Family Law Blog

Increase in Applications to the Courts

30 March 2016, by Taylor King Family Law Solicitors

Cafcass (the Children and Family Court Advisory and Support Service) received 3,237 new private Children Act cases in February 2016 which is an increase of 10% on February 2015.

There have been a total of 18,753 in the last six months which represents a 6% increase on the same period last year.

The increase in care applications received by Cafcass has increased even more. In February 2016 Cafcass received 1,225 care applications which is a 27% increase on February 2015. It is also the highest number of applications received in a single month. The number of applications in the last six months is up 15% on those in the corresponding months last year.

Parent Plan

19 March 2016, by Taylor King Family Law Solicitors

Parent Plan, a secure website that helps separated and divorced parents to communicate with one another in order to make arrangements for their children, has recently been launched. It aims to enable parents to communicate effectively and keep up to date with their children’s lives even if they do not see them every day.

Members have access to a calendar on which they can upload diary events and activities. They can also store contact details, and upload pictures and documents such as school reports or drawings. This information can be shared with the other parent and other selected adults involved in the child’s life such as grandparents or carers.

Parent Plan is free for everyone until 1st June 2016.

To access the site click here [https://www.parentplan.com/].

Developments to the family courts

18 September 2015, by Taylor King Family Law Solicitors

The Law Society’s Family Section has issued an update to the changes to the Family Courts. This update includes:
1. They expect all the divorce work from London, which was being transferred on a phased basis, to be processed from Bury St Edmunds by October 2015. It is expected that the Bury St Edmunds divorce centre will issue approximately 40,000 petitions a year.

2. It is expected that changes to the divorce petition will be introduced by the end of September 2015.

3. Guidance is being developed on what would constitute ‘urgent’ work, examples would include applications to set aside transactions or jurisdictional disputes. For now, the local courts can still issue urgent work.

4. The Financial Remedies Unit has been established as a specialist unit within the Central Family Court to efficiently handle complex financial cases. In order to be transferred to the FRU the case must be sufficiently complex and a Certificate of Financial Complexity completed. The certificate requires details of the total value of the assets with tick boxes flagging up any other potential areas of complexity including:

a. Complex asset or income structures

b. Non-disclosure (this may become more relevant subject to the outcome of the appeals to the Supreme Court of Sharland and Gohil)

c. Assets held offshore or through offshore settlements, family businesses or unquoted corporate entities, or where there is an issue of the value of such entities

d. Expert accountancy evidence is required

e. There are issues over contributions or substantial arguments over matrimonial /non-matrimonial assets

f. Disputed allegations of obvious and gross conduct

g. Illiquidity of assets

h. Complex or novel legal arguments

If it appears that the complexity criterion may not be met the application will be sent to a judge of the FRU who may decide to send the application to Bury St Edmunds for issuing.

In July 2015 Mostyn J revised the asset thresholds for financial remedy hearings before High Court Judges. In order to be transferred to the High Court the total assets should exceed £15million, or the overall net income exceed £1million. If the assets are between £7.5million and £11million there should be substantial allegations or issues relating to non-disclosure, offshore assets, reliance on a pre/post nuptial agreement or significant third party interests. The only applications that will be transferred to the High Court where the assets are less than £7.5million are those involving a novel and important point of law.

Transfer of residence

10 February 2015, by Taylor King Family Law Solicitors

It is not common for the residence of a child to be switched from one parent to the other, simply for the reason that it is not in the best interests of the child to make such a drastic change – a factor that is the court’s primary concern.

However, in the case of RS v SS a father obtained a residence order for his two sons after years of the mother obstructing contact.As is often the case in residence/contact disputes a new partner can cause problems. The mother in this case suspected that the father had started a new relationship prior to theirs ending; a fact that was denied by the father. The mother’s view had formed part of the reason which led to the difficulties in this case.

In his application to the court in 2012, 10 years after the problems had started, the father stated that he had never had regular contact, the mother had repeatedly breached court orders, used financial matters as a barrier to contact and the boys were under pressure from their mother and afraid to stand up to her. He was effectively only seeing his sons in the school holidays and he complained that their attendance at school was poor. He stated that he had been subjected to verbal abuse, uncontrollable rage and erratic behaviour from the mother. The father stated that he had made the application for a residence order because he could offer stability to the boys and that it was the only way the boys would have a relationship with him.
In the same month as the father’s application the mother had threatened the father with an injunction after he contacted her to ask about holiday contact. She had left voicemails, which were played out in court, threatening to cut off contact and leave the country if he did not pay backdated child maintenance.
In her judgment, Judge Harris stated that she preferred the evidence of the father and demonstrated a far better insight into the needs of his teenage and pre-teenage boys, for example, around issues of guidance and boundaries, than the mother. She also stated that the mother was a very angry and wilful woman whose hatred of the father was almost pathological. The mother had prioritised her own needs and feelings at the expense of the needs of her children.
A problem that arises following an order for transfer of residence is that of how it is to be facilitated. In the case mentioned above it was relatively simple, the children moved to their father’s house the following day, which happened to be Christmas Day. Another way this can be achieved, where the child/children have negative views about the new resident parent, is to have a temporary foster placement with the new resident parent having substantial contact, gradually moving to the child/children moving to live with them full time.

The presumption of parental involvement

18 November 2014, by Taylor King Family Law Solicitors

Section 11 of the Child and Families Act 2014 came into force on 22nd October 2014. It provides that when the court makes a child arrangements order there is a presumption (unless the contrary is shown) that the involvement of both parties in the life of their children will be in the best interests of the child. This has been referred to as the presumption of parental involvement. This is important because the presumption recognises that both parents have a significant role to play in the upbringing of their children irrespective of where the child resides or how much time he or she spends with the non resident parent.

However, the presumption does not mean that the court will assume that it is in the child’s best interests to spend equal time with their parents.

English courts are now specifically directed to take into account the presumption of parental involvement when making decisions about where children live and how often they see their parents. “Involvement” is defined as direct or indirect (video calls, email, telephone) but not any particular division of a child’s time.

The welfare of the child is the paramount concern when the court makes a decision about children and this will not be overridden by the presumption of parental involvement.

The presumption is not likely to have much impact on the decisions made by the Family Court who have taken the approach for many years that the best interests of the children are met by both parents having an impact in their lives. This presumption now incorporated in law merely reinforces what is actually taking place.

Relocating with children within England & Wales

17 July 2014, by Taylor King Family Law Solicitors

A parent with primary care does not have to apply to the court for permission to relate within the UK. However, it is a matter of good parenting to notify the other parent and to provide details of the proposed move well in advance.

If a parent proposes to move a child from England and Wales to another part of the UK, e.g. Scotland and does not have the consent of the other parent the parent wishing to move should apply for a specific issue order.

If the other parent does not want the child to move he or she can apply to the court either for a prohibited steps order to prevent the other party from moving with the child or to impose a condition to a residence order (now called a child arrangements order). This condition may prevent a parent moving the child from a specific geographical area. It was previously the case that it was only in exceptional circumstances that a court would impose a condition on a parent restricting their right to choose their place of residence.

The welfare of the child is the court’s paramount consideration. The court must look at all the circumstances and facts of the case to make a decision about whether a relocation is in the child’s best interests. Even where there is a shared parenting arrangement in place this will not prevent the court from allowing a parent and child to relocate.

Case study

In a case in 2012 the mother wished to relocate from Tooting to Norwich. The father had weekly contact from Saturday morning until Sunday evening. The father raised concerns about the mother’s mental health and applied for a prohibited steps order. The father’s contact was extended to three days per week pending the final hearing. A psychologist’s report disclosed no concerns about the mother’s mental health. The prohibited steps order was discharged and the contact arrangements varied to alternate weekends.

The father appealed. This was unsuccessful. Despite the fact that the father had had a recent increase in contact the mother was the primary carer. Her wish to relocate was reasonable to improve her job prospects and to  move away from the father’s oppressive, controlling behaviour. The judge specifically considered the impact on the child with regard to contact and was reassured that the mother would continue to promote contact between the father and the child. The Court of Appeal reinforced the finding of the judge that the welfare of the child is always paramount.

If you wish to move with your child or children and the other parent is  not in agreement then please contact us to advise and assist you.

The Children and Families Act 2014

20 April 2014, by Taylor King Family Law Solicitors

The Children and Families Act 2014 has now received Royal Assent and will come into force on 22 April 2014.

There are three significant changes:

  1. Compulsory mediation,
  2. Continued parental involvement, and
  3. Child arrangement orders.

This article explores these changes.
Read more →

Finding of Fact Hearings

20 December 2013, by Taylor King Family Law Solicitors

Where one party to Children Act proceedings makes an allegation of violence or domestic abuse which is challenged by the other party it may be necessary for the court to hold a fact finding hearing to determine the truthfulness to any allegations before deciding how to progress the case. This is because the outcome of the fact finding hearing can be significant in how the case then proceeds. Read more →

Parental Responsibility and When It Can Be Terminated

20 November 2013, by Taylor King Family Law Solicitors

Parental responsibility is all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property.

The mother of a child automatically has parental responsibility.

Since December 2003 fathers who were married to the mother at the time of the child’s birth, or married the mother after the birth, automatically have parental responsibility. For all unmarried fathers, or married fathers of children born prior to December 2003, parental responsibility can only be obtained with the mother’s consent (by written agreement or registering the father’s name on the birth certificate) or by order of the court.

Step parents or civil partners who play a parental role in the life of a child can obtain responsibility with the formal agreement of both parents with parental responsibility. A non parent can apply to the court either for a parental responsibility order or a residence order. A residence order automatically grants parental responsibility.

Married fathers cannot have parental responsibility terminated under a court order.

Applications to terminate parental responsibility can be made by anyone with parental responsibility in respect of the child and, with leave of the court, the child itself.

There is a presumption that, once granted, the termination of parental responsibility should continue indefinitely. The welfare of the child is paramount and the court must ensure that making such an order is only used as an appropriate step in the regulation of the child’s life where the circumstances really do warrant it and not otherwise.

In the case of A v D (Parental Responsibility) [2013] EWHC 2963 (Fam) the mother made an application for a residence order, permission to change the child’s name and for an order terminating the father’s parental responsibility. The father had a long history of violent offences and the mother was victim to severe domestic violence from the father leaving her with post-traumatic stress disorder. The child had witnessed the violence and had complex needs.

At the time of the hearing the father was serving a term of imprisonment for GBH and did not attend. He did however write to the court indicating that he did not oppose the mother’s applications.

The judge held that the father’s parental responsibility should be terminated. He had shown a lack of commitment to the child, his interest lay principally in controlling the mother rather than in the child and it would be intolerable for the mother to continue sharing parental responsibility with the father.

A father whose parental responsibility has been terminated is not however barred from making a future application for contact, or from re-applying for parental responsibility.

Is A No Contact Order A Breach of Human Rights?

19 September 2013, by Taylor King Family Law Solicitors

The Court of Appeal in M (Children) [2013] EWCA Civ 1147 took the unusual step over overturning an order for no contact.

A father of three appealed against an order refusing his application for contact. He had a history of criminal convictions related to violent behaviour, including causing grievous bodily harm with intent, and the case had involved significant domestic violence. The mother had eventually left the family home and moved to a refuge with the three sons who had often witnessed their mother’s abuse.

Having heard the evidence the judge was in no doubt of the mother’s truthfulness or her real fear for her personal safety. She found that the father had minimised his behaviour and had not learned anything from courses he attended aimed at addressing his violent behaviour. She held that the father’s continuing behaviour was likely to destabilise the children’s home and security.

The Court of Appeal noted that it was exceptionally rare for an appellate court to think about reversing a decision which was based on primary facts.

On appeal, Macur LJ said that the judge’s conclusions were justified and unassailable on appeal but nevertheless careful scrutiny of the outcome was required because such an order was draconian and disproportionate under Article 8 of the European Convention of Human Rights (right to respect for private and family life).

Macur LJ noted that domestic violence, in itself, was not a bar to contact, but should be assessed in the circumstances as a whole.

She concluded that the appeal should succeed on the basis that the judge had failed to consider how the children’s safety and the management of the mother’s anxieties could be achieved under any circumstances of supervision. This was particularly notable given that the judge had stated that “it would be highly desirable if contact could be achieved without undermining other aspects of [the children’s] welfare”.

She stated that in order to reach the conclusion that there should be no contact the court must have considered all reasonable and available avenues which promote the children’s right to family life.