Keep on moving (children)

It wasn’t so long ago that we wrote about relocating children overseas, properly known as applications for leave to remove a child from the jurisdiction. Court decisions on leave to remove cases are becoming more frequently reported, as life for many people becomes more international, with travel and cross-jurisdictional living becoming easier and relationships between people based in different countries more common. These cases are often interesting and shed light on what courts consider important in children’s upbringing. For example, the case we reported on in February involved a mother being permitted to relocate to Moscow with her son as she was a better role model for him, amongst other reasons.

This month there have been two interesting decisions about relocating.

The first concerned a relocation of a child to Sweden and was an appeal against an order allowing the mother to take the couple’s daughter back to her home country. The trial judge had taken the view that the mother’s difficulties (including excessive alcohol use and unsuitable relationships) would be considerably reduced if she were to return to Sweden where she had family support, housing and work on offer. In turn, those improvements in her living conditions would lead to her better parenting the child. As such the court considered that it would be in the child’s best interests to move to Sweden, where she had a better prospect of a healthy and safe life, where her dual heritage would be promoted and where she would be removed from the “instability, uncertainty, conflict and misery” in which the mother presently existed.

In making the decision the judge had gone against the recommendations of the social worker and the CAFCASS officer. This was the main reason behind the father’s appeal against the order. He was unsuccessful. The Court of Appeal was clear that a judge is not under an obligation to follow the recommendations of experts used in the case, and he or she has the unique advantage of seeing all the people involved, and the experts, give evidence over many days before making a decision.

The second case was an appeal by a mother against an order requiring her to return her 8 year old son to Morocco. The parents in this case were Moroccan nationals, who also possessed British nationality. They married in Morocco, lived for a while in England where their son was born, then lived in Saudi Arabia, then moved back to Morocco by which time the marriage was failing. In 2012 there were divorce proceedings in Morocco and the court there made an order entrusting “residential custody” to the mother and entitling the father to visiting rights on Sundays and holidays.

In or around January 2013 the mother came to England, leaving her son in Morocco with her parents. He spent most of the summer holidays of 2013 with his father there. Meanwhile the mother remarried in England according to Islamic law, and had a child with her new husband. In September 2013 the mother flew to Morocco, collected her son, and returned with him to England.

The father issued court proceedings in Morocco, saying the child had been taken without his consent, asking for a revocation of the court order giving the mother custody and asking for custody himself. Strangely, he did not ask the court for a return order. The Moroccan court refused the father’s application, saying it was not clear for how long the mother had gone to England and that because the father was unable to make a woman available to look after the child, “his request does not meet the legal and religious conditions required to allow him to look after his own child” in Morocco.

Stymied by the Moroccan justice system, the father started proceedings in England for the return of his son to Morocco. The judge ordered the mother to return the child, finding that he was habitually resident in Morocco. The mother appealed to the Court of Appeal.

It was clear that before the mother took him to England, the boy had been habitually resident in Morocco. Unilateral removal of a child from a country without consent of the other parent – otherwise known as international child abduction – does not change a child’s legal habitual residence. This meant the boy remained habitually resident in Morocco despite being in England; it also meant that the Moroccan court retained the power to make decisions about him. In the end, this fundamental point went against the father in the Court of Appeal as it meant that the English order to return the child to Morocco was made without the court having legal power and so could not stand. The earlier decision of the Moroccan court that the mother should retain custody of the child was respected. The boy and his mother remain in this country.

International children cases can be particularly tricky because the law and facts inevitably form a unique matrix on each individual occasion. However, there are settled legal principles established over many years that do form the basis of the courts’ decisions both on relocation and abduction cases. Despite the specialist nature of this area of family law, the same general principle applies as when the court is dealing with other aspects of children’s upbringing: the welfare of the child is always ­­the most important consideration.

If you have any queries about relocation or child abduction, or other areas of family law, give us a call on 01223 443333 to make an appointment with Sue, Simon, Adam, Tricia or Gail.

Signed, sealed, upheld

It has been a while since we brought you a blog about agreements made before or during marriage – prenups or postnups – and as there has been a recent decision about the enforceability of a post-nuptial agreement we thought it would be a good time to have another quick look at where the law presently stands in relation to marital agreements.

At CFLP we certainly see a lot of clients who are considering agreements, either pre-marriage or further down the line. The law has now progressed to the point where agreements will generally be valid and supported by the divorce courts as long as they fulfil certain criteria. Strictly speaking, the test for upholding an agreement is whether it was freely entered into by each party with a full appreciation of its implications. If it was, then unless it would be unfair to hold the parties to the terms, it will be upheld in court. That was the test set down by the Supreme Court in the landmark case of Radmacher v Granatino. Since then, there have been a few cases looking at issues of enforceability, which have fine-tuned the Supreme Court’s test.

This time last year we saw two cases on the enforceability of marital agreements and a report from the Law Commission on the same topic. We wrote about them here and here.

As can be the case in the family courts, the two cases were seemingly slightly contradictory. In the first, the High Court upheld the terms of a prenuptial agreement after a short marriage. The judge said there must be something unfair about the agreement before the court would open a Pandora’s box of litigation to go against a marital agreement. In the second case the judge was very critical of the pre-and post-nuptial agreements signed by the couple as they provided nothing for the husband, no matter how long the marriage lasted or whatever his needs were. The judge said the financial needs of the parties were the only thing capable of dislodging the terms of a marital agreement, and the husband’s needs justified moving away from the terms of the agreement.

The case which has just been reported, Hopkins v Hopkins, is more in line with the first of the two earlier cases as the terms of the post-nuptial agreement were upheld by the court. Typically, it has been reported rather dramatically in the press as “wife only gets tenth of £2 million claim” etc, but if you want the full story you can read the judgment here.

The facts in this case are quite unusual. The couple had first met in the 1980s when they were both married to other people, and had commenced a relationship which produced their son. They both had, and have, two older children each from their respective first marriages. The wife divorced, married a second time and had a further child with her new husband, whilst the husband remained married to his first wife for many years. The couple got back in touch in 2000 and started living together in 2001. They eventually married in 2009, but it did not last. A post-nuptial agreement was signed in August 2011 which stated that in the event of divorce the wife would have two properties, a car and a pension share. The wife signed the agreement against the clear advice of her lawyers, who told her to wait until there had been full financial disclosure from the husband.

The fact that Mrs Hopkins had received legal advice, but chose to ignore it, was key to the court’s decision in this case that the agreement should be upheld.

When the couple separated and divorce proceedings got underway, only a few months after the agreement has been signed, Mrs Hopkins sought to resile from the agreement. She claimed that she was put under undue pressure and bullied into signing it by the husband. She also said it was unfair, because it would leave her in a position of real financial need. The wife asked the court for a sum of £2 million. The husband was said to be worth around £38 million.

The court gave the wife’s arguments against upholding the agreement fairly short shrift. The judge found that she had read and understood the copious legal advice she had received from two solicitors and a barrister, but nonetheless proceeded to sign the document against all advice. Despite the wife’s protestations that she was bullied into signing the agreement, the judge in fact found that she was rational, thoughtful, saddened by her situation, but certainly capable of independent thought. There was no evidence that her will was overborne. He found that she chose to reject the professional advice she received and that no improper pressure was applied by Mr Hopkins.   She was therefore stuck with the terms of the agreement.

Nevertheless, the judge did consider the needs of both parties and found that the wife did have some actual needs not provided for by the post-nuptial agreement, albeit largely generated through the costs of litigating. The husband offered her the further sum of £200,000 and the judge considered this to be reasonable. That was what the wife received alongside that provided for in the agreement, rather than the £2 million she was seeking.

This case represents further confirmation that the family courts will uphold agreements when the parties understand them, they have had legal advice and the terms do not cause undue financial hardship. The Law Commission’s recommendations for measures giving greater clarity appear to have little chance of being implemented any time soon, but judges are doing their best to inject common sense and financial autonomy into this area in the absence of any statutory change in the law.

If you would like to talk to us about marital agreements, or any other area of family law, please get in touch to make an appointment with Gail, Sue, Adam, Simon or Tricia on 01223 443333.

Hearing the voice of the child

We have written before about the moves within the judicial system to give children the opportunity to have their voices heard within family proceedings. This is something we feel very strongly about given that the whole family is affected by separation, not just the adults.

This month has seen the publication of the final report from the Voice of the Child Advisory Group, along with the government’s response to that report. We thought we would bring you the highlights from the document, as it may well have a considerable impact on mediation practice once its recommendations have been accepted and filtered through into the day-to-day work of professional mediators.

The Voice of the Child Advisory Group was established in November 2014 by Simon Hughes MP (the Minister for Justice) to ensure that steps were taken to promote a child inclusive practice within out-of-court dispute resolution processes, and that the opinions and voices of young people are heard in any private family law proceedings that impact upon them. The group considered how young people could be involved in a range of dispute resolution processes but focused primarily on mediation in order to develop a blueprint for child involvement that could then be adapted for use in other forms of alternative dispute resolution.

You can access all 95 pages of the report here.

The report endorses the principle of “child inclusive practice” and recommends the adoption of a non-legal presumption that all children over the age of 10 should be offered the opportunity to have their opinions listened to during the dispute resolution process. 10 years old is the stated age because this is considered to be the approximate age at which children are considered to have sufficient maturity and understanding of the process and its implications to give weight to their opinions (this is known in the legal profession as “Gillick competency” after the legal case that established the principle back in the 1980s, and whether a child has it depends on that individual child’s characteristics). In practice this would mean specially trained mediators speaking directly with the children, separately from their parents, to gauge their feelings about their parents’ separation and the issues surrounding it. Subject to issues of confidentiality, the feelings of the child or children involved would become part of the discussions within mediation between the adults.

It’s important to mention that it’s already possible to consult with children as part of the family mediation process, and there are a growing number of mediators who are trained and qualified to do so. There have always been some concerns about how to do this safely and to avoid any sense of pressure being placed on children, and it is fair to say that the profession has not universally been in favour of child consultation and that some parents resist it. Mediators must be keen to ensure that wherever children are consulted, at whatever age, they are free from any burden of decision-making: that is very much the responsibility of the adults. This is why it’s helpful to have some leadership and a proper report that goes into all the aspects of the issue with some recommendations of how to take this forward.

The recommendations include the establishment of pilot programs to test and evaluate different methods of child inclusion within mediation. In future, mediators should have arrangements in place so that they can offer child inclusive mediation either themselves or through a suitably qualified colleague. Training, accreditation and professional standards should be introduced for those mediators who will offer child inclusive mediation.

Discussions with children should be confidential but mediators should discuss with the children the issues surrounding confidentiality and how much information about their views and opinions should be shared with their parents. It’s interesting that whilst the report mentions “Gillick competency” in relation to issues of confidentiality, and that a competent child’s wishes with regards to confidentiality should be followed, it does not follow that a child who is not “Gillick competent” should not have their views and opinions listened to and considered.

Where the child is Gillick competent they can talk to a mediator regardless of parental consent, but consent would be required for mediator to meet with a child not considered to be Gillick competent.

There are recommendations about the provision of high quality and accessible information for children experiencing parental separation. The Group also recommends that funding be made available to support child inclusive mediation for those families who would be entitled to publicly funded mediation in any event.

In the Government’s published response to the final report Simon Hughes gives enthusiastic support, yet makes it clear that he cannot commit to any reforms recommended by the report because of the forthcoming general election. The report has the backing of Resolution, Relate, and other organisations working with families. Given the uncertainty of the future political landscape, it is probably more likely that our ‘top judge’, the proactive President of the Family Division, will run with some of the recommendations and perhaps steer some of pilot projects through.

We welcome the report and we will wait to see how the recommendations are implemented. Mediation is an excellent way of resolving disputes arising from separation, and initiatives that assist children through the often traumatic process of separation are positive. Children often feel powerless, guilty, responsible or angry about what is happening to their family, so giving them a voice and a means through which their opinions can be aired in a neutral and non-judgemental setting is a hugely positive step. Parents also benefit when the children’s views are aired, as sometimes it assists with refocusing discussions on to what is most important.

It’s likely to be a slow process, but we very much hope that this will be the first step on the path to bringing children’s needs centre stage within the out-of-court dispute resolution arena.

As always, if there is anything of a family law nature you would like to discuss with us, please get in touch on 01223 443333.

Sacrificial altars and schedule 1

Following on from last week’s slightly technical pensions blog, and the previous week’s technical explanation of the niceties of a Supreme Court judgment, we are once again bringing you a slightly technical blog. This one arises from an interesting case about how to fund litigation concerning children. As concerns about how to finance legal disputes are usually uppermost in the minds of people going through separation, we thought this was one worth flagging up.

It is a decision of one of our more high profile and flamboyant judges, Sir Nicholas Mostyn, who has a way with words, and concerns an application for financial support for a child made under Schedule 1 of the Children Act 1989.

First a brief reminder of what that is all about.

An application made under Schedule 1 allows a parent who lives with a child to obtain a lump sum, housing fund or even a transfer of property from the child’s other parent, if there is money available. It is distinct from child maintenance, but can be used to top up child maintenance where the paying parent is a very high earner. The claims are brought for the benefit of the child, not the parent. Successful applications can act to provide some parity between the homes of the child’s parents during his or her minority. Financial support will only usually last until the child reaches 18 or finishes education, after which property can revert to the non-resident parent.

Now, the case we are looking at was brought under Schedule 1, but is not about that provision specifically, but rather about costs and funding the litigation.

The case was brought by two female civil partners (referred to as JG and MG in the judgment) who had arranged to have a child with JF who had acted as sperm donor. The child is 7 years old. He lives with his mothers and had contact with his father. Unfortunately the relationship between the mothers and the father broke down and serious difficulties began to arise in contact, which then broke down entirely. Unfortunately the parents ended up in court sorting out contact arrangements and other specific issues relating to the health and education of the child.

The mothers had instructed barristers. They had increased the mortgage on their property to pay costs, but still owed fees to their barristers and to the experts who had been instructed earlier in the case. The father also used a barrister. The child had his own legal representation funded through legal aid.

The court listed a final hearing for which the mothers needed legal representation, but they had by this stage run out of available funds. They were not eligible for legal aid, so their only recourse was to seek an order that the father fund their legal costs. This was the application before the judge on this occasion.

The mothers were making an application for costs funding, not a costs order: a technical but important difference. A costs order is a punitive measure for unreasonable conduct in the litigation, whereas a costs funding allowance is more akin to an interim lump sum payment to cover legal fees. Of course, to the payer the difference may seem academic.

In this case, if legal aid for private children proceedings had not been removed, the mothers would have been entitled to legal aid. The father would not have been ordered to pay their costs, as he had not been in any way unreasonable. However no legal aid is available, and the court found that to make the mothers represent themselves would put them at a huge disadvantage when the father was represented, possibly amounting to a breach of their rights to a fair trial. The only realistic source of funding was the father.

In acknowledging that some people might say it was grossly unjust to make the father pay for the legal representation of his opponents, the judge was clear that the problem had arisen due to the Government’s decision to remove legal aid from family cases. He said: “in the field of private children law the principle of individual justice has had to be sacrificed on the altar of public debt“.

The mothers were awarded a costs allowance to cover 80% of their historic unpaid legal fees (around £20,500), and the father was also ordered to pay for 80% of the therapeutic work designed to rebuild his relationship with his son. The judge put the blame for this “sorry state of affairs” squarely at the feet of the Government.

It is likely that these sorts of applications will become more frequent. If you would like to speak to us about Schedule 1, costs, or any other aspect of family law, you can reach us on 01223 443333.