’s jurisdiction, and welcomed the threat of imprisonment for breach of the injunction.
This case is another very serious warning to parents against being tempted not to engage with the court. As I indicated earlier, it applies equally to private law children proceedings. Just because things are not going the way you want them to go, or because you have heard that the law is biased, that does not mean that the courts do not have the best interests of your child at heart.
As Judge Bellamy said, failure to engage could be catastrophic, not just for you, but also for your child.
It’s a myth that cohabiting gives you any legal protection after a break-up. Guest blogger, Rachel Fisher from the Stowe Family Law Bristol office joins us to look at the issues around cohabitation and what you can do to reduce the risk if the relationship ends.
The biggest myth about the common law marriage is that it exists. Yes, as a social term it is used, but legally, the position of someone who cohabits is very different from that of someone who is married.
But society has and will continue to change; recent statistics show that cohabitants are the fastest growing family type in the UK. Growing from 1.5 million families in 1996 to 3.3 million in the UK by 2017 (ONS), cohabitants have grown by over 50%.
Millions of unmarried couples who live together are unaware of their rights if the relationship breaks down. So, what are the legal rights, if any, and what can you do to protect yourself?
Cohabitation v Marriage
1. Cohabitants have little or no legal protection at the end of a relationship.
2. The significance of who legally owns the house (whose name is on the title deeds) is far more important and your prospects of seeking a share of assets which are not owned in your name is significantly reduced if you are not married.
3. Many cohabitants do not understand that if the relationship was to break down then they would not have any entitlement to maintenance if they were the weaker party financially. The only statutory obligation is for the payment of child maintenance.
4. Many cohabitants do not understand the legal implications of moving in with their partner or purchasing a property with their partner.
5. If a marriage breaks down we refer to the Matrimonial Causes Act 1973 to determine what sort of financial settlement needs to be provided upon divorce. If a cohabiting relationship breaks down, and there is property involved, this is governed by the law of property and the law of trusts.
How can you protect yourself?
I would recommend taking advice from a family lawyer before moving in together to help avoid further problems down the line. There are many accounts of people who have moved in with their partner, who was maybe the financially stronger party, and lived together for many years only to find that when the relationship ended they had no entitlement to any share of the house or any financial support.
However, there are three key things you can do to protect yourself.
Declaration of Trust
Anyone who is cohabiting should complete a declaration of trust (a document that confirms the proportions in which two or more individuals own a property) regardless of how the property is owned at the beginning. It may be that this declaration of trust records the financial contributions both parties have made towards its purchase or reflect another agreement between the parties regardless of financial contributions. The proportions could be 50:50 or 100% to one party or anything in between however the advantage of a declaration of trust is that it creates certainty and will avoid a costly dispute if the relationship ends.
I would strongly recommend a cohabitation agreement which can deal with many other matters including payment of the mortgage, payment of other bills, home improvements and what will happen should the relationship breakdown.
Make a will
It is also important to make a valid will. If you were to die without leaving a will, under the rules of intestacy, unmarried cohabitees do not inherit.
What if the relationship has already broken down?
If you are already cohabiting and the relationship breaks down then please do seek legal advice as early as possible. There are a couple of options available to you if there are any disputes over property or children. However, it is better if you can try and resolve matters by agreement outside of the court process.
Trust of Land and Appointment of Trustees Act 1996 (ToLATA)
If there is a dispute about a property that is jointly owned or is in one of the parties’ name and the other thinks they are entitled to a share, you can make a claim under ToLATA to ask the court to decide what share of the property each party owns and decide whether it should be sold to release one party’s share.
This route does have cost implications so it is important to take advice from a lawyer before commencing any claim. This is a civil claim rather than a family case so you should seek advice from a solicitor who specialises in these sorts of claims.
Schedule 1 Applications
If you have children you may be able to make a claim under Schedule 1 for financial provision for the children from the other parent.
The court can deal with maintenance for children in limited circumstances and can make capital orders such as payment of a lump sum for the benefit of the children or the transfer of a property for the benefit of the children, normally until the youngest child reaches 18.
The court will consider all the circumstances before deciding what order to make but the priority is to meet the needs of the children.
The future of cohabitation law
Resolution, a national organisation of family lawyers committed to non-confrontational divorce, separation and other family problems, campaigns the government about the lack of rights of cohabiting couples and for the need for reform to extend rights.
With only 1 in 3 couples knowing that there are no such things as common law marriage (Resolution survey), it is time for the law to catch up with modern society so that cohabiting couples are not at risk if the relationship ended.
It’s a common concern of litigants involved in financial remedy proceedings: are the details of my case going to be made public? There are many reasons why litigants are concerned about their cases being made public, but perhaps the most common are worries about the effect of publication upon a child, the revealing of details of a business that may be detrimental to that business, and simply the desire to keep personal family matters private.
Obviously, most financial remedy cases are unlikely to attract much media attention. Generally, the only ones that are likely to do so are those involving celebrities, well-known businesses, a matter of public interest, or particularly unusual or salacious facts. However, even if it does not fall into such a category, if your case goes to a final hearing, the judgment may still be published, for example on the Bailii website.
It may not then attract much attention beyond the legal profession, but it may still be found by anyone taking an interest in your affairs, or the affairs of your business.
A recent case set out a very handy summary of the principles in relation to restrictions on reporting cases and the publication of judgments in matrimonial financial remedy proceedings. XW v XH concerned a big-money financial remedy dispute. The case was heard by Mr Justice Baker over some ten days in June last year, although he did not hand down his judgment until December. There then followed a further judgment, only handed down last month, dealing with subsequent applications by both parties for a reporting restrictions order, precluding publication of information relating to the proceedings. This post is concerned with that later judgment.
The parties to the case were married in 2008. Neither is a public figure, although the husband is a successful businessman whose products are said to be “widely used by many people across the world.” The couple have one child, who sadly has a rare, life-threatening condition and also has significant disabilities. The marriage broke down in 2015 and the wife commenced divorce proceedings. The subsequent financial remedy proceedings mentioned above were heard in private.
Mr Justice Baker set out ten principles in relation to the reporting restrictions applications, as follows:
1. The general rule is that hearings are carried out, and judgments delivered, in public.
2. Proceedings in the family court, including financial remedies applications, are an exception to this general rule and are therefore usually heard in private.
3. However, the mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings.
4. In financial remedy proceedings, the parties are required to make full disclosure of all relevant matters, but the information disclosed in accordance with this obligation is confidential, and may not be used for any purpose other than within the proceedings in which the information has been disclosed.
5. Any disclosure by a party of information arising from financial proceedings amounts to a breach of confidence and a contempt of court unless it is authorised by the judge.
6. In deciding whether to restrict or permit disclosure or publication of information relating to financial remedy proceedings the court has to consider the rights of the parties and children, including the right to respect for private and family life.
7. In cases where there is a public interest in the publication of the judgment which explains or illustrates an aspect of the law or practice, the judge will normally give permission for it to be reported, but subject to anonymisation and deletion of sensitive or confidential information.
8. In some cases, the judge may authorise publication of the judgment without anonymisation or deletion, for example, where a party has provided false information to the court, or where the parties are in the public eye and the details of the matrimonial dispute are already in the public domain.
9. There are some rare cases where the facts of the case are unique or so unusual that confidentiality can only be protected by withholding the judgment from publication altogether (this was argued by the husband in this case, but not accepted by Mr Justice Baker).
10. Lastly, duly accredited representatives of news gathering and reporting organisations are allowed to attend family proceedings held in private, unless the judge orders otherwise. That does not necessarily mean that they are permitted to report confidential and private information disclosed in the proceedings, although there is some disagreement amongst judges and practitioners on this issue, and as a result, the courts are not infrequently invited by the parties to financial remedy proceedings to make a reporting restrictions order.
I’m not going to go through the reasoning of Mr Justice Baker as he applied these principles to this case. Suffice to say that he considered that there was a public interest in the publication of the first judgment, but that the judgment should be amended so as to anonymise the parties, their child, other family members, as well as other pieces of private and/or confidential information.
He also made a reporting restrictions order, prohibiting the publication of various information relating to the case, if it was likely to lead to the identification of either of the parties or the child.
This post may not answer the question as to whether your financial remedy case is going to be made public, but hopefully, it will enlighten you a little. Obviously, for further information, including ways of ensuring that the case is not public by avoiding a court hearing altogether, you should consult a specialist family lawyer.
It’s that time of year again. The school summer holidays are almost upon us, and separated parents across the country are looking forward to taking their children abroad on holiday.
But before you go rushing off to the airport you need to ensure that you are legally permitted to take your child abroad. If you are not, you could be committing the criminal offence of child abduction, if the holiday is outside the UK.
The first thing to consider is: what exactly is meant by ‘abroad’? The answer to that question is actually more complicated than many may think. Clearly, anywhere outside the United Kingdom comes within the definition, but note that ‘United Kingdom’ does not include the Channel Islands or the Isle of Man, both common holiday destinations.
However, there is a further complication. The four countries of the United Kingdom (England, Scotland, Wales and Northern Ireland) do not all share the same legal system. Accordingly, removing a child from one legal system within the UK to another, for example from England and Wales (which share the same system of family law) to Scotland, may effectively amount to the same thing as taking the child ‘abroad’, as we will see shortly.
The next thing to consider is: has a court made a child arrangements order or, in older cases, a residence order, in relation to the child? If it has, then no person may remove the child from the United Kingdom without either the written consent of every person who has parental responsibility for the child (more of which in a moment) or the leave (i.e. permission) of the court.
However, a person named in the child arrangements order as a person with whom the child is to live or, in the case of residence orders, a person in whose favour the order was made, may remove the child for a period less than one month without requiring such consent/permission. Incidentally, you may come across references to ‘28 days’ rather than ‘less than one month’, including on the GOV.UK website. The rule is set out in the Children Act 1989, which refers to ‘less than one month’. However, as the shortest month can be only 28 days, then that is probably the safest rule of thumb to follow.
If the last paragraph does not apply to you then you will need to seek the consent of anyone who has parental responsibility for the child before you can remove them from England and Wales (note that I am not saying ‘the UK’ – consent is still required, for example, to remove from England to Scotland). For obvious reasons, that consent should preferably be in writing. You can obtain the consent from them directly, or through solicitors, for example, if you are not able to communicate with them directly.
The next question is: who (else) has parental responsibility for the child? Usually, this is fairly obvious, particularly as parents who were married both have parental responsibility, but sometimes it will not be so obvious. An unmarried father may have obtained parental responsibility (even if he has not, I would suggest that it would be a good idea to seek his consent, especially if he sees the child regularly), and other people may have parental responsibility, for various reasons. For further details regarding parental responsibility, see this post.
If the person(s) with parental responsibility does not consent and the child arrangements/residence order rule does not apply, then you will need to obtain the permission of the court before you take the child abroad. Note that court proceedings may be avoided if both parties agree to sort the matter out via mediation.
In most cases, the court is likely to grant permission for you to take your child abroad, especially if the holiday is for a reasonable period, and to a destination (not, for example, a place where the child may not be safe). The main problem that arises in cases such as this is where there is perceived to be a risk that the child may not be returned to this country at the end of the holiday. This may particularly be an issue if the parent has family living in the country to which they intend to take the child, and especially if the country is not a signatory to the Hague Convention on Child Abduction, meaning that it could be very difficult to legally secure the return of the child (for a list of countries that are signatories to the Convention, see here). I wrote here back in March about one such case, in which the court refused permission for a mother to take her children to China for a holiday.
The above is of course just a brief summary of the law. For detailed advice, you should consult a specialist family lawyer.
I have written here recently about the phenomenon of ‘forum shopping’, in which a party to proceedings, usually divorce, seeks to have the case dealt with in the country in which they believe the courts will act most favourably towards them. The classic situation is where the wife believes that she will get a more favourable divorce settlement from our courts than from the courts in some other country.
That was just the situation in the case Mantegazza v Mantegazza, which was decided by Mr Justice Moor in May last year, but which has only just been published on the Bailii website.
The facts of the case were that the husband, who is alleged “fabulously wealthy”, was born in Switzerland but lives in Monaco. The wife was born in England. She resides with the two children of the family in Switzerland, but “very much wishes to return to live in England.”
The husband worked in England for about forty years, until 2014. The parties met in England, and began to cohabit here in 1995. They were married in Switzerland in 1996. On the day of the wedding they entered into a pre-marital agreement, under which they agreed “to subject to Swiss law all their internal and external patrimonial relations, regardless of their future domicile”, including accepting the Swiss ‘separation of property’ regime, under which each party retains their own separate property.
The family lived in London until 2006, when they moved to Switzerland. The wife and children continued to reside there for the following eleven years (until the case was heard by Mr Justice Moor), although the husband continued to spend a lot of time working in London.
The marriage broke down in December 2014. The husband moved out of the matrimonial home, initially to a flat in Switzerland, but then moving to Monaco in February 2016.
The wife issued divorce proceedings in this country in July 2016, claiming to be domiciled in England and Wales. In September 2016 the husband issued divorce proceedings in Switzerland. He then filed an acknowledgement to the English proceedings, stating that he intended to defend the wife’s petition and apply for it to be stayed (i.e. halted), on the basis that there was a more appropriate jurisdiction for the divorce, namely Switzerland. He said that, in terms of English law, he was domiciled in Switzerland, but habitually resident in Monaco. The wife similarly applied to suspend the Swiss divorce proceedings.
It fell to Mr Justice Moor to decide where the divorce proceedings should take place.
He found that the ‘more appropriate forum’ for the divorce was Switzerland. He came to this conclusion for a number of reasons, including:
1. The existence and contents of the pre-marital agreement. Interestingly, no mention is made of the fact (as alleged by the wife) that the agreement was ‘sprung’ upon her on the wedding day – normally, the courts in this country will only recognise such agreements if they are entered into a reasonable time before the marriage.
2. The fact that the parties were married in Switzerland.
3. The fact that the last matrimonial home was in Switzerland, and that the wife and children had lived there for the previous eleven years.
4. The fact that there were no significant assets in England, whereas there were substantial assets in Switzerland.
5. The fact that there was no jurisdiction to deal with maintenance in this jurisdiction, but there was jurisdiction in Switzerland.
6. The fact that any order arising out of matrimonial property rights made here would not be recognised in Switzerland.
7. The fact that the wife had issued proceedings here first was a factor in the wife’s favour, but the force of this point was nullified by the fact that the wife had been engaged in negotiations in Switzerland, prior to issuing proceedings here unilaterally and without notice.
It was argued on behalf of the wife that she would not receive ‘substantial justice’ in Switzerland. However, this was not accepted by Mr Justice Moor, who took the view that, notwithstanding the separation of property agreement, she “faces an uphill struggle to satisfy the court that a fully developed legal system such as that in Switzerland will not deliver substantial justice.” Even if she did not receive justice, she could then apply to the court in this country, by making an application for financial provision after an overseas divorce.
In the circumstances, Mr Justice Moor granted the husband’s application for a stay of the wife’s English divorce petition, which would be dismissed on the pronouncement of a final divorce decree in Switzerland.
It’s been a busy week in family law again. Dominating the headlines was the release of the quarterly statistics for legal aid which saw a 21% increase in applications via the domestic abuse gateway. John Bolch discusses this and more…
Quarterly statistics for the Family Court, for the period January to March 2018, have been published by the Ministry of Justice. Amongst the main points were that 63,100 new cases were started in family courts in that period, down 4% on January to March 2017 due to falls in adoption, financial remedy, private law children and matrimonial cases; that the number of private law children applications and disposals were down 5% and 7% respectively compared to the same period of 2017; and that there were 27,401 divorce petitions made during the period, down 4% on the previous year. However, the average time for divorces to reach Decree Nisi and Decree Absolute was up 3 weeks (to 27 weeks) and 2 weeks (to 51 weeks) respectively over the same period. So, fewer cases but cases taking longer. One would have logically expected that if there were fewer cases for the courts to deal with then cases would be dealt with more quickly. Another indication, perhaps, that the ‘centralisation’ of the divorce process into a few divorce centres may not have led to the improved efficiencies that some had hoped.
The Ministry of Justice has also published quarterly statistics for legal aid. These showed, amongst other things, that in January to March 2018 applications for legal aid via the domestic violence and child abuse gateway increased by 21% compared to the same period in 2017. As I explained in this post, the reason for this is not that more people are ‘manufacturing’ false allegations of domestic abuse so that they can get legal aid. Rather, it is due to the fact that in January the government relaxed somewhat the requirements for applicants for legal aid to produce evidence of the abuse, thereby making it easier for domestic abuse victims to get legal aid.
Notwithstanding this, the fathers’ rights group Families Need Fathers has claimed that “thousands” of parents are falsely stating that they have been the victims of domestic abuse, in order to obtain legal aid and stop estranged partners from seeing their children. The group says it suspects that solicitors’ firms are talking parents into seeking non-molestation orders because it enables them to qualify for legal aid, from which both the legal profession and the complainant could benefit.
A spokesman for the charity said: “We’re getting a lot of people coming to us talking about false allegations, whether it’s grossly exaggerating events or even completely fabricating them. And yet the impact of the order can take a parent down a path that can be very difficult to return from.” As I also said in my post, I’m sure this does happen – it is an almost inevitable consequence of a system that requires there to be domestic abuse before legal aid is granted. However, whether the numbers are quite as high as suggested is another matter. I note, for example, that Katie Ghose, chief executive of the domestic abuse charity Women’s Aid, says that they “are not aware of any cases where mothers have falsely applied for non-molestation orders.” Hmm. It’s almost as if each ‘side’ in the debate is only seeing what it wants to see…
And finally, the Ministry of Justice, which has obviously had a busy week, has admitted that it overcharged for a number of different court fees, including fees for Court of Protection proceedings. Oops. In a written statement to Parliament justice minister Lucy Frazer QC said that she was laying before Parliament legislation reducing court fees for certain proceedings in the civil courts and the Court of Protection in England and Wales and that as a result, claimants bringing these proceedings will pay less to access the courts. The reduction to the fees follows a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings. The review identified a number of cases where the fees charged were above full cost recovery levels. The Ministry is, therefore, taking action to reduce those fees, and will also be establishing a refund scheme to reimburse people the amounts they have been over-charged.
We are all used to reading the tabloid headlines about the latest warring wealthy couple as they become locked in an emotional battlefield.
Fighting a divorce is complicated and stressful. Whilst we always work with clients to achieve an amicable result (meditation being key), divorce cases do go to court and people do not always fight fair.
Do not assume that your ex-partner will be honest and up-front about their assets. Create an all-inclusive schedule of the assets of the marriage.
If you think assets are being hidden speak to a forensic accountant (we have a team in-house) who is a specialist in identifying hidden assets and bringing them to light. If you are considering hiding assets – don’t do it. They are likely to be found and it could have an adverse effect on the final settlement.
A forensic accountant can also ascertain the true value of business assets including issues around how much income can be drawn from the business, liquidity and tax issues. There are various ways that business owners can manipulate the figures to present a deflated picture of the health of the business. Our forensic accountancy team assist us to ensure that this does not happen.
Assemble your team
You need a good team of people with you fighting your corner and giving you the support you need.
First off, get a good divorce lawyer; look for one with experience of handling contentious cases that have ended in court. Your lawyer will be the voice of reason and help you create the strategy you need to get the best outcome. It is essential that you have confidence and trust in them.
You may need to involve a variety of experts including financial advisors, surveyors, forensic accountants and a good lawyer will be able to guide you on who you need to call upon and when.
Ask your friends and family for support, although please do leave the legal advice to your lawyer. Counselling can also be invaluable to help you manage the negative emotions and anger about the proceedings – keeping you calmer and focused on the case.
Try to avoid moving out of the marital home
If you have children and expect to remain in the family home after the divorce try not to move out. It is important for the children to have stability and routine in what can be a very confusing and uncertain time. There can also be a tactical advantage to remaining in the home. That said don’t live your life for the litigation. If it is unsafe or simply unbearable to remain there consider other options. Perhaps speak to your lawyer before making this decision.
Moving out does not affect your financial claims but tactically you may have less negotiating power if your ex-partner is happy living in the house with the children now that you have moved out.
Be smart, not emotional
It is very important to approach a divorce with a rational and logical mind to make the best decisions for you and the family. Easier said than done, so this is where your divorce team comes in. A lawyer, financial advisors, a counsellor etc can help you to avoid emotionally charged decision making and instead focus on the battle at hand.
How we can help you
At Stowe Family Law, we have a wealth of experience in dealing with these types of cases. If you find yourself in a contentious divorce you will need a lawyer who is robust and fights your corner. Our lawyers are highly experienced in complex divorce cases often involving court proceedings, so we will have the right person for your case.
It is an often-stated truth that a court order is worthless if it cannot be enforced. Accordingly, the courts have been given wide powers to enforce orders, in various ways. The ultimate of these is the power to commit the person in breach of the order to prison. However, such a draconian power must obviously be subject to safeguards, to ensure that it is properly used. In the case of committal, that means that certain procedural formalities must be strictly adhered to.
Sadly, it is a recurring theme in reported cases of committal hearings that these procedural formalities are not followed. The result is that the person in whose favour the order was made may be left frustrated, especially where the breach of the order was clear and deliberate.
Such was apparently the situation in the recent case CH v CT, which concerned an application by a grandparent to enforce a contact order.
The background to the case was a little complex, but the essential facts were that the child is aged five and has lived with her mother all her life. Sadly, her father died in 2014. For a while after this, she was having contact with her paternal grandmother and her current partner. That broke down in circumstances that are disputed between the parties, and in 2016 the grandmother applied for a child arrangements order.
The application was opposed by the mother, but the court made an order in favour of the grandmother, on the 21st of July 2017. The order provided that the child should have contact with the grandmother every Sunday on a two-weekly cycle, week one from 12 noon to 2 pm, and week two from 12 noon to 5 pm.
No contact has taken place under the order, the grandmother having allegedly attended outside the mother’s property every Sunday, but having not been allowed to see the child.
In October 2017 the grandmother applied for an enforcement order. The application was heard in February 2018. The court found that the mother had not obeyed the order, that she acknowledged that she had not done so and that she confirmed that she did not intend to do so. In the circumstances the court made an order committing her to prison for three months. The order was suspended for four months, meaning that if the mother again disobeyed the order within that period, the three-month sentence could be activated. The mother appealed against the committal order alleging, amongst other things, that there had been various procedural irregularities.
Hearing the appeal in the High Court Mr Justice Baker found that there had, indeed, been a number of serious procedural irregularities.
Firstly, the mother had not been given proper notice of the committal application (the grandmother had only applied for an enforcement order).
Secondly, the mother should have been served with a detailed list of the alleged acts of contempt so that she knew precisely what she was being accused of, but this did not happen.
And thirdly, the judge hearing the committal application had not set out the breaches of the order that she had found proved, as she should have done.
Mr Justice Baker pointed out that it is possible for the court to waive any procedural defect in the commencement or conduct of a committal application. However, it may only do so if it is satisfied that no injustice had been caused to the respondent by the defect. Here, the above defects were such that the mother had suffered such an injustice.
For these reasons, Mr Justice Baker reached the clear conclusion that the committal order was wrong. However, he made clear that:
“In saying that, I am not endorsing the [mother’s] actions. It seems plain that she has failed to comply with the order of 21 July 2017. But the fact that a party has failed to comply with an order does not empower the court to make a committal order without complying with the procedural requirements.”
Further to the above defects (and this has been a common occurrence over the years), the contact order did not contain the required ‘penal notice’, warning the mother of the possible consequences of breaching the order – without such a notice, the order was incapable of being enforced by an order for committal at all.
Accordingly, Mr Justice Baker allowed the appeal and set aside the suspended committal order. He further ordered that the grandmother’s application for an enforcement order should be listed for rehearing before a circuit judge, to consider whether the mother had a reasonable excuse for failing to comply with the order of 21 July 2017.