bloody relations

World's worst parenting?

2012-12-29T11:20:00.001Z

It's the thought that counts

2012-12-22T00:08:00.001Z

Fami.li Law & Decree Absolute: New Paper.li Newspapers

2012-05-02T12:46:00.001+01:00

I have created a paper.li newspaper called Fami.li Law which can be found here
This takes snippets from twitter and other family law blogs and I add stories from websites as I come across them.

I have also created Decree Absolute which as the name suggests covers stories on divorce.

D.I.V.O.R.C.E: the mother of all separation songs

2012-04-25T10:19:00.002+01:00

This one is for @OnlyDads!

OnlyDads website

All Around My Hat: for Lucy's Dad: Songs of Separation

2012-04-23T22:43:00.001+01:00

Another great track on the #divorcealbum on twitter.

This one proposed by the father of @familoo aka Lucy Reed co-editor of the Family Law Week Blog and author of the Pink Tape Blog - see link on the right hand side.

The Three Degrees & Separation

2012-04-22T12:57:00.002+01:00

Inspired by a twitter collaboration about our plans for best-selling divorce album I am starting a series of posts of songs for inclusion on the divorce / separation playlist.

Thanks to @onlydads @familoo @sobukira @joshortland @christinapieri @lawwilliams4kbw @RebeccaLHarling

Kicking off with Gee Baby by the Three Degrees

Appealing against Care Orders: a Guide for Parents: Guest Post by Richard Carroll, Pupil Barrister at 4 Brick Court

2012-04-17T20:23:00.000+01:00

If you have the benefit of legal representation, then your first port of call should be to your solicitor in asking for advice on what to do next. Even if you do not like their advice, you should give it very serious consideration. Care proceedings are emotionally fraught by their very nature and a decision you strongly disagree with is not one which can necessarily be challenged legally.

If you disagree with the decision and you do wish to challenge it, and are legally represented, the first thing you should do is to ask for the person who represented you at the final hearing to write an advice on appeal. It would also be of benefit to you and to them if you wrote down exactly why you think the case should be appealed and to ask them for their professional opinion on it. If asked, whoever represented you should provide a written advice and so do not be afraid of asking for one.

FUNDING

A lawyer cannot advise that the legal services commission pay for an appeal if they believe the prospects of success are poor. If your lawyer believes the prospects of success are better than poor there is an automatic right of appeal but they should not appeal unless they believe there are reasonable prospects of success. This is because an appeal court can make a costs order against the lawyer conducting the appeal if they feel the appeal should not have been undertaken.

If your lawyer does believe that there should be an appeal then the question of how that appeal should be funded arises. Although there is an automatic right to legal aid funding for parents in care proceedings, this rule does not apply to appeals. Perversely, it is possible that in care proceedings a legally aided parent may get the order they seek, and be refused legal aid for legal representation for an appeal against that order brought by someone else, which they have no control over.

Legal aid for appeals in care proceedings are “means” and “merits” tested. The merits test is that the chances are better than poor as discussed above. The means test is in two parts. Firstly, does the legal services commission believe you have the means to pay for the appeal yourself? This is a standardised test which your solicitor will be able to advise you on, if they feel there is merit in an appeal. Secondly, even if you cannot be expected to fund it yourself, if there are other people or organisations that could reasonably be expected to fund the appeal, you may be refused funding. This seems in principle that the more significant the breach of a persons legal rights are, the greater the danger they will be denied legal aid to appeal. Whether or not that could ever be seen as morally justifiable is unfortunately irrelevant for the purposes of this article. It is the law as it stands.

GOING IT ALONE

If you are going to conduct the appeal in person, you should consider whether or not you want help from what is called a McKenzie friend. They are non-lawyers who can provide moral support, take notes, help with case papers and quietly give advice on the conduct of the case. They should normally be allowed to attend any court hearings with you. If you are going to seek the assistance of a McKenzie friend, you should inform the court of who you will have assisting you and send in a short CV setting out their experience. This can be a friend of yours or someone who regularly acts as a McKenzie friend.

If you want to appeal in person you first must decide the basis on which you are appealing. There are 3 grounds on which you can appeal from the Family Proceedings Court. These are:

The decision of the magistrates was wrong in law.
The decision of the magistrates was outside their jurisdiction. (They did not have the legal power to make the order they did.)
The decision of the magistrates was plainly wrong. (This is a very high test as there may be a number of reasonable decisions which could have been come to. You would have to show a clear deficiency in the reasoning of the magistrates.)

What you must then do is as follows:

You will need to lodge an Appellant’s notice with the court you are appealing to, which will be the County Court or the Principal Registry of the Family Division, within 21 days of the decision. You will have to file with this:

Two additional copies of the appellants notice;
one copy of the appellant’s notice for each of the respondents;
one copy of the appellant’s skeleton argument for each copy of the appellant’s notice that is filed;
a sealed or stamped copy of the order being appealed or a copy of the notice making the order;
a copy of any order giving or refusing permission to appeal, together with a copy of the court’s reasons for allowing or refusing permission to appeal;
any witness statements or affidavits in support of any application included in the appellant’s notice.

You must also file an appeal bundle which will need to include:

A sealed or stamped copy of the appellant’s notice;
a sealed or stamped copy of the order being appealed, or a copy of the notice making an order;
any affidavit or witness statement filed in support of any application included in the appellant’s notice;
where the appeal is against a consent order, a statement setting out the change in circumstances since the order was agreed or other circumstances justifying a review or re-hearing;
you have the option of including a copy of the appellant’s skeleton argument (This is a written document where you set out why you think the decision of the magistrates should be overturned. It is best to try and be as concise as you can and write it in numbered paragraphs.);
the written reasons for the magistrates decision;
the application form;
any application notice (or case management documentation) relevant to the subject of the appeal;
any other documents which the appellant reasonably considers necessary to enable the appeal court to reach its decision on the hearing of the application on appeal; and
such other documents as the court may direct.

You must then serve all of these documents on all of the parties within 7 days of serving them on the court.

The last bit of guidance I would give is that although it is a very emotional subject, and indeed will concern the welfare of your child, try and remain as calm as you can and focus on the argument you want the judge to adopt.

Wicked steps

2012-03-02T22:55:00.001Z

Paternity Dispute

2011-12-25T10:29:00.001Z

- Posted using BlogPress from my iPad

Overwhelm!

2011-12-06T22:42:00.001Z

- Posted using BlogPress from my iPad

Museum of Broken Relationships

2011-08-20T21:07:00.001+01:00

An interesting image from a charming &thoughtful exhibition of mementoes from failed relationships. Hailing from Croatia the exhibition can be seen at the Tristan Bates Theatre in Covent Garden (38 Earlham Street) until mid September & at £3.50 for unlimited visits within the week is great value.

- Posted using BlogPress from my iPhone

The Dangers of Technology

2010-11-08T18:43:00.000Z

I have just done a blog post elsewhere which amongst other things highlights the perils of modern technology and the unfortunate ways the technology is impacting on family law cases.

Readers of this site might be interested in the story hear about avoiding the bitter twitter - the same applies to facebook - either make sure your ex or his friends are not able to see your posts or don't post it - the number of times the indiscreet status updates about the new boyfriend or the heavy night partying come up in cases is becoming boring.

It's the modern equivalent of advising you not to drink and dial.

Naturally some clever cove has come up with a technological solution: a new Firefox plug in called the Social Media Sobriety Test which you can set up to stop you from using certain sites at particular times which you set unless you can pass a sobriety test (typing the alphabet backwards).

If you want to see some good examples of why this might be very necessary take a look at Texts From Last Night!

Appointing a Guardian for a Child

2010-11-07T17:50:00.000Z

I have once again been asked a common question.

Two parents have a child and then separate - the father leaves and does not pursue contact, direct or indirect and does not contribute to the child's maintenance for some years. What can the resident parent do to ensure the child is properly looked after in the event of her death?

The gender assumptions in the above scenario are only relevant in that the first question to consider is whether the father does or does not have parental responsibility. He will automatically have PR if either he was married to the mother or if the child was born after 1.12.03 & his name was registered on the birth certificate. He may also have PR if he and the mother entered into a PR agreement or it has been ordered by the court. A mother always has PR.

If the father has PR, the mother can appoint someone as Guardian by making a will - typically she wants to choose one of her family members. However, this appointment will not take effect immediately on her death if the father with PR is still alive.

What can a mother or father do in these circumstances to ensure the child ends up being cared for by their chosen candidate?

It might be possible to appoint the Guardian jointly ie with the agreement of the non-resident parent. Obviously this may have a number of consequences including reviving the interest of the other parent in the child which may or may not be desirable or in the child's interests.

The resident parent could also apply for a residence order - this has the same drawbacks as the joint appointment approach in that the non-resident parent would have to be contacted and given notice of any application to the court. In addition, this would not directly give effect to the appointment of the Guardian under the will. It would only mean that if the chosen candidate made an application to court after the death of the parent who appointed them, the court would have the power to confirm the appointment.

I would still suggest it is worth making a will appointing the chosen person as Guardian as this will tell the court what the wishes of the main carer were. It would also be useful to write a letter to go with the will to set out the involvement / non-involvement of the father and any concerns the mother would have about his caring for the child including the child's important existing relationships to other family members with whom they are in regular contact.

If necessary, after the resident parent died, the chosen family member could apply to the court for a residence order. That is where I think the will appointment and letter is worthwhile. If that order is made, the court would be ordering that the child should live with the applicant and parental responsibility would automatically come with it (though this would technically be shared with the non-resident parent). That parent would have to be notified of the application (assuming their whereabouts were known or could be discovered). At that point the court would consider the welfare checklist and the absentee parent would be unlikely to gain residence assuming that the family member was capable of looking after the child and had a well established relationship with them. Contact with the other parent might be considered although the court would want to know why the parent effectively walked out of the child's life and what was going on in their life at the time.

In other words the 'rights' of the parent might not supercede those of other family members (which is also in line with the Supreme Court's thinking in a recent case, when the child stayed with grandmother rather than being sent to live with father, for the sorts of reasons above).

If making a will in these circumstances it may also be important to make sure that a trusted family member is appointed to be executor so that they can make sure that any money or property which would come the child's way cannot be squandered away by the other parent if things don't work out as I would predict.

Have some more contact please

2010-10-13T13:27:00.000+01:00

I am often asked whether it is possible to force the non-resident parent to have more contact than they seem to want.

It is always possible for parents to agree together whatever contact arrangements they think are suitable. It quite often provides a welcome break for the main carer if the other parent takes up more contact or enables them to work, for example. Obviously it may depend on the other parent's own commitments are eg work and what sort of accommodation they have as to whether they can take up more contact. They might be delighted to do so! If the resident parent / main carer is happy that the other paent is able to look after a child for longer or more frequent occasions it is always worth just asking to see if more contact can be agreed.. If it is not easy for the parents to communicate with each other it could be done in writing, through a friend or other family member or through a mediation service such as Relate.

In theory the court can impose an order on a parent saying either no contact or more contact than they would ideally like. However, the court would be unlikely to do so if the parent was not willing or able to take up more contact. Obviously if a parent is made to have more contact than they actually want the chances are that the contact would not end up being a particularly enjoyable occasion for the child. If a parent has working arrangements or some sensible reason why they could not take up contact this would be likely to be viewed sympathetically by the court.

Researching Reform

2010-08-17T11:39:00.001+01:00

Divorce Manual has now migrated to Researching Reform as Natasha Phillips continues her sterling work and fascinating podcasts.

Without Prejudice

2010-08-17T11:15:00.001+01:00

Excellent post over on the Landlord Law blog on the meaning of 'without prejudice'.

Shared residence & holidays

2010-03-22T19:17:00.003Z

Well I am back from the abyss of work I have been plunged into post Baby P although despite statements to the effect that things are slowing down it is marginal.

An interesting question has been exercising me: can a holder of a shared residence order take a child on holiday abroad without the consent of the other holder / parent.

Regrettably the law is not clear on this and even Hershman & McFarlane (a leading and authoratitive text on UK family law) agrees that this is so.

It could be argued that since, under the Act, any holder of a residence order can take a child out of England & Wales for up to 4 weeks without the permission of the other parent with PR, this will apply equally to both parents if they share a residence order.

However, there is an obvious potential problem with this argument. Even the holder of a sole residence order may run into difficulties if there is also a contact order and the proposed holiday might mean that the child is not made available for contact as ordered. The same applies where the shared residence order is specific about the times the child should be spending with each parent.

Ideally, any potential argument between bloody relations can be avoided by having a clear agreement in the first place. This should extend not only to dealing with holidays abroad but also to holidays in the UK and what will happen - for example, if one parent has time over and above the strict provision of the general rule, will it be made up. How long in advance of any holiday period should one parent notify the other of plans? Should there be some telephone contact during the holiday? What information will the holiday taker need to provide eg dates, flight times, copy tickets, information about accommodation whilst away, telephone numbers etc.

So if you are the potential holder or holder of a shared residence order I would suggest:

make sure your lawyer makes provision for this in the agreement - no agreement or order can provide for every eventuality but you can make some in principle agreements or work out how to reach agreements about specifics in future
talk to the other parent as soon as you can about what you want to do - it can take a very long time to sort out in court if they will not agree so you need to be prepared
remember they will probably also want to be able to do the same as you - think what you would be worried about if they proposed a holiday abroad and expect to offer them the same reassurances, information or substitute time
do not tell the child about the proposed trip until the two parents are agreed as to what should happen
do not unreasonably refuse your ex's request for a reasonable holiday abroad - you may be in the same boat soon - you may want to get this agreed in outline when they ask you in the first place
do be aware that there are some countries from whom it may be very difficult to recover children from - non-Hague Convention countries in particular (see Reunite for a list of countries which have signed the relevant treaties)
at the same time don't get carried away by fanciful abduction fears - how likely is it that your ex will kick over the traces and run away to live in a foreign country - the court will not be persuaded by generalised and non-specific fears about what you have watched on television
it may be a different matter if it is proposed that a child could be taken to a dangerous country or to participate in a risky activity - that would be taken seriously as a concern by the court - whereas Eurodisney - unlikely!
if the other parent is refusing to agree and you think that refusal is unreasonable you can apply to the court for permission to go - this takes time and unless you act quickly you may have to wait for a court hearing
if you get a request from the other parent and you are not happy to agree (having considered all the points above) you may wish to consider issuing an application for a prohibited steps order to stop them - again this takes time so jump to it if you are genuinely concerned

If you are planning to take a child abroad you should be aware that you may be accused of child abduction offences if you do not have the relevant agreements in place.

Here is what the relevant provisions of the Child Abduction Act 1984 say:

1.

Offence of abduction of child by parent, etc.

— (1) Subject to subsections (5) and (8) below, a person connnected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.

[(2) A person is connected with a child for the purposes of this section if—

(a)

he is a parent of the child; or

(b)

in the case of a child whose parents were not married to each other at the time of his birth, there are reasonable grounds for believing that he is the father of the child; or

(c)

he is a guardian of the child; or

(d)

he is a person in whose favour a residence order is in force with respect to the child; or

(e)

he has custody of the child.

(3) In this section ’the appropriate consent’, in relation to a child, means—

(a)

the consent of each of the following—

(i) The child’s mother;

(ii) the child’s father, if he has parental responsibility for him;

(iii) any guardian of the child;

(iv) any person in whose favour a residence order is in force with respect to the child;

(v) any person who has custody of the child; or

(b)

the leave of the court granted under or by virtue of any provision of Part II of the Children Act 1989; or

(c)

if any person has custody of the child, the leave of the court which awarded custody to him.

(4) A person does not commit an offence under this section by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if—

(a)

he is a person in whose favour there is a residence order in force with respect to the child, and

(b)

he takes or sends him out of the United Kingdom for a period of less than one month.

(4A) Subsection (4) above does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part II of the Children Act 1989.]

(5) A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if—

(a)

he does it in the belief that the other person—

(i) has consented; or

(ii) would consent if he was aware of all the relevant circumstances; or

(b)

he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him; or

(c)

the other person has unreasonably refused to consent,

[F2 (5A) Subsection (5)(c) above does not apply if—

(a)

the person who refused to consent is a person—

(i) in whose favour there is a residence order in force with respect to the child; or

(ii) who has custody of the child; or

(b)

the person taking or sending the child out of the United Kingdom is, by so acting, in breach of an order made by a court in the United Kingdom.]

(6) Where, in proceedings for an offence under this section, there is sufficent evidence to raise an issue as to the application of subsection (5) above, it shall be for the prosecution to prove that that subsection does not apply.

[ (7) For the purposes of this section—

(a)

“guardian of a child”, “residence order” and “parental responsibility” have the same meaning as in the Children Act 1989; and

(b)

a person shall be treated as having custody of a child if there is in force an order of a court in the United Kingdom awarding him (whether solely or jointly with another person) custody, legal custody or care and control of the child.]

(8) This section shall have effect subject to the provisions of the Schedule to this Act in relation to a child who is in the care of a local authority [ detained in a place of safety, remanded to a local authority accommodation or the subject of] proceedings or an order relating to adoption.

Bethlehem Social Services is on the case

2009-12-25T15:11:00.000Z

Click on the image to make it bigger.

Blackadder Court

2009-12-16T21:35:00.000Z

Aren't mams brilliant?

2009-12-15T18:46:00.000Z

A man and his son

2009-12-14T12:38:00.000Z

The Royal / Royle family

2009-12-13T20:18:00.000Z

Dysfunctional families - don't you love them?

A secret argument?

2009-12-12T19:45:00.000Z

What they really think?

Divorce: the modern way

2009-12-11T20:36:00.000Z

A useful guide to what women want!

Dear John!

2009-12-10T20:57:00.000Z

A sweet ending!