The effect of a disability in family law

It is somewhat trite to say that all children are special and all families have their own unique needs and requirements when going through the painful process of separation. There are however some families where disability or special needs of either the children or the adults involved adds an extra dimension to both negotiations, the court process and the eventual outcome.

We thought it might be worth highlighting some of those issues. Of necessity this blog can only touch upon these issues, so as always if there is anything you would like to discuss with us in more depth, please get in touch.

Looking first at adults with a disability or specific needs, then when considering a fair financial settlement on the breakdown of a marriage or civil partnership, one of the criteria which must be considered is whether either party has a physical or mental disability. This criterion is included in the list of factors a court must consider, and is set out in statute. So if a spouse or partner has a disability which means they require, for example, specific adaptations to a property, or require paid carers, or their ability to work is affected, then this will be borne in mind by a court when looking at the appropriate division of assets and income. It may well be that the majority of a family’s financial assets are required to provide a home and support for the disabled spouse or partner, which can seem harsh on the other party. Of course, the court has a responsibility to take each person’s needs into account in coming to a fair division of financial resources.

Coping with children with disabilities or special needs can be very challenging for the parents, and research has shown that couples raising disabled children are more likely to separate than parents with non-disabled children. For those worst affected, the gruelling schedule of care and frequent hospital visits, plus lasting grief, financial pressure and continual worry over a child’s health can put massive stress on a relationship.

In addition to the emotional aspects, the total cost of bringing up a child with a disability can be up to three times higher than for a non-disabled child. There may also be longer-term financial implications extending beyond childhood. Often problems within the NHS or Social Services can mean families have to fund equipment or care for their children, and one parent may be forced to give up work to be a full time carer, with the obvious impact that will have on the family’s income.

As with adults suffering from disabilities, the needs of children will be borne in mind by the courts when dealing with a financial settlement on separation. In fact, in all cases, the court’s first consideration must be the needs of the children, so where those children have extra needs which impact upon the family finances, those needs and how they can be met from available resources will be the court’s primary consideration.

Dealing with the financial impact of disability, either of adults or of children can be very tricky when trying to sort of a separation or divorce. It requires skill, patience and understanding from the family, the professionals involved in helping them and the courts. There is some guidance from case law on the appropriate considerations where disability is an issue, but inevitably each case is unique and requires a bespoke solution to ensure that the needs of all involved are met, post-divorce, to the greatest extent possible.

So what about the court process itself? If it is not possible to sort out a financial arrangement through negotiations, then how does the courts treat disabled litigants?

In a recent case the Court of Appeal gave some helpful guidance on how courts should endeavour to assist parties to a case who are deaf or hearing-impaired. The case (known as Re C ) concerned a young child who was taken into care, and whose father was profoundly deaf but used British Sign Language to communicate, and whose mother had hearing and speech problems. In this case, the parents succeeded in appealing a full care and placement order due to failures by the local authority, including failures to deal appropriately with their disabilities in the parenting assessment and court processes.  The court highlighted the need to involve suitably qualified interpreters from an early stage in proceedings in order to assist the deaf or hearing-impaired person to participate fully in the court process. Furthermore, consideration should be given to using deaf professionals (if needed), or certainly professionals with experience of working with deaf people, as part of any expert assessment process. It is important that, as an organ of the state, the court service complies with equality legislation and as such does its utmost to assist litigants who have hearing problems, or indeed other disabilities.

If a disability is so severe that the relevant person does not have the ability to participate in court proceedings, a set of different rules apply involving the official solicitor: you can read more about those here.

The guidance from this case has wide application, and shows that the courts must do their best to ensure that people with disabilities can participate fully in the process. It is important that the lawyers involved are fully appraised of the nature of the disability early on so that they can assist with putting arrangements in place in conjunction with the courts and other professionals.

As always, if you have any questions on aspects of this blog, you can comment below or call us on 01223 443333.


Grandparents and the generational divide

Grandparents and grandchildren can have a very special relationship, one treasured by all. In addition to the fun grandparents can provide, they are often a valuable source of (usually unpaid) childcare. The TUC recently estimated that 7 million grandparents provide regular childcare to their grandchildren. It went on to make a call for them to be given the right to regular unpaid time off work to help with their child care duties. At present working grandparents have no automatic right to time off, and can only request it in emergencies.

Despite the key role that grandparents can play in the lives of extended families, it is a sad truth that when families separate, grandparents can sometimes feel side-lined. They sometimes feel pushed aside in the turmoil of family breakdown, when emotions run high and it might feel all too easy to say “the wrong thing” or to be pushed into taking sides. Later on, where children are sharing their time between two homes and parental time with children can feel limited, it can be difficult to find time for the wider family. Some grandparents find themselves in the horrible situation of being excluded altogether from the lives of their grandchildren.

A recent case before the Court of Appeal highlighted the sad situation which can arise when wider families fall out. The case is called Re H.

The case was brought by a grandmother in an attempt to reinstate contact with her granddaughter, which had ceased following a family argument and an allegation made about the child’s step-father. The court was sympathetic to the grandmother’s position, but the difficulty was that the child was adamant that she did not want to see her grandmother following the family bust-up. So, although the grandmother did not succeed in getting direct (face to face) contact ordered, the court wanted the child’s guardian to “quietly and appropriately inform [the child] that her grandmother still wishes to see her and that if in the future she comes to the view that she wishes to see her grandmother, she should inform CAFCASS or those at her school so that something can be done to effect that.” In effect it wanted the door left open for the child and her grandmother to rebuild their relationship in the future, acknowledging the importance of the grandparental relationship.

So, what help can the law be for grandparents trying to get back in touch with their grandchildren?

We should first mention the alternatives to court. It is usually worth speaking with the parents about the need to preserve the relationship between grandparents and grandchildren for the benefit of the whole family. Our regular readers will know how firmly we believe in mediation, as well as other forms of non-court based dispute resolution, as a way of resolving serious family disagreements. Mediation in particular is an excellent way of working out children’s future arrangements and how best to involve the whole wider family to support the child. The process is not restricted to the separating couple, and if everyone agrees, grandparents can be involved in the discussions: the focus is the effect on the child, and usually all involved are at least united in wanting the best for that child, even if they disagree on how that might look.

Thankfully it is very rare that grandparents feel the need to go to court about their grandchildren, but it is possible for grandparents to apply to have contact with grandchildren, and even for residence orders in extreme cases, for example where social services have severe concerns about the parents.

Grandparents do not have an automatic right to apply to the court, and have the additional hurdle of first applying for the permission of the court to make an application, but for any grandparent honestly concerned for the welfare of grandchildren who feels the arrangements they want are in their grandchildren’s best interests, this is not a high hurdle.

Courts do take grandparents’ positions seriously and there are several reported cases where grandparents have been successful in their bids for contact with their grandchildren, and in some particularly difficult circumstances, to have grandchildren come and live with them. In a recently reported case in Essex, two grandparents were successful in becoming guardians for their granddaughter and having her come to live with them after the local authority had taken steps to remove the child from her mother, and put her into care with a view to her being adopted.

There are several organisations that can help grandparents facing the difficulties of separating families. A useful first port of call is the Grandparents’ Association.

As always, if there is any aspect of family law about which you would like to speak to us, please call us on 01223 443333 to book an appointment.


Momentous moments

It will not have escaped your notice that last week saw the first same sex marriages taking place, following the enactment of the Marriage (Same Sex Couples) Act last year which finally came into force on 13 March. Many couples vied to be the first to wed on 29th March, with vows being exchanged a few seconds after the strike of midnight on Friday night / Saturday morning. We are thrilled that there is finally equality in the marriage arena and congratulate those couples who have wed or are intending to do so.

The same legislation provides for English law to recognise same sex marriages validly celebrated overseas.

There remains the issue of current civil partners who wish to marry. At present the civil partnership has to be dissolved either because of fault or because of separation, before the couple can wed. Of course, if the couple do want to marry, then they are not likely to have separated or accuse each other of bad behaviour. Which leaves those couples temporarily unable to marry, although legislation is expected later in the year to rectify this problem and allow civil partners to “convert” to marriage without first dissolving their partnership.

In honour of this historical moment in family law, we thought it might be nice to have a look back at some other historical moments, where things changed for the better as a result of new legislation.

Marriage is a much older institution than divorce, and has seen a few developments in its time. The radical idea of the need for verbal consent from both parties to the marriage arrived into Canon law (the law of the Church) in the 12th century at the instigation of a Benedictine monk called Gratian. Previously the bride’s father could consent on her behalf.

Wedding vows as we now know them derive from the work of Thomas Cranmer, a leader of the English Reformation and Archbishop of Canterbury under Henry VIII, and Edward VI. He was the principal author of the Book of Common Prayer, first published in 1549, and from which the familiar words “to have and to hold …. for richer for poorer ….. in sickness and in health” etc derive.

The wonderfully entitled Clandestine Marriage Act of 1753 required couples to marry in a church or chapel, otherwise their union would be void. No more common law marriage! However by 1836 civil unions were permitted to take place in Register Offices.

Marriage remained a lifelong state until comparatively recently. In the seventeenth and eighteenth centuries, if you had money and influence (and were male), you might be able to get a divorce by an Act of Parliament. Around 300 divorces were granted this way, so it was a momentous change when the Matrimonial Causes Act of 1857 introduced the option to everyone of obtaining a divorce from the High Court. These early divorces required adultery to have taken place. There must not have been collusion or condonation of the adultery, and if (oh the scandal!) a woman applied for a divorce, she required there to be an aggravating factor such as rape, incest, cruelty, or desertion. This extra requirement was abolished in 1923, but adultery remained the only ground of divorce until 1937 when another Matrimonial Causes Act introduced three further grounds for divorce: cruelty, desertion, and incurable insanity.

Meanwhile the position of women within marriage had improved somewhat: three Acts of Parliament, the Married Women’s Property Acts of 1870, 1882 and 1893 changed the law to allow married women to keep possession of their own earnings, the property they owned before their marriage and property acquired during marriage, such as an inheritance. These acts put unmarried and married women on the same legal footing.

As for divorce, the “irretrievable breakdown” concept with which we are familiar today was introduced by the Divorce Reform Act 1969, now consolidated in the Matrimonial Causes Act 1973. For the first time you could get divorced through the local county court rather than coming to the High Court in London.

The position of children within families has developed considerably as well. Until the Custody of Infants Act of 1839 mothers had no rights in respect of their children. The Act permitted a mother to petition the courts for ‘custody’ of her children up to the age of seven for whom maternal custody would then be presumed (the ‘tender years doctrine’), and ask for ‘access’ in respect of older children, although she would need to prove her good character to have a chance at this. In 1873 the ‘tender years doctrine’ was extended so that maternal custody should be presumed until the child was 16.

1889 saw the first Act of Parliament for the prevention of cruelty to children. It enabled the state to intervene, for the first time, in relations between parents and children. Police could arrest anyone found ill-treating a child, and enter a home if a child was thought to be in danger. Since then the position of children has improved with successive legislation introducing regularising foster care (1908), introducing supervision orders for children at risk (1932), setting a minimum age at which children can work and protecting their identity in court (1933), and empowering local authorities to investigate child abuse in their areas (1968). The welfare of children is now governed mainly by the Children Act 1989 which covers both the private (within the family) and public (state intervention) spheres, and the UK ratified the UN Convention of the Rights of Child in 1991.

Returning to relationships, the Civil Partnership Act of 2004 enabled rights akin to marriage to be acquired by same sex couples. Reflecting the complexities and realities of modern families, there are legislative provisions dealing with the position of same-gender parents involved in surrogacy arrangements, and in allowing transgender people to re-register their birth certificates in their new gender.

Family law has come a long way since the days of marriage being a Church-controlled lifelong institution for men and women, and children simply being an unprotected workforce. In our view there is still more to be done, but we hope this briefest of romps through some of the developments shows how far it has come.

As always, we can be contacted on 01223 443333 if you’d like to arrange to speak to us about a family law matter.


Who can use the family courts?

Few weeks go by without a divorce-related story concerning the rich, and sometimes famous, hitting the press and last week was no exception.

The latest case caught press attention due to the eye-watering legal costs (£1.6 million and counting), the international flavour of the case, and the public criticism of the case by the judge hearing it. So we thought it might be worth having a brief look at the case, the comments of the judge, and then the wider issue of who can access the justice of the English courts.

The case involves an extremely wealthy Malaysian couple.  Theirs was a 42 year marriage producing five children. The wife resides in a property in Hertfordshire, and the husband is thought to live in Malaysia. Both retain their Malaysian citizenship. The couple have been disputing whether or not the English courts have jurisdiction to hear the case (the wife arguing they do, and the husband saying not and that the case should be heard by the Malaysian courts, where proceedings have also been issued), and the financial arrangements resulting from their eventual divorce. The case has been listed for a ten day hearing later this year to decide the preliminary issue of whether the English court should, in fact, hear the case.

The case has not progressed very far, and the legal costs to date have greatly alarmed the judge who described it as “deeply depressing that they have been litigating for around a year, both here and in Malaya; that they have already incurred this phenomenal expenditure of at least £1,600,000 in costs; and, so far as I am aware, that there has been little, if any, attempt actually to sit down and to negotiate.”

What grabbed the attention of the press though, were the judge’s comments about the case (and others like it) taking up valuable court time which could otherwise be used for needy, UK-based, litigants. He said: “The aggregate court fees that these parties have paid to date in payment for all this expensive litigation here are a mere £2,355. For that, they have already had all or part of six days of court time here in England. …. So far as the situation here is concerned, neither of them are British citizens. Neither of them currently pays any English taxes whatsoever. Very serious issues ought to arise as to just how much time of an English court these parties should be able to take up on these preliminary skirmishes, whilst squeezing out the many needy litigants who need precious court time to recover their children from abduction or seek their return from care, and other such issues.”

The point about payment of taxes has been disputed by the wife’s lawyer, as the husband has stakes in UK based companies, including Laura Ashley and a chain of hotels, but the criticism of international wealthy couples using the English courts is an interesting one.

It is worth pointing out that these sorts of super-wealthy international cases tend to be concentrated in the London courts, and are far less frequently seen in the courts in other parts of the country. Secondly, even in London, these cases are not the norm even in the higher courts.

So, briefly, what is it that allows international couples with connections with many countries to have their cases heard here? Establishing that you have the jurisdiction to issue proceedings in England is governed by European law, specifically a regulation known commonly as Brussels II revised. The position is a little complicated, with two slightly different legal concepts involved: habitual residence and domicile. You can issue proceedings in England and Wales if both spouses are habitually resident here, or just the respondent is habitually resident here, if the applicant has resided here for at least a year prior to the application, or for six months prior to the application and has his/her domicile here, or if both spouses are domiciled here.

As a result of these concepts, many international cases feature arguments about whether spouses are habitually resident or domiciled here or not, and indeed about what those legal concepts actually mean.

In more limited circumstances, couples who have divorced overseas and who can show a strong connection with this country can also ask an English court to “top up” the award made by a foreign court, using specific legislation enacted to assist in this situation.

Despite the grumbles of the judge hearing this recent case, the problem of wealthy foreign nationals taking up valuable court space is a limited one, both inside and out of London. By far the greater issue is the flood of unrepresented litigants, who are unfamiliar with law and procedure, but who have no option but to self-represent following the withdrawal of legal aid from the majority of family cases. Managing these cases is taking up much more time, both that of court staff dealing with the administration, and of judges who are faced with the often uphill struggle of managing hearings with litigants who do not know how they should present a legal case, or what a court can realistically do. The result is a further clogging up of the already creaking court system, which has a much greater impact upon ordinary people trying to access justice for their families.

If you would like to talk to us about jurisdiction or any other aspect of family law, give us a call on 01223 443333 to make an appointment.