We’re all going on a summer holiday

The days are getting warmer and longer, the shops are trying to sell us barbeques, bikinis and sunscreen. It can only mean one thing: the few weeks of the English summer are nearly here! Yippee! Wimbledon, Pimms and holidays are just around the corner.

So with holidays in mind, we thought a timely blog about holidaying overseas with the children if you are separated might be useful.

If you want to take a child out of the jurisdiction of the Family Court (i.e. England and Wales) for a holiday (including to Scotland!), then you will need the consent of anyone who has parental responsibility (PR) for that child or those children. As our regular readers will know, PR covers the legal rights, duties, powers, responsibilities and authority a parent has for a child and their property. Someone who has PR for a child has the right to make decisions about their care and upbringing, and important decisions in the child’s life must be agreed by all those who have PR, or by the court in the absence of agreement. Biological mothers and opposite-sex parents who are married at the time of the child’s birth automatically have PR. Biological fathers who were married to the mother at the time the child was born have it, as do unmarried fathers who are named on the birth certificate of children born after 1 December 2003. Provisions are more complicated for same-sex couples but in many cases both parents will have PR; if this applies to you, you should check your position with a family lawyer. If you do not have PR in relation to a child, it has to be obtained by agreement with the birth mother, or by court order.

The only exception to the need for consent from PR holders is when there is a Child Arrangements Order specifying where a child lives (in old parlance: a residence order). In those cases, the person who has the order stating that the child lives with them can take the child abroad for a period of up to 28 days without having to get permission from other PR holders. That would cover the standard week or two in the sun over the summer, if you have an order saying your child has their main home with you.

If you are planning a foreign trip, and are in the situation of needing consent from the other parent, or anyone else, then plan ahead and try to get the consent and agreements in place as early as possible. The last thing you need when debating whether you will need factor 30 or factor 50 sunscreen, is to be faced with going to court in order to get permission to take your children with you on holiday.

If consent is not forthcoming, then this is the sort of dispute which can be easily sorted out in mediation, or using collaborative law. If that is not an option, or doesn’t work, then an application to the Family Court for permission (“leave”) to remove the child for the purposes of a holiday is the only way to get approval.

When deciding whether to give permission, the court will consider the country you are intending to visit, your plans whilst you are there, and the safeguards which can be put in place to ensure a safe and prompt return of the children to this jurisdiction. Where insufficient safeguards can be put in place, for example if the country you intend to visit is not a signatory to international conventions dealing with return of abducted children, then permission may be refused. Decisions are always made based on what the court considers is in the child’s best interests.

In a recent case, the judge had to consider an application to take a child to Turkey. The father, who like the mother was originally from Iran, objected as he thought the mother might flee across the border into Iran with the child. Interestingly, the same family had featured in an earlier case where the mother wanted to take the child to Iran for a holiday and to meet wider family there. She was initially granted permission, but the father appealed to the Court of Appeal and was successful in having that permission overturned. This was on the basis that his political activities in Iran (before he was granted political asylum here) meant that the risks to the child and mother from the authorities there were too great, as well as FCO guidance warning against all but essential travel to Iran.

Turkey, however, is a different kettle of fish. It is a signatory to the Hague Convention, and in this case the mother was able to offer safeguards to ensure her and the child’s return to this country. These included swearing undertakings to return, and lodging important documents (the child’s birth certificate and the mother’s) with her solicitors whilst she was abroad, thus giving her an incentive to return. On this basis, she was granted permission to take her daughter to Turkey for a two week holiday.

In essence, permission will be forthcoming from courts for sensible trips to safe countries, and you therefore really only need to ensure you have consent from the other PR holders in good time before jetting off. Common sense suggests giving them full travel details, and contact numbers whilst you are abroad.

If you would like to discuss taking children abroad or any other aspect of family law, you can make an appointment with Simon, Gail, Adam, Sue or Tricia on 01223 443333.

Manifest-oh

There was a joke doing the rounds before the general election. It went something like this: “manifesto, noun, from the Latin manifest (to make happen) and oh (it didn’t)”.

So, in the aftermath of the unexpected result, and the small Conservative majority in the House of Commons, what do we know about the effect the result will have on family law?

Family law itself was not discussed in any great way in the election campaign, as it is not really considered to be a vote winner, but some of the key manifesto pledges made by the Conservatives may well impact upon family lawyers and the people we work with.

The most obvious is the promised referendum on EU membership. The Prime Minister will be doing his best to renegotiate Britain’s relationship with the EU ahead of the referendum, which if successful might placate the Eurosceptics. However if the electorate vote to come out of the EU, then the impact on the international aspects of family law could be profound.

Then of course there is the Human Rights Act, which the new Justice Secretary, Michael Gove, is charged with repealing. It seems that with the coalition having dismantled the legal aid system for family law, the statute governing our basic protected rights (such as the right to a fair trial, and the right to respect for private and family life) is to be scrapped too. The current plan is for the Act is to be replaced with a “British Bill of Rights” which is as yet undrafted, but may apparently break the formal link between the British courts and the European Court of Human Rights. The intended repeal of this Act is causing significant concern in many circles, not least among the lawyers who fear the repercussions of being seen to reject what is now a beacon of human rights throughout the world.

A few of the financial pledges will filter through into personal finances and as such are likely to have an impact on settlement negotiations in financial cases.

So with family law rather far from the agenda of the main political parties, it was quite nice to see Resolution, the national organisation for family lawyers (of which we are all members), launching our own manifesto setting out what in our view ought to be done to improve the lot of people struggling with making personal and family arrangements after separation, or the family justice system. Resolution argues for a system which provides support to families and individuals, puts children first, helps separating parents to work together in the child’s best interests, provides fair and lasting outcomes on relationship breakdown, and protects people at risk of harm and those subjected to domestic abuse.

Resolution’s Manifesto sets out six key areas in which changes are needed to improve the family justice system. They are:

  1. Protect vulnerable people going through separation. The cuts to legal aid, the poor take up of mediation, and the costs of using the Child Maintenance Service are all affecting people. Resolution proposes abolishing the collection fees now charged by the Child Maintenance Service, and introducing a funded initial meeting with a family lawyer for people who would previously have been eligible for legal aid, for the purpose of obtaining some basic good quality legal advice on their family situation.
  2. Introduce measures to help separating people reach agreements out of court. Resolution want the Government’s focus to move beyond Mediation Information and Assessment Meetings to cover other forms of out-of-court dispute resolution too, and to make funds available to help people use these services.
  3. Introduce a Parenting Charter to help parents understand their responsibilities when they separate. This is in essence a set of points that both parents agree, to set out the way they will help their children through the separation. Our own Simon Bethel, as Chair of the Resolution Children Committee, was instrumental in creating and drafting this initiative.
  4. Allow people to divorce without blame. This is a longstanding campaign, but an important one, given how destabilising it can be to require allegations in order to get a divorce through the court if there has not been a lengthy separation.
  5. Help people understand how their divorce will affect their future finances. Resolution wants to see reform of the system to provide clear guidance on financial arrangements after divorce such as maintenance payments, capital division, matrimonial and non-matrimonial property, and for pre-nups to be binding.
  6. Provide at least basic legal rights for couples who live together if they separate. This would be a safety-net framework of rights and responsibilities to apply when cohabitees separate, including the right to apply for financial adjustments in some cases.

Given that every political party seems desperate to appeal to the “hard working family” that we so often hear about, perhaps they all might like to join together to address the needs of the hard working family going through separation, as so many sadly do. We suspect it is highly unlikely that money will be found to implement any of Resolution’s requests. But perhaps there is hope – before Parliament was dissolved the Conservatives did launch a review into the law of marriage, so maybe just maybe after the election dust settles we might see some progress towards improving the system for the families who use it.  Hope springs eternal.

As always, if you would like to get in touch with us to discuss a family law matter, please call 01223 443333 to make an appointment with Adam, Tricia, Gail, Simon or Sue.

Kennels, cohabitation, caution

As you will (we hope) already know, the law as it applies to unmarried couples is very different from that which relates to and protects married couples and civil partners when relationships break down. A recent case has given a salutary reminder of just how harsh the situation can be for people who share a life, a home, and a business but do not have the legal protection in place to look after their interests should the worst happen.

The case is Curran v Collins, and it was reported in the press back in 2013 when the first instance decision came out.

Pamela Curran and Brian Collins were in a relationship for 30 years, although they did not cohabit for all of that period. They lived together, bred Airedale terriers, and ran a kennel and cattery business. The house and the business were both in Mr Collins’ sole name, and that was the problem for Ms Curran. When they separated, Mr Collins agreed to pay £3,500 for half the value of the dogs, but denied that Ms Curran had any legal entitlement to the properties that they had lived in as a couple, or to the business. She issued an application to court for a judge to determine whether she had a share, and if so what it was.

It is worth a reminder here that when unmarried couples separate, the law provides that each of them generally owns all the property and assets in their own name. The concept of ‘fairness’, which applies to married couples and civil partners on divorce and dissolution, has no place in the strict property law that is still applied to couples who do not marry. There is one exception to this: if you have strong evidence that the legal ownership of property and assets “on paper” does not reflect your and your former partner’s actual intentions before you separated, then you might be able to establish that the law should go behind what is on paper and look at those intentions. This might be the case if you made a direct financial contribution to the purchase price of the property, or if there was a ‘common intention’ that you were entitled to share in the property, and you relied on that to your financial disadvantage.

So Ms Curran went to court to show that there was a common intention that she was to have a share of the house and buildings related to the business, and that she had acted to her detriment on the basis of that common intention. She said she had trusted that she would be provided with a “fair share” of the assets if the relationship broke down. She argued that she had worked in the business, making it a partnership, and that Mr Collins had made a Will leaving his property to her in the event of his death. She also said he had made an excuse for not putting the property into joint names which related to the cost of life insurance policies.

The judge could not find any evidence that she was a partner in the business, deciding that she only dealt with dog registration, not the business accounts or the day to day running of it. As for the Will, it did not show intention to share the property while the couple were alive, but only after Mr Collins’ death. The excuse about life insurance was to avoid Mr Collins’ embarrassment about keeping the house in his name rather than him saying “but for this, the house would be half yours”. So there was no joint intention that she was to have a share in assets. The judge had to ignore his “human sympathies” and apply the law.

Ms Curran appealed to the Court of Appeal. Her appeal was dismissed, so she will (in the words of the popular press) “walk away with nothing” from a 30 year relationship.

The Court of Appeal decided that the judge had been correct to find that Ms Curran had not made any direct financial contribution to the purchase of properties, and that her earnings had been too small to make any contribution to the mortgage payments. Mr Collins had been clear with her that the properties were in his sole name, so she could not argue there was a joint intention that they would be shared. The judge’s finding that Ms Curran did not work for the kennel business could not be faulted. It was accepted that she was involved in breeding and showing the dogs, but that was separate from the kennels and cattery.

It is worth mentioning here that when a trial judge makes findings based on the evidence and after hearing from the parties, it is very rare that an appeal court will dislodge those findings. Unless a trial judge can be shown to have been wrong in law or reached a conclusion which they could not have done on the evidence before them, their findings are likely to stand.

On the face of it, this is a very harsh decision, but it does serve as a stark reminder of the difficulties faced by the economically weaker person – not always but often a female, sometimes with children – when unmarried couples separate. The Law Commission has recommended reform in this area and Resolution continues to campaign for it, but with the new Government now in, it would perhaps be fair to suggest that the law is unlikely to change to better protect cohabitants any time soon. Then again, they did bring in same-sex marriage….

If you would like to talk to one of us about protecting assets or the likely effect of separating if you are unmarried, please get in touch for an appointment on 01223 443333.

When enough is enough – s91(14)

For many former couples, it is possible to avoid the stress and expense of litigation by sorting out a solution to their differences about children’s arrangements through mediation, collaborative law or good old-fashioned negotiation. For others, litigation can be a bruising but time-limited ordeal, which ends in an order imposed by the judge, which all parties then abide by. Yet there are some cases that seemingly never end. One of the problems in making arrangements for children is that they will grow up and change, and their routines usually need to adapt too, meaning that trying to find finality in children’s matters is often an illusion. The required flexibility can be exploited by separated parents who are unsatisfied by the decisions of the court on earlier occasions, and seek to return their children’s arrangements to court for determination again and again until they get a decision with which they agree.

What can be done for cases that return to court time and time again? If the court considers that the litigation is without merit, is being pursued to punish or harass the other parent, or is harmful to the children’s welfare, then it can impose a ‘permission’ hurdle on any further applications, meaning that the other parent and the children are not troubled by further litigation unnecessarily. The court takes a screening role and will not let the application progress unless it thinks there is a valid reason to do so. We take a brief look at that procedure in this blog.

The order we’re talking about is an order under Section 91(14) of the Children Act 1989, which acts as a hurdle to further applications to court being made in respect of the children in the particular case as it requires a permission hearing each time the parent makes an application. These orders are considered fairly draconian in nature, but they are not uncommon and the court will use one if it considers that continued litigation is harming the children or being pursued for the wrong reasons. They can be used as an order of last resort when there have been repeated and unreasonable applications made by one or both parties. A court can impose a s91(14) order without being asked to do so, but it is usual for one party to have applied for it in the face of constant applications made by the other and endless court hearing arising from those applications. The barring order will last for a specified time, often a fixed period of years or until the children reach a certain age.

A couple of recent cases serve to illustrate the use of these orders.

Towards the end of last year the Court of Appeal released its decision in F (Children). In that case, the parents agreed arrangements for their two children which were set out in a consent order – the children were living with mum, and seeing dad regularly. A few days after the order was made the father claimed the order had been breached and applied for a residence order to have the children live with him instead. Litigation then continued and worsened with allegations made by both parents about the other’s care of the children. The effect on the children was so bad that one was taken into care and refused to see his father, then the other also stopped seeing his father altogether; yet still the litigation continued, with the father again seeking a residence order. When the court refused, he appealed. The court tried to end the litigation by making a barring order under section 91(14) until the children reached the age of 18. The father appealed this decision to the Court of Appeal, but was not granted permission to appeal this element of the decision, which was found to have been properly imposed. The judgment makes sobering reading for all parents involved in litigation about children (as do the cases we looked at last week).

In the other case, K v K the President of the Family Division looked at yet another sad tale. Here the daughter was in her late teens and did not want to have contact with her father, so none was ordered, and the father’s application for residence of his son (now 16) was dismissed as the court took account of the boy’s views. The father appealed, unsuccessfully. Undaunted he returned the matter to court and was granted a shared residence order relating to his son, with the unusual feature that the son was to determine his day to day living arrangements. The father made further applications, in the process being defamatory about the judges handling the case – which is never a good idea. His applications were dismissed. So he made more, including attempting to have the mother committed to prison for perjury, an application he later withdrew. The President went through all the paperwork and was clear that the numerous applications the father was making were in reality an attempt to reopen matters which had already been decided against him. He felt there was a clear need for a continuing barring order to stop that father’s incessant litigation about the children, and even went so far as to make a highly unusual corresponding order in financial proceedings, and reserving the case to himself should the father try to make yet more court applications.

In both these cases the damage caused to the children, and to the adults who care for them, was severe. The message is that incessant litigation is not the answer to resolving arrangements for children, and courts will put a stop to it.

It can be really hard, especially if you feel you have been wronged by your former partner or the court, to move on and look to the future. The interests of children are not best met by endless aggressive and damaging litigation. Legal advice can be a huge help in getting an objective, realistic handle on the situation: in both the above cases the fathers did not have legal representation, so perhaps did not have realistic expectations of the process and its likely outcomes.

If you would like to talk to us about any aspect of family law, do get in touch with Tricia, Gail, Adam, Simon or Sue on 01223 443333 for an appointment.