family Law solicitors

Changing UK Laws Regarding the Rights of Children in Divorce

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?

brexit uk law

The Impact of UK Departure From The EU On Family Law

As everything keeps changing with connections between the UK and EU, legislation is taking quite a hit. Who has jurisdiction over who, what decisions will be affected by new legislation both in family law and other financial and personal areas that will be on everyone’s minds. Only time will tell what the final outcome will be.

While the country is still reeling from the EU referendum, we need to take a much closer look at how departure from the EU will impact family law in England and Wales.

Family law is not a stranger in the sense of taking steps to move away from the EU which will take quite a bit of unraveling from the EU legislation. The same can be said regarding many of our other laws. Without a doubt, this will take quite some time and the process will probably drag out for quite some time. Although the long-term impacts of Brexit, or departure of the UK from the EU, may not be fully felt for quite awhile, there are many consequences in regard to future divorces from the EU.

Nigel Shepherd, chair of the family law organisation Resolution, spoke after the referendum was announced. He stressed that the results have created a period of great uncertainty. This has emphasized the uncertainty arising from the fact that family law is essentially linked to the referendum and other jurisdictions.

The EU Legislation

Being in force since 2001, Brussels IIa has been an important part of the EU legislation and offers uniformity and a certainty in recognizing the divorce proceedings in various jurisdictions of the EU. With its absence, Family Court in the UK will need to adopt new avenues for addressing some important areas that will continually pop up in matrimonial proceedings.

As a perfect example, the most significant problem in issuing divorce proceedings will be to consider whether the court you are applying to actually has jurisdiction to accept your proceedings. Even more crucial could be involving multinational couples trying to figure out which court will hear their divorce petition. This is very important because different jurisdictions have to decide financial cases in different ways. Some courts could be seen as more favourable to one party over another. In many cases, there will be a mad dash to issue the petition first to the country that will be most favourable to the spouse. What country has jurisdiction is still governed by the EU legislation.

Bear in mind, in the absence of this important EU legislation, this will lead to even more uncertainty regarding who has the jurisdiction to hear the case. It has been iterated that the courts will have to fill the vacuum with something that would be similar to Brussels II in order to address the situation.

Adding to this, the Brussels IIa allows an order that was created in England to recognised and is enforceable in other jurisdictions. Orders that are commonly affected by the EU legislation includes child custody, other arrangements and matrimonial orders that need to be addressed by the new legislation in order to stay enforceable across the borders.

Keeping agreements made between multinational couples in a divorce are governed by Brussels IIa which allows for a more uncomplicated approach for enforcement across different jurisdictions. The enforcement of these agreements will need to be addressed in light of any new legislation and will have the greatest impact on matrimonial property and who owns what in different countries.

Other Arising Issues

Although family law is not the leading victim of departure from the EU (or Brexit), there will still be a great deal of uncertainty leading up to the formal Brexit while negotiations continue with the EU and this could take a number of years.

In a time of great uncertainty for couples divorcing, there will be even greater anxieties and fears that will arise. On a broader scale, the possible impact of Brexit could lead to an increase of interest rates, a fall in pension values, and the outcome of the property market. All of these situations will also add to many more concerns in what has become a very stressful time.

What’s In The Future

That said, some analysts have suggested that while breaking away from the EU will cause a period of uncertainty, there might be an opportunity to embrace change. By drafting domestic legislation that can provide better laws than what currently exists with the EU might be a positive solution.

The final outcome cannot possibly be known at this time. Couples who are dealing with difficulties are strongly advised to seek out guidance as soon as possible. They need to fully understand the complexities of Brexit and understand the impact that they may experience both on their personal and financial circumstances.

In Conclusion

With the changes of Brexit, there will be many challenges ahead and what courses will be the most positive for family law and many other legislation. Time will tell the final impacts and outcomes and how much anxiety and stress lies ahead. Family law has many challenges yet to be seen. Couples looking for divorces should get counsel in order to understand the changes and how they will be impacted.

unmarried separation law

Legislation To Protect Separating UK Unmarried Couples Overdue

According to the Office Of National Statistics, unmarried couples and families living together are the fastest growing cohabitants in the United Kingdom. As of 2016, there are approximately 3.3 million cohabiting families and the number has doubled since the statistics taken 1996 at 1.5 million.

Legislation for the protection of  unmarried couples and families is well overdue.  Lawyers have been arguing this issue for well over 10 years.  This includes the rights and responsibilities of unmarried couples upon separation and should be addressed as soon as possible.

A recent survey by the Family Lawyers Organisation of its members revealed that 88% of cohabiting couples believe they have legal protection.  It has also shown that 98% mistakenly believed they have the same rights as married couples.

Due to the statistics from surveys, it is believed that legislation for unmarried couples has not provided proper legal protection.  Back in 2007, the Law Commission recommended a plan that would be a contribution-based financial award for separating couples who had a child together and lived together for a certain period of time.  Couples in the plan also had the option to back out if they chose to.

In 2011, the government announced they would not move forward with these proposals.  Even though the commission called on the next government to move forward and not delay, there was a lack of interest or political will.  In light of more pressing issues of national interest, there have been no changes.

Nigel Shepherd, chair of Resolution and head of family law at Mills & Reeve, told Solicitors Journal that his organisation envisions a law where unmarried couples could meet the criteria, through a committed relationship, allowing them the right to apply for certain financial orders upon separation.

This right would kick in automatically unless the couple chose to back out.  The court would be able to make the same orders as they do for divorced couples but on a limited basis.  These benefits could include payments for child care which would allow the caregiver the ability to work.

According to Julia Thackray, former head of the family team at Penningtons and programme leader at Central Law Training, believes reforms are well overdue.  She went on to point out, with the increasing number of couples living together, it is even more critical that the government gets back to the issue of cohabitation and financial protection for these people.  This issue should not be a carbon copy of divorce but should offer some level of protection and as a safety net where  otherwise real needs will not be met.

Unfortunately, there are many cases where people are extremely vulnerable, they have children, cannot work or only work part-time, and this contributes to more family financial concerns.  They have to compromise their earning abilities and limited housing options and there is absolutely nothing they can do about it.  In other situations where couples do not have children but have other expenses, they are not allowed to make a property claim.  Due to other expenses, it may allow the property owner to pay off more on their mortgage so they can have an advantage later on.

In June of 2015, Lord Marks introduced the Cohabitation Rights Bill to address this huge vacuum in the law.  This bill would provide basic protections for unmarried couples and a provision for their property upon one partner’s death.  Under the bill, the court would be able to make a financial settlement order where there is a “retained benefit” or “economic disadvantage” dependent. This would allow for “qualifying contributions” be made for either financial or other reasons.

Before an order can be presented, the court must deem whether it is fair when addressing any “discretionary factors” which would include the earning capabilities of both parties and the welfare of a child.  Couples would also have protection upon a death instead of just separation and this is a very important point.

Lord Marks’ bill also has safeguards in place that would provide protection for insurable interests in lives, being intestate upon death, and rights related to their home.  It also provides for the possibility for a claim against a partner’s estate upon death.

Lord Marks will take part in an upcoming debate to support extending the legal rights of those who choose not to marry.  Those advocating reform will want to stay up on the progress being made by the bill in the House of Lords.  Without a specific date for the second reading of his bill, no one is any closer in guaranteeing cohabitation laws will meet the demands of the 21st century than the Law Commission was 10 years ago.

Unmarried couples should have the same protections and rights as those who are married.  With the growing number of people are choosing to live together vs marrying, the government must address these concerns in a timely manner.