Tulsa Family Lawyer and Mediator
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Access to the court is a basic right enjoyed by all including, of course, parents who require the court to resolve disputes over arrangements for their children. Accordingly, restricting that right is a very serious step, which should only be taken in exceptional circumstances.
Regular readers of this blog may be aware of a provision tucked away in a sub-section towards the end of the Children Act 1989. Section 91(14) provides that:
“On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”
Section 91(14) orders are often referred to as ‘barring orders’, although technically they do not actually bar a parent from making further applications – they merely provide a further hurdle or ‘filter’ that must be passed by the parent before they can proceed with their application. The orders are usually made in cases that have a long history of litigation, and their rationale is that the case has reached the point where it would be best for all concerned, particularly the child, if there were to be a break in the litigation. Accordingly, any new application will generally only be allowed to proceed if it is considered to be absolutely necessary, in the interests of the child.
Barring orders are usually made for a set period of time. As one might imagine, once a barring order has been made it can be very difficult for a parent to persuade the court to entertain a further application before that period has expired. Barring orders are therefore a serious restriction upon the right of the parent to have access to the court, and they should therefore only be made sparingly, and after full and proper consideration.
Sometimes, however, the court can get it wrong, perhaps being too eager to protect the child from the harmful effect of further litigation. The recent case N (Children) was an example of the court getting it wrong.
The case concerned two children, now aged eight and seven. By the time the case reached the Court of Appeal this month, their parents had been involved in litigation concerning them for nearly five years. That litigation had begun in September 2014, when the mother applied for a child arrangements order, a non-molestation order and a prohibited steps order. In January 2015, the father pleaded guilty to an offence of harassment by sending abusive text messages to the mother, and was subsequently sentenced to a six-month community order. In March 2016, at what was intended to be a final hearing, the court made a child arrangements order, providing that the children lived the mother but had overnight and holiday contact with the father.
But that was far from the final hearing. The mother applied to vary the contact, and since July 2016 the father has had supervised visiting contact only. Another ‘final’ hearing took place in March 2017, at the conclusion of which the judge made an order confirming the child arrangements, including the order for supervised contact. The father appealed. His appeal was dismissed, but the judge also gave directions for the case to proceed, after the parents agreed to undergo a psychological assessment.
The assessment was carried out by a clinical psychologist, who had no concerns about the mother, but found that the father suffered from serious anger management problems.
The matter went back to the court for a directions hearing in March 2018. The father did not attend, and the hearing proceeded in his absence. The judge, Mr Justice Hayden, decided of his own volition that it was appropriate to make a barring order for two years, although he gave the father a month in which he could apply to vary the order. The father did apply, and a further hearing took place in July 2018. The father, representing himself, did not properly prepare for this hearing, although he produced a report from a chartered consultant counselling psychologist, who found no evidence that the father suffered from emotional distress outside the context of missing his children and frustration with the legal system. The judge found the report inadequate in various respects, and summarily refused the application.
The father then appealed against both the barring order and the order made in July 2018. The appeal was heard by the Court of Appeal this month, Lord Justice Baker giving the leading judgment.
Lord Justice Baker said that he understood the judge’s anxiety that the ongoing proceedings were not serving any benefit, and were risking further harm to the children’s welfare. However, the barring order should not have been made without giving the father an opportunity to make representations as to it. If the order had been properly made then it might have been appropriate to have dealt with the father’s subsequent variation application in a summary fashion. However, in the light of the irregularities in the way in which the barring order was made, the summary dismissal of the father’s application was “plainly wrong”.
Lord Justice Baker concluded:
“I regret to say … that the two hearings together represent an unwarranted infringement of the father’s rights to a fair hearing. His automatic right of access to the court was removed without notice and without giving him a proper opportunity to make representations. When he attempted to exercise the liberty to apply to vary that order, his application was misunderstood by the court and dismissed. I reach this conclusion with considerable reluctance, given Hayden J’s great experience and the strong sense of his concern for the children which emerges from the transcripts. His assessment that the ongoing proceedings were serving no purpose and not benefitting the children may well have been right. But before imposing an order under s.91(14), there are certain procedural steps which should have been followed but which were unfortunately overlooked in this case.”
Accordingly, the father’s appeal was allowed, and the barring order was set aside. The case was remitted back to the court below, for a further hearing before a different judge.
You can read the full judgment here.
The post Father wrongly barred from making further applications in relation to his children appeared first on Stowe Family Law.
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Author: John Bolch
In the second instalment of “A public and bitter divorce battle, there is another way” by Senior Partner, Julian Hawkhead he looks at how arbitration is another useful tool to resolving financial issues in divorce away from the public eye.
Another route to resolving financial issues is arbitration. Arbitration, in short, is a privately funded process where your nominated independent arbitrator decides the outcome of your case by making a binding award which through the rules of arbitration is turned into a Court order.
Like private FDRs, you can choose your arbitrator or if you cannot agree who it should be, an independent body can select the arbitrator for you. The hearing will be conducted away from the Court in private offices. It is entirely confidential, and you are not constrained by the delays of the Court system or the constraints of time. It is, however, a voluntary process. Both parties must agree to enter it.
Arbitration, at times, does arouse suspicion of bias particularly concerning the politics and tactical thought processes of the relationship between the lawyer and the arbitrator chosen. This is less of a feature of private FDRs, where the views are in any event, not binding. However, as an arbitration award is a final binding decision, the fear of bias can loom larger.
The attraction for some litigants is that the “lottery of litigation” creates a level playing field and you both share in the good or bad experiences. It does, however, reflect a naive attitude towards the private FDR and arbitration processes and shows little faith in the professionalism of highly experienced lawyers. An arbitrator who showed bias would soon lose any credibility. Judges are just as capable of misunderstanding issues, having natural human biases for different circumstances or types of behaviour.
Of course, private FDR hearings and arbitration both attract additional fees. However, if you trade that cost against the saving of time (which inevitably leads to more costs), the quality of experience and decision making, then surely it is a price worth paying?
We are dedicated to finding solutions for our clients and advise on all the options available to our clients to resolve their issues in the quickest, most cost-effective and least acrimonious way. Read our section on out-of-court settlement options here.
With over 50 members of Resolution in our team and a high number of specialist accredited lawyers, we can help you find the best way to achieve your goals.
For advice on arbitration and other out of court settlements you can contact me here or our Client Care Team below.
You can read part one of this article here.
The post A public and bitter divorce battle, there is another way – Part two appeared first on Stowe Family Law.
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Author: Julian Hawkhead
In another life I monitor and report family justice news, from a whole variety of sources. I have been doing so for more than ten years now. During that time I have seen many changes in the system (as I briefly outlined in this recent post), and many more calls for change.
In fact, sometimes it seems as if hardly a day passes by without the announcement or call for some new inquiry, review, initiative, or campaign for change, whether it be from government, MPs, the President of the Family Division, or some other interested party. In just the last couple of weeks, for example, we have had MPs calling for an inquiry into the ‘secret family courts’, the Ministry of Justice announcing a review into how the family courts protect children and parents in cases of domestic abuse, an announcement by the President of a ‘Transparency Review’, and the parent support Community Interest Company OnlyMums & OnlyDads launching a campaign to speed up the court process for dealing with child arrangements applications.
Now I don’t for one moment say that the system is perfect so can’t be improved, and I accept that most of the calls for change are perfectly well-meaning, but are they actually creating a problem? What is the effect upon the system of constant change, and constant calls for yet more change? As I think I’ve said here previously, we seem nowadays to be in a culture of ‘change for change’s sake’, as if any change must be for the better. That of course is not the case. But even if it were, we must still consider the effect of change itself upon the system, and those who work within it.
Think, for example, of the practical effect upon judges, magistrates, court staff, Cafcass officers, social workers and lawyers. They are constantly having to re-train in new procedures and working practices. Now, some of that of course goes with the job: they all have to keep up to date with new law and procedure, and always have had to. However, the rate of change these days is far greater than ever before. And we are not necessarily talking about small changes. Many of the changes are fundamental to the way that people work, for example centralising courts, transferring to online systems, and major overhauls of law and procedure. Just ‘keeping up’ is becoming a full-time job in itself.
And change seems to almost inevitably mean higher workload, adding to pressures on those working within the system, and discouraging others from doing the job. We have witnessed something similar in the education system, which has been subject to constant tinkering for many years, and now both struggles to attract new teachers and has a very high turnover, with many teachers leaving the profession early. I think we may already be finding it more difficult to attract the people we want, and the numbers we want, into the family justice system.
Another reason for the work being unattractive is that those calling for change are, either directly or indirectly, saying that things are wrong within the system, and that those working within it are not doing a good job. Constantly effectively being told that you are doing a bad job, when for the most part you are actually doing a very good job, must have an effect upon moral.
And my final point is a more general one. Constant change and calls for change lead to ineffectiveness and uncertainty.
Surely, any changes need to be given a chance to ‘bed in’ and work? The people affected by them, both those who work in the system and those who use it, should be able to become familiar with them. This process could actually take many years, decades even. Only then is the system working at ‘peak efficiency’. And yet change takes place on a much shorter timescale. We have seen this particularly in the field of children law, with significant changes to law and procedure occurring on a regular basis, and calls for change happening constantly.
I think many people view the family justice system as something that can always be improved, that can always be hewn into something better. On a broad scale, I would agree. But that does not necessarily mean that change should be happening all the time.
The post Is constant tinkering harming the family justice system? appeared first on Stowe Family Law.
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Author: John Bolch
When parents go through a divorce, one of their primary concerns is how they can protect the interests of their children. Divorce is an emotionally challenging process for every member of the family, especially for young kids who do not fully understand what is happening. It is important to provide stability and continuity of lifestyle as much as possible.
A strong custody order and reasonable parenting plan is a crucial step in your efforts to protect your kids as much as possible. However, it is also smart to find ways to co-parent peacefully in order to reduce the chance of post-divorce complications as much as possible. There are specific tools that can help you in your effort to make post-divorce parenting as easy as possible.
Is an app the right solution?
Simply because a divorce is over does not mean that remaining difficult feelings between parents will magically go away. Co-parenting is not easy, and it can take a while to adjust to the emotional implications of your children not being with you all the time, as well as the logistics of keeping up with various schedules. There are specific apps that can allow you to easily and more effectively manage custody schedules, including the following:
These calendars can allow multiple users, such as you and your ex-spouse, to clearly view the same calendar. You can schedule drop-off and pick-up times, meetings, changes in schedule, school events, sporting events and more. This can reduce complications and confusion, which in turn, often leads to less conflict.
When parents are in communication and there is a good system in place, it can make post-divorce life much easier for the kids. There is evidence that allowing the kids to have strong relationships with both parents after divorce is best, and using some of these technological tools can help you do that.
Starting with a good custody plan
If you want to make your post-divorce life easier and more stable for your children, it is important to pursue custody and visitation terms that make practical sense. Smart, thorough plans are better for everyone, but you may have to set aside your personal feelings in order to compromise and keep the needs of the children first.
Due to the sensitive nature of any child custody issue, you will find it beneficial to speak with an experienced family law attorney regarding your parental rights. He or she can help you understand how you can seek a custody plan that will work for your family for years to come.
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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law
In this instalment of Stowe guests, we catch-up back again with Claire Black from Claire Black Divorce Coaching.
Today, she joins us with three tips on how to support your children through divorce (they also work well for adults). Over to Claire to explain more…
I see a lot of clients who are worried about the impact their divorce may have on their children, and they ask how they can best support their children through the process. Many of the techniques I use with my clients are simple and work brilliantly with children, with very positive results.
Here are three of my favourites:
Help them to find the upside
I worked with a mum recently whose daughter was finding it very difficult to adjust to life after her parents’ relationship broke down. My client felt that she wasn’t best equipped to help her daughter handle her emotions at a time when she too felt bereft and low.
We worked together to find the upside, and to reframe how my client could look at her situation so that she could see a different perspective.
“Flip it to find the positive, and concentrate on that” – Sara Davison, the Divorce Coach
You can help your children to do this too. Try asking your child:
These are fabulous questions that can help your child to see a positive even if it is only small right now. I used to look for the upside all the time during my own divorce, and it really helped to be able to see glimmers of light. When you practice asking these questions, it becomes a habit and gives you a whole new way of approaching any challenge.
My client’s daughter responded that she enjoyed going swimming with Daddy on her own last week and that they’d had fun in the park on Saturday. She was also enjoying the opportunity to do more craft activities with her Mum when they had time together.
Your child might resist and say there is nothing good about this at all, but persevere, “I know it might not be obvious, but if there was one good thing about this, what would it be?”. You could give them your examples of the tiny good things: it could be that you can now cook with ginger whenever you fancy, or that you don’t need to watch EastEnders any more. And show them that you can find the upside yourself. Watch them follow your lead.
Show them how changing how they stand can change how they feel
“The way you move determines the way you feel” – Tony Robbins
Sometimes all that is needed to kickstart a change in mood is to change your physiology.
Have you ever felt low and fed up, but then done something silly or fun, or jumped up and down or struck a power pose – and immediately felt better? It may not seem like the obvious thing to do, and you might resist doing it at first, but I promise it will make a difference.
I have been known to get clients to jump up and down 5 times, or strike a Superman pose in the middle of a session. Or I get them to stand with their arms outstretched and put a massive grin on their face.
If you haven’t tried this for yourself, do it now! See what happens. Try it with your children. If nothing else, you will have a laugh together – which will send endorphins, the feel-good hormones, flowing around your body.
Show them how to be in ‘control of the clicker’
“Whenever I’d complain or was upset about something in my own life, my mother had the same advice – darling, just change the channel. You are in control of the clicker. Don’t replay the bad, scary movie” – Arianna Huffington
Wise words!
Your brain will try to answer the questions you ask it. When you ask questions like “why is this happening to me?”, “what did I do to deserve this?”, “will this never end?”, the answers can cause your mood to spiral downwards very quickly. If it can spiral down that quickly, then asking better questions can reverse that downwards movement.
I spend time with clients creating lists of better questions to ask themselves, such as:
Often clients write their questions onto post-it notes and stick them up around their house, to remind them to ask those better questions. These questions work equally well with children, and they encourage them to model the resilience that you are showing yourself.
Children learn by experience and by modelling the behaviours they see in those around them. When children see and model a parent who is calm and collected, who responds with dignity in a crisis, and who has strategies to handle stress and challenge, they too grow in resilience and confidence. By passing on techniques and tips to your children, you empower them to process what is happening and move forward themselves.
The post Stowe guests: Three tips to help children through divorce appeared first on Stowe Family Law.
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Author: Stowe Family Law
My top three stories from the last week in family law.
Perhaps the biggest story of the week came from the Ministry of Justice (‘MoJ’), which announced in a press release that a panel of experts will review how the family courts protect children and parents in cases of domestic abuse and other serious offences. We were told that: “The three-month project aims to ensure that the family court works first and foremost in the explicit interests of the child, such as their safety, health and well-being.” Now, I know that things can always be improved, but I think the MoJ could have chosen their words better here, as the welfare of the child is already of course paramount. The release goes on to tell us that: “The MoJ-chaired panel will consist of a range of experts including senior members of the judiciary, leading academics and charities. A public call for evidence will also be launched imminently and will look to those with direct involvement to share their experiences.” The move follows responses received through the government’s domestic abuse consultation, in which concerns were raised about the family courts’ response to potential harm to children and victims. In addition to calls for better protections for children, some claim that domestic abusers are using the court system to re-traumatise their victims. Justice Minister Paul Maynard commented: “Some of the most vulnerable in our society come before the family courts, and I am absolutely determined that we offer them every protection. This review will help us better understand victims’ experiences of the system, and make sure the family court is never used to coerce or re-traumatise those who have been abused. Its findings will be used to inform next steps so we can build on the raft of measures we have already introduced to protect victims of domestic abuse.” Hmm.
As I reported here, Mr Justice MacDonald has ruled that a mother’s actions in bringing her three year old daughter Ruby to England from Australia without the father’s consent “represented a blatant and premeditated act of child abduction.” The mother brought Ruby to this country in September last year. She then purchased a camper van and proceeded to tour the country with Ruby, eventually ending up in the Outer Hebrides, where she lived for two months during October and November 2018. The father applied to the court for an order that Ruby be returned to Australia. However, Ruby’s whereabouts were not known, so the court made an order permitting details of the case to be reported in the media, in an effort to locate her. Ruby was subsequently found, following extensive media coverage. Hearing the case in the High Court Mr Justice MacDonald said that he was satisfied that the mother sought to go to ground in the Outer Hebrides in an effort to avoid detection. He held that the mother had no defence to the father’s application, and therefore ordered that Ruby be returned to Australia. As I said in my post, hopefully, this case will act as a warning against parents seeking to avoid the law in the way that the mother did here.
And finally, Cafcass has announced that Jacky Tiotto will be replacing Anthony Douglas as its Chief Executive, when Mr Douglas retires in the autumn. Ms Tiotto is currently Director of Children’s Services at the London Borough of Bexley. Commenting on her new role, she said: “Being offered the opportunity to lead Cafcass as their new Chief Executive is a complete privilege. I will take great care to do it well so that the lives and futures of children, young people, families and carers continue to be the greatest priority for all of us working to support them. The protection of children, the needs and experiences of families and the responsibilities of the State in this regard are issues of huge importance to our society and for me personally. Cafcass negotiates these issues on behalf of children within the family courts on a daily basis. The demand and complexity of the work cannot be underestimated and I am delighted to be able to lead the organisation and to learn from its work as we continue to give a loud and authentic voice to the children who need and deserve our help.” I wish her well.
Have a good weekend and Spring bank holiday.
The post A week in family law: Reviewing child protection, child abduction and a new Cafcass Chief Executive appeared first on Stowe Family Law.
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Author: John Bolch
A bereavement is bad enough; having an issue with the executor adds to the stress.
When you make a will one of the most important things to consider is who you appoint to administer your estate: the executor. This is certainly not a decision to take lightly.
Acting as an executor is a role of great responsibility particularly if affairs are not left in good order. You need someone honest, reliable, organised and used to dealing with financial issues. Thankfully, you can have more than one.
According to STEP (Society of Trust & Estate Practitioners), the cost of probate fraud is predicted in the region of £150 million and executors, particularly with their level of control, could potentially manipulate things and help themselves to the estate. Or perhaps an executor is genuine but stalling decisions and not dealing with the estate properly.
Whether it is a human oversight or something more sinister, we asked Theo Hoppen from the Stowe Family Law office in Harrogate to join us on the blog to look at what you can do to remove an executor.
“I am often consulted by clients who are frustrated by the failure of an executor to properly administer an estate. When a person dies, his or her Will (if they have one) will appoint one or more executors to collect in the estate’s assets and distribute them. If there is no Will then a beneficiary of the estate under the Intestacy Rules can be appointed to administer the estate.
Sometimes a beneficiary has concerns that the executor is behaving improperly by, for example, keeping estate assets for themselves or transferring estate assets to a third party. These disputes can be complex and very emotionally charged. I find that the death of a loved one can exacerbate tensions within a family, sometimes leading to all-out warfare between relations.
My job is to sort out the dispute so that everyone gets what they are entitled to and move on with their lives. Usually, the best option is to arrange a mediation session. I find this can often resolve even the most acrimonious disputes and, importantly, the court will expect the parties to mediate before taking the matter to court.
If you bypass mediation, without a good reason, the court will hold this against you and may order you to pay some or all the other party’s legal costs if you lose your court case.
A mediator is an independent third party appointed jointly by the parties. He or she will spend a day encouraging everyone to negotiate and resolve the dispute. Whilst the parties pay for mediation, it is considerably cheaper than pursuing court proceedings and a much quicker process as a court case can take at least a year to conclude and sometimes longer.
If mediation fails, the court remains the only other option. The court can make various orders to sort matters out and ensure that the estate is administered correctly. It can order that an executor is removed and replaced by someone else and also order how the estate should be administered. “
If you need advice on removing an executor or different claims against an estate please do not hesitate to contact me at [email protected] or at the details below.
The post How do I remove an executor from a will? appeared first on Stowe Family Law.
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Author: Theo Hoppen