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Judge bemoans lack of legal aid in complex children cases

As I reported here on Friday, last week the Government published its long-awaited review of the effects of the legal aid cuts introduced in 2013. To deal with the problems identified in the review an additional £8 million of funding was announced. But that is little more than a sticking plaster to cover the gaping wound caused by cutting £350 million per year from the legal aid budget. The problems will continue.

Those problems were highlighted in a judgment published just one day after the review: the judgment of Mr Justice Williams in R (A Child: Appeal: Termination of Contact).

The judgment concerned an appeal by a father against orders made in child arrangements proceedings in relation to his 12 year old son. In particular, the father was appealing against an order that he have only indirect contact with his son.

The case was complicated. It had a long history, stretching back to 2013. It involved findings against both parties, including serious findings against the mother, the most serious of which was that she had alienated the child from his father, as a result of which the child had suffered and/or remained at risk of suffering from significant long-term emotional harm. It also involved the local authority, and expert evidence from a clinical psychologist. There had been five ring binders of evidence at the hearing from which the appeal was made. If all of that were not enough, the case had an added complication in that the mother is profoundly deaf, and had to be assisted at court by both a deaf intermediary and two British Sign Language interpreters.

The judge in the court below had ordered that the boy should live with the mother, and that he was only to have indirect contact with his father by means of the father sending letters cards or gifts by post once per month for six months, and thereafter fortnightly. The judge also ordered that the father could not make any further applications without the leave of the court.

The father appealed against these orders, to the High Court.

Neither the father nor the mother could afford legal representation at the hearing in the High Court. They were, however, both represented by barristers acting ‘pro bono’, i.e. without charge, which led Mr Justice Williams to say this:

“That counsel for the father and for the mother should appear pro bono in such a complex case as this is in the finest traditions of the legal profession. Up and down the country, counsel, solicitors and legal executives fill the gaping holes in the fabric of legal aid in private law cases because of their commitment to the delivery of justice.”

He went on:

“Without such public-spirited lawyers how would those such as the father and mother in this case navigate the process and present their cases? How judges manage to deliver justice to the parties and an appropriate judgment for the child without such assistance in cases like this begs the question. It is a blight on the current legal aid system that cases such as this do not attract public funding.”

And he concluded with a swipe at the stereotype so many people have of lawyers:

“So far removed from the stereotyped ‘fat-cat,’ the legal profession in cases such as this are more akin to Boxer in George Orwell’s ‘Animal Farm’ always telling themselves “I will work harder.”

“It is a blight on the current legal aid system that cases such as this do not attract public funding.” So says a High Court judge. And yet nowhere amongst the measures set out by the government in its “new vision for legal support” published alongside the review is a commitment to provide legal aid for cases such as this.

And what happens if one or both of the parents is not lucky enough to secure free representation? It must happen. There is only so much that lawyers can do for free, and it is nowhere remotely near what used to be done under legal aid. The answer is that parents, and more importantly children, will not receive justice, as simple as that.

For the purpose of this post I need not go into the detail of Mr Justice Williams’ decision on the appeal, save to say that it was allowed. If you want all of the details you can read the full judgment here.

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Author: John Bolch

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After the decision is made: navigating your emotional well-being by Lee Lam

In this instalment of Stowe guests, we are joined again by Lee Lam who runs a business consultancy and personal coaching business. Lee works with a variety of different clients, personal and business, as an advisor, consultant and coach through four key programmes.

Lee Lam works with the Stowe office in Esher and today joins us with a follow-up to her article on how to make the decision to move on from a relationship with advice on how to help your emotional well-being once the decision has been made.

A lot of focus is put on your decision, deciding if the relationship can be saved and if not, are you strong enough to do what needs to be done. After that point, there is a void between something finishing and something starting, and you feel in limbo both practically and emotionally. You receive a lot of support or opinions from others but how do you respond?

No-one has the right to know anything

Curiosity about your situation can show as concern or support but you have the right to tell others only what you want them to know. No matter how close they are to you, only you will know the details and it is worth remembering, so you don’t feel overly emotionally exposed. It is important to find your genuine sources of support – these are the ones who don’t ask questions but sit and listen.

Keep your internal self-talk consistent

There will be times when you question your decision – when it gets too hard, or too complex. If you assume that you made the best decision you could at that time, then when you feel yourself wobble, you can bring it back down to the consistent thread of reasoning. Why did I make the decision? What were the circumstances that led me there? Have they changed in a way that makes me want to rethink my decision? This self-talk should not force you to keep to the decision but rather offer you a few questions that check that your decision holds. This is different to panicking and wanting to retreat into the safety of what you knew. This is about calming your self-doubt enough to feel confident that it is still the right decision to make.

What do you want your children to see?

You are a critical role model to your children and during separation this becomes important. They look to the two of you for how to act and behave and how to interpret what is happening in the context of their self-identity. The questions that you are asking of yourselves are the ones that they are asking and finding a way to explore the answers honestly and authentically will help them feel their way. Conversely, seeing yourself as a role model for your children can also help you gain some clarity and confidence over the situation. You find that you have far more resilience and capacity for strength than you may have realised.

Are you triggering other people?

There is always a ripple effect when a change to the status quo happens to your families or friend circles. Because it is forcing a change that others may not want to accept, they try to influence you through guilt. They ask why you are putting yourself /partner /children /family through this. They question whether your relationship was really bad and could it have been salvaged. They ask things that you have been asking yourself and so you can’t dismiss or answer it. But their response is about them, not you. It may be contrary to their beliefs around relationships, marriage or parenting.

Everyone has the right to an opinion, but when that opinion becomes a judgement that is not healthy. It may have shone a light on their own relationship that they are unwilling to acknowledge. If this is someone who you relied on, this is hard. But it is not healthy for you to be around them until they have recognised that the situation is not going to change and that your decision doesn’t have to impact their choices (unless they want it to).

Finding consistency in both your choices and your boundaries helps you and those around you adjust to your new future.

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Stowe guests: Armed forces pensions and divorce

In this instalment of Stowe guests, we are joined by Josh Richardson, a Chartered Financial Planner from Informed Financial Planning.

Informed Financial Planning is focused on helping their customers make the most of their money today, tomorrow and the future including pensions.

Today, Josh offers his expert advice on how divorce can potentially impact on armed forces pensions.

Public sector Defined Benefit (DB) schemes are complex and seemingly ever-changing beasts. These schemes form an essential, valuable asset for many individuals and they will provide an important element of income security for members in retirement. From the NHS Pension to the Local Government Pension Scheme rule changes have been common across the past four decades or more with each change being an elaborate cost reducing and financial stability providing exercise. As a direct result of this however, an entangled web of differing retirement ages, definitions of pensionable salary and accumulation rates has formed across schemes.

It is not surprising therefore, that members rarely comprehend how their pension schemes operate or how their benefits build up. More importantly, dissolution of a marriage or civil partnership often raises significant questions regarding how individuals’ pension benefits will be impacted. In this series of blog entries we aim to provide an overview of the main public sector DB schemes including the pension schemes for the Armed Forces, NHS and Teachers and the changes members may see if a divorce occurs.

These articles will provide a summary of the main rules applicable to the larger schemes but they will not necessarily cover individual circumstances. It is recommended that members speak to their respective scheme administrators, or an independent financial adviser, to identify which rules apply to their pension benefits.

The Armed Forces Pension Scheme

The Armed Forces Pension Scheme (AFPS) represents one of the more complex DB schemes in the public sector. It is made up of three separate rule books, with one or more of these being applied to members’ schemes depending on when they joined. In addition further benefits for members who leave after set periods of service and funds to help service members re-adjust into civilian life, are available and sit alongside individuals’ pensions.

Depending on the date on which an individual commenced their service, their benefits will be governed within one or more of the following sections of the AFPS:

  • Armed Forces Pension Scheme 1975;
  • Armed Forces Pension Scheme ’05; or
  • The Armed Forces Pension Scheme 2015.

Each of these follow different rules, which are summarised in the following sections. As written above, you should check with Veterans UK, who administer these schemes, to identify which rules apply to your membership.

Armed Forces Pension Scheme 1975 (AFPS 75)

Please note, only a minority of Armed Forces employees remain in this section. Most are members of AFPS ’05 or the AFPS 2015.

Full Career Maximum Pension

AFPS 75 provides members with a full career maximum pension, based on their final salary, at the age of 55 if members retire with:

  • 34 years of service from age 21 (for Officers); or
  • 37 years of service from age 18 (for other ranks)

The income received will increase each year in line with inflation. A tax free lump sum, of three times the member’s pension, will also be paid.

Immediate Pension

Members of the AFPS 75 are permitted to leave the Armed Forces before age 55. If chosen, an immediate pension will be paid based on their service plus a tax free lump sum. This is providing the member has completed at least:

  • 16 years of qualifying service from age 21 (Officers); or
  • 22 years of qualifying service from age 18 (other ranks)

The pension received will remain the same each year until the member gets to age 55 at which point they will receive the increases they have missed out on plus annual inflationary increases going forward. This is similar to the early departure payments discussed later.

Deferred Pension

If members do not qualify for an Immediate Pension, they may be entitled to a deferred pension. For pension benefits built up before 6th April 2006, members can receive their pension at age 60. Pension benefits built up after this date will be paid at age 65. This may lead to individuals receiving part of their income, which then increases after 5 years’ time. Members can request their benefits, which are payable at age 65, are paid early but an ‘early retirement’ reduction will apply.

Armed Forces Pension Scheme ’05 (AFPS 05)

You will be a member of the APFS 05 if you commenced employment with the Armed Forces between 6th April 2005 and 1st April 2015.

Normal Pension

Within this scheme you will be entitled to a guaranteed pension from age 65. The pension you receive is based on your ‘final salary’ and the years you have worked for the Armed Forces. For each year you work you will earn 1/70th of your final pensionable earnings. For example:

If your final salary is £30,000 after completing 25 years’ service your annual pension would be calculated as follows:

£30,000 x 25 x 1/70 = £10,714 per year of pension

In addition members will receive a tax free lump sum equivalent to three times their pension. In the above example this would equate to £32,142.

Members can request to take their pension early, before age 65, however there will be a reduction to the income they receive. This reduction reflects the fact that a member’s pension would be paid for longer than normally expected.

Early Departure Payments

To reflect the fact that members in the AFPS cannot receive pension benefits when they retire before 65, as they could in the AFPS 75, they are entitled to an Early Departure Payment (EDP).

To be entitled to this members must be aged between 40 and 55 and have served for a minimum of 18 years. A tax free lump sum equivalent to three times the member’s preserved pension and a taxable income worth not less than 50% of their annual preserved pension will be payable.

This pension will then increase to 75% of the preserved pension once the member reaches age 55 and will also be increased to take into account of inflationary rises from the date the EDP commenced.

Once the member reaches age 65, the EDP will cease and will be replaced by their full pension from the AFPS 05. This income will increase each year in line with inflation.

The Armed Forces Pension 2015 (AFPS 15)

For those in employment after 1st April 2015, members will hold benefits in AFPS 15. Whilst this remains a guaranteed Defined Benefit scheme, benefits are accrued under a different system, called Career Average Revalued Earnings (CARE).

Pension – Income

Each year the scheme adds an amount equal to 1/47th of your annual pensionable salary, to each member’s ‘pension pot’. This pot starts to accumulate from the member’s first day of paid service and is carried forward into each year where it grows slightly to ensure that it tracks inflation and maintains its value.

After two years’ service members will be entitled to a deferred pension. This pension will increase annually in line with the Consumer Price Index (CPI) and will be paid when the member reaches their State Pension age.

If however, the member works up until age 60 they will be able to claim their pension immediately.

Pension – Lump Sum

Under AFPS 15 members are not automatically entitled to a tax free lump sum.

In order to receive a lump sum members will need to create a lump sum by ‘surrendering’ part of their annual pension through a process called ‘commutation’. The commutation rate is fixed; for every £1 of pension income a member gives up, a lump sum of £12 will be provided.

Example

A member is entitled to a pension of £10,000 per annum. They have the option to surrender some of this income for a lump sum.

If the member wishes to receive a £10,000 lump sum, they would have to surrender £833.33 per annum. This would reduce their annual income payments to £9,166.67.

Early Departure Payments

AFPS 15 also provides for Early Departure Payments (EDP). Under AFPS 15 however, members must serve for a minimum of 20 years and be aged between 40 and 60. Under an EDP members will receive a lump sum of 2.25 times their deferred pension plus a monthly income of 34% of their annual deferred pension.

Once members reach age 55, their monthly payments will increase in line with CPI. The CPI increases will also be backdated to when the member left the Armed Forces. At State Pension age the member’s pension will increase to the full deferred pension they are entitled to.

Source: The Armed Forces Pension Scheme 2015, Your Pension Scheme Explained

Divorce Options

When it comes to your AFPS the courts have a number of options, including the following:

  • Making no order, deeming you and your spouse to be equal in your financial provision;
  • Allowing you to use offsetting, whereby you utilise other assets or property to ‘buy out’ your spouse from your AFPS benefits;
  • Granting an Attachment Order, whereby your spouse would receive payments from the AFPS, as a lump sum or income, when you receive your pension; or
  • Granting a Pension Sharing Order, whereby a share of your pension passes to your spouse and they become a member of the AFPS in their own right.

All of the above, except for an attachment order, would provide for a ‘clean break’ from your spouse, which is usually preferred.

Starting on Page 5 of the ‘AFP Guide on Divorce and Dissolution of Civil Partnerships’, frequently asked questions are answered regarding the benefits of each order.

One of the most important aspects to note on this guide is in relation to Early Departure Payments. These do not count as ‘pension income’ prior to members being entitled to their full pension. In light of this, these will not be included in any pension sharing or attachment orders. Please note, this is not the case for the Immediate Pension, which is payable under AFPS ’75.

Get in touch

To get in touch with Informed Financial planning, you can visit their website here

Note – Info gained from:

https://www.gov.uk/government/publications/armed-forces-and-reserve-forces-pension-schemes-guidance-booklets

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Stowe guests: Should you stay together for the children by Anna Sinski

In this instalment of Stowe guests, we are joined by Anna Sinski, a BACP-accredited integrative psychotherapist and counsellor working with clients in central London and online.

Anna helps individuals going through difficult life changes, including divorce and she joins us today to discuss how a divorce may actually benefit your children.

Chances are, you’ve heard loads of people say, “We should stay together for the kids.” Maybe you’ve even said it yourself. But despite the media and society demonizing the impact of divorce on kids, staying together often has far worse outcomes. In fact, separating may benefit your children. It all comes down to how you deal with it during and after the actual divorce.

Relationship models

First of all, I think it’s useful to explore the fact that we are (whether we realise it or not) role models for our children. They learn to imitate our behaviour and language from the youngest years and it doesn’t stop there. We are essentially their first relationship models too. It is from their parents that kids learn what relationships look like and what they should expect from their future partners. This is where they learn how relationships work, the female and male role, as well as acceptable boundaries and behaviours of both sides.

That being said, you might imagine that divorce depicts a relationship model of bitterness or a broken family. However, the truth is that it really depends on how you handle it in front of your children. Essentially, divorce highlights a relationship model where you have the option to leave if you’re unhappy. A relationship model where you deserve to be fulfilled and search for happiness, as well as one where you are allowed to change your mind.

Now imagine a reality where the child watches the parents argue and live bitter, unhappy lives for years. The relationship model they will get from that can be one where the child comes to believe that no matter what happens and no matter the unhappiness, they must endure any relationship. While in some cultures this form of sacrifice might be desirable, is that really the key to a fulfilled life?

You also have no way of knowing how years of an unhappy marriage will make you appear as a parent overall. To a large extent, the quality of our relationships defines the quality of our lives. The less happy we are in our relationships, the more likely it is that our overall happiness in other areas of life will go down. When you suffer, your child might suffer that emotional burden as well, especially because children are excellent at picking up on any tension in the air. All in all, this can be more stressful for the child in the long term. It is usually better for the child to have two happy homes than a single miserable one.

Conflict resolution

There is also a lot that kids can learn from divorce in terms of conflict resolution. Seeing two parents work through their differences while maintaining appropriate boundaries and remaining respectful is a great lesson. Using the “conflict” between you as parents as a model can teach your children how to deal with many potential disputes and difficulties throughout their lives. Moreover, it shows the kids that conflict in itself is not the end of the world and that it can be resolved peacefully.

More focused time

After the divorce (or during separation) your childcare arrangements are likely to become more structured. For one, this means that your child gets to know you more as an individual. But more importantly, this usually means they actually get more quality time with you. We’re all busy with various responsibilities, but the reality is that shared child care forces you to plan the time you are going to spend with your son or daughter. This, in turn, makes it much easier to set this time aside fully for their benefit and plan your other responsibilities for some other time or day. Thanks to this necessary planning, your children are more likely to get your undivided attention, which will make them feel more “seen”.

They learn to be more empathetic

Many marriages end in divorce and your child most likely has (or will have) some friends going through this experience. Having gone through it themselves, they will be more empathetic towards other children. This kind of experience can generally positively influence a child’s empathy towards others going through all sorts of life situations. Similarly, sharing an experience such as a divorce of the parents can make siblings more empathetic towards one another.

The impact that your divorce will have on your kids is ultimately up to you – the parents. It doesn’t have to be a traumatizing event in any way and it might not leave any negative consequences on your children. By making sure your kids are not forced to “choose” or stand in the middle of your fights, you can both end up being positive role models for them in many different ways.

Get in touch

If you would like to book a session with Anna, please call or text to 07376 041102 or send an e-mail to: anna.m.sinski@gmail.com

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Stowe guests: 3 things you need to think about if you are considering divorce

In this instalment of Stowe guests, we are joined by Rhiannon Ford who runs a divorce consultancy in Walton on Thames in Surrey.

A former family lawyer, Rhiannon combines her legal experience and work as a personal development coach to provide much needed support to those thinking about, going through or coming out of a divorce or separation.

Today, she joins us to offer her advice on the three things you need to think about if you are considering a divorce.

If you have come to the sad conclusion that your marriage has come to an end, there are probably lots of questions whizzing around in your mind, e.g. “What happens when?”

Whilst there may be lots of unknowns at this stage about what the future will look like now you wish to divorce, I would recommend the starting point be for you to gather your thoughts on 3 important topics:

  1. The marriage – are you married and if so do you want the marriage to end?
  2. Finances – what arrangements do you want to make regarding the family finances when you separate?
  3. The children – if you have children, what parenting plan do you want to put in place?

Here is a summary of what you will need to think about….

Marriage

If you are unmarried then clearly divorce is not necessary. However, even if you are married, you may not wish to rush in to getting divorced.  It is important to bear in mind that divorce is not the only way a couple can decide to arrange their separation.

You could for example, choose to live apart and resolve financial and children matters whilst remaining legally married. There is also the option of “Judicial Separation”. If/when you choose to dissolve the marriage then a divorce application will be made through the court.

Finances

When you decide to separate and/or divorce, an agreement will need to be reached to resolve financial matters between you and your spouse (whether or not you divorce). There are various options available to help resolve financial matters and you can choose which approach is most appropriate for the two of you. For more details about the various options, see my blog How do I approach reaching a financial agreement in my divorce.

There are also different ways to formalise any financial agreement reached, depending on how the relationship is brought to an end- e.g. separation or divorce.

Children

There are two main issues to be addressed in relation to the children of the family:

Living arrangements – this refers to the living arrangements of the children and how their time will be shared between the two parents.

Financial support – an agreement needs to be reached between you and your spouse as to how you will both financially support the children once you are living apart.

For a list of the issues that the parents will need to decide on see my blog Separating Parents: Planning arrangements for the children.

Contact

This blog provided general information about the important issues a separating couple will need to consider.

To find out how I might be able to help you in your situation, see my blog: How a divorce consultant can help when you are considering divorce and get in touch here.

Stowe Family Law has an office based in Surrey in Esher, close to Walton-on-Thames. The team is headed up by Emma Newman and can be found on the High Street. You can contact them here.

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Stowe guests: Handling difficult emotions during and after divorce

The first episode of Stowe guests in 2019 sees us catch-up back again with Claire Black from Claire Black Divorce Coaching.

Going through a divorce and managing life after separation especially over Christmas and New Year can be extremely difficult. This time of year, we often find ourselves reflecting on the previous year and what the new one will bring us. Claire is on the blog today to offer her seven tips for how to handle difficult emotions during and after divorce.

I understand that the emotions you experience during a break up can be overwhelming.  I know that during my divorce, I found the roller coaster of emotions exhausting, and small things could easily tip me over the edge. I found my emotions confusing, as they seemed to shift every day, every hour, even minute by minute.

Sometimes I felt afraid, sometimes angry, resentful, lonely, overwhelmed, disappointed, regretful, hurt, shocked, worried, relieved, guilty. The feelings were intense and sometimes contradictory, so it’s no wonder I was confused.

Although there is no “quick fix”, here are 7 ways to help yourself dial down your negative emotions.

Avoid destructive patterns

Some people deal (or rather don’t deal) with the difficult emotions that they feel by stuffing them down, or through drugs or partying and drinking more than normal, or by working long hours, in the hope that the emotions will go away on their own. Others try to blame someone else for their feelings. Sadly, none of these approaches will work long term, and they can become destructive patterns, meaning that you never actually deal with the emotions that you are feeling.

Give yourself permission to feel

Let’s get away from thinking of those emotions as “negative”, implying that they are somehow bad. Your emotions are messengers from your body, letting you know when something is wrong, or hurting, or needs to be examined. Feeling those emotions is part of the process towards healing and recovery. If you don’t feel them, they stay stuck inside and can have a detrimental effect on your health, your stress levels and your ability to heal. So be kind to yourself, listen to your body. Remind yourself that it is OK and normal to cry.

Take each day as it comes and leave each day behind each night. If you’ve had a difficult day, put it behind you – tomorrow is a new day.

Acknowledge your feelings

Notice and name your feelings as they come and go. Simply identifying your feelings will start to diminish their hold over you. Writing down all your negative emotions, fears, worries, concerns and stresses in a journal, or on a big piece of paper may also help as it gets the feelings out of your head and onto paper.

“Journaling is like whispering to oneself and listening at the same time”, Mina Murray, Dracula

Use your physiology to help you

The mind and body are connected, so how you carry your body will affect how you feel. Try this exercise and see what happens.

First, stand or sit as you would when you feel sad or lonely, and notice how your posture makes you feel. Ask yourself how you would like to feel instead: Confident? Strong? Empowered? Happy? Then ask yourself how you would sit or stand differently if you were feeling that positive emotion. Now practice standing in that way. Notice that by changing your body posture, it is possible to feel differently.

Do this when you walk too – look up, take in the horizon rather than looking at the ground, and notice how it influences how you feel.

Shift your focus

Don’t just focus on noticing the difficult emotions – look for times when you feel positive emotions too. What makes you smile or laugh? Smiling and laughing makes your body produce endorphins, the body’s feel-good hormones, so actively seek to do things that you enjoy, and which make you smile. Watch a movie you love, listen to music that uplifts you, sing loudly, take your children out to run on the beach or in the woods, cuddle your pet – whatever works for you.

What you think about and focus on will influence your actions and results. Don’t focus on your ex and his/her new partner, and don’t follow them on social media as this will feed the negative feelings you may have.

Instead, shift your focus on to YOU – what do you enjoy? What do you like to do? Shift your focus from your ex and put your energy into you.

Ask empowering questions and “flip it”

Ask yourself questions that will help to shift your focus by flipping the situation on its head.  Ask questions like:

  • If there was one good thing about this, what would it be?
  • What am I grateful for right now?
  • What can I do now that I couldn’t do before?

Your answers might be as simple as being able to eat fish fingers for tea (or cook with ginger in my case!), or it might be that you can start planning that holiday that you always dreamt of, but that your ex refused to contemplate. Or perhaps you have learnt that you have some amazing friends and family who have really got your back.

Tell your story differently

How do you tell your story?  Do you see yourself as a victim of your divorce?  Do you tell your sad story over and over again?

If this is you, then every time you tell the story, you reopen the wounds. Even eleven years on, if I try hard enough I can tell my story in a way that makes me feel sad. You have a choice about how you tell your story, so choose instead to talk about your story in a different way, so that it empowers you and makes you feel strong. What have you learnt? What are you proud of yourself for achieving? Have you done anything new? I remember the first time I mowed the lawn after my ex-husband left. I had been putting it off for weeks, but finally managed it and I felt really proud! To put this into context, this wasn’t a small patch of grass, but a 100 ft stretch of not-very-well-looked-after grass, on a slope – mowing it was no easy feat.

As I always say to clients, it isn’t what happens to you that matters – it’s what you do with what happens to you. These are some of the techniques I used myself when I was getting divorced, so I can vouch that they really do work.

Get in touch

Claire is one of the UK’s first accredited specialist Divorce Coaches, a former lawyer, and Advanced NLP Practitioner. She is based in the Bristol area.

You can get in touch with Claire at www.claireblackcoaching.com or call 07722 007528

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