Guidance for separated parents during lockdown

 

2.4 million Separated families

Last week the Department for Work and Pensions published the latest release of annual statistics on separated families in Great Britain. The statistics indicated that in 2017/18, the latest year for which figures are available, there were approximately 2.4 million separated families in Great Britain, including 3.5 million dependent children.

That is a lot of families, and a lot of children. Now, obviously, for most of those children arrangements are in place for them to live with, or have contact with, both of their parents. The arrangements may be agreed between the parents, or they may be contained in a child arrangements court order.


LockdownGuidance for separated parents during lockdown

Of course, none of those arrangements will have envisaged the present situation, where we are in ‘lockdown’, restricted to our own homes, unable to leave save for essential shopping, daily exercise, medical need or attending essential work.

So how will child arrangements work now?

The first thing to say is that the Government has specifically made clear that the lockdown does not apply to the movement of children under 18 between their parents’ homes. Moving a child from one parent to another in accordance with child arrangements (whether agreed or in a court order) does not breach the lockdown.

But of course it is not necessarily as simple as that. We all have to take into account considerations relating not just to the health and welfare of our own families, but in relation to public health generally. Maybe the arrangements that were made before the Coronavirus crisis are not currently appropriate –what happens then?

 

Guidance from the PresidentCoronavirus image

Well, the President of the Family Division Sir Andrew McFarlane has issued guidance for parents during the crisis. The guidance specifically relates to compliance with Family Court child arrangements orders, but most of it applies equally well to those parents who have agreed arrangements for their children.

The guidance beings by saying that parental responsibility, i.e. the responsibility to make decisions relating to a child, rests with the child’s parents and not with the court. This is important: parents do not need to go to the court every time a decision needs to be made regarding their child, even where a child arrangements order is in force.

The guidance goes on to say that the decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other. In other words, if you are concerned, the first thing you should do is try to discuss the matter with the other parent. If the parents can agree matters, then each parent should record the agreement in a note, email or text message sent to the other parent.

But sometimes of course parents can’t agree. Obviously, no parent is going to want to stop seeing their child, or have their contact with their child restricted. The guidance make clear that where parents do not agree to vary the arrangements set out in a child arrangements order, but one parent is sufficiently concerned that complying with the arrangements would be against current public health advice, then that parent may vary the arrangement to one that they consider to be safe. However, it should be borne in mind that if the matter later goes back before the Family Court then the court will consider whether that parent acted reasonably.

And where Coronavirus restrictions cause the letter of a court order to be varied, the guidance says that the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Government’s lockdown rules, for example remotely – by FaceTime, WhatsApp FaceTime, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The guidance concludes with this:

“The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.”

You can read the full guidance here.

Further advice

Of course, the above just sets out some basic general principles. If you would like more detailed advice in relation to your particular situation, we can help. We have a free online system providing advice on a range of family matters, which you can find here.

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Coronavirus advice, and where to find it

The Coronavirus brings particular problems for families, especially those that have recently suffered a breakup, or are involved in court proceedings, whether in relation to divorce, finances, child arrangements or any other family matter.

Here is some general advice that may be helpful for anyone in this situation. Note that things are changing rapidly, and therefore some of this advice may be superseded by events.

We will split the advice into categories, depending upon your particular situation.

 

Court proceedings generallyCoronavirus image

The general position, as stated by the Lord Chief Justice (‘LCJ’ – the Head of the Judiciary of England and Wales) is as follows:

“The default position now in all jurisdictions [including family] must be that hearings should be conducted with one, more than one or all participants attending remotely.  That will not always be possible. Sensible precautions should be taken when people attend a hearing.”

You can find the LCJ’s guidance here.

As to the Family Court specifically, the President of the Family Division has issued guidance of his own, which can be found here. This guidance confirms that the default position is that hearings should be conducted remotely where possible, and gives some details about this.

No attended hearings will currently take place in Devon and Somerset unless there is genuine urgency and a remote hearing is not possible .

For at least the next three weeks all judges in Devon  will be working from home remotely and will not be coming in to court.

 

Mediation

Obviously, mediation usually involves direct contact between the parties and the mediator. However, here as well arrangements are being made for mediation to take place via video conference, where possible.

 

Divorceelbow handshake Coronavirus

Divorce proceedings normally take place entirely online and should not therefore be affected by the virus, unless there are staff shortages at the relevant divorce centre.

Of course, it may not be appropriate to finalise a divorce before a financial settlement has been reached, and financial remedy proceedings are likely to take longer whilst there are restrictions upon the operation of the courts.

 

Urgent applications

Sometimes an application is urgent, for example where the welfare of a child is at stake. The President’s guidance referred to above has this to say about urgent applications:

“Even where a case is urgent, it should be possible for arrangements to be made for it to be conducted remotely. The default position should be that the hearing is conducted remotely. Where a case is genuinely urgent, and it is not possible to conduct a remote hearing and there is a need for pressing issues to be determined, then the court should endeavour to conduct a face-to-face hearing in circumstances (in terms of the physical arrangement of the court room and in the waiting area) which minimise the opportunity for infection.”

 

Domestic abuse

Domestic abuse cases often of course fall under the category of ‘urgent’. The above guidance still applies.

And it may of course be that the requirement to stay at home will mean that some victims of abuse will find themselves trapped with their abusers. For anyone in this situation support is available 24/7, via the National Domestic Abuse Helpline, on 0808 2000 247. We are also of course able to help.

 

Single parents

mother and childThe current situation is likely to cause particular problems for single parents. The single parent charity Gingerbread has a page on its website providing specific Coronavirus information for single parents, which you can find here.

 

Managing relationships at home

Obviously, being restricted to home for an extended period may put a strain on any relationship. For anyone worried about this, the relationship charity Relate has set out some advice and tips for healthy relationships during the Coronavirus outbreak, here.

 

Child arrangements

Obviously, the requirement to remain at home and any travel restrictions that are be introduced could have a serious effect upon arrangements for children. Those arrangements may have to be temporarily adapted to the new situation. If so, you should try to discuss and agree matters with the other parent. If you are unable to reach agreement, then you should seek the advice of a family lawyer.

Please be accommodating respectful and generous. The shutdown will not last forever. Video conferencing is much better than telephone calls.  A good option is Zoom. It is possible to have a free personal account and you can record meetings. Here is a link https://zoom.us/

Other options are Skype and Facetime.

Children are likely to find the whole situation worrying and it is important for them to know that their loved ones are safe and well and to maintain some form of contact if possible.

 

Money matters

The virus is having enormous effects upon money matters, with people losing their jobs, interest rates dropping and the value of savings and other assets plummeting.

If you can no longer meet your maintenance commitments then you may need to apply for a reduction. You should also notify the other party if you can no longer afford to pay.

As to the effect of any reduction in the value of assets upon any financial settlement, you should seek the advice of an expert family lawyer. You may also need to consult a financial advisor and/or an accountant. Settlements that have not been finalised will take into account the current value of assets. It is possible that a significant change in the value of assets may warrant settlements that have recently been finalised being reopened, but this would be unusual – take legal advice if you think it may apply to you.

 

International travel restrictions

Many families these days have an international element, for example with parents living in two different countries. The present restrictions upon international travel may mean that international child contact arrangements will have to be suspended, and that international family disputes will simply have to wait until this crisis is over. Again, you should seek the advice of an expert family lawyer for further information.

 

What we are doing

Finally, a word about what we are doing in response to the virus at Ian Walker Family Law and Mediation Solicitors.

We are open for business and we will continue to provide existing and new clients with advice (including upon all of the matters referred to above), representation and service, whilst at the same time prioritising the health of our employees and their families.

Our legal team will be working from home – but we will be able to meet with clients through videoconferencing (Skype). We will resume face to face meetings when the governmet advice suggests that it is safe enough to do so. This will hopefully be sometime in March.

Our switchboard will remain fully operational. The email addresses of our lawyers can be found on our contact page. Clients are encouraged to email where possible.

 

Please be patient

The most important thing is that everyone is safe and well and that we all support the Doctors and Nurses, delivery drivers, supermarket workers, warehouse workers and all those who are working tirelessly to keep the nation safe and well and provisioned.

Please follow government advice and save lives.

The Courts will only deal with matters of genuine urgency. So be realistic in your expectations.

We will get through the current crisis and when we do there will be time enough to sort out family problems properly.

In the meantime please be patient and keep well.

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What happens if I can’t agree a divorce settlement?

An outline of financial remedy procedure

When you divorce you will of course have to sort out a financial settlement with your spouse. Obviously, you should try to agree the settlement with your spouse, whether directly, through lawyers or in mediation. But what if you are unable to agree matters?

divorce settlement photo

Then you will need to ask the court to sort out the settlement for you. The procedure to do this is called a ‘financial remedy application’. The court will gather all of the relevant evidence, including details of the means and assets of both parties, and will decide upon an appropriate settlement.


A financial remedy application essentially proceeds in six steps:

Step 1 – Before the application

Before a financial remedy application is issued, the court will expect the parties to follow a ‘pre-application protocol’. The protocol outlines the steps parties should take to seek and provide information from and to each other prior to the commencement of the application. The idea behind the protocol is to ensure that efforts have been made to settle without going to court, although if it is clear that progress is unlikely to be made without the intervention of the court then you may proceed with the application.

You will also usually need to attend a Mediation Information and Assessment Meeting (‘MIAM’) before you issue the application. The purpose of the MIAM is to assess whether the case is appropriate for mediation. For more information about MIAMs, see here.

 

Step 2 – Issuing the applicationno-fault divorce image - two rings

The application is issued by filing with the court a ‘Form A’, together with the appropriate fee (currently £255). The court will then send a Notice of First Appointment to both parties. The notice fixes a date for the First Directions Appointment (see below), and sets out a timetable for the next steps that each party must take in the proceedings.

 

Step 3 – Form E

The first of those steps is that each party must file with the court and serve upon the other party a Form E Financial Statement. The statement should set out full details of the means of that party, and certain relevant documents, such as recent bank statements, must be attached to it.

Obviously, a party may file a Form E that is incomplete, or that raises matters that require clarification. Each party may therefore send to the other a questionnaire, requesting further information or documentation.

 

Step 4 – First Directions Appointment

The First Directions Appointment, or FDA, is the first hearing in the procedure. The purpose of the appointment is to ensure that both parties have made full disclosure of their means, and that all relevant information is available, such as valuations of assets, so that the case can proceed.

If the case can proceed, then the FDA can be used as a Financial Dispute Resolution (‘FDR’) hearing (see below), if the court has time. If the case cannot proceed, then the court will give directions as to what needs to be done before it can, and will also fix a date for the FDR.

 

Step 5 – Financial Dispute Resolution hearing

The aim of the FDR is to enable the parties, with the assistance of the judge, to identify and seek to resolve the issues in the case. The judge will encourage the parties to negotiate, if appropriate, and may give an indication of what they think would be an appropriate settlement in the case.

If the parties cannot agree matters, then the court will fix a date for a final hearing.

 

Step 6 – Final hearing

At the final hearing the judge will listen to all of the evidence from both parties, and make a final decision. The decision will be incorporated into a court order, which will be binding upon the parties.

*  *  *

For further details regarding financial arrangements and divorce, including the principles that the court uses when making financial remedy decisions, see this page.

As stated, the above is only an outline of the procedure. For more detailed advice regarding the procedure and principles involved in financial remedy applications, and how they apply to your case, you should consult an expert family lawyer.

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Who gets the house on divorce?

The matrimonial home. Not just your most valuable asset, but the place where you live. It’s no wonder that so many people worry about what will happen to it when they divorce.

So what is likely to happen to it, and what are the rules for deciding that?

The first thing to say is that it doesn’t necessarily matter who owns the house. Just because it is in one party’s sole name does not mean that they will automatically keep it. And just because it is owned jointly does not mean that each party will come out with a half share.

Assuming that you cannot agree what should happen to the house with your spouse, then you will need to ask the court to sort things out for you.

 

Matters the court takes into accountWho gets the house on divorce?

The court has a list of matters that it must take into account when deciding what should happen to the house, but there is no set formula that it uses. You cannot therefore say that the outcome in any given set of circumstances will always be the same.

The matters that the court must take into account include the following:

1. The welfare of any minor child of the family.

2.  The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.

3. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.

4. The standard of living enjoyed by the family before the breakdown of the marriage.

5. The age of each party to the marriage and the duration of the marriage.

6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.

The most important of these matters is, of course, the first one. If there are dependent children then the court will want to ensure that they have proper housing. The arrangements for the children following the separation of their parents will often therefore be inextricably linked to what is to happen to the house. If they are to live primarily with one parent, then that may mean that that parent should remain in the house with the children, at least until they have grown up. It may also mean that the most appropriate thing to do is to transfer the house, or the lion’s share of it, to that parent.

But if there aren’t any dependent children the other matters will decide the issue.

Perhaps the most important of those other matters is the needs of the parties, taking into account their means. Both parties will of course require housing. All things being equal, this will usually mean they each get half of the house, either by it being sold and the net proceeds being divided equally, or by one party buying out the other’s half share.

But if one party has considerably greater income than the other then their housing needs may be less, as they will have a greater mortgage capacity. In such cases it may be appropriate for the less well-off party to have the lion’s share of the house, or even all of it.

The last thing we want to mention relates to the last two matters listed above: duration of the marriage and contributions. If, for example, the house was owned by one party prior to the marriage, and if it was a short marriage then it may simply be appropriate for them to keep it after the divorce.

These are just a few examples of how the rules for deciding what should happen to the house may work.

 

Practical considerationsdivorce lawyer meeting

There are, however, other practical considerations that could have a bearing upon what happens to the house.

For example, can the parties afford to keep the property? As mentioned above, it may be that the court will want the party looking after the children to stay in the house, at least until the children have grown up, but if there simply is not enough money available to pay the mortgage then the house may have to be sold.

Another practical consideration in cases where a transfer of the house to one party is being considered is: if there is a mortgage, will the mortgagee (the bank or building society) agree to release the other party from the mortgage? If not, then the other party may have difficulty in obtaining a mortgage of their own, and this could have a bearing upon the court’s decision.

*  *  *

This is, of course, just a very brief overview of what can be a complex subject. For detailed advice, you should consult an expert family lawyer.

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Government sets out enhanced Domestic Abuse Bill

The Government has introduced to Parliament an enhanced version of its Domestic Abuse Bill, which aims to strengthen protection for victims of abuse. The Bill had been introduced in the last Parliament, but failed to complete its passage through Parliament before the General Election.

The main provisions of the Bill are as follows.

 

New definition of abuseDomestic Abuse Bill

The Bill will include the first statutory government definition of domestic abuse. The definition includes not just physical abuse and threatening behaviour, but also controlling or coercive behaviour, economic abuse, and psychological, emotional or other abuse.

“Economic abuse” means any behaviour that has a substantial adverse effect on the victim’s ability to acquire, use or maintain money or other property, or obtain goods or services.

 

Domestic Abuse Commissioner

The Bill will establish a ‘Domestic Abuse Commissioner’, “to drive the response to domestic abuse issues”.

Specifically, the Commissioner must encourage good practice in: the prevention of domestic abuse; the prevention, detection, investigation and prosecution of offences involving domestic abuse; the identification of people who carry out domestic abuse, victims of domestic abuse and children affected by domestic abuse; and the provision of protection and support to people affected by domestic abuse.

In fact, the Government has already appointed Nicole Jacobs, who has worked for domestic abuse charities for two decades, to be the designate Domestic Abuse Commissioner, and she has already begun her work.

 

Domestic Abuse Protection Notices and OrdersAbuse Protection Notices

The Bill will introduce new Domestic Abuse Protection Notices and Domestic Abuse Protection Orders.

A Notice, which may be given by a senior police officer, prohibits the person to whom it is given from being abusive towards a person aged 16 or over to whom they are personally connected. A person breaching the Notice may be arrested and taken before a magistrates’ court.

An order prevents a person from being abusive towards a person aged 16 or over to whom they are personally connected, by prohibiting them from doing things described in the order, or requiring them to do things described in the order. The order may be made on application to a court, or by the court of its own motion. The court may impose any requirement it considers necessary to protect the victim, including requiring the abuser to submit to electronic tagging. Breach of an order is a criminal offence.

The Government has said of these: “Domestic Abuse Protection Orders and Protection Notices are powerful tools to protect victims immediately and offer flexible, longer-term protection by imposing requirements on perpetrators. This could include prohibiting contact with the victim or forcing a perpetrator into alcohol or drug treatment programmes.”

 

Ban on cross-examination of victims by abusers

The Bill will include a provision prohibiting the cross-examination of alleged victims by their alleged abusers in the family courts, a problem exacerbated by the fact that many alleged abusers do not have legal representation, due to the unavailability of legal aid.

The Bill includes a provision to the effect that if the court decides there is no satisfactory alternative, it may appoint a legal representative to cross-examine the alleged victim, the fees of whom may be paid by the state.

Under the enhanced Bill the ban on cross-examination will apply to all family proceedings where there is evidence of domestic abuse.

Another, unrelated, feature of the enhance Bill is that it will require local authorities to provide refuge accommodation for victims of abuse.

 

Lord Chancellor comments

The Lord Chancellor and Secretary of State for Justice Robert Buckland said of the Bill:

“This bill will bolster our response to domestic abuse on every level – strengthening protections for victims, whilst ensuring perpetrators feel the full force of the law.

“From giving courts greater powers through new prevention orders, to barring abusers from cross-examining their victim in the family courts, we are delivering a justice system more resilient than ever to the tackle this horrific crime.”

The Bill is to have its first reading in the House of Commons.

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Will divorce ruin me financially?

That may sound like quite a drastic question, but it is a genuine fear held by many people facing the prospect of divorce. They see their wealth, which they may have carefully accumulated over years of hard work, suddenly coming under threat from an avaricious spouse.

But do they really need to fear financial ruin?

The answer to that is almost certainly ‘no’, although it should be pointed out that many divorcing couples have brought financial ruin upon themselves, simply by spending all of their wealth arguing over who should have it!

Leaving that to one side, let’s have a closer look at what is likely to happen to a person’s wealth when they get divorced.

 

Basic principlesno-fault divorce image

There are a number of factors that must be taken into account when considering what is an appropriate financial settlement. We will not list them all here, but the most important is the financial needs of the parties and, in particular, any dependent children.

If the court is asked to sort out the financial settlement it will want to ensure that those needs are met, if possible (sometimes there simply won’t be enough assets to meet the needs). ‘Needs’ include not just income needs, but also housing and (if appropriate) pension needs.

How this will work out in practice depends upon the circumstances of the case and, in particular, the amount of assets available. (Note that the court will take into account the needs of both parties, although obviously the needs of any dependent children will take precedence.)

Accordingly, for example, if one party has to provide a home for themselves and the children, then their needs will be greater than the other party, and they may therefore receive a greater share of the assets. This does not, however, mean that the other party will receive nothing, unless there are simply no other assets available after the needs of the children are met.

If there are more assets available than what is required to meet the needs of the parties and any dependent children then, subject to what we say below, any balance will usually be shared between the parties.

It is also of course possible that one party will be required to pay maintenance for the other, or any dependent children. However, the amount of the maintenance will take into account the payer’s own income requirements.

Those are the basic principles. However, two types of assets often give rise to particular concerns: assets acquired or owned prior to the marriage, and business assets.

 

Premarital assetsLady holding house

We said above that assets over and above what is required to meet needs are usually shared equally. However, any assets acquired or owned prior to the marriage are usually excluded from this sharing, if they have not become ‘mixed’ with assets acquired during the marriage. These premarital assets will therefore remain the property of the party who owned them prior to the marriage, although note that premarital assets can be used to meet needs, if there are insufficient other assets available.

 

Business assets

Business assets are perhaps the most common type of asset that give rise to the ‘financial ruin’ fear. The party who owns the business will often have built it up through their own hard work, over many years. They worry, for example, that the other party will be entitled to half of the business, or that they will have to sell the business to meet the other party’s financial claims.

It is true that a business can sometimes be used to raise capital to pay off the other party. However, the business will usually be the main source of income, from which all the family will benefit, even after the divorce. The court will not want to jeopardise that by damaging the business. Dividing a business may irreparably damage it, and selling it deprives the family of income. There is no rule that says a business must be divided or sold as part of a divorce settlement.

 

*  *  *

 

It will be seen from the above that divorce does not automatically mean financial ruin and, indeed, the court will endeavour to ensure that that does not happen.

Obviously the above is just a very brief outline of some of the principles involved in sorting out financial settlements on divorce. For more detailed advice specific to your case, you should consult an expert family lawyer.

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New rules require parties to make early settlement proposals in financial remedy proceedings

The rules governing the procedure to be used in family court proceedings (the ‘Family Procedure Rules’) have been amended. The new rules include amendments that will affect how many cases are dealt with, and will therefore be of interest to many litigants, particularly those involved in financial remedy proceedings connected with divorce.

We will not cover all of the amendments here (you can find a link to them below), but the following are probably the most interesting.

 

Compulsory settlement proposalsearly settlement proposals in financial remedy proceedings

Perhaps the most important amendment relates to the putting forward of settlement proposals in financial remedy proceedings.

Until now parties to financial remedy proceedings were not required to put forward settlement proposals until just prior to the final hearing of the case. That is not to say of course that it is not a good idea to put forward proposals – it is usually best to try to settle the case by agreement, rather than go to an expensive final hearing. We would normally therefore advise clients to put forward proposals, once they have sufficient information to ascertain their entitlement (including information about the other party’s means.)

However, as from the 6th of July, when the new rule comes into effect, there will be a duty on the parties to put forward settlement proposals much earlier.

In most financial remedy cases the court will fix a Financial Dispute Resolution appointment (‘FDR’) shortly after the financial remedy application has been issued. The purpose of the FDR is to provide the parties with an opportunity to negotiate a final financial settlement, with the input and assistance of a judge.

The new rule provides that where the case has not been settled at the FDR the court can direct that the parties put forward open settlement proposals, by such date as the court directs. If the court does not make a direction, then the proposals must be put forward within 21 days after the date of the FDR appointment.

This new rule is obviously going to affect many financial remedy cases, the intention obviously being that more cases will be settled earlier.

 

Stricter rules on costs estimates Stacks of pound coins

The new rules also introduce stricter requirements regarding the filing of costs estimates in financial remedy proceedings.

One requirement is that not less than one day before every hearing or appointment within the proceedings, each party must file with the court and serve on each other party an estimate of the costs incurred by that party up to the date of that hearing or appointment.

The intention here is to try to keep control of spiralling costs in financial remedy proceedings. Whether the rule is successful in achieving this, we will have to see.

 

Disclosing communications with the court

The last new rule that we want to mention refers to all family proceedings, not just financial remedy proceedings.

The rule introduces a requirement that any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format) copied to, the other party or parties or their representatives, unless there is a compelling reason for not doing so.

The rule applies to ‘substantial’ communications, not communications that are purely routine.

All communications required to be disclosed must state on their face that they are being copied to the other party or parties, and if they do not they will usually be returned to the sender without being considered by the court.

The rationale behind this new rule may be to stop any litigant, particularly one who is not represented by a lawyer, attempting to gain an advantage by communicating with the court without telling the other party.

If you are interested, you can find the Family Procedure Rules here, and the amendment rules here.

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Former President calls for action to address crisis in family justice

The former President of the Family Division Sir James Munby has warned about a “crisis in private family law”, as a result of sustained criticism of the system.

 

Heavy and sustained attackfamily law

In a speech that he prepared for a conference on shared parenting in Edinburgh he said that the system was under “heavy and sustained attack” from two very different viewpoints:

  • One is the viewpoint of those who have experience of the system as litigants: here, he said, much of the debate is “polarised and largely gender-based”.
  • The other viewpoint is that of many experienced and responsible journalists, and of increasing numbers of legally qualified family practitioners, whose experiences and opinions feature both in the print and broadcast media and on the blogosphere and other online social media.

 

Complaints under the first viewpoint included:

  • That judges are failing to give effect to the statutory presumption that, unless the contrary is shown, involvement of both parents in the life of their child will further the child’s welfare;
  • That judges are not sufficiently alert to the behaviour of women who are alienating their children from their fathers; and
  • That judges are not sufficiently robust in ensuring that their orders are actually complied with by recalcitrant mothers.

 

Complaints under the other viewpoint included:

  • That judges are not sufficiently alert to and understanding of the very serious problem of domestic abuse in all its forms, and its effects on both the parent and the children, especially when the allegation is of coercive and controlling behaviour;
  • That there is an increasing tendency to revert to a culture of ‘contact at all costs’;
  • That judges are too accepting of some supposedly expert evidence in support of allegations of parental alienation;
  • That judges are not doing enough to prevent the process itself becoming abusive; and
  • Generally, that many applicants find the entire process so daunting and demoralising that they simply ‘give up’, preferring, for example, not to pursue even serious allegations of domestic abuse.

 

On many topics, Sir James said, the system is criticised from those on both sides of the debate. However, he continued: “there is no room for the complacent assumption that if you are criticised by both sides you are probably getting it right. On the contrary, it surely suggests that we are getting it very wrong.”

As an example of this, he referred to a recent case in which a family judge was heavily criticised for finding that a woman was not raped because she took ‘no physical steps’ to stop the man. Sir James said: “Some will say that this particular judgment is not typical, that it is an outlier. Others no doubt will say that it is no more than the very small tip of the proverbial iceberg. Without research, we simply do not know, but I fear that the latter view is probably very much closer to the truth.”

 

Addressing the crisismother and child - family law

Sir James suggested a number of ideas to address the crisis, including:

  • Diverting many more private law cases away from the family court before they ever get there, for example into mediation;
  • Urging judges to publish more judgments, however seemingly mundane, in private law cases, especially in cases where there are allegations (whether substantiated or not) of any form of domestic abuse;
  • Enhanced judicial training;
  • Repealing the restrictions on reporting family cases, and replacing them with “much less restrictive, more narrowly drawn and more focused legislation better suited to the modern world”; and
  • A detailed programme of rigorous, independent research by suitably qualified academics, including research into the existence, causes, and consequences, and means of identifying, parental alienation and domestic abuse, in all its forms.

 

Sir James concluded:

“These criticisms are immensely damaging and, unless addressed, and seen to be addressed, with vigour, and with a complete lack of either complacency or sentimental self-protection, will sooner rather later, I fear, bring the system to its knees. Confidence in the system is at an all-time low, and unless drastic steps are taken, it will sink even lower.”

You can read the full speech here.

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Award winning South West Family Law SolicitorsAward winning South West Family Law Solicitors seeks top talent to join our team (various roles)

We are the very proud to have been named as the Modern Law Boutique Law Firm 2020 (11+ employees). This follows closely our founder and managing partner being highly commended in the category of practice manager at the Law Society Excellence Awards 2019.

Based in Devon and Somerset

We are a fast growing and innovative family law practice with office locations across Devon and Somerset. We are in the process of relocating our main centre to nice new offices in Exeter.

We are committed to the best practice of family law. We are active Resolution members. Ian Walker is the long-standing Chair of Resolution’s Devon Region. Ian is also a member of Resolution’s DR committee.

All areas of family law practice

We practice all areas of family law from high-value divorce to legal aid childcare law to collaborative law and family mediation. We value the commitment of all our team and are a real living wage employer.

Ian Walker Award winning South West Family Law SolicitorsWe are recruiting for the following roles

We have exciting plans for 2020/21 and are currently recruiting for the following:

  • Head of Divorce/Finance
  • Head of Public Law Children
  • Head of Private Law Children

These are all roles for experienced family lawyers. In all cases the successful candidate would be responsible for the management and development of their team. They would work alongside our existing highly experienced team members in a supportive environment.

There are equity prospects for the right candidates.

In addition, we are also seeking:

  • Finance Manager

Our ideal candidate for this role is a qualified accountant who has good experience working within the law industry. The successful candidate would be responsible for the financial management of the practice (in conjunction with and Managing Partner) and would be tasked with improving our financial performance. Again, there are equity prospects for the right candidate.

All these roles are employed. Salaries offered will be competitive.

We also have opportunities for family lawyers with all levels of PQE

In addition, we are also very happy to receive CVs from family lawyers of all levels of PQE. Positions could be either as fee share consultant’s or salaried employees – depending upon preference and circumstance.

Candidate specifications

All candidates will need:

  • Excellent IT skills.
  • a commitment to the highest professional standards and self-improvement (e.g. obtaining relevant qualifications and panel membership is encouraged).
  • a good sense of humour and commitment to team working.

A bit more about us

We were founded by Ian Walker seven years ago and our rapid growth has been driven by client demand and the coming together of a very experienced team of family law specialists.

We are committed to being a forward-looking practice

  • Our IT is all cloud-based and homeworking/smart working and flexible is positively encouraged.
  • We have gained and retained Lexcel Accreditation 6.1 with minimal non-compliances#
  • We have Legal Aid Contracts for family law and for mediation (which means we could offer a route to mediation accreditation if that were wanted).
  • We have built and maintained a strongly performing website (traffic has increased by more than 4x even in the last year).(More improvements are also in the pipeline).
  • We have established a business model which has delivered a growth in turnover of around 50% each year for the last 5 years.
  • We all enjoy working together and have a good team ethic.

How to apply/find out more

Please email and/or send your C.V. in confidence to Ian Walker; ianwalker@familylawandmediation.co.uk

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Can divorce proceedings be stopped?

Few people commence divorce proceedings without proper consideration. – they will only do so if they are sure that the marriage has broken down irretrievably. Even so, they can sometimes have a change of heart, and reconciliation is attempted. But can divorce proceedings be stopped, and if so, what is involved?

 

The basicsdivorce lawyer meeting - Can divorce proceedings be stopped?

The first thing to say is that whether or not the divorce can be stopped depends upon the other party. If both parties want it to stop then it can be stopped. But if one party wants the divorce to continue, then it is unlikely that the divorce can be stopped. If that party is the one who commenced the divorce then they can simply proceed with their divorce petition, and if they did not commence the divorce, then they can finalise the divorce themselves if the decree nisi has been pronounced, or cross-petition if it has not.

The second thing to say is that divorce proceedings do not have a life of their own. They are not ‘automatic’ once started. Each stage of the divorce (decree nisi and decree absolute – see below) will only take place if a party applies for it. Thus, if no one applies for the divorce to proceed, then it is effectively stopped. However, the divorce proceedings will remain on the court file, and could therefore be ‘resurrected’ at a later date.

This may not be what is wanted, in which case it may be necessary to take other steps. What steps, if any, depend upon what stage the divorce has reached. A divorce takes place in three parts: between the issuing of the divorce and the pronouncement of the decree nisi, between the decree nisi and the decree absolute, and after the decree absolute.

 

Before decree nisi

Stopping the divorce before decree nisi is relatively simple, as the court has not yet made any orders.

However, the divorce petition will still be on the court file, and this may not be what is wanted.

What to do to ‘get rid’ of the petition depends upon whether the other party has been served with the divorce papers.

If they have not been served, the party who issued the divorce may simply write to the court to request that the petition be withdrawn.

If the other party has been served with the papers then, if both parties agree, they can apply to the court to have the petition dismissed.

 

After decree nisi

divorce gold wedding rings - Can divorce proceedings be stopped?The decree nisi is when the court pronounces that the person(s) seeking the divorce (usually the petitioner – i.e. the person who issued the divorce petition) is entitled to the divorce.

The decree nisi does not finalise the divorce – that does not happen until the court makes the decree absolute – but if the parties do not want to proceed with the divorce they will want to have the decree nisi cancelled (the legal term is ‘rescinded’).

Either party can apply to the court for the decree nisi to be rescinded. The court will grant the application, provided that the other party consents.

 

After decree absolute

The decree absolute can be applied for after six weeks have elapsed since the pronouncement of the decree nisi. The decree absolute finalises the divorce.

Once the court has made the decree absolute the divorce is over and it is too late to step back. The decree absolute is final, and cannot be rescinded unless (very unusually) there has been some irregularity.

The only thing to do if a reconciliation occurs after decree absolute is to remarry (it does happen!).

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