family Law solicitors

Changing UK Laws Regarding the Rights of Children in Divorce

Hadaway & Hadaway

Custody and the division of assets is supposed to be for the benefit of the children, not whoever wins out between the separating partners. Unfortunately, because of this children are often used as a hammer to utilize the system. Whoever gets custody benefits from child support, may even end up keeping the house, and may feel they can brag about how the court has found them the better parent.

The court says no such thing, of course, and many judges have long complained that divorce doesn’t really belong in court. When couples don’t agree, it becomes a contested and invariably expensive contested divorce in which the judge has to rule on everything and for barristers to engage in what also invariably sounds like horse trading between themselves about assets and the available time of their clients.

“I should not have to be dealing with this,” a judge once complained. “All right, I’m looking here on my screen at a map of Gloucestershire. Where does the father work? And where does the mother live? Well, that’s enough. One week the mother, the next the father. And that’s an end to it.”

Who gets a voice here? Certainly not the child. The judge simply wants the thing done to move onto the next case, and no matter how impassioned the defense it becomes just a grandstanding nuisance. It’s up to the parents to deal with things before they have to end up investing huge amounts of time on minor questions.
In many ways, the laws are changing to force parents to deal with things before they go to court.

Why Don’t Children More Often Speak in Court?

Children are rarely called to give their voice in the court because it is generally accepted to be an ordeal even for the most capable child. Children under 16, if tested to be Gillick competent, if possessing ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ and having a different view of the situation from their guardian, may require a separate representation and someone to advocate directly on their behalf such as a good family solicitor.

Procedure allows children to be called to give evidence only when;
• They have factual matters relating to whether they or another child have suffered significant harm,
• To elicit their wishes and views for future care arrangements.

Care must be taken when allowing their guardian and solicitor to question older children in court, as in the case of Wolverhampton City Council v JA & ors [2017] EWFC 62, in which Mr. Justice Keenan had to raise concerns concerns about the questioning of a 13-year-old child by her solicitor and guardian after making an allegation of sexual abuse, in a way that led to her evidence become inadmissible.

The Primary Care-giver and Physical Custody

UK laws makes the welfare of any children involved in the divorce the top priority, and as such the provision of a secure home and a reasonable continuity in their daily lives is a deciding factor for which parent becomes the primary care-giver. Divorcing partners often seek to be called the primary care-giver because it means they are most likely to retain the family home. But where do the children actually feel ‘most at home’?

“We have made bold reforms so that the welfare of children is at the heart of the family justice system, and there can be no doubt that parents play a very important role in every child’s life. Following break up of relationships we are encouraging all parents to focus on the needs of the child rather than what they want for themselves,” said Justice Minister Simon Hughes.

When the parents cannot come to a mutual agreement, the Court will have to make a decision with their behalf about where the child should spend their time and how frequently they may be with their ‘non-resident’ parent.

While there had long been an assumption that mothers played the predominant role in their children’s lives (and as such a child should not be separated from their mother), times and views on healthy psychological development have also evolved. The Court is aware of modern parenting roles and rather than make decisions based on assumptions instead pays attention to the individual needs of the child.

Fathers now have a more equal opportunity in Child Arrangement Orders; subject to the feelings of the children themselves, their day to day availability, whether one parent has historically undertaken for their daily care than the other, and if there have been historic incidents of violence or other problems that require the children to be protected.

Many judges are of mind that for their physical and psychological health a child should have one place to call home rather than bouncing back and forth. However, parents with visitation rights cannot be cut out of the decision-making process regarding any major issues involving the children.

Step-Parent and Grandparent’s Rights

It is possible for more than two people to have parental responsibilities for a child. In particular, more than ten percent of households with dependent children in the UK are step-families. Step-parents by definition must be married to one of the child’s biological parents, they cannot be step-parents simply by living together with their partner no matter how long.

Step-parents by marriage do not automatically gain parental responsibilities to the child by law. They do not have the authority to give consent for medical treatment or make decisions about their education, no matter if they develop a very close relationship or contribute greatly to their upbringing. Step-parents acquire parental responsibility via an agreement with those who have biological parental responsibility, by a court order, or by adoption.

In case the marriage ends and the step-parent is still greatly concerned for the welfare of the child, they do not have automatic right to see a child that is not biologically theirs. However, they may apply for a Child Arrangements Order, in which the court can specify where a child is to live and who they may spend time with. Child Maintenance Service can’t compel payment of child maintenance from a step-parent, but the court can order (or be requested) that a step-parent provide continuing financial support for the ‘child of the family’, i.e., one that was treated as if they were the child of both the biological parent and the married step-parent.

Under current UK law, grandparents do not have automatic rights to see their grandchildren after a divorce. The court does recognize that grandparents also have an important role in a child’s life, though at the moment they have to apply for a Court Order. It is rare for the court to refuse unless there is some evidence of abuse or violence.

It is recommended that grandparents present themselves as neutral to both parties in the divorce, rather than taking sides make it their own ‘grandparent time’ wherein the children find comfort and support away from the dispute. Grandparents have even been accused of harassment from simply sending birthday cards and gifts to their grandchildren simply because their parents had a hostile divorce that taints all family ties. There is a call for an amendment in the Children and Families Acts to support a child’s rights to have contact with their extended family as well.

Psychological vs Biological Parenthood

Parenting quality has a great influence on a child’s development and mental health. Can a nonbiological parent displace a biological parent? If there is evidence of abuse, of course, possibly. If not, what rights and responsibilities can non-biological parents claim when the married relationship has broken down? This has been discussed somewhat with step-parent rights, but there are other circumstances.

While nonbiological parenthood is often seen in case law from same-sex couples, they are legally registered as parents of the child if they are married before the clinical conception. If they are unmarried at the time they can only be recognized as a parent through adoption.

There was an amendment to the law introduced by the Children and Families Act 2014 in which a psychological parent could ask the court for Child Arrangements Order, for the child to either live with them or spend time with them. A ‘psychological parent’ is defined as

“(a) a person who is not the parent or guardian of the child concerned … a person with whom the child is to spend time or otherwise have contact, but …
(b)… not named in the order as a person with whom the child is to live.”

In essence, a parent who has no biological or legal relationship to the child with whom they are living with but have assumed a parental role fulfilling the child’s psychological needs for a parent as well as their physical needs.

Also, research has shown that parental orientation has little influence on the gender development of young children, but rather a child’s psychological health is far more influenced by the attentiveness of their parents.

Conclusions

Divorce can be a traumatic experience for all involved. When thinking of divorce, it may be important to first consider a child’s developmental level and how it will affect them. Infants require daily contact with their care-giver, are often very sensitive to their parent’s moods. Boys and girls react differently to a divorce, and depending on their age may experience enormous sadness or get angry when their own developing rigid moral rules are violated by their parents.

Older children are more aware of financial difficulties and airing it can intensify feelings of abandonment. Also, they are keenly aware that they are partly made of both parents, and disparaging the other party can batter their own self-esteem.

The law can only provide legal procedures for the financial and physical care of children’s well-being, ordering both parents to carry out their responsibilities – but their care for their own children’s psychological well-being completely is their own power. Parenting is a great duty and responsibility, don’t let just ‘winning’ over your divorced spouse overcome your love for your children.

Given a choice between winning and doing what’s best for your children, which one do you really value?

Finding Work after Brexit

Hadaway & Hadaway

How do you stop being afraid of finding work after Brexit?

It’s 2018, and you may be sick about hearing all the doom-mongering by news media by now about Brexit. From being told Brexit will bankrupt up to a quarter of the UK’s farms, or that it would blow an £80-billion hole in public finances, or that Theresa May’s exit deal talks are more of a negotiated surrender really.

It’s been almost two years since the nation was shocked by results (1 year, 11 months this June). If there can really be “no turning back”, then what has been done to see “a new normal” outside of the EU?

 

Employment’s Back Up

Here’s some good news. Unemployment dipped almost immediately after triggering Article 50.

“It’s about making sure that jobs stay here in the U.K., and that new jobs are created here in the U.K,” as May promised back in 2017.

At a surface level, that makes sense. After the similarly fear-fueled ‘Brexodus’, someone certainly has to take up the slack. Certain jobs will be in higher demand than others. Jobs may even be created as businesses vacate. Remember, trade is just one part of where a nation’s income comes from. For most people, the effects of Brexit will be felt in the price of goods and availability of jobs.

According to CNN’s Brexit Jobs Tracker, there have been massive gains in Hospitality (+82K), Finance and Insurance (+12K), and Manufacturing (+26K). This is unfortunately offset by losses in Retail (-78K), Real Estate (-7K), and Education (-42K).

“The significant number of unfilled vacancies means that the problem is more about not having the right workers available rather than the economy not creating enough jobs,” explained Yael Selfin, chief economist at KPMG in London.

Trade and mobility within the EU affects certain types of jobs more than others. Agriculture, tech, finance, these things feed the international market. As shown by the increase in Hospitality and Manufacturing, businesses that help internal consumption will have to carry that weight.

 

Changes in Employment Law

While most aspects of UK Employment Law lie outside the scope of the EU, there are many ways the post-Brexit labor landscape will be directly or indirectly altered by the event. Examining the EU Withdrawal Bill White Paper gives us some examples. For further info talk to a good employment solicitor.

  • TUPE

’Transfer of Undertakings (Protection of Employment) Regulations 1981’ preserve employees’ terms and conditions when a business or undertaking, or part of one, is transferred to a new employer. While this is generally good for the employee, for the employer it introduces complexity. Due to assurances that worker’s rights will be preserved in the White Paper, things are unlikely to change much.

However, there may be some friction in transitioning from UK to EU employment (and vice versa) from the businesses moving after Brexit due to extra bureaucratic steps.

 

  • Discrimination

The Equality Act 2010 (EA 2010) already largely mirrors and implements the EU’s Equal Treatment Directive 2006 and there are no foreseeable issues with the law in this regard. Beyond the law however, compliance is going to be made more difficult due to a reduction in the available workforce.

Will the post-Brexit working environment be a more worker-focused place? Will employers exhibit far more preferential treatment to certain demographics in order to attract qualified workers? Grievances and claims of harassment in certain communities are also expected to rise after Brexit, and as such employers may need to consider measures and anti-bullying policies to mitigate such legal risks.

 

  • Equal Pay

Similar to the above, this is a matter where withdrawing from the EU will then default to the local law that more-or-less mirrors its provisions. The Equal Pay Act 2010 and the EU’s Article 157 have largely the same directives and protections.

 

  • Freedom of Movement

For as long as the implementation period of the Withdrawal Agreement, EU citizens would still be able to move to the UK on the same basis as they do today. The same will apply for UK nationals moving to the EU during the same period.

There will be put in place a registration system for EU citizens and family members who choose to stay more than three months. This does not override the Common Travel Area arrangements should Scotland and Ireland remain in the EU, and therefore will not need to register.

 

  • Grace Period

A blanket permission may be issued by the Home Office to start upon the UK’s exit from the EU and continue for up to two years. For this period, EU citizens living in the UK may apply for residence documentation.

 

  • Unrestricted Period

EU citizens arriving in the UK during the Implementation Period to undertake lawful activities like visiting, working, or studying, will have a “deemed leave” for a set period – possibly 3 months. If an EU citizen continues working beyond the unrestricted period without obtaining a residence permit, their employer may be liable for criminal sanction.

 

  • Change in Status for EU Nationals

This is an important issue for those who wish to remain in the UK or to enter it in the future. EU citizens will thereafter need to apply for a different status depending on how long they have already been in residence.

 

  • Settled Status

EU citizens with 5 years of continuous residence in the UK may apply for a new ‘settled status’ which will be similar to an ‘indefinite leave to remain’ for foreign nationals. Those who obtain this documentation will be able to demonstrate to prospective employers that they have ongoing rights to live and work in the UK irrespective of any migration controls that the governments may introduce for EU citizens post-Brexit.

 

  • Temporary Status

EU citizens present in the UK before the cut-off date but without 5 years continuous residence may apply for a ‘temporary status’ order so that they may remain in the UK long enough to apply for the ‘settled status’.

 

  • Non-EU family members of EU nationals

If they are lawfully present in the UK before and during the implementation date will be granted “deemed leave” to apply for settled status or a temporary leave. They will need to apply for a residence permit however, if they wish to study or work.

 

  • Dual Citizenship

It may be possible or more beneficial to apply for Dual Citizenship for EU citizens who already meet the requirements to preserve their working rights and freedom of movement between the UK and the EU. However those who wish to apply for permanent residency will also need to apply for a ‘settled status’ anyway.

 

  • Loss of UK access to the CJEU

As part of exercising their sovereignty, of course there is a cessation of recognition of the Court of Justice of the European Union’s jurisdiction. Documents and developments about worker’s rights that happen in the EU will not apply to those workers in Britain (except for those that voted to Remain, like Scotland and Northern Ireland).

There is a fear that while the UK may ossify existing provisions in the EU employment laws, business interests may chip away at EU-derived protections while keeping the basic framework.

Reducing entitlements relating to working times, leaves, equal opportunities, and other commonly accepted EU rights could be problematic, for both legal risks and employee relationships. Internal policies and contracts should perhaps not change too far from the previous status quo.

The White Paper states that UK Employment Law already goes further than the minimum standards set out in EU legislation, and it is the Government’s intent to continue to protect and enhance worker’s rights.

 

More Good News

  • More people are actually coming to the UK

Tourists, though. The depreciation of the pound made spending foreign currency in the UK more attractive. Exports are also benefiting from this trend.

 

  • Wages pick up after Brexit

Due to less immigration, some firms are force to raise wages in order to meet recruitment difficulties, Bloomberg reports. This a point to please those who voted Remain.

 

  • Special Relationship between UK and US deepens

The European Union is only the second largest single export market for goods. The largest is the United States. So while it may hurt to lose trade with the EU, so whatever shortfall could possibly be made up for in other markets or increased trade with the developing world.

 

More Bad News

  • More people are leaving the UK too

And not just foreign-born workers or the businesses being hysterically plugged by the media. Students/new workers and working professionals who wish to retain their prospects of working in the EU are considering overseas residency.

 

  • The Special Relationship requires stable leadership

But while our friends across the pond are being a bit unreliable about committing to any particular course, enduring trade deals are still up in the air. It is probably best to wait until 2019 to allow things to settle down.

 

  • Inflation is rising faster than wages

And with Brexit possibly making many things more expensive, this does not sound good for general quality of living. Raised wages means lessened profit margins for local business-owners as well.

 

Don’t Give Yourself Too Much Stress Until 2019

Even through all of this, the unknown is always more terrible than the known. Because it is still in the future, there’s so much to get anxious about.

However, it’s important to remember that the people of the UK have all weathered even stronger shocks before.

In the end things don’t turn out to be as bad as we could ever imagine. Once the event is actually before our eyes, then at least we will have concrete facts to work with and then can address those problems. Having something to work with is always better than directionless anxiety.

There are certainly things you can do right now to mitigate future damage. There are also things that you shouldn’t do, such as give in to panic, harassment, and scaremongering. Indulging in spite will help no one, while civilly helping each other to open new opportunities is likely to produce future success.

If you are a worker concerned with your employment and worker’s rights, don’t wallow in fear alone and find ways to get organized.

If you are a business owner concerned with the sustainability of your business post-Brexit, maintaining a sense of normalcy is more likely to keep customers.

It may also be a good time to become an entrepreneur, providing services and good in vacated markets. While others are deeply concerned with trade and export, the internal economy will need to pick up the slack.

The worst case scenario with “no deal” is extraordinarily unlikely. One positive thing that has been noted about the Post-Referendum political landscape is how common citizens have come to realize that it is important to be politically active and organized. Things may become significantly harder after leaving the EU, but you may lessen your fear about finding jobs after Brexit by not entertaining the worst possible outcomes, but rather being poised to accept the new equilibrium.

CONSTITUTION UK

The UK Survives as a Country without a Constitution.

Hadaway & Hadaway

“What that doesn’t make sense. Isn’t it the UK that practically defined the whole concept of a Constitutional Monarchy?” is the most common response to this info.

Odd as it might sound, it is true that the UK is one of the very few nations on Earth that lacks a formal Constitution as a basis for its powers of governance. This fact often confuses visitors and students, and for those who wish to do business in the UK this is another strange cultural quirk that colors their expectations on the law and bureaucracy.

The UK is clearly a modern, developed country that until recently was pivotally located within the European federal framework, possessing far disproportionate power and influence to its geographic size and population. At no point in the past century has the lack of a formalized constitution been a hindrance to their governance, so how is it that they can do without this strongly defined legal foundation for their national identity?

Other Countries without a Constitution

But before we discuss how this works out in practice, here are the other nations that do not possess a formal constitution.

  • Israel
  • Saudi Arabia
  • New Zealand
  • Canada

There are literally only a handful of nations without a codified constitution. None of them can really be considered governmentally unstable states either. Israel has its Basic Laws as a general substitute for the spread of government activities, while Saudi Arabia’s monarchy bases their laws on Sharia Laws derived from the Quran. New Zealand and Canada have Constitution Acts that comprise a portion of their uncodified constitution and Acts of Parliament, treaties, orders, and court decisions to make up the difference. Of course, the interesting part of the latter two is how they define their constitutions as “similar in principle to the United Kingdom”.

But Why?

Unlike other nations that founded themselves based on principles laid out in their Constitution or overthrew their previous monarchs to set up a Republic, the UK’s constitutional powers evolved over centuries of compromise between the powers of the Monarchy and the House of Lords. Eventually this transitioned into the parliamentary system we use today.

There was never a drastic need to set out one big formal document detailing the powers, privileges and limits of the government because it was laid out across several other bodies of laws and customs.

The whole concept of a constitution, a charter, detailing the rights and obligations of a government was pioneered in these isles by the historic Magna Carta. However as times passed most of its provisions were repealed or its rights secured by other statutes, and the document holds little legal weight today. This is reflective of the fluid way the UK approaches the bonds of legalism from which is derived the protection of its citizens and the power of its government.

In certain ways, this approach makes it far easier to change the laws to be more responsive to the needs of the people. There is sometimes a distressing tendency not to treat constitutions as living documents that can be amended as the times change, but almost enshrined as unchanging holy writ from which derives all authority to act.

Flexibility of Bits and Pieces

So if not a Constitution where then does the UK derive its rule of state? The UK is simultaneously a monarchy and a representative democracy.

Though the Monarchy largely serves a ceremonial role at present, by law the executive power is vested from them to the Parliament. The 1689 Bill of Rights subordinates the authority of the Crown to the Parliament, one of the documents that among several others form the uncodified constitution of the UK, and an inspiration for the formation of other nations’ Constitutions later on.

Due to the evolutionary nature of British Law, the UK has something called the Parliamentary Supremacy, which grants it the certain qualities:

  • Parliament can make laws concerning anything,
  • No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament),
  • A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.

“So the Parliament can’t be stopped by the courts? Isn’t that dangerous?” is the most common response from other nations that rely on the checks and balances between the judiciary, legislative and executive branches of government.

A common way to visualize the Parliament as the equal powers of the Crown, the House of the Commons and the House of Lords. In practice the bi-cameral (dual chamber) parliament plus the requisite monarchical ratification works out a comprehensive set of checks and balances that would otherwise have to be provided by a written constitution.

From Bill to Law and Partisan Bickering in Between

A major characteristic of the UK’s uncodified constitution is the meticulous process that a bill must go through before legal enactment.

Any bill must start at the House of Commons, the elected body of representatives whose Members of Parliament are empowered with legislative initiative. Known as the First Chamber, her legislation is proposed and debated before the final draft is submitted to the Second Chamber, the House of Lords.

This body is largely formed of appointees, and membership may pass from generations or new members proposed by the House of Commons. They no longer have the right to veto (since Parliamentary act of 1911) but only delay enactment of a bill or send back to the first chamber proposed changes to their bills.

While the unelected nature of a sizable legislative body may be disconcerting to someone not used to the parliamentary system, it is the function of the Upper Chamber made of appointees to consider public policies before they become Acts of Parliament and become law and to hold the government to account. They can take a longer view rather than the election-focused perspective of Members of Parliament. While the monarch has not used the power of veto for a very long time now, there still exists an important constitutional safeguard for the passing of laws.

This is in contrast to the sometimes acrimonious relationship between lawmaking bodies in other systems. It is true that there is still a lot of horrid politicking going on, and sometimes there are missteps in the direct way that the Parliament can propose binding conventions on national policy (the whole Brexit debacle), but rarely so how different branches can oppose each other based on partisan divisions.

Laws and the execution of laws are often challenged using being unconstitutional or not exactly forbidden by the constitution as a bludgeon. The Parliament is supposed to be a self-policing body, in a way that the Judiciary tends to serve in other systems. Because of this power to create and overturn any law that itself has made, the United Kingdom unlike most other European nations has been relatively inured to major (and sometimes bloody) social revolutions ever since the late 1600s.

It may not be readily apparent, but behind the scenes is often just as strict and detailed code of conduct that help to ensure the government runs smoothly day by day. Though there is not a single definitive document as a constitution to define the government, there are various codes and practices and layers of custom that help to curtail excesses of power.

Still Waters, Deep Currents

Though it is not so obvious on first glance, the UK constitution does exist in a very operative form. Centuries and a lot of blood was spilled to create this system that sharply restrained both the abusable powers of the monarchy and the temptation of narrow-minded populist desires.

Though lacking a single document, its different Bills and Acts of Parliament and other laws all combine to a system that has served to inspire the formation of many other democratic nations. It can be argued to have one of the oldest and most successful constitutions that has ever existed. One can be confident that it can continue to survive in this manner for quite a while longer using this irrepressible historical momentum of a tradition that demands an ability to change and adapt.