A Better Way to divorce or separate

This week is Resolution’s third Family Dispute Resolution Week. It’s an awareness-raising campaign which aims to highlight the alternatives to court for separating couples and their families. There are events going on around the country to help spread the word that there are alternatives to courtroom battles for separating couples, and there’s been plenty of media coverage already on the surveys commissioned by Resolution about the effects of divorce on kids and the working economy (see e.g. here, here and here).  As you know, at CFLP we are keen on using the right horse for the course, and in many circumstances, that horse isn’t the court. We are mediators, collaborative lawyers, negotiators and supporters of those who try to work towards decisions without judicial involvement (except by consent).

To show our support for the family Dispute Resolution Week, which you can follow on Twitter via @ResFamilyLaw using #abetterway, here’s a handy reminder of the options if you would like to resolve matters without contested proceedings in court.

Mediation is where the couple meet with an experienced third party mediator and go through a process that helps you to talk and make decisions which you can both tolerate, which form the basis of an agreement between you which can be turned into a binding court order by consent. Earlier this month the Ministry of Justice announced that where one party to a family dispute is legally aided, the government will now fund both parties’ attendance at one session of mediation with a legal aid qualified mediator. Traditionally, mediation has not been a process which has involved lawyers, but lawyer assisted mediation is now becoming a more accepted option. Here, lawyers attend the mediation sessions with their clients, in order to advise on the spot and help their clients use the process to reach a settlement with the benefit of advice. Some clients prefer this level of support; others attend mediation without their lawyers, taking advice between sessions. The process is flexible.

The courts are supportive of mediation, and whilst they cannot compel couples to attend and engage in mediation they have used what mechanisms are at their disposal to encourage couples to use it to sort out their differences. In one case where an agreement to mediate had been reneged upon, the case was adjourned to ‘allow’ the couple to try again. In another, where one party was found to have been unreasonable in relation to mediation, costs penalties were applied against her. This is an interesting and fast-moving area of the law.

Arbitration is where you choose a specially-trained and experienced family law arbitrator to make a binding decision about specific matters on which you cannot agree, or on the whole of your case. The process has some similarities to a judicial process in that the arbitrator will make a decision after hearing arguments from both parties, and that decision will be binding unless later unravelled by a court for good reason. Arbitration was given a judicial thumbs up earlier this year by the President of the Family Division, when he said that where parties have voluntarily bound themselves to an arbitrator’s award by signing a contract to do so, then the court should not interfere with the award and subsequent consent order, except in extreme circumstances. This was perhaps the court approval that arbitration needed really to be taken seriously as a dispute resolution mechanism.

Collaborative Law is where each of you engages a specially-trained lawyer, and decisions about the future are made in a series of communal meetings under an agreement which stipulates that you will not use the court, except to send in paperwork for the final binding order. The President has made it clear that an agreement reached through collaborative law should be given a streamlined process of judicial approval. The collaborative process is flexible and holistic, and seeks to find solutions that work in the best way for all members of the family.

A further option which has joined the ADR stable quite recently is known as “early neutral evaluation” or “private FDR” – both terms being a form of private judging. Some barristers offer a private version of the court-based FDR in financial proceedings, where they take the role of the judge to provide an objective view of what sort of outcome would be fair. This can help promote settlement or at least reduce the issues between the couple. It is generally not binding (unlike arbitration) but can be a useful tool to indicate at an early stage what the likely outcome of litigating would be. It is also possible to use a similar process for disputes about arrangements for children: in fact, in a recent case, the parents signed up in advance to abide by the evaluator’s decision.

And then of course, there is good old-fashioned negotiation. A good lawyer will discuss with you your aims and the options for reaching a resolution, so they can understand your priorities and work on your behalf to achieve what you consider to be a decent resolution. We hope that the awareness raising going on this week will encourage more people to think about non-court based ways of resolving things. That’s not to say court proceedings are not necessary in some cases – they certainly are – but for many separating or divorcing couples, issues can be narrowed or sorted out without that stress and expense, and with greater privacy. Knowing your options can give you the power to choose the right horse for the course you and your family happen to be on.

If you would like to talk through any of the dispute resolution approaches mentioned above, do give Gail, Adam, Sue, Simon or Tricia a call on 01223 443333.

Names have been changed to protect the innocent

Names are very important and emotive things. They are our labels, and our surnames act as markers to show who we all belong to as a family unit, both down the generations and through marriage.

When a family separates, there are sometimes issues over surnames. Wives may wish to revert to their maiden names, or lose one part of the double-barrel. For children, it is normal practice (although there is no strict legal reason for it) for them to acquire their father’s surname. A few take their mother’s surname. For an interesting read from the Guardian on just this point see here and you can also read our previous blog on names here.

Sometimes when couples separate, one or other parent wants to change the children’s surname to reflect the changed family circumstances. Usually it is the parent with day to day care of the children who wants to change the name, for example if the mother has reverted to her former name on divorce and wants the children to share it.

The procedure for changing children’s names is a little different to that for adults. All people who have Parental Responsibility for the child must consent in writing to a name change, and a change of name deed (also known as a deed poll) must be executed. Consent of children under the age of 16 is not needed to change their name, but if they are old enough they can object, via the courts.

There is no need to register the deed poll, although there is a procedure called enrolment, which means that a deed poll is placed for safe keeping in the Royal Courts of Justice. As an aside it is worth knowing that Government bodies accept both enrolled and un-enrolled deeds as evidence of change of name, and the process of enrolment doesn’t affect the legal status of your name. An enrolled deed is no more legally binding than an un-enrolled deed. It is simply a matter of making a safe and public record of your change of name.

If consent for changing a child’s name cannot be obtained, the family court can order a name change. This involves an application to the family court for a specific issue order. When considering whether or not to accede to the request, a court’s paramount consideration will be the welfare of the children, and the fact that a surname can be an important link to a father, particularly if that father is no longer living with the children.

A recent case looked at the issue of children’s name changes. Here, the judge allowed the mother to change the children’s surname in order to protect them from the damaging behaviour exhibited by the father.

The children in this case were 3-yearold twin boys, who had been born to the parents following a fertilisation process involving two anonymous sperm donors. After the parents separated the boys remained with the mother, but there has been extensive litigation. The court found that the father’s conduct during the litigation has been detrimental to the children’s welfare. He has maintained an online blog in which he has named the family and the children, has published details of the legal proceedings as well as some very personal medical details about one of the boys, and has called the mother a ‘drug-addicted alcoholic surrogate who has suffered from sexually transmitted diseases’. The court also heard that the father had contacted hundreds of nurseries and child care providers near to where the mother lives to tell them his view of the mother, and threatened to track down the anonymous sperm donors, claiming he had bribed employees of the fertility clinic to let him have information about them.

The boys’ mother asked the court for permission to change their surname. The children were not having face-to-face contact with their father, and he had decided not to take up the offer of indirect contact with them (eg letters etc). Although the two boys had had no recent involvement with their father, they were the primary subjects of his online blog, which made public the details of their biological parentage and medical problems.

At an earlier hearing, the court gave the mother permission to change the boys’ surname temporarily to protect their identity and privacy, and the court now had to decide whether to sanction a permanent change. The mother wanted to protect the children from the consequences of the father seeking to find them, and from the unwanted consequences of him publishing private information about them. The court had to balance the importance of maintaining the children’s link to their absent father with protecting and promoting their welfare.

The court decided that the father’s approach to publicising details about the family was so insidious as to justify the name change. The judge said, “I am persuaded that the desirable preservation of a symbol of a paternal link through the preservation of the surname has to give way to the protection of the children from the father’s publication steps”. As the father does not know their new name, the boys will now have some protection from being identified from the harmful material published by the father.

Although this is, mercifully, an unusual case, it does illustrate that the court will be prepared to permit a child’s name change, and thus their label to the world, when it is in their interests. The bar in these cases, however, can be pretty high – a change of name for a child is not always easy to achieve in the absence of a consensus between the parents.

If you have any queries about name changes, or other aspects of family law, please give Simon, Gail, Sue, Adam or Tricia a call on 01223 443333.

Family-friendly laws?

The Government has announced that all future policy and legislation is to be subjected to a family friendly filter before it can be enacted. This is a Conservative party initiative to ensure that families are supported, and not adversely affected, by developments in law and policy. From October, all government departments will have to assess the impact of policy on “supporting family life” (whatever that means). The family-friendly test will run alongside other policy tests such as cost-effectiveness, equality and environmental impact, with the idea being that laws and policies which are deemed not to support family life will be consigned to the parliamentary scrapheap.

You can read the DWP’s press release here. So what is this new test?

In essence, new guidance from the Government sets out five questions that all civil servants will need to consider when first developing policy and legislation and before it is put to ministers or introduced to Parliament. The guidance has been drawn up in consultation with families’ groups, and has been welcomed by Relate and others.

The five questions which comprise the new test are:

  • What kind of impact might the policy have on family formation?
  • What kind of impact will the policy have on families going through key transitions such as becoming parents, getting married, fostering or adopting, bereavement, redundancy, new caring responsibilities or the onset of a long-term health condition?
  • What impacts will the policy have on all family members’ ability to play a full role in family life, including with respect to parenting and other caring responsibilities?
  • How does the policy impact families before, during and after couple separation?
  • How does the policy impact those families most at risk of deterioration of relationship quality and breakdown?

The new test covers all sorts of relationships that make up family life: opposite and same sex couples whether married, living together or living apart, single parents, step-parents, relationships with children and their carers, whether that is within the family or in foster care or through adoption, and sibling relationships.

All government departments will need to understand how policies support family relationships, and document how they have met the families’ test. This means looking at new laws or policies through the prism of, for example, whether it helps parents make the choices about maternal and paternal leave that are right for them, by recognising the roles that both mothers and fathers play in raising families or respecting the vital contribution that grandparents make to family life through their increasing role as providers of childcare.

The Work and Pensions Secretary spoke in the press release of the Government’s commitment, through this initiative, to supporting family life for children and future generations. It could therefore be seen as rather unfortunate that this family test was not brought in earlier, particularly prior to the enactment of the Legal Aid, Punishment and Sentencing of Offenders Act – the act which saw the removal of legal aid from all divorce and children cases except those involving victims of domestic violence or abuse. This legislation led directly to a vast increase in the numbers of people conducting their own family cases in the courts, bringing the already overburdened court system to breaking point. The more people forced to go through the process without legal advice, the more stressful and contentious proceedings tend to become, leading to further deterioration in the quality of the relationships involved, and children tending to be the ultimate losers.

Since LASPO’s enactment, there have been several cases where judges have bemoaned the effect of the legislation on families whose cases they are hearing. A year ago the Court of Appeal had to send back a case for rehearing, because the lack of legal representation and the consequent procedural muddle the parties got themselves into had led to a denial of natural justice. Other cases have been adjourned because lack of legal representation and advice for the parties meant that it would be impossible for there to be a fair trial – a potential breach of human rights.

Most recently the President took a very firm line in a case where the local authority wanted to place the parents’ child for adoption, and they wanted to oppose that. These parents were not eligible for legal aid, and this most fundamental of questions, the legal severing of the parent-child relationship, looked set to be argued in court by the parents (who had mild learning difficulties) without legal advice or representation. Sir James Munby considered that to require the parents to face the application without legal representation “would be unconscionable; it would be unjust; it would involve a breach of their [human] rights …..; it would be a denial of justice.” He refused to hear the case until their legal representation had been sorted out.

Returning to the Government’s new family test, we doubt very much whether the legal aid cuts would have passed the test of family-friendliness when judges are declaring the effect to be contrary to the rights to a fair trial and to respect for family life, as enshrined in human rights legislation. Future policies and cuts may well also fall foul of the test, having negative impacts on family life. It will be interesting to see how this test works in practice.

If you would like to make an appointment to discuss any aspect of family law, we are on 01223 443333.  As a PS, Tricia Ashton is joining Adam, Gail, Sue and Simon as part of CFLP next week, so if you’d like to make an appointment to see her, let us know!

Tigers, trusts and temerity

People often say that there are no winners in family law. However in a recent case, it could be said that, rather unusually, endangered tigers were the winners. Or, to be more specific, a charity striving to preserve and conserve the critically endangered Chinese tiger could be said to have been the winner.

The case is rather unusual, even for a divorce case where all circumstances tend to be unique. In addition to the husband and the wife, the parties to the litigation included charities set up by the couple to breed Chinese tigers and to reintroduce them to their native habitat. (The Chinese tiger is a sub-species which is extinct in the wild due to habitat loss.)

For eleven years the couple had worked tirelessly on a joint venture known as Save China’s Tigers, which was registered with the Charity Commission in the UK. The wife is an expert in the field of tiger conservation, and the husband is vastly experienced in complicated international finance and financial structures. Together they ran Save China’s Tigers in the UK, as well as a trust also dedicated to the conservation project known as China Tigers South Africa Trust, which was based in Mauritius. The charities run a breeding and reintroduction to the wild project. By the time the case got to court, the trust assets were around £25m, including land in South Africa used for the breeding and re-wilding programme, and land in China.

After the couple separated the wife was removed as a director of the UK-based charity. At the time of separation, the wife was entirely focused on preserving the assets in the charitable trusts for the benefit of the tigers, not for herself or the husband. However it seems that as time passed she changed her position, to the extent that she wanted to undo the terms of the South Africa Trust, claiming that one of its purposes was to provide for her and the husband. In legal terms, she was claiming it was a nuptial trust which the court could vary so as to provide her with a settlement. The claim was made because, generally speaking, trusts are beyond the reach of the family courts, but where the trust has a nuptial character the courts can use the assets held within it to satisfy the needs of the people involved. To have a nuptial character, the trust must be for the benefit of one or both of the (formerly) married couple and have been created because of, or with reference to, the marriage.

In order to try to convince the court that the trusts were nuptial and so could be varied, the wife claimed that trust monies had been used to buy the couple’s home, and had paid bills for their property, funded a lavish lifestyle for them (including fine wine and fine dining) as well as paying sums of money directly to the husband.

The case spent a whopping 25 days being argued in court. At the end of this, the judge, Sir Paul Coleridge, summed up his view of the wife as “a very intelligent person but she has become blinded by her desire for revenge and this has led her to fabricate where she thinks it will assist her case.” Conversely the judge preferred to rely on the husband’s evidence.

He decided that there was no evidence whatsoever that the trust had ever been used to support the parties, and so was not nuptial. It could not be varied to carve out a pot of money for the wife. In fact, the judge was damning in his summary of the wife’s case, which he described as an “invention”.

The trust assets always had been and are only used for the Chinese tigers. As such they do not amount to a post-nuptial settlement which the court can invade. Nor are they assets belonging to the husband, from which he could be ordered to make a payment to the wife.

This hearing was in fact only a preliminary hearing to establish the nature of the trusts which held the assets, and whether they amounted to assets available to the parties. Having decided that they were not, the litigation will continue (unless the couple settle the case) to determine what should be sorted out financially between the couple, excluding the tiger charity funds.

So the tigers have come out of this tussle pretty well. The charity and the trusts which are doing so much good work to conserve the few remaining Chinese tigers and reintroduce them to the wild are not about to have their assets used to fund a divorce settlement. As a well-known striped cat used to say about a certain sugared breakfast cereal: “gggrrreeeaaatttt”!

Not so great, however, that the 25 days in court simply got these former spouses past an initial hurdle. The real issues are yet to be decided, unless they can find a way to negotiate through their dispute.

If you would like to get in touch with us to make an appointment to talk about trusts, settlements or any other aspect of family law, please give us a call on 01223 443333.