Reflections on 2013 (part two)

In the second of a two part feature, professionals from Stowe Family Law LLP reflect on significant developments in family law during 2013.

Hayley CrossmanHayley Crossman

The Children and Families Bill 2013 has been a key element of family law this year.  The Bill seeks to put in place many of the recommendations made in 2011 in the Family Justice Review.

The Bill, currently at the report stage in the House of Lords, will amend areas of private law , including changing the current concept of contact orders into ‘child arrangement orders’. This will in turn have an effect on the ability yof parents with ‘residence’ being able to take their child out of the country without the permission of the other parent (holding ‘parental responsibility’).

A second key is parental Involvement. This issue had originally been called ‘shared parenting’ but following much debate amongst professionals, the clause was renamed ‘parental involvement’. This clause was introduced to ensure that the courts’ starting position in private law cases was that the child should maintain a relationship with both parents when it is safe and in the child’s best interests.

The clause was worded carefully to avoid the belief that it would entitle both parents to equal time with the child or a starting point of joint residence (50/50).  The court is “to presume, unless the contrary is shown, that the involvement of that parent in the life of the child concerned will further the child’s welfare .”  Although the law had always sought to ensure that parents and children are able to maintain a relationship following divorce or separation, this clause made consideration of maintained relationships an explicit requirement and in doing so, it has hopefully banished the notion of courts being biased towards one parent, usually the mother.

Such a clause has also called in to debate the issue surrounding enforcement of court orders in such cases as contact arrangements.  The public consultation on the parental involvement clause asked those taking part to provide answers to questions on how the family courts could seek to enforce orders which were breached.  Such penalties as removing the driving licence from the offending parent, fines and imprisonment were suggested but the discussions on enforcement continue.

The Children and Families Bill has fuelled debate amongst professionals in 2013. Its implementation in 2014 will, no doubt, continue to provide commentators with much to talk about.

 

Hayley Crossman is a paralegal. She completed her Graduate Diploma in Law at the College of Law in York and is currently studying for a Masters in Childcare Law and Practice at Keele University.

 

Kelly ParksKelly Parks

This year new legislation came into force which enables an individual to make an application to the court for the other party to pay their legal fees. Such orders are known as ‘legal services’ orders. Provisions were added to the Matrimonial Causes Act 1973, under  sections 22ZA and 22ZB.

The person applying – the ‘applicant’ – needs to prove that they have exhausted every alternative avenue in trying to obtain funding, and also show that the person who may have to pay – the ‘respondent’ – has the means to do so. Such an order could be of great assistance in some circumstances– imagine, for example, a housewife married to a wealthy businessman.

However legal services orders are limited. There are high hurdles to meet and very often the amount awarded is nowhere near enough to covet the costs being incurred.

What needs to happen is for costs rules to change in order to incentivise the powerful, richer party to settle.

 

Solicitor Kelly Parks specialises in all areas of family law, including divorce, relationship breakdown, and the resolution of financial issues. She has significant experience of high net worth cases. She also deals with children’s issues,  including contact and residence disputes. 

 

Melanie Bataillard-Samuelxx

For me the single most interesting thing to have happened in Family Law in 2013 has been the passing of the Marriage (Same Sex) Act.  In 2004 the Civil Partnership Act gave same sex couples most (but not all) of the rights and responsibilities of a civil marriage.  Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner’s children, as well as responsibility for reasonable maintenance of one’s partner and their children, tenancy rights, full life insurance recognition, next of kin rights in hospitals, and others.  However from 29th March 2014 same sex couples will be able to marry (or convert their Civil Partnership into a marriage) and will have all the same rights and responsibilities as opposite sex married couples.

Apart from being a huge and important step for equality it has also challenged the definition of one of our most important institutions – marriage.  As recently as 2004 (when the Civil Partnership Act was passed) the Government was at pains to make it clear that although Civil Partnerships provided the Partners with the same rights as Spouses it was not the same as a marriage which needed a man and a woman to be legitimate.  It is incredible that within the space of 10 years public opinion has been able to sway the Government into changing a law so fundamentally.

The passing of the Marriage (Same Sex) Act gives me hope that other aspects of Family Law which have struggled to be approved may well come to be in the next 10 years.  I would very much want to see a cohabitation law as cohabiting couples currently have no protection and are often left homeless and moneyless after separation  Or enforceable nuptial agreements which would allow couples to agree the terms of their marriage or civil partnership before they tie the know as it were.  And no fault divorces.  It would be nice if couples were given the option to divorce quickly without having to blame each other.  Yes, I am very hopeful for the future.

French speaking Solicitor Melanie Bataillard-Samuel’s areas of work include a broad range of divorce financial remedy cases and matters concerning financial provision for children and all aspects of financial provision arising out of the breakdown of marriage or of cohabitation, such as maintenance pending suit and “TLATA 1996” applications.  

Photo of Lady Justice by Monocle via Flickr under a Creative Commons licence

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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16 comments

Kip Miller - December 31, 2013 at 12:00pm

All, I am particularly interested in the views of Hayley Crossman on the Children and Families Bill 2013. Despite publicity to the contrary in this country Shared Parenting has worked well in Australia and I wonder whether the changes made to the legislation mentioned in her article are intended to sell the public, and especially fathers, a ‘pig in the poke’? Seasons Greetings. kip

Yvie - December 31, 2013 at 3:32pm

Parents could well have been sharing the care of their children for many years before the breakdown of their marriage, so it follows that where possible, they should continue sharing the care of their children, at 50% where possible.

I find it patronising that ‘parental involvement’ has been substituted for ‘shared parenting’ following ‘much debate amongst professionals’, the assumption being that professionals know best.

‘The clause has also been carefully worded to avoid the belief that it would give 50/50 equal time to both parents’.

50/50 equal parenting as the default is the very least that parents should expect from meddling legislators. Government should put this on the statute book and leave parents to do their rightful duty to their children. Only in cases of concern should the State be involved in what is essentially, a family matter.

Tristan - December 31, 2013 at 4:59pm

Of course professionals know best. And occasionally when they are stumped, the children can fill in the gaps with their wishes n’ feelings. Parents exist as mere inconvenience.

Luke - January 1, 2014 at 6:56pm

Oh dear, I found a lot of this post a bit depressing – for the following reasons:

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“This will in turn have an effect on the ability of parents with ‘residence’ being able to take their child out of the country without the permission of the other parent (holding ‘parental responsibility’).”
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Well, that’s an absolutely bonkers idea – the non-resident parent is left with no idea of what is going on and no say at all, making them even more of a basic cash cow – who in our legal system is running this show and making decisions like this?

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it has hopefully banished the notion of courts being biased towards one parent, usually the mother.
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Well no, quite the opposite I’m afraid – the courts don’t enforce their own orders when the mother refuses contact and what you have told us is that that is still probably going to continue :-(

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What needs to happen is for costs rules to change in order to incentivise the powerful, richer party to settle.
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Unless it’s abused it will have no effect and is another silly idea – if for instance a man with children is wealthy he will be paying child support, spousal support and more than 50% of the family assets – so the woman WILL have assets to go to court – if she doesn’t then it will be because he is poor and so won’t be able to afford her court costs anyway ! Good grief.

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Or enforceable nuptial agreements which would allow couples to agree the terms of their marriage or civil partnership before they tie the know as it were.
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This is an absolutely brilliant idea and I would be doing cart wheels if they introduced it but it almost certainly won’t happen. Why ?
Easy – who benefits by such informed consent?
Follow the money…

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For me the single most interesting thing to have happened in Family Law in 2013 has been the passing of the Marriage (Same Sex) Act.
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It will be lucrative for the legal system when the divorces roll in – as they inevitably will.
When it comes to screwing up people’s lives we should definitely have equal opportunities – why should straight people shoulder the entire burden of misery that marriage and divorce brings :-)

Andrew - January 1, 2014 at 11:45pm

“What needs to happen is for costs rules to change in order to incentivise the powerful, richer party to settle.”

No: what needs to happen is to bring back Calderbank so that both parties have an incentive to settle.

As for legal services orders: they may occasionally work, but in the run-of-the-mill case the husband (usually) who can just scrape together the money to pay for his own representation is not going to be penalised for not paying for the wife’s too. We are not going back to the old days when a married woman could not legally enter into a binding contract with a solicitor so the husband’s means were all that was available to pay her costs.

I see Art 6 arguments ahead here!

Yvie - January 2, 2014 at 1:29pm

The stereotype of the man leaving the woman is now no longer the norm. As many dads can no doubt testify, it is often they who have been shown the door, usually to let someone else in. To expect them to pay their ex. wives legal costs, is surely adding insult to injury.

Anonymous - January 2, 2014 at 2:28pm

Things would be a lot simpler if the government just issued some more patronising guidance for women to this effect:

Before you get involved with that wealthy charmer of a guy, consider whether you can approve of him sharing the care of your children half of the time. If not, leave him. If you stay with him, you are just abusing him for his money, and it will be at your own risk when separation looms.

Honestly, some of the men that women get involved with is enough to make one lose all hope for the human race.

Ironic that we should live in such a nanny state that we now need the government to start telling us that we need to take responsibility for our actions.

JamesB - January 3, 2014 at 11:44am

I like that last post a lot. Yes, having an interfering nanny state is at the root of a lot of the family law problems.

sarah blackburn - January 4, 2014 at 10:39am

two things:
1) will the legal services orders be refunded if the woman (normally) receives money as part of her settlement? Akin to the statutory charge by the LSC
2) will the adultery definition be re-defined now that homosexual couples can marry?

yuri - January 14, 2014 at 6:10am

The accompanying article from top to bottom sums up the mendacity that underpins the current amendments to Children’s Act 1989.

https://www.nationalparentsorganization.org/recent-articles?id=21441

UK Family Law Change Won’t Change Fathers’ Access to Kids

National Parents Organisation

January 6, 2014 by Robert Franklin.

The much-anticipated amendments to family law in the United Kingdom have now inched their way to the House of Lords. It is thought that, by the time the current crop of new-born babies has reached adulthood, something may have actually happened. I don’t want to cause over-excitement or promise something the British Parliament can’t deliver, but some day before the next Ice Age, we may see change.

If we do, it’ll only be under a microscope. That’s because it’ll require some sort of high-resolution optical device to actually discern the said change. “Incremental” isn’t the right word to describe the change that’s coming; “miniscule” might be closer to the mark.

When it comes to altering the chance that fathers might manage to get some sort of meaningful time with their children once Mom’s decided on divorce, the new law, if enacted as is, can be safely predicted to accomplish absolutely nothing. Oh, many commentators have made great claims for the new law. They’re much impressed by the fact that the bill requires judges to presume that involvement by a parent in a child’s life is in the child’s interest. Here’s the operative wording of the bill:

“(2A) A court, in the circumstances mentioned in subsection (4) (a) or (7), is as respects each parent within subsection (6) (a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.”

Assuming the wording actually becomes law, all who follow the strange workings of family courts will immediately notice a couple of stumbling blocks in the way of fathers actually seeing their children following divorce or separation. The first is the wording “unless the contrary is shown,” which of course can mean virtually anything. After all, what do parents who wish to have the children all to themselves do in child custody cases but attempt, by hook or crook, to demonstrate to the judge that allowing the other parent to see the child won’t be good for him or her.

They do that in the ways we all have come to know. Dad’s an abuser of the child, the mother, or someone else. Dad doesn’t care about the child, doesn’t do enough hands-on childcare, doesn’t know enough about the child’s schooling, medical condition, has insufficient diapering skills, etc., etc. The list is infinite and any or all of it can convince a judge that Dad shouldn’t see much of little Andy or Jenny. The point being that parents already routinely attempt to show the other’s unfitness; they do so now and will continue to once the law is passed, if it is.

In short, the new law will make little-to-no difference in the way parents approach custody issues or judges resolve them.

Of course the law contains the presumption that involvement is in the child’s interest. Legally, that means that, if Mom produces no evidence that Dad shouldn’t see the child, then he gets to. That is, the burden of proof is on the parent opposing the other parent’s right to see the child to produce evidence that the presumption has been rebutted. So surely that protects fathers, right?

I doubt it. After all, parents don’t go into court caring much about presumptions and burdens of proof. What they do is come into court with loads of mud to sling at the other parent, and that mud will still get slung regardless of whether the new law passes or not. And when it does, the judge will be able to use it to decide that Dad’s continuing involvement in the child’s life isn’t such a good idea after all. Bottom line: the presumption means next to nothing.

he second stumbling block to fathers’ real involvement in their children’s lives post-divorce is that very word, “involvement.” The bill says “involvement” by a parent in a child’s life is a good thing, but never gets around to defining the term. What is this “involvement” the law’s promoters are so enthusiastic about? Who knows? Is five months per year sufficient to be called “involvement?” Five weeks? Five days?

The bill offers no guidance whatsoever, leaving judges free to decide the matter for themselves. My guess is that the undefined term “involvement” will be all that’s necessary to allow judges to continue doing exactly what they’ve always done – removing fathers from their children’s lives. If Mom fails to produce sufficient evidence showing Dad’s continued involvement to be detrimental to the child, the judge can always simply order the usual “involvement,” i.e. about 14% of the time.

I strongly suspect that’s what will happen. I’d put good money on the proposition that this bill, if enacted into law, will produce precisely no change in custody orders. It certainly requires none; it doesn’t require judges to do one thing they’re not already doing. So why would we expect them to?

Some may argue that it’s the plain intention of the bill to make sure no fit parent is lost to a child simply by the operation of the law. But what we’ve long known is that there’s no reason for that to be happening now. Nothing in British law requires mothers to be 90% of custodial parents, fathers to be lost to children, mothers’ interference with access by fathers to go unpunished, etc. But that’s what happens.

Those things happen because family court judges and the various mental health and legal professionals that make their livings off the process routinely demonstrate the most shocking anti-father/pro-mother bias. We see this far too often to pretend that custody orders in the aggregate have anything to do with children’s welfare or the rights of fathers.

It is therefore incumbent upon any change to the law that truly seeks to alter the time children spend with their fathers to place requirements on judges that they do so. Anything short of that allows them to follow their existing instincts about children’s well-being which again is demonstrably anti-dad. Until the law imposes strict requirements on what one parent must prove to oust the other parent from a child’s life, things in family courts will continue as usual.

That means a presumption of equal parenting unless unfitness by one parent is proven by clear and convincing evidence.

The Cameron/Clegg government came into office claiming to care about children, family courts and fathers’ access to their kids post-divorce. The process by which it has gone about amending child custody laws amply demonstrates the opposite. The coalition government has burned much midnight oil, produced many reports and come up with the same old thing. Its bill is a prescription for the status quo.

Don’t believe me? Let’s wait a couple of years and see if anything has changed. If it has, I’ll be the first one to shout “Huzzah!” and be glad to do so.

But I don’t believe that’s the type of shouting I’ll be doing.

JamesB - January 14, 2014 at 9:47am

Re : ‘insufficient diapering skills’

Yes, my ex-wife did actually complain that I put the ‘nappy’ (not diaper – whatever that is) on back to front in a solicitors letter and court. I was also told off for drinking vitamin C drinks in their presence and not using enough sun screen etc.

Just agreeing with this article really. I could probably dig out some more examples, but I don’t think they do much for the credibility of the family courts. I liked the way it was written by a lawyer not pro status quo for a change, and I don’t mean the rock band – showing my age now. She probably doesn’t even know who the Quo are.

Another one was sitting my child on a load of coats in the car rather than a child seat was complained about.

Another one, not putting films with inappropriate content for young children as expressed by the bbfc out of their reach. etc.

Stitchedup - January 14, 2014 at 11:52am

It’s great reading about some of our misdemeanours – here’s one of mine – leaving my sailing bag in the hallway underneath the stairs.

JamesB - January 14, 2014 at 11:53am

Sorry, I take that back, was yuri’s post I was reading. Lawyers arguing against the status quo for family law I have yet to see. I think that is because they look after each other and is a closed group.

JamesB - January 14, 2014 at 12:45pm

Closed shop I meant.

Yuri - January 19, 2014 at 9:10pm

List readers may find this development of more than passing interest.

The momentum for equal parenting is growing and transcends gender, culture, politics and social class.

Leading women 4 shared parenting
http://lw4sp.org/about/

Founding

Leading Women for Shared Parenting was founded to dispel the widespread myth that it is only – or even mainly – disgruntled fathers with limited access to their children who promote equal shared parenting as the default model for separating parents.

That is simply not the truth.

Polls in the United States, Canada and other western countries consistently demonstrate overwhelming support in the general population for equally shared parenting. Both fair-minded men and women across all social and cultural lines understand that mothers and fathers are equally important in the lives of their children.
For some years a number of prominent women in media and politics have been championing this issue in the public forum of ideas and in policy-making circles. Eventually they sought a common platform from which they could bring their support for equal shared parenting to effective attention and positive legislative action.
Thus LW4SP came into being, with more than 150 influential women lending their names in support of the equal shared parenting principle.

A growing number of children are being raised without the benefit of meaningful engagement with both parents. As contemporary research conclusively demonstrates, a child who effectively loses one of his or her parents through a custody decision, usually the father, is a child at risk for a number of negative personal and social outcomes.
Research also proves that, although children want a relationship with both their parents regardless of marital status, healthy bonding with a non-residential parent is impossible without a substantial amount of time spent in that parent’s physical presence.

Consequently, LW4SP is sending our elected representatives, the judiciary and policy-makers the clear message that substantive changes in family law must be implemented: changes that will ensure children the opportunity to remain fully engaged with both their parents into adulthood.

The women endorsing this statement know that not all children can have full access to both parents, and we know that not all parents are fit to raise their children. But we also know that far too many good, willing and fit parents are pushed to the margins of their children’s lives by unfriendly family courts, government policies and laws that undermine family integrity and autonomy.

It should be alarming to women everywhere to know, as they look at their son’s, there is a significant likelihood our government will turn him into a visitor to his children in the event he no longer resides with his kids’ mother.

Parental separation should not spell the end of a relationship between a child and one of its parents.
Forced separation from one’s own flesh and blood in the absence of abuse is morally wrong and socially irresponsible. That is why LW4SP supports equally shared parenting as the default arrangement for separating parents of minor children.

Tristan - January 20, 2014 at 9:40am

All women, to a man, are totally in favour of shared parenting. Totally that is, until it comes to crunch time and they are called to apply that fine principle to themselves when their own family falls apart. At that point any previously espoused enthusiasm for shared parenting suddenly vanishes, to be replaced Kate Winslet-style, with the admonition to her ex-partner that “the kids have one home, mine, and I’ll be having none of that 50:50 nonsense from you”.

Any mild challenge to this damascene transformation in belief will be met with one of the usual plethora of rebukes to be used in such circumstances. These are amply listed by Robert Franklin of the U.S. National Parents Association in his excellent analysis of the meaningless tinkering around that’s gone on with the Children Act, highlighted by Yuri above: he’s an abuser; hasn’t done much childcare; can’t change nappies; doesn’t show sufficient interest; etc etc etc.

And of course, our wonderful “new improved” Children Act now provides ‘mum’ with freshly-clarified opportunity to keep any shared parenting ambitions on dad’s part in check. Why, the added emphasis on child safety and welfare provision in the Act even spell it out, as if to encourage her to blather the usual anti-father baloney that judges like to hear before they order dad’s newly-presumed ‘involvement’ down to the usual minimum.

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