Category: Parenting

Who decides where a child lives after their parents separate?

Any separation can be difficult, but one that involves children can be particularly challenging and emotional.

The biggest decision that couples with children will need to make if they separate, is the children’s living arrangements.

Where possible, it is always easiest and less stressful for everyone involved if the family can come to an amiable agreement together.

However, this is not always possible. In instances where parents do not agree on where a child should live, they may need to seek help from one or more of the following:
•A solicitor specialising in family law.
•Mediation.
•The Family Court.

No matter which route you take to help decide the best living arrangements for your children, the welfare of the children is always considered first and foremost.

Family law solicitor
A family law solicitor will be able to advise you on all avenues open to you and provide you with sound legal advice and guidance.

Mediation
Mediation is a process guided by a trained, impartial, third-party that allows the two parties to have a constructive discussion and hopefully negotiate an outcome that all parties are happy with.

The Family Court
If an agreement still cannot be reached, then it may be necessary to apply to the Family Court for one or more orders to be made. A child arrangement order will decide who the child will live with, who they will spend time with, and when. In some cases, it may also be relevant for the court to issue a specific issue order or a prohibited steps order.

Lund Bennett are family law specialists based in Altrincham and Manchester. For legal help and guidance regarding disputes about child living arrangements, mediation services, or help applying for a court order, get in touch with our team of specialist solicitors by calling us on 0161 927 3118.

Mother who faked a paternity test to fool an ex-partner into believing he was the baby’s father and paying child maintenance has been jailed

Danielle Morris initially told Jamie Somers in May 2014 that he was not the father of her baby, Darcy, but then later changed her story. Ms Morris forged a DNA test and arranged for Mr Somers’ name to be written on Darcy’s birth certificate.

Mr Somers soon became a ‘doting dad’ and had his daughter’s name tattooed on his arm, paid up to £7,000 in child maintenance, gifts, a christening and other costs in his role as father. Mr Somers had set a room aside in his house for Darcy and played as full a part as he could in the upbringing of his daughter, looking after her three days and nights every week. Many months later, after repeatedly asking Ms Morris to see the DNA result document, Mr Somers discovered the lie when he called the testing company for more details and was told they had not tested him. Mr Somers then undertook a test himself which confirmed he was not the father. Mr Somers said the results of this test ‘devastated’ him.

Ms Morris has been jailed for one year for fraud at Liverpool Crown Court.

After sentencing, Mr Somers said there was “no celebration on my behalf as a little girl, who was innocent and used as a pawn in Danielle Morris’ game, is inevitably the victim here”.

Paternity is assumed by law if the parents of the child married. The Court can order paternity tests and decide who is to pay for the testing as it is not available on the NHS. It may be that the mother is liable for the costs, or the costs are split between both parents.

If you require assistance with any paternity or child maintenance issue, whether you are a mother or father, contact a member of our specialist Family Law team today on 0161 927 3118.

Do step-parents have any rights for contact?

There are an increasing number of step-parents following separation who have difficulties in relation to contact with their step-children and their partner’s former spouse. The legal side of this issue can be quite complex, many parents are not aware of their legal position or what they can or cannot authorise when it comes to their step-children.

By way of example, a step-parent’s spouse is away for the weekend with one of the children and the other child is with the step-parent that weekend and needs urgent medical treatment. In that scenario, what that step-parent is allowed to consent to/authorise is dependent on whether or not they have Parental Responsibility.

Parental Responsibility

Parental Responsibility is the term used to describe the legal rights and responsibilities a parent has for a child and includes responsibilities such as:

– Disciplining the child
– Choosing and providing for the child’s education
– Agreeing to the child’s medical treatment
– Naming the child and agreeing to any change of name
– Looking after the child’s property

A mother automatically has parental responsibility for her child from birth. A father usually has parental responsibility if he’s either married to the child’s mother at the time of the birth or named on the birth certificate.

A step-parent even if married to a parent of a child does not acquire Parental Responsibility for that child automatically in the eyes of the law. They must have the consent of both legal parents before they are entitled to make decisions for the child such as in the case of an emergency or in need of medical attention.

Step-parents can acquire Parental Responsibility through a formal agreement or Court Order. Other orders which result in Parental Responsibility to a step-parent or other individual (e.g. grand-parent) are a Residence Order which regulates where a child will live and gives the individual with the Residence Order Parental Responsibility until the child is 16. A Parental Responsibility Order endures until the child is 18. For a formal agreement each person with Parental Responsibility has to sign the agreement. This will often be the natural parents and any other individuals who have acquired Parental Responsibility since the birth of the child. However as there can sometimes be animosity between the birth parents, a Court application to acquire Parental Responsibility in favour of a step-parent is often necessary.

This is a highly emotional area of family law as it can take some time to build relationships following separation. A step-parent wanting to acquire parental responsibility can often be seen as a threat to another parent who may fear being ‘excluded’ from their child’s life. It is important that advice is sought before making any decision about who is involved in a child’s future. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. We can talk you through your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 today.

Parental Alienation – rise in cases of children ‘poisoned’ against one parent during family breakdown

Parental alienation is used to describe the phenomenon where one parent poisons their child against the other parent upon separation. Parental alienation is a phrase which is becoming increasingly used to describe particular Family Law cases despite the fact that parental alienation syndrome is not recognised in the DMS (Diagnostic and Statistical Manual of mental disorders) or by the World Health Organisation.

There has been a resistance in the lower courts to even consider that parental alienation may be real, however, other countries, such as Canada and the USA, identify it and ‘parenting coordinators’ are ordered and supervised by the Family courts to help restore relationships with parents and children identified as alienated. In Mexico and Brazil, alienating a child from a parent is a criminal act.

The higher courts are recognising the issue, as in the case of H (Children) [2014] EWCA Civ 733, a case where the Judge transferred residence to re-establish a relationship between a child and an alienated parent, the Judge referred to comments another Judge made in a previous case in her summary:

‘I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional…’

Given the fact parental alienation has become a feature of the majority of difficult family breakdowns CAFCASS (the Children and Family Court Advisory and Support Service) is going to offer targeted support for those affected following a government-funded intensive therapeutic pilot programme. The pilot aims to create an ‘alliance’ between both parents in which they can support the child’s relationship with the other parent.

The assistant director of CAFCASS, Sarah Parsons, has stated:

‘Parental alienation is responsible for around 80% of the most intransigent cases that come before the family courts…We already train our social workers to recognise the issue, but this takes helping families experiencing it one step further’

This is a highly emotional area of family law for the entire family. It is essential to seek advice early, if possible at the time of separation as early decisions may affect how things turn out later on. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. We can talk you through your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.

The impact of a new relationship on financial settlements – Wife receives £3.5m despite Husband arguing payment should be reduced due to Wife living with new partner

The recently reported case of Hart v Hart concerned Karen Hart, 60, and John Hart, 77. The couple had been married for more than 20 years and Mrs Hart was awarded £3.5million from the £10million family pot.

Mr Hart tried to appeal this decision in the Court of Appeal on the basis that the initial award to Mrs Hart was unfair and ignored the fact she was living with another man for what Mr Hart thought could be 10 years. Solicitors for Mrs Hart however argued that, after more than 20 years of marriage, she was ‘anxious to remain financially independent’ and should not have to rely on her new partner to maintain her lifestyle and said that she has no current intention to marry.

The Husband’s application failed and, his application for permission to appeal was refused. Sir James Munby, President of the Family Division ruled that ‘the presence of [Mrs Hart’s] new partner in her life did not diminish her needs’.

This case reaffirms the principle that all financial needs must be met by parties to a marriage and this responsibility cannot be avoided. Sir James Munby did however point out in his judgment that upon these cases are fact-specific and all the evidence should be considered before a judge comes to a conclusion as to whether the prospects of remarriage or the future prospects of a relationship should or should not be taken into account in making a financial settlement.

If you are concerned about the impact of a new relationship on a financial settlement and other issues relating to divorce, please contact a member of our team for more advice.

Parents recording conversations during contact handovers – do the risks outweigh the benefits?

An increasing area for disputes during family separation is about what was said and how things went during contact, especially during the handovers of children from one parent to another. Secretly recording what occurs during that time can be viewed as an invasion of privacy and trust between parents and family members; however some are of the opinion that there are possible benefits of recording conversations and events covertly.

There can be legitimate reasons for recordings to be made in Children Act proceedings. These can include:

– A parent not wanting to rely on memory of events such as a meeting or contact visit.
– A recording of events as evidence is a record of the other parent’s behaviour and that of the children during a contact handover. This information can be vital where it is alleged that the children are not happy to go for contact with another parent or where there are allegations of abusive behaviour by a parent.

CAFCASS have stated in its Operating Framework document, in relation to covert recording of a parent’s conversation with CAFCASS that:

“We have nothing to fear from covert re cording. Our attitude should be “I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did”. This is within the spirit of transparency in the family courts”

CAFCASS have also identified recording that practitioners may be asked to watch or hear. These include: a recording of a contact session with a child without the other party’s knowledge or the consent of the Court and a recording of a telephone conversation with the other party or another person. CAFCASS guidance for practitioners in this position gives several considerations that should be taken into account including:

– There is a possibility that records may not be authentic, accurate or complete;
– In accepting the recording, the practitioner may appear to be influenced by one party over another;
– Once the practitioner has seen/head the recording, it must be provided to the parties and the court, if it is relied upon.

CAFCASS guidance further states that if a practitioner is offered such material, they need to be aware that whether it is admitted into evidence will be a decision of the court and there may be issues raised by other parties about the validity of the material. The guidance recognises that while it may be appropriate to read/listen to the recordings the practitioner should decline to accept it until the recording has been brought to the attention of the court and the court’s decisions have been obtained. To see a full copy of the Operating Framework and guidance click here: https://www.cafcass.gov.uk/media/212819/cafcass_operating_framework.pdf

The main statute in relation to cover recording is the Data Protection Act 1998. However, this does not prohibit covert recordings for personal or family use (section 36 of the Data Protection Act).

Possible problems with covert recording is that the child may discover that they are being recorded and ask why, if a child discovers that they are being recorded they may find this distressing and by angry and upset by it. Another difficulty is that covert recording is likely to result in resentment and damage to relationships between the parents from loss of trust. Covert recording is often regarded as an infringement of privacy at a personal level, regardless of legal principles. The Court’s attitude towards covert recording varies enormously and there have been cases which indicate that the fact of recording, either covertly or overtly, at handovers or family arrangements is capable of attracting a non-molestation order where it amounts to harassment (Re C (a child) [2015] EWCA 1096).

Conclusion
In conclusion, parents who covertly record events such as conversations with professionals, during contact handovers or contact itself, are not necessarily contravening any statute or rule of law. Many factual disputes between parents are about children’s attitudes towards contact handovers and contact itself. Provided that there is no risk of significant harm to a child in covertly recording and the recording is made for the purpose of providing proof of the truth, there is a good argument in favour of such recording where necessary, especially as in any event the court would control the subsequent use of such recordings.

Shared parental leave and pay to be extended to working grandparents

On 5th October 2015, George Osborne announced that working grandparents will be able to share parental leave in the future. The changes will increase flexibility in parental leave arrangements and support working parents during the first year of a child’s life. It is expected that legislation will be brought forward and the policy will be implemented by 2018.

This decision has been brought about as evidence shows that nearly 2 million grandparents have given up work, reduced hours or taken time off to help their children who cannot afford childcare costs. Many mothers rely on grandparents for childcare when they return to work after maternity leave. It is thought that in total, some 7 million grandparents are involved in childcare. The changes are expected to provide flexibility in working arrangements for grandparents without fear of losing their job. Parents will also be able to return to work sooner if they wish to, the changes will ensure that working families can structure their lives and arrangements for childcare in the way that works best for them.

Court of Appeal overturns decision as focused too much on ‘gender discriminatory’ guidance in Payne v Payne – change the court’s approach to relocation cases

The latest Court of Appeal decision on international relocation (Re F (International Relocation Cases) [2015]) has overturned an experienced judge’s decision because they focussed too much on the Payne criteria and not enough on the overall assessment of welfare. In the first instance in Re F, the mother was granted leave to remove the child to Germany. Lord Justice McFarlane held that the harm of separating the child from their father had not been properly evaluated.

Prior to this decision, the guidance in Payne v Payne was the first thing to be considered by a judge in hearing an application for relocation. Payne v Payne was a Court of Appeal decision in 2001 in which a father’s appeal against the removal of his child to New Zealand was rejected. The guidance given in Payne referred to questions which needed to be asked in relocation cases such as:

– Is the relocating parent’s application genuine, realistic and well researched?
– Is the parent’s opposition motivated by genuine concern or an ulterior motive?
– What would be the extent of detriment to the father and his future relationship with the child if the application were granted?
– What would be the impact to the relocating parent of the refusal of her realistic proposal?

The guidance in this case has been criticised for placing too great an emphasis on the wishes and feelings of the relocating parent and that the guidance usually assumed that the mother was the caring parent and usually the one who sought to relocate.

The guidance in Payne v Payne has been described as a gender discriminatory approach and Lord Justice McFarlane stated in Re F ‘in the decade or more since Payne it would seem odd indeed for this Court to use guidance which is out of context which was intended is redolent with gender based assumptions as to the role in relationships with a child’. Lord Justice McFarlane went on to say ‘the questions identified in Payne may not be relevant on the facts of an individual case and the Court will be better placed if it concentrates not on assumptions or preconceptions but on the statutory welfare question which is before it.’

The effect of Re F is not that the guidance Payne v Payne had been overturned or set aside, instead it has been re-aligned as just one of the decisions based upon the welfare of the child. The guidance is still useful in some cases, however Re F clarifies that a court should never base its entire decision upon the questions identified in Payne v Payne. Re F shows the courts acknowledging the importance of the erosion of the quality of the relationship between the relocated child and the left behind parent.

This is a highly emotional area of family law for the entire family. Whether the relocation of a child is to another continent or in Europe, these cases present sensitive issues. It is essential to seek advice early, if possible at the time of separation as early decisions may affect how things turn out later on. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. We can talk you through your options and help you to decide what is the best way to proceed. Please contact us on 0161 927 3118 for a free 20 minute consultation.

Welsh Government Introduces New Fostering and Adoption Measures

Following the recent closure of the British Association of Adoption and Fostering (BAAF), the Welsh government is taking measures it hopes will maintain and improve upon the work done by the former charity.

The announcement comes just after the largest association of professional social workers wrote about their concerns for the future of fostering and adoption without the help provided by the charity.

One of the key measures announced is the passing on of the Wales Adoption Register to the National Adoption service. However it is not just the service itself that has been affected. Staff training and a new helpline will be operated by a new body.

Many of the staff who would previously have worked for the BAAF will be recruited to the new body. It is hoped that this will ensure that standards in the sector are maintained in Wales and best practice guidelines are adhered to.

The British Association of Social Workers have already expressed their concern about the closure of BAAF and it looks likely that even with a new body being set up, it will be difficult to maintain standards and existing staff training.

With social workers often under pressure, the closure of the BAAF is likely to put more pressure on resources and staff.

British Association for Adoption and Fostering Closed

The British Association for Adoption and Fostering (BAAF) has closed with immediate affect removing one of the key organisations involved in campaigning for children in care.

What is left of the BAAF will be merged with Children’s Adoption Charity Coram and continue to provide support in particular areas such as membership administration of the new CoramBAAF Adoption & Fostering Academy as well as research and development. The magazine Be My Parent won’t survive the closure.

While the closure is happening with immediate affect in England, Wales and Northern Ireland will continue to exist for a limited period which will allow time for services to be transferred to alternative organisations.

The Scottish government has decided to transfer activities from the Scotland adoption register to a new national adopter information helpline which will be operated by the St Andrew’s Children’s Society according to reports.

A spokesperson for the organisation blamed ‘significant changes’ and ‘economic conditions’ for the closure though the causes for the former were unclear. The closure is likely to result in some limitations to the support on offer for adopted children in the future and put more pressure on associated charities to continue to provide help to vulnerable children.