Category: Family

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Is your surname different from your children? Then you need to read this before you travel abroad…

It’s fast approaching peak holiday season for UK families as the schools get ready to close for the six-week break. Travelling with kids can be tricky at the best of times but for those parents who do not have the same surname, it is a lot more complicated.

Emma Newman, the Managing Partner at the Stowe Family Law office in Esher explains what a parent can do about it.

“I first wrote on this subject four years ago and since then have received an inordinate number of questions on this subject. More and more women seem to be affected by this issue as more of us have a different surname to our child. Some, like me, may be divorced from their child’s father and have remarried taking on a new name. Other women are married but have chosen not to take their husband’s surname whilst their children do and of course, there are more and more unmarried couples who have children.

Many of us are now looking forward to enjoying some time away in the sunshine as the summer holiday approaches but if you have a different surname to that of your child you need to take note and take action to avoid unnecessary stress.

The checks that are in place at ports, airports and international railway stations to prevent children from being kidnapped are all very understandable but they have caused a huge amount of stress, upset and even missed flights for many women and their children. This can easily be avoided by ensuring you carry the right documents.

So, what can you do to ensure your holiday goes smoothly? Much depends on your particular circumstances but the officials need to be satisfied with your relationship with your child so the documents you may need are:

Your child’s Birth Certificate – this document gives the name of your child, their date and place of birth and will match with the details on their passport. It will also give the full names of both parents at the time of their birth. So be careful; if your name has changed since your child was born you will need to take more documents with you.

Proof of your change of name – this could mean travelling with your Marriage Certificate or a Change of Name Deed. On my last trip abroad I also found carrying an expired passport in the name I held at the time of my child’s birth (and therefore as set out in his birth certificate) was very useful as not only did it show what my name was then but it also had a photograph of me and the Border Official was able to marry up the Birth Certificate, Marriage Certificate and the expired and current passports.

You might also want to warn your children that they may be asked questions directly by the immigration officials and they should not be worried and answer clearly and honestly. This is not the time for them to make jokes.  When I have been stopped at immigration my son was asked who I was, who my husband was, where he had been and how old he was.  It was made very clear that he needed to answer himself and I couldn’t answer for him.

If you are not travelling with your child’s father I would always ensure that you can prove you have the father’s consent to you taking the child abroad.

If there is a Child Arrangements Order in place which states that the child lives with you, technically you only need to obtain the other parent’s consent if you are going to be out of the UK for more than 28 days.

However, in every other case, you should have the permission of every other person with parental responsibility for the child. If you don’t have this consent or a Court order, you are committing child abduction.

I always recommend asking the other parent to sign a consent form before travel or to write a letter setting out their consent. The document should provide the full contact details of the other parent and specific details of the trip including the dates, destination and address. The other parent should sign the form. It is also a wise idea to attach a copy of the other parents’ passport to the consent form.

Travelling abroad with children can be stressful enough. However, you can minimise some of the costs by ensuring you have enough space in your luggage to pack these multitude of documents. Happy holidays!

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Author: Emma Newman

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Not one in ten: Why family dispute numbers matter by Families need Fathers

Today we welcome Michael Lewkowicz. Director of Communications at Families need Fathers to the Stowe Family Law blog with the first in a series of exclusive articles.

“Over the few years, I have attended various Cafcass events – open board meetings, conferences, consultations. Occasionally their chief executive, Anthony Douglas, ‘clarified’ that whilst there were tens of thousands of court applications for Child Arrangements, they represent just 10% of family separations with 90% resolving things out-of-court. ‘Great’ one might have thought, ‘so it’s not such a big issue for most separating families’. The prevailing narrative was that many of those were then resolved adequately before full proceedings. Some came to mutual agreements in early proceedings and only a very small proportion, the story went, perhaps under 5% formed the ‘difficult’ cases that involved ‘high conflict’ – the cases that nobody could really “expect” to do anything about. The message was not quite ‘well that’s alright then’, but it seemed to be heading in that direction.

It was something of concern, but never became a priority and all those thousands of dads, mums and grandparents coming to Families Need Fathers and family lawyers for help were at best unlucky to be faced with confrontational ex-partners or perhaps mutually confrontational or, worse still, the ones made to feel responsible for the conflict.

The trouble was, that visits to our support meetings did not seem to reflect this. It was affecting too many people and, guess what, many of them were lovely people who would not say ‘boo to a goose’.

More troubling still was that the numbers, that the ‘small minority’ narrative was based on, simply did not ring true. I’m no mathematical genius, but if there are some 50,000 court applications each year, less 30% return cases leaves 35,000 new applications. If these represent 10% of separations, then the implication is that there are some 350,000 break-ups a year. Assuming an average of 2 children per case (Cafcass average figures) implies 700,000 children involved. Since the number of births in England and Wales in 2017 was 679,106 the figures suggested that every single family separated before their children left school. Spot a problem? We did.

Over subsequent months we raised this with Cafcass’ newly appointed Director of Strategy, Teresa Williams. The great news was that she too thought this was odd. Some months later I bumped into Ms Williams again and was very reassured when she said Cafcass were re-calculating this and were getting nearer the reality – which was over a third of cases! In fact, Cafcass later reported that the figures looked like being 38%, a nearly four-fold increase over the widely quoted previous value!

Now we had, in the absence of detailed data, made some estimates of our own using a range of disparate sources and came up with a figure of slightly over half. Since then Cafcass, at their most recent open board meeting, told us that about a third of cases were families returning to court.

We knew returns to be frequent, but this was higher than we imagined. We speculate that returns have grown in recent years since the guidance was issued exhorting judges to end proceedings within six months. This is good for court statistics showing that cases have been disposed of quickly but can lead to some cases being prematurely closed.

Taking all this into account, our original estimate seems not to have been that far off the mark. The new Cafcass figure certainly cuts right through what now seems to have been a surprisingly long run of what might these days be considered ‘fake news’. The President, no not Trump, but of The Family Division, Sir Andrew McFarlane, observed the shift in presumed wisdom in his speech last week to The Resolution Conference.

Sir Andrew told the conference that this is

“a far cry from the previous comfortable urban myth based on a figure of 10%. It indicates a major societal problem…”.

The importance of understanding that the true proportions of families going to court is almost four times greater than previously thought was also brought into sharp focus just a few weeks ago at the APPG on Legal Aid. We drew attention to the long-term opportunity to diminish the reliance of separating parents on family courts from a up to half of cases to around the level of 2% – that was being achieved in Sweden. The minister, Lucy Frazer MP, responded by ‘correcting’ us and reciting the 10% figure from the old narrative that the opportunity was not really that big nor worth the government prioritising it. My brief interjection to the minister received a frosty response from the chair – our apologies for this.

We have now written to the minister with an update and we hope Cafcass will have updated her too. The desperate need for reform of family justice is now even clearer. Unquestionably, for tens of thousands of needlessly damaged children and parents, that reform is very urgent.”

Families need Fathers (FNF)

FNF is a leading UK charity supporting dads, mums and grandparents to have personal contact and meaningful relationships with their children following separation. They offer information, advice and support services on how to provide the best possible blend of both parents in the lives of children.

You can find further information on the Families need Fathers website.

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Author: Stowe Family Law

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Separated families statistics give pause for thought

Last week the Department for Work and Pensions published something new, which must surely be of interest to anyone involved with the family justice system: statistics about the separated family population. We have seen something similar to this previously, but the methodology used to produce these statistics is apparently more accurate than before.

The purpose of the statistics is to provide information on child maintenance arrangements between parents in separated families. I will come to that in a moment, but first I will deal with the main figures, which must surely give pause for thought, and not just to those concerned with child maintenance.

The main figures relate to the number of separated families in Great Britain, and the number of children in those families. A ‘separated family’ is defined as one resident parent, one non-resident parent and any biological or adopted children they have between them who are either under 16 or under 20 and in full-time non-tertiary education. Obviously, a ‘resident parent’ is the parent who has the main day-to-day care of any relevant children, and a ‘non-resident parent’ is the other parent. The terminology, of course, is similar to that used in the child support system.

So to the figures, which are for the period April 2014 to March 2017. They show that at any point during that time there were around 2.5 million separated families in Great Britain, which included about 3.9 million children. Just let that sink in for a moment. Roughly 20% of the population are children, and the total population is about 65 million. By my calculation that means there are about 13 million children. That in turn means that getting on for one in every three children comes from a separated family. OK, I realise that my own methodology here leaves something to be desired, but you get the point: a very large proportion of children in this country come from a separated (some might say ‘broken’) family.

I’m sure a lot of people would be appalled by these figures. However, it would be quite wrong to assume that all of these children are unhappy or deprived. How the separation of their parents has affected them depends upon many factors, not least how well the parents have managed the separation, including in terms of ensuring that the children continue to have a close relationship with both parents. The cliché that children are resilient has some truth in it: children are perfectly capable of adapting to the separation of their parents, provided the conditions are right.

OK, to the child maintenance aspect of the statistics (child maintenance, of course, being one of the matters that separating parents usually have to deal with). The headline figure is that in 2016/17 around 48% of separated families had a child maintenance arrangement, down from 55% in the previous two years. This seems like a significant drop, although it may be due to child support arrangements being moved from the Child Support Agency (‘CSA’) to the Child Maintenance Service (‘CMS’) – it will be interesting to see if there is any further drop in the coming years. Whatever, less than half of separated families having any child maintenance arrangement seems pretty low to me. How many children suffering from economic hardship does that represent?

Lastly, the statistics look at the different types of child maintenance arrangement. These are defined as either ‘statutory arrangements’ or (you’ve guessed it) ‘non-statutory arrangements’. Statutory arrangements are those which have been arranged with the CSA or the CMS. Non-statutory arrangements include all other arrangements, such as: voluntary financial arrangements which involve direct monetary payments between parents where the CMS or CSA have not been involved; voluntary non-financial arrangements involving payments in kind; other types of arrangements including shared care arrangements; and court orders requiring parents to make financial payments.

The figures show that in 2016/17 17% of separated families had statutory arrangements, and 29% had non-statutory arrangements (the other 2% were cases which had both). In other words, if there is a maintenance arrangement, it is considerably more likely not to involve the CMS.

All of this seems to me to indicate a victory of sorts for the government’s child support policy. The main aim of that policy was clearly to save money by not involving the state in sorting out child maintenance whenever possible, and the statistics show that in only less than a fifth of cases is the state having to get fully involved. Whether this is a victory for children is another matter entirely…

You can find the full statistics here.

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Author: John Bolch

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The potential impact of the Sally Challen case

We wait in anticipation of the outcome of the Court of Appeal decision tomorrow to see if Sally Challen’s conviction is reduced from murder to manslaughter.

In 2010 Sally was sentenced for life with a minimum of 22 years (which was later, on appeal, reduced to 18 years) following hitting her husband, Richard Challen, 20 times over the head with a hammer, which led to his death.

Sally is pleading diminished responsibility on the basis of his controlling and coercive behaviour; a behaviour that became more widely known when the legal system recognised that abuse does not need to be physical it can be psychological too.

In 2015 Section 76 of the Serious Crime Act 2015 created a new offence of controlling and coercive behaviour in an intimate or family relationship. Prior to this, the closest offence was harassment which was difficult to prove in an intimate relationship.

The statute provides that an office is committed by A if:

  • A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive;
  • At the time of the behaviour, A and B are personally connected;
  • The behaviour has a serious effect on B;
  • A knows or ought to know that the behaviour will have a serious effect on B.

Examples given by the children of the parents, in this case, include isolating their mother from her friends and family, controlling who she socialises with, controlling her money, restricting her movement and creating a culture of fear and dependency. This behaviour continued for over 40 years before Sally finally struck her husband.

There has been a lot of domestic abuse awareness on the television in recent weeks and a common question asked is why would you not just leave?

This way of thinking is so frustrating. If it was really that simple to leave then an individual would just leave. I have read the reports that Sally did try to leave and even start divorce proceedings on a number of occasions, but she felt she could not be without Richard and this was most likely part of his controlling behaviour, Sally did not feel like she could live without him, so kept returning, until one day it all got too much.

I have worked with victims of domestic violence for over 10 years, firstly through charity work and in my professional capacity and they often tell me that the emotional/psychological abuse is often more painful than the physical abuse.

This case has the potential to be a landmark case as it will be the first time the court will hear controlling and coercive behaviour being used as a defence in a murder trial. If Sally is successful, I believe not only will we see a rise in such defences being raised, but a greater understanding by the court of the seriousness of psychological abuse.

My view is that the court must accept the impact of this psychological abuse and if Sally can prove this it will be a most welcomed result.

 

 

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Author: Sarah Jane Lenihan

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Stowe tips: What is a special guardianship order?

Hannah Ross, Solicitor from the Stowe office in Leeds joins us on the blog today to look at special guardianship orders? What are they? Why would you need one? And, how do you get one?

Special guardianship orders were introduced in 2005 and are governed by the Children Act 1989. They are often described as a mix of a child arrangement order and an order for adoption.

Why should I choose a special guardianship order?

A special guardianship order application is suitable in circumstances whereby the child has been living with you for a period of time or they have been placed into your care by way of care proceedings.

The order remains in place until the child has reached the age of 18 and although you share parental responsibility with the parents, you are able to make almost all decisions about the child without the parent’s approval.

If the child was already subject to local authority involvement prior to the application for a special guardianship order being made then you may be entitled to additional support from them, this can include a special guardian allowance.

A child arrangements order is very similar, however parental responsibility is shared with the parents and therefore decisions regarding the child will require their agreement. In addition to this, there would be no additional support provided to you by the local authority.

How do I start the process?

Before taking steps towards making an application to Court for a special guardianship order the Local Authority must be given three months’ notice of the intention to apply.

This gives the Local Authority the time to undertake a thorough and detailed assessment of the applicants which goes into detail about the housing arrangements, financial circumstances and the ability to care for the child. If the special guardianship assessment is negative, then the prospects of successfully obtaining a special guardianship order are significantly reduced.

If successful, a special guardianship order application is made to the local Family Court, this can be done within existing proceedings or as its own standalone application. There is often a requirement for the court to grant permission for the application to be made

Who can apply for a special guardianship order?

The law sets out clearly who is entitled to apply for a special guardianship order and they are as follows:

  • Any guardian of the child
  • Any individual who is named in a child arrangement order as a person who the child is to live with
  • A local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application
  • A relative with whom the child has lived for a period of at least one year immediately preceding the application

What will the court consider?

The court, as always will take into consideration what is in the best interests of the child using a welfare checklist which is prevalent in the decision-making process and considers the following:

  • The ascertainable wishes and feelings of the child concerned
  • The child’s physical, emotional and educational needs
  • The likely effect on the child if circumstances changed as a result of the court’s decision
  • The child’s age, sex, background and any other characteristics which will be relevant to the court’s decision
  • Any harm the child has suffered or maybe at risk of suffering
  • The capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
  • The powers available to the court in the given proceedings

A special guardianship order is a useful tool in ensuring that a child is given a permanent and secure home without losing the crucial link to their birth parents.

The law around special guardianship orders, however, can be complex and difficult to navigate and legal advice is strongly advised.

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Author: Hannah Ross

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New Domestic Abuse Bill published

“Throughout my political career I have worked to bring about an end to domestic abuse. Our new Domestic Abuse Bill will help survivors and stamp out this life-shattering crime.”

So tweeted Prime Minister Theresa May, announcing the new Domestic Abuse Bill. Well, it’s a nice idea, but of course nothing will bring an end to domestic abuse – such a suggestion, as with ‘stamping out this crime’, is nothing more than another politician’s unachievable promise. Hopefully, however, the new Bill will, if passed, at least reduce the incidence of domestic abuse, and it should certainly provide some help for survivors of abuse.

The draft Bill includes the following provisions:

  1. The first statutory government definition of domestic abuse. As drafted, this states that behaviour by a person (“A”) towards another person (“B”) is “domestic abuse” if A and B are each aged 16 or over and are personally connected, and the behaviour is abusive. OK, so what is “abusive”? This is defined in two parts, relating to ‘behaviour’ and ‘economic abuse. Behaviour is “abusive” if it consists of any of the following—

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse (see below); or

(e) psychological, emotional or other abuse.

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

  1. To establish a ‘Domestic Abuse Commissioner’, “to drive the response to domestic abuse issues”.
  2. To 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 is personally connected by prohibiting them from doing things described in the order, or requiring them to do things described in the order. It 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. Obviously, breach of the Order is an offence.
  3. Lastly, and this is the ‘headline’ provision, the Bill prohibits the cross-examination of alleged victims by their alleged abusers in the family courts. Now, I’ve not made a study of the new provisions, but at first glance they seem similar to the provisions that were previously included in the Prisons and Courts Bill, which was dropped in the run-up to the last general election. In particular, it 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.

OK, so a fairly substantial package, which led Justice Secretary David Gauke to comment:

“Domestic abuse destroys lives and warrants some of the strongest measures at our disposal to deter offenders and protect victims.

“That is why we are barring abusers from cross-examining their victims in the family courts – a practice which can cause immense distress and amount to a continuation of abuse – and giving courts greater powers, including new protection orders, to tackle this hideous crime.

“By pursuing every option available, to better support victims and bring more offenders to justice, we are driving the change necessary to ensure families never have to endure the pain of domestic abuse in silence.”

The above is a very quick glance at a hot-off-the-press Bill, which obviously requires detailed scrutiny. However, I think many will be pleased with what they see. In particular, family lawyers will I’m sure welcome the long-awaited prohibition on the cross-examination of alleged victims by their alleged abusers. I’m not sure what the new definition of abuse adds to the existing (non-statutory) definition, and we will just have to see how useful a Domestic Abuse Commissioner will be. Otherwise, adding extra options for punishing abusers and also (not so far as I can see mentioned in the draft Bill), the added emphasis on rehabilitating offenders are definitely welcome developments.

You can read the full text of the Bill here (see Annex D). The draft Bill will now be subject to pre-legislative scrutiny by a joint committee of both Houses of Parliament.

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Author: John Bolch

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Overhaul for domestic abuse laws announced

The pledge to overhaul domestic abuse laws was almost two years ago and the public consultation closed eight months ago. Today, 21 January, we are finally seeing the content of a draft bill that is being hailed as a ‘once in a generation’ opportunity* to combat the impact of abuse by campaigners.

Sushma Kotecha, Managing Partner at the Stowe Family Law office in Nottingham shares her response:

“This is long overdue legislation that needs  urgent implementation to protect victims of domestic abuse both direct and indirect.

Often vulnerable children are caught up in the crossfire between their parents and their suffering is overlooked.

The physical, emotional and psychological impact of domestic abuse upon victims is profound and can have a devastating long-term impact on them.

Those assisting victims of domestic abuse, like us at Stowe Family Law and most importantly, the victims will welcome the proposed changes by the draft bill, which once implemented will protect and support the rights of victims and abolish the opportunity for perpetrators to extend their abuse.”

Here at Stowe Family Law, our domestic abuse solicitors can advise you of your legal options. Injunction proceedings can be issued swiftly, depending on the circumstances of your case, to provide you with the protection of the court. In cases where the victim of abuse is financially dependent on the abusing party, we can advise people of the law and their rights.

*Sourced from the BBC website.

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Author: Sushma Kotecha

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Contemptuous approach does not go well for husband

It is obviously trite to say that feelings can run very high in the course of family litigation. Such feelings are rarely conducive to a favourable outcome, so lawyers and judges do what they can to reduce them. It would not, however, be realistic to expect strong feelings to be eliminated entirely. The trick is to ensure that they are reduced sufficiently so as not to cause serious damage to that party’s case.

Sometimes, however, a party is so caught up in their feelings of ill-will towards the other party that they are not able to keep them away from the courtroom. And, as we will see in a moment, the ill-will can even spread to the other party’s lawyers, and even to the court itself, particularly if they believe that the case is not proceeding in a way that is favourable to them. The feelings can manifest themselves in many ways, but a common way is contempt for all others involved in the litigation, including the court. Needless to say, this is not likely to go well for the aggrieved party.

The recent case Quan v Bray is a remarkable example of this phenomenon, in which the husband was found by Mr Justice Mostyn to have a “contemptuous and arrogant approach” to the proceedings. In fact, the case caused much comment amongst family lawyers on Twitter, and none of it favourable towards the husband.

I have, in fact, written here previously about Quan v Bray, in this post. The case concerned a wife’s financial remedies claim, and the recent judgment related to the final hearing of that claim, before Mr Justice Mostyn in the High Court. The wife was represented by lawyers at the hearing, and the husband represented himself.

The case has a complex history (it began in 2012), and there is neither room here nor the need for me to go into its details. Essentially the wife at the hearing was only seeking maintenance, with her capital claims (e.g. for a lump sum payment) being adjourned because the husband did not presently have the capital to meet those claims, but might do so in the future. The husband claimed that he did not have the income to pay maintenance, and that he would not receive sufficient capital in future to make any capital payment to the wife.

Accordingly, the two matters for Mr Justice Mostyn to decide were: should the husband be required to pay maintenance to the wife, and if so how much, and should the wife’s capital claims be adjourned, or dismissed?

I now turn to the husband’s approach to the proceedings. Prior to the hearing, he had already blatantly defied court orders, both to disclosure documentation (which Mr Justice Mostyn believed would be significantly to the husband’s disadvantage, if revealed), and to pay maintenance pending suit to the wife, despite Mr Justice Mostyn finding that he had the means to pay.

But it gets worse. When dealing with his income in his principal witness statement, the husband had sarcastically suggested that he “might be able to earn some money as a drug dealer”, a suggestion that Mr Justice Mostyn described as “not only childish and facetious”, but also “directly and grossly disrespectful to the authority of the court.”

And the husband did not stop there. In the next paragraph of his statement he suggested that a further possibility for him to earn an income was by pursuing a career “extorting money” as a legal executive with the wife’s solicitors, although saying that he “would prefer drug dealing because it is considerably more ethical.” This, said Mr Justice Mostyn, went “beyond childishness and facetiousness.” It was “grossly insulting”, and reflected the husband’s detestation of the wife’s advisers. It was completely unacceptable that he should use a witness statement written for the court as a platform to vent his spleen in this manner.

In the light of the above, it is no surprise that Mr Justice Mostyn found the husband to be a thoroughly unsatisfactory witness, concluding that he had “been dishonest, manipulative, arrogant, menacing and contemptuous of the court’s authority.” In the circumstances he did not accept any of the husband’s evidence, unless it was either agreed or corroborated by clear contemporaneous documents. By contrast, he found the wife to be a credible witness.

He awarded the wife maintenance of £64,000 per annum, and adjourned the wife’s capital claims, concluding that it was “foreseeable that at some stage in the future the husband will have accumulated sufficient sums to make a proper clean-break capital settlement on the wife.”

Following the judgment the husband applied to Mr Justice Mostyn for permission to appeal. However, Mr Justice Mostyn was not satisfied that any of the grounds for appeal put forward by the husband had any prospect of success, and he therefore refused the application.

All in all, a clear illustration of the folly of taking your ill-feelings with you to court, and another lesson in the perils of self-representation (many was the time that I had to advise a client against letting their ill-feelings creep into their evidence). Of course, to the non-lawyer looking in, some of the husband’s behaviour in this case may seem just silly, or even amusing, on a juvenile level. But rest assured, it will not be viewed that way by the court.

You can read Mr Justice Mostyn’s full judgment here.

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Author: John Bolch