Category: Child Law

How does the court decide whether to grant an occupation order?

When deciding whether to grant an occupation order, the court uses two tests to consider the effects that making the order would have on all parties involved.

When handling domestic abuse cases, the court has a duty of care to the applicant, the respondent, and any children involved in the case.

Granting an occupation order can temporarily provide victims of domestic violence a safe place to live by removing their spouse from the shared home.

The court uses the evidence provided and two tests to decide whether an occupation order is the best course of action.

The ‘balance of harm’ test

When carrying out the balance of harm test it is the court’s duty to consider and balance the level of harm likely to be caused to the applicant, the respondent and any relevant children, if the order was or wasn’t made.

Section 33(7) of the Family Law Act 1996 states that the court must grant an occupation order if they believe that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made.

Exceptions to this rule occur when the court believe that the respondent or child are likely to suffer significant harm or greater harm than the applicant if the order is made. In cases that involve a child, the child’s wellbeing is always the court’s paramount consideration.

The ‘core criteria’ test

The core criteria test takes into consideration the applicant’s relationship to the respondent and entitlement to the property.

If the applicant is entitled to the property, then according to Section 33(6) of the Family Law Act the court must then consider the following core criteria.

  • The housing needs and resources of each of the parties and of any relevant child.
  • The financial resources of each party.
  • The likely effect of any order, or of any decision by the court not to exercise its powers, on the health, safety or well-being of the parties and of any relevant child.
  • The conduct of the parties in relation to each other.

If the applicant is not entitled to the property then some additional factors will be taken into consideration, including, whether any children are involved, the length of the relationship, and the length of time since the relationship came to an end.

If you require help, support, or legal advice relating to domestic abuse or occupation orders, please give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.

Do I need consent from my ex to change our child’s name?

If a parent wishes to change their child’s surname, they should first seek the consent of any other person with parental responsibility.

There are several reasons why a parent may wish to change their child’s name after a separation or divorce. If the parents were married, then it is quite common for one party to revert to their maiden name. Similarly, if one person remarries, they may wish for the child to take their new family name.

Whatever the reason for the name change, everyone with parental responsibility should consent to the change in writing before it can be changed.

When there is consent

If all parties with parental responsibility are happy with the proposed name change then the change can be made via deed poll. If the child in question is aged between 16 and 18 then they too must sign the deed poll to consent to the change of name.

When there isn’t consent

If your ex disagrees with the name change and you cannot get their consent, then you will need to apply for a Specific Issue Order to change the child’s name.

The court will then decide whether the name change is in the best interests of the child. A few factors that will influence their decision includes the length of time the child has had their existing name, the reasons for the change, the effect changing or not changing their name could have on the child, and the child’s wishes.

Specific Issue Orders can also be requested by the opposing parent in order to prevent the name change.

Requesting a Specific Issue Order

If you require a Specific Issue Order to either apply to change your child’s name or prevent it being changed, get in touch with our team of specialist family law solicitors here at Lund Bennett by calling us on 0161 927 3118.

Relocating Children Abroad Without Consent

Sometimes when a relationship breaks down a partner may wish to relocate with the children to a place where they will have a strong support network or perhaps new career opportunity. This can in some cases be worked out with an agreement between a couple but in cases where the move is abroad, this can result in disputes that may end with criminal charges being brought if official permission has not been granted.  

These criminal charges are not to be taken lightly and can even end up with the parent who took the child abroad without consent facing a trial. This is because it is classed as an offence under English law to remove a child from the country without the consent of all concerned.  

This means that it is essential to obtain consent before making the decision to travel abroad with children even for a holiday.  

Even if official consent it sought, a parent who does not wish for their children to be taken abroad can submit a defence against their children being taken abroad. It is then up to the court to decide if it is in the child’s best interests and their welfare will not be impacted by their relocation abroad. 

This I why it is essential in these cases to obtain legal advice at the earliest stage to ensure that the reasons provided to the court for a child’s removal from the country will survive scrutiny.

What Happens To Joint Mortgages During And After Divorce

It is very common for married couples to take on a joint mortgage on their home but if a marriage ends in divorce it isn’t easy to make a clean break when the lender still expects payments to be kept up as before.  

Attempting to negotiate a way out of a joint mortgage will of course depend on individual circumstances. Also, if there are children involved, things can get even more complicated particularly if the couple relied on each other’s incomes to be able to afford a mortgage in the first place.  

Then there are cases where the partner who has custody of the children cannot afford repayments on their own when they either work part time or they care for the children full time.  In these cases the hope is that a former spouse will continue to make the mortgage payments even if they no longer live in the property.  

This however is asking a lot when that person will wish to move on with life after the marriage has ended.  

If you are the person left in a property unable to make the mortgage payments if your former partner refuses to pay their half, then you can contact your local Citizens Advice about potential benefits you may be able to receive.   

If you do have sufficient funds to cover the mortgage then you may be able to have the mortgage transferred to you as part of a clean break divorce by consent.  

New laws allow unpaid child maintenance to be taken from joint accounts

Unpaid child maintenance backlog in the UK is at £3.8bn. At present, if a parent owes maintenance, payment can only be taken from a bank account held in their sole name. The government has stated that a ‘small minority’ are avoiding payments by opening a joint account with their new partner.

From early 2018, the Child Maintenance Service will have the power to recover child maintenance arrears from a bank account that is held in the joint names of a parent who is required to pay child maintenance and another person.

The Department for Work and Pensions has said that safeguards will be put in place when deducting funds from a joint account. One of these safeguards is that money will only be taken from a joint account when the paying parents does not have their own bank account or if there is not enough money in their own account. Bank statements will also be analysed to establish which funds belong to the paying parent and both named account holders will have a right to make their case before any money is taken.

The Minister for Family Support, Housing and Child Maintenance has stated ‘Our priority is for children to get the support they need. Only a small minority of parents try to cheat their way out of paying towards their children and this new power will tackle those who do’.

Securing child maintenance payments from a former partner can be difficult. Please contact a member of our team today on 0161 927 3118 to discuss your situation.

UK Parliament considers change in the law to facilitate single-parent surrogacy

Under UK law, the woman who gives birth to a child is automatically considered the child’s legal parent until the intended parents have obtained a parental order. A parental order gives the new parents parental and legal responsibility for the child and removes the surrogate’s parental and legal rights.

The Human Fertilisation and Embryology Act 2008 (HFEA) governs surrogacy and specifies that applicants can only obtain a parental order if they are a couple living together as partners in an enduring family relationship or spouses.

Whilst it is possible for single parents to enter into surrogacy agreements, under the HFEA, once the child is born they will not be able to obtain a parental order providing them with parental and legal rights for the child.

Since the case of Re Z(A Child) [2016] last year, there has been widespread support for this situation to change. In the case of Re Z (A Child), despite the fact a single father had been able to obtain a judgment extinguishing the surrogate mother’s rights in the USA, he was unable to apply for a parental order in the UK. In giving judgment, Sir James Munby made a declaration that the HFEA was incompatible with Article 14 (no discrimination) and Article 8 (the right to respect for private and family life) of the European Convention on Human Rights.

A remedial order has been put before UK Parliament which, if passed, will give single people the same rights as couples to become the legal parents of their surrogate-born children.

The remedial order is currently being considered by Parliament within the 60 day consideration period and is expected to be passed within 4 to 6 months. Once passed, it will apply to future applications for parental orders however there will be a one-off six-month period in which families can apply retrospectively if they were unable to do so before.

If you have any questions in respect of surrogacy arrangements please do not hesitate to contact a member of our specialist Family Law team today on 0161 927 3118.

Unreasonable conduct can cost you in children proceedings!

The general rule in civil proceedings is that the ‘loser’ should pay the ‘winner’s’ costs however in family proceedings, this rule does not usually apply, particularly in proceedings that involve children. However, in the recent case of S v S this position changed.

The case of S v S involved an application made by a father for his two sons (aged 15 and 13) to live with him in Switzerland. The application was opposed by the mother with whom the boy had always lived.

During the course of the proceedings, there was a report produced by an Independent Social Worker who advised that ‘given the strength of the boys’ feelings and wish to live with their father, I believe that there is no alternative to agree to his application’.

The father’s application was granted however due to the highly exceptional nature of these proceedings, a costs order was made against the father. Initially both parties applied for their costs however the father retracted his claim and invited the court to make ‘no order for costs’ whereas the mother continued to pursue her application.

The court held that although the father had ‘won’ his application, his behaviour was reprehensible in certain respects in a way which directly fed into the manner in which the proceedings arose, the way in which they were pursued and the fact that the matter had led to a final hearing. The parties’ total costs came to £938,000 and the court ordered that the father pay £150,000 towards the mother’s costs.

Costs orders in children proceedings are exceptional, however, this recent case is a reminder that it is possible to penalise unreasonable conduct within children proceedings with an order for costs.

Joint Custody Best Option For Children

New research from Sweden has suggested that children do better in joint custody arrangements than when one or the other partner has custody. 

Countless studies have been carried out on the psychological impact of divorce on children with many studies reporting the negatives of divorce. This study is unusual as it shows that in cases where parents are given joint custody, there is no difference in behaviour when compared to children coming from stable family units.  

At least this is the case from the perspective of parents who were asked to fill in questionnaires about their children’s behaviour. Teachers, however, had a different view and the consensus was that youngsters from traditional families were better behaved than those from divorced families. 

The ultimate finding of the study by researchers from Uppsala University, Karolinska Institute and the Centre for Health Equity Studies in Sweden -which included 3,656 children aged between three and five years old – was that children suffered less behavioural and psychological symptoms if they didn’t live with their mother or father the majority of the time.  

The reason for the better behaviour of children was that parental quality was improved when parents had the opportunity to spend more time with children rather than just at the weekends.

When Taking Children on Holiday Can Be Viewed As Abduction

For most people, taking the children abroad on holiday is something to look forward to both for children and their parents and many fond memories will be gained from the quality time everyone spends together. Unfortunately, things are not quite so straightforward in case where there is confusion over parental responsibility or when the correct permission hasn’t been sought by those who don’t have responsibility.  

If you do take a child under the age of 16 away for a holiday and you don’t have permission from the person with parental responsibility, the you can run the risk of being charged with child abduction which is a criminal offence the definition of which is found in the Child Abduction Act 1984. 

Parental Responsibility 

According to the law in England and Wales, the mother of the child will automatically have parental responsibility for her child and this will be shared by parents if the child is born when they are married.  

In cases where the mother and father were not married when the child was born, the parental responsibility belongs only to the mother and the father must enter into a parental responsibility agreement which must be ordered by the court. There may also be cases where the father can become a guardian or adopt a child.  

If you are travelling abroad with a child under 16 and don’t have parental responsibility, you must request permission in writing from the person who has that responsibility.   

It is possible to make an application to the court under the Children Act 1989 for permission to take a child on holiday however you will need to prove to the court that you are taking the child on holiday rather than taking them away indefinitely. This can take time so should be prepared well in advance. 

Channels of communication must remain open between the person taking the child on holiday and the mother or father to ensure there is no confusion and potential legal issues to deal with.

Judge publishes ruling in the form of written letter to 14 year-old-boy in relocation case

Mr Justice Peter Jackson provided judgment in Re A (Letter to a Young Person) [2017] EWFC 48, which apart from the first few introductory paragraphs, comprises a letter sent to a 14-year-old-boy, referred to in the judgment as ‘Sam’.

Sam was the subject of proceedings to determine whether he should be permitted to move to Scandinavia with his father and, if not, what contact arrangements should be going forward.

Sam wished to go to Scandinavia however his mother objected to the proposed move and the Judge in this case refused permission for removal from the jurisdiction. At the end of the hearing, Mr Justice Peter Jackson gave his decision in the form of a letter to Sam which he read to his parents and gave to his solicitors to give to Sam and discuss with him.

Written in an informal, accessible language, the judgment explains why Mr Justice Peter Jackson concluded that the move would not be in Sam’s best interests. The letter also encouraged Sam to Google the Children Act 1989, which states that the welfare of children in family cases must be the judge’s first priority.

Mr Justice Peter Jackson notes that Sam received the decision with apparent equanimity. Mr Justice Peter Jackson has been praised for using simple phrases in previous a judgment to enable the mother and the older children to follow it. This judgment also reproduced an ‘emoji’ which featured as a point of evidence.

To read the full judgment and letter from Mr Justice Peter Jackson in Re A (Letter to a Young Person), click here: http://www.bailii.org/ew/cases/EWFC/HCJ/2017/48.html