The decline of marriage?

Two news stories have hit our desks this week, which illustrate rather differing approaches to resolving the complex issues facing families today.

The first story emanates from the Marriage Foundation, which is an organisation aiming to be a “national champion for marriage”. Its stated aims are to seek to influence the way individuals, couples and society as a whole think about forming, maintaining and ending relationships, and it promotes access to relationship support and education, and a better public understanding of the nature and benefits of marriage. Fundamentally, it is a pro-marriage lobbying organisation.

The Foundation has been in the news again with the results of some research which claims that marriage rates are falling dramatically amongst the middle classes.

The press release on the research contains some rather dramatic language. It says we have “a concerning spread in the collapse of marriage” and, worse still, we are told that marriage already “faces extinction” among low earners, and the middle classes are “fast on course to follow them”. So is marriage facing an extinction event akin to that which wiped out the dinosaurs, are the middle classes all jumping into the ‘chaos’ of the unmarried family, or might the situation not be quite so perilous?

Apparently 59% of middle earning parents with young children were married in 2012, compared to 84% back in 1994. However this statistic represents quite a narrow economic band (the fifth and sixth decile by household income). If one looks at the summary of the report it is clear that 77% and 87% of the top four wealth brackets (of families with children under 5) still comprise married units, so perhaps the ‘crisis’ is not so acute. The report also shows that marriage rates are falling across all economic brackets: with smaller drops in the richest and poorest households, and bigger drops across the range of middle incomes.

The second bit of research , linked to the first, claims that mothers with young children are four times more likely to be married if they are wealthy than if they are poor. Among mothers with children under five, the research has found that 87% of those with household incomes over £45,000 are married compared to 24% of those with incomes under £14,000. A university degree increases the chances of you being married too: 83% of mothers with degrees were married in 2006, compared to only 52% of mothers without a university education. The research does not offer comparable figures for fathers with or without degrees or ranked according to household income.

Falling marriage rates are not a new phenomenon, and social attitudes have changed considerably over the past decades towards greater acceptance of all forms of family set-up, so perhaps this research is meant to act as a rallying cry to the middle classes to pull their socks up and march down the aisle pronto. We’re not sure this is the best way for everyone – in fact, what we support is promoting better understanding of the legal consequences of marriage and/or living together and/or having children with someone, and a move towards legal recognition of unmarried partnerships that would address the economic imbalances suffered as a result if those partnerships don’t last. We support freedom of choice, better information, and a legal safety-net for all.

A more progressive approach comes from Resolution (the national organisation for family lawyers, of which we are all members at CFLP) which has launched a major two-year study exploring how the current law on the ground for divorce and civil partnership dissolution operates in practice. This is part of its campaign for the introduction of a no-fault divorce, which was one of the key issues raised in its manifesto earlier this year (we wrote about it here). Resolution remain concerned that petitions that rely on apportioning some blame risk creating or inflaming conflict and undermining the opportunity for people to resolve disputes outside of court. The organisation’s concern is shared by many, including the Law Commission who, back in 1990, set out six problems with fault-based divorce, including that the law was confusing and misleading, discriminatory and unjust, distorted bargaining positions, provoked unnecessary hostility, made things worse for children by exacerbating parental conflict whilst at the same time doing nothing to save marriages.

The research project is being conducted by the University of Exeter and funded by the Nuffield Foundation. The new study comprises three main elements: (1) a public attitudes survey designed to explore attitudes to the ground for divorce and views on law reform of a representative sample of 2,000 adults and 1,000 recently divorced adults; (2) a court scrutiny study into how the courts investigate petitions alleging adultery or unreasonable behaviour; and (3) a petition study which will explore how divorce and dissolution petitions are produced and with what effect on the parties, which is designed to provide an in-depth understanding of the petitioning process from the perspective of the parties and lawyers who advise them.

It is hoped that the results of the study will inform debate about whether and how the law might be reformed, and Resolution are seeking assistance from members of the organisation and their clients whose cases will be tracked over the course of a year and others whose opinions will be sought through focus groups. If you’re interested in participating, let us know.

So there we are, two news stories: one predicting institutional extinction and one seeking facts to support its campaign to help families part with dignity. Can you tell where our sympathies lie?

As always, if you would like to make an appointment to see Simon, Gail, Adam, Sue or Tricia, please call us on 01223 443333.

 

Back to school blues

The long school holidays are drawing to a close and everywhere seems to be awash with essential “back to school” items. The summer holidays, and the financial, emotional and time demands of balancing childcare with employment and trips away, can be a time of great stress on families and relationships. Sadly, our realities don’t always live up to the idealised pictures painted in the brochures and magazines of sun-drenched smiling kids and happy couples enjoying each other’s company.

A few years ago some research came out (admittedly commissioned by a law firm) that claimed almost 20% of couples are contemplating separation from their partner or spouse by the end of the summer holidays. Whether or not those figures are accurate, it is certainly true that we do see a lot more enquiries around this time of year, probably more so than the annually feted “divorce day” which happens sometime in the first week of January according to the press. If you’re struggling, you’re not the only one.

With the new school term comes, for some, a return to routine. This can sometimes create space to think about what to do next, get some perspective and consider options.

If there has been violence, or you have been subject to threats, urgent legal advice to keep yourself and your children safe is important. However in the majority of cases where fear of abuse is thankfully not an issue, before rushing headlong into issuing divorce petitions and court proceedings we really do recommend talking to a counsellor, either by yourself or with your partner (to find one local to you, see the British Association of Counselling and Psychotherapy’s site). More people do this than you’d think; for those who don’t, it sometimes comes to the fore as a regret later. A counsellor can help you to talk through the difficulties in the relationship, explore whether and how they can be worked through, and consider whether you might still have a future together. Unhappy couples who go to counsellors are often surprised that it’s not dramatic change that can help to make a relationship work again, but little adjustments and compromises. The counselling process may help you put things into perspective, and whatever your eventual decision about the future, you will be making that decision having had the benefit of really thinking it through in emotional terms.

It’s also helpful to have an idea what might happen financially if you decide to separate. Legal advice, tailored to your personal and family circumstances, can be a real eye-opener for many people, and something that will guide them in their decision-making. It can be really useful to have a preliminary meeting with a solicitor to discuss your financial situation before you make up your mind what to do next. A solicitor will be able to give you an idea (although not a cast iron guarantee) as to how your family’s income, property, capital assets, pensions, family businesses, investments, and personal possessions might be divided up on separation.

Seeing a solicitor does not put you on a conveyor belt towards court. At CFLP we see many people for one-off meetings. A lawyer will also be able to talk you through the available dispute resolution options if you do decide to separate and need help to work out your arrangements, and discuss the strengths and weaknesses and likely costs of mediation, collaborative law, negotiation and litigation with you. The other thing to understand is that not everyone does need to use these processes: they aren’t obligatory, and lots of couples manage to come to agreements themselves without needing a formal dispute resolution process at all.

Once informed with a picture of the likely emotional and financial landscapes post-separation, and the route maps of how to get there, you will be able to make a more informed and rational decision about your future.

To take the first consideration last for the purposes of this blog, it is obviously really important to focus on the children in all this. As parents, you know your children best and love them the most: how are they likely to react, and how could you manage the process of parental separation for them, if it is to occur, to minimise distress? Are there timing issues to consider (upcoming exams etc) that might affect your own timetable? There is a lot of help available to parents to assist with guiding children through the difficult period of separation and its aftermath, and also directly for children themselves: take a look at our support page as a place to start. Kids might well benefit from seeing someone independent who can help them with their feelings, which will be complicated and raw whatever their age. Collaborative law and mediation, or simply working things out with your partner calmly and with dignity, can help to keep the children’s needs and priorities at the top of your own agenda and give them a chance to be heard in the process, where this is appropriate.

So, if you have reached the end of the holidays and the end of your tether at the same time, there are many places you can look for help when working out what to do next.

If you would like Gail, Simon, Sue, Adam or Tricia to advise you, we are happy to offer guidance at any stage of your decision-making process. We are on 01223 443333.

Un-adoption? Is that possible?

An adoption order is a life-changing thing. It severs a child’s legal ties with their birth family, and instead makes them legally the child of the adoptive parents, with all rights and responsibilities transferred to the new family. Due to the draconian nature of cutting ties with the biological family, orders are only made by a court after careful scrutiny of the child’s best interests – their welfare is the court’s paramount concern, and an order for adoption will only be made when nothing else will do to meet the child’s needs.

Once made, an adoption order cannot be undone except in an extremely limited set of circumstances. It is possible to appeal an order before it is put into practice, but that is different to revoking an order that has been implemented. By way of illustrating just how hard it is to revoke an order (and thus reinstate the child’s connection with their biological family), two cases demonstrate the court’s unwillingness to revoke orders even in what seem like deeply unfair circumstances.

In the first case, a man in his thirties sought to revoke an adoption order made when he was a baby in 1959. His mother was a Roman Catholic and his father a Kuwaiti Muslim. They had a brief relationship but due to the societal views at the time his mother put him forward for adoption. He was adopted by a Jewish couple (who believed his biological father was Jewish) and raised as an Orthodox Jew. When he learned about his birth parents he sought to overturn the order. He wanted to work in the Middle East but could not settle in Arab states as he was officially Jewish, and was unwelcome in Israel due to his Arab heritage. His case was refused.

The second more recent case concerned three children from the same family who had been adopted following physical injuries which one of the children had suffered. Following the child’s admission to hospital with fractures, which were thought at the time to have been non-accidental, the local authority commenced proceedings to take all three of the children into care, and they were subsequently adopted against the wishes of their parents, with two in one adoptive home and the third in another. Following the birth of a fourth child to the couple and their application to admit fresh evidence in relation to the injuries, it was held that scurvy or iron deficiency caused by a lack of vitamin C in soya-based formula milk was the likely cause of the fractures, not deliberate injury. The parents (quite understandably) then applied to have the care orders and adoption orders in relation to their three eldest children set aside. They wanted their children back. The court refused on public policy grounds, saying if prospective adopters thought that natural parents could, even in limited circumstances, secure the return of a child after an adoption order had been made, this could have a dramatic effect on the number of people putting themselves forward as prospective adopters. It had also been 5 years since the children were removed from their parents and they were settled in their new families.

Against this background, a rather surprising case has just been reported where a 14 year old girl has succeeded in getting an adoption order revoked. The girl was adopted at the age of 4 by Mr and Mrs K. Two years later they sent her to live with their extended family members in Ghana. She stated in her evidence that she was abused by the family there. She returned to the UK in 2014 and was reunited with her birth mother, with whom she was now living. It seems that her adoptive parents had largely washed their hands of her, and she remained frightened of them. They took no part in the proceedings but were aware of their adoptive daughter’s application. She asked the court to revoke the adoption order, thus reinstating her legal ties to her birth family, and to allow her to change her surname to match her mother’s. In granting the order, the judge held the case to be highly exceptional, and the arguments in favour of revocation outweighed the public policy considerations of upholding adoption. The troubled and abusive childhood, the girl’s competence and motivation to achieve her ambition to be reunited with her birth family, and her concerns about her legal status all meant that her welfare would be best served by revoking the order made a decade ago.

These are really tough and emotive cases, and whilst the recent case is undoubtedly the best outcome for the girl concerned, it is not surprising that the other cases mentioned above evoke very mixed feelings. Would you have decided them differently?

As ever, if we can help with any aspect of family law, please call to book an appointment on 01223 443333.

Removing gender bias

There are few overt bastions of gender discrimination left in the country today. Perhaps a few of the more traditional gentlemen’s clubs remain of the view that ladies should not be admitted, and it was only last year that the Royal and Ancient Golf Club of St Andrew’s admitted those of the female persuasion to its ranks. In CFLP’s world, we often hear criticism of the family courts based on its perceived gender bias against fathers in children matters; we often hear criticism that the child support system, and the financial system on divorce, is stacked the other way. Family law may not be generally considered to move quickly with its perception of gender roles, but its approach to true parental equality has taken a decent step forward with a judgment released recently by the Court of Appeal regarding an application by a mother to take a child to live abroad.

The case, F (a child) (international relocation cases) concerned the application of a mother of a 12 year old girl to relocate the child permanently to Germany. The mother is a German national who had originally come to England in the 1980s to learn English and had worked as an au pair for the father’s sister. The couple married in 2002 and had one child, a girl. Having separated, and later divorced, the mother wanted to return to her native Germany with their daughter. The father objected.

As a little reminder, you need either the consent of all holders of parental responsibility or the permission of the court to remove a child from the jurisdiction of England and Wales to another country on a permanent basis.

Anecdotally, it seems there has been a persistent, if unintentional, gender bias when courts have dealt with these applications. It remains the case that mothers are the main care givers in a lot of families. They are often what is rather unfortunately termed, the “primary carer”. When it is the mother who wishes to relocate with the children, then that role of primary carer has frequently meant that permission has been granted, to the clear detriment of the father, left behind in this country. This perceived bias towards the mother has largely arisen as a result of the guidance given out in a 2001 case (called Payne v Payne) on how the courts should approach cases where one parent wishes to emigrate. That included looking at the effect of a refusal to permit relocation on the parent wanting to go, and giving weight to their wishes, especially if they were returning to their native country.

Now the Court of Appeal has used this most recent case to put forward a new approach which ought to be adopted. It has reminded judges that the child’s welfare is to be the paramount consideration and that the proposals put forward by each parent for living arrangements, education, healthcare, and contact with the other parent are to be carefully scrutinised with the child’s welfare in mind, rather than the effect on the parents of a permission or a refusal of the application.

The Court of Appeal has slightly tied itself in knots in unravelling the guidance from the Payne case, as that was also a decision of the Court of Appeal and it is (in theory) bound by its own precedent. So the Court managed to downgrade the previous guidance and was critical of judges having been over-reliant on it. The Court was also critical of the gender inequality caused by the previous guidance, saying: “in the decade or more since Payne it would seem odd indeed for this Court to use guidance which out of the context which was intended is redolent with gender based assumptions as to the role in relationships of parents with a child.”

What this means in practice is that there needs to be a detailed evaluation of the harm to the child (not the parent) on the one hand of permission to relocate being refused as against the harm that would result from separation from the parent left behind should permission be granted. The Court of Appeal has put the child firmly back at the centre of the discussion, rather than focusing on the parents. It said quite clearly that the approach adopted by the courts since the case of Payne is no longer sufficient.

In this particular set of circumstances, the Court of Appeal decided that the judge had not adequately explored the erosion of the quality of the relationship between father and daughter which would inevitably follow on from a relocation, especially where there was acrimony between the parents and the mother had already shown a wish to limit the father’s involvement with his daughter. The father’s appeal against the order permitting relocation was successful and the matter will be reheard before a different judge, with the child’s welfare as the focus. The decision for this family in the end may be different or it may not be – who knows, maybe the parents will even sort things out together, perhaps, before the next hearing takes place.

For situations where one parent wants to take the child abroad to live in the future this case will mean that there is something more approaching parental equality in the court. The realities of the day to day care of the child concerned will be more important than labels such as ‘primary carer’, ‘non-resident parent’ or ‘shared care’. Both parents’ plans for the child going forward (here and abroad) will be scrutinised, and the child’s views will be sought when appropriate. The quality of the relationship both parents have with the child and will be able to have in the future here or abroad will be considered, and the ultimate decider will be what is best for the welfare of the child concerned in light of all the circumstances. The Court of Appeal has made it clear that it will adopt a holistic approach rather than an unintentional bias towards the mother/primary carer.

If you would like to talk to us about international relocation or any other aspect of family law, please get in touch on 01223 443333.