A split hearing can be summarised as a hearing divided into two parts. During the first part the court makes findings of fact on issues identified by the parties or the court. During the second part the court, drawing upon the findings it has made, decides the case.

When a split hearing takes place, it is usually in the context of a contact or residence dispute between parents, with one party alleging domestic violence as a reason for refusing to allow contact with a child from the relationship.

Generally it has been the practice that the allegation must be dealt with, separately from the children matter, before the court can resume consideration of the contact or residence dispute. A split hearing can thus cause delay and expense for both parties – but change is in the air.

In one of his first announcements since becoming President of the Family Division in April 2010, Lord Justice Wall recently gave new practice guidance to judges and magistrates on the occasions when it is appropriate to direct a split hearing or conduct a finding of fact hearing in private and public law family proceedings. Continue reading »

On Saturday afternoon I found myself in the menswear department of Marks & Spencer having a joke with the sales assistant. I asked her to put the till receipt in the bag because the goods I had bought that she was carefully wrapping would be coming back on Monday morning.

“I don’t know why I’m buying them at all”, I told her. “It’s Father’s Day tomorrow and whatever I buy I know for sure my dad won’t like it. So it will all be coming back, there’s not the slightest doubt about it.”

I left after she said she would be sure to keep an eye out for him when the store opened on Monday morning.

I had spent about thirty minutes choosing a sweater for him – after I had first decided that Marks & Spencer would be the best bet for a Father’s Day gift for my fussy dad.  If I went anywhere else, chances were he’d criticise my choice of store by saying it was too modern. I finally selected a bright blue cashmere V-neck. After wondering whether or not it was too bright, I decided to take the risk and on impulse also bought a pale blue check shirt to go underneath. They looked really nice together and I thought even my picky dad would like them.

I also bought him a card. It read: “In children’s eyes dads start off ten feet tall”.  And inside: “And in my eyes you’ve stayed that way”.

It was a simple card but I liked the words and bought it. Then driving home and reflecting on those words, I started to think about dads who would not be seeing their children on Father’s Day, particularly in the context of a second recent judgment by Mr Justice Mostyn.

What price the parent-child relationship?

In the case (AR (A Child: Relocation) [2010] EWHC 1346) Mr Justice Mostyn had to make a decision about whether or not a mother could remove her children from the jurisdiction of the Court, so that they could go and live in France.

As he acknowledged, this type of judgment is one of the most difficult that judges ever have to make. This is because it condemns the remaining parent, usually the father, to losing the relationship they had with their children for most of their childhood, if not most of their lives. Once a child makes a new life in a new country, retaining emotional and practical ties with a father in a different continent becomes nigh on impossible. That is unless the family is very wealthy and can afford to make regular transnational arrangements that really work, including regular travel, domestic and social arrangements, education and so on. Such arrangements can make it possible for the children to retain two (or in some very wealthy cases, even more) genuine homes in different countries.

In most cases however, departure from the jurisdiction prompts a real-life tragedy, with the father and his children severing their links with one another. What price can be put upon a child’s relationship with his or her parent? Isn’t preserving that relationship, at all costs, far more important than anything else?

Continue reading »

Divorce cases that involve disagreements about children are often described as “difficult”. Emotions run high; at a local level the judiciary may have to fall upon its own judgement when asked to choose one suitable option above others. Bitterness, heartache and large legal bills can result. Is there another way? I think so.

The majority of children cases relate to the practical arrangements of what happens to their children following the breakdown of a marriage or parental relationship.  As Head of the Children’s Department at Stowe Family Law, I have been involved in a number of cases in which one or both parents have asked the court to intervene.  Sometimes there are issues that concern child protection; other cases feature styles of parenting that are no longer considered acceptable after a relationship’s failure.  The majority of cases concern the practical arrangements and the frequency and duration of the time each parent spends with the children.  It is this latter category that has caused me growing concern over the past few years.

The pressures under which the local judiciary operates have not helped. A case scheduled for its first, second or even third appearance may only be listed for a quarter of an hour.  Judges are asked to make rigorous, reasoned decisions quickly – and yet some of these cases feature complexities that stretch back years.  There may not be time to facilitate a fragile agreement when everyone feels so rushed.

The other difficulty is that too much pressure is placed on parents to sort out their own problems. In some cases, this is simply too much to ask.

My solution?

Continue reading »

A survey of children’s experiences of divorce was published today. The Children Act 1989, which transformed the face of family law for children, is 20 years old today. So how have children’s experiences changed – and how can we make it easier for children to cope with divorce?

 The Children Act emphasised the responsibilities of parents and adults. It created the concept of parental responsibility and set out in law the child welfare checklist for public and private law proceedings. It moved the focus from the parent’s rights to the rights of the child. Even the language was designed to empower children: 

• A parent does not have custody of a child. Instead, the child resides with a parent.
• A parent does not have access to a child. Instead, the child has contact with an adult.

Most importantly of all the Children Act recognised that within families, even when there are two households, it is better that there is an agreement rather than an order where possible.  In short: if it doesn’t need an order, don’t make one.  If it isn’t broken, don’t fix it. Unfortunately without an order there can be no enforcement. Frequently this means that one parent dictates contact arrangements to the other or simply disregards agreements when it suits them to do so.

The Children Act promoted mediation through CAFCASS, agreement over orders imposed and most of all looked at what the child wanted and needed.  Wishes and Feelings Reports came into the consciousness of the court and solicitors.  People asked children how they felt and told the court – and the court listened. 

That was 20 years ago; where are we now? Continue reading »

Many grandparents are surprised to discover that they do not have automatic rights of residence or contact with their grandchildren. But could their rights be about to improve?

This week it is my turn not to criticise, but to praise the Conservative Party. Newspapers have reported that the Conservatives, if they win the next election, intend to give new, improved legal rights to millions of grandparents in England and Wales.

According to the Daily Mail:

The law will be changed to ensure [grandparents] do not lose contact with their grandchildren after a family separation, divorce or bereavement.

They will also be put at the front of the custody queue if their grandchildren face being fostered or taken into care. 

As it happens, I am currently advising the research team at one of Britain’s best-loved soaps on this same subject. The storyline is top secret though! I have had lengthy discussions with the researchers about current law; they were incredulous to discover that Continue reading »

 Stowe Family Law recently dealt with a complex and interesting case that has served to highlight the evolving place of children in our society, both in terms of their legal status in the eyes of the courts in England and Wales and in terms of the importance, in line with their maturity, of their wishes and feelings.

The case involved a child of 16 who is a British citizen. The child has lived abroad for the last two years, and continues to do so. The courts of a number of countries might have had jurisdiction.

We acted for the child and her relative. The relative had applied for a residence order in her favour and for leave to remove the child from the UK. As the child was already in situ with the relative abroad, the court was being asked to formally approve the change in living arrangements.

The law relating to children is a complex system of rules and requirements, particularly when the children are not living in England and Wales.  Even though a child may be English and speak only English they may not fall within the court’s jurisdiction and may instead be subject to a foreign court and law.  Before making an order in a case the English court must first consider whether it is within their powers to make an order.  The court will look at the habitual residence of the child, their current location and their ties with England and Wales.

When a case does come before the court they must take into consideration various factors to make the decision.  First and foremost is the wellbeing of the child and a key part of that will be the child’s own opinion.  Continue reading »

In the last post about coping with divorce, I wrote about how distressing the divorce process can be and how, to emerge whole at the other side, it is vitally important to do whatever it takes to keep your mind in shape.

This post is a cautionary one, about what can happen if you give in to those demons lurking in your head. I have previously written about the dirty divorce tricks born of the desire for vengeance. Earlier this week I described how bottled up emotions can result in emotionally charged choices and behaviour. Now I wish to look at how the repercussions can affect younger members of your family.

During a divorce you can be tempted to surrender to those demons, to let your baser emotions spin of control, to fight and to cause pain. However the opportunities to do so are limited. This is because the legal procedure is strictly controlled in financial cases, as misconduct is rarely of relevance and is generally frowned upon by the courts.

Proceedings involving children are different. In such cases allegation upon allegation, true or malicious, can by heaped upon parties in ”the children’s interests”. Common sense and rational thought can fly out of the window.

You mustn’t go there. But some people do.

After 26 years as a divorce lawyer, I am not easily shocked. While reading some recently reported children cases, however, I was taken aback by the bitterness and malice that leapt from every page. Continue reading »

Cafcass, which stands for Children and Family Court Advisory and Support Service, was coined by the Criminal Justice and Court Services Act in April 2001. A public body, Cafcass looks after the interests of children involved in family proceedings. 

Its role in private children law is to:

• Safeguard and promote the welfare of children.
• Help the courts in coming to an arrangement that would suit the child involved
• Investigate all welfare concerns and/or any wishes and feelings of a child of sufficient age.
• Provide the Court with a report of its investigations, including a recommendation.
• Help appoint a children’s guardian in cases where the children need to have their own voices.
• In some cases, help provide families with supervised contact.

Private children law proceedings are extremely emotional and traumatic experiences for families. A child’s welfare, best interests, wishes and feelings are central to children law. It is sometimes difficult, therefore, for a court to make a decision as to where a child should live and how much contact they should have with the non-resident parent without first investigating the child’s circumstances. This is where Cafcass comes in.

As a Cafcass volunteer, I used to supervise contact at a contact centre in Sheffield once every four to six weeks at weekends. I saw many families that had been subjected to the court system. I saw some cases where supervised contact worked really well, especially for the younger children. Parents and grandparents would bring age appropriate presents for children or grandchildren. These families would then move on to manage their own, unsupervised contact without the aid of Cafcass or the court system. Success.

However, the other side of the coin featured families whose behaviour prompted obvious and continuing welfare concerns. Continue reading »

Unless both parents consent to a child’s relocation from one country to another, such a move can be considered international child abduction.  But when a relationship ends, it is tempting to return home, to a safe environment. What if you live in another country and children are involved?

Within Europe there has been an increasing freedom of movement between countries.  Adults can move between countries and there are no restrictions on where they live and work.  Not so for children. The Hague Convention on the Civil Aspects of International Child Abduction makes provision for a child’s return to their country of habitual residence.  If you are going through an international divorce and you want to take your children with you when you leave a country, you need the other parent’s permission or an order of the court in the country where the children live. 

A court order may be harder to get than you suspect.  Suppose you are English, married to a German spouse and living in Germany with two children. You split up and decide to move back to England with the children – but your ex doesn’t agree.  A court may not agree either and you need to be careful in what you do next.

Even a move to which both parents have consented can be full of pitfalls.  What happens if your ex agrees to your return to the UK, only to change their mind as you board the plane?  The English court had to consider this in one recent case (P-J (Children) [2009] EWCA Civ 588), in which an English mother tried to move to England from Spain following the breakdown of her marriage to a Spanish national.  In that case, the husband had said that she could take the children to England if a reconciliation failed, but had objected when she tried to do so.  The court returned the children to Spain and gave the following guidance: Continue reading »

Dirk Lindner’s edgy portrait of Jean-Christophe Novelli and Novelli’s daughter Christina caught my eye as I was scanning The Sunday Times Magazine yesterday. I began to read the interview and I was soon hooked. It was a cracking piece, featuring the well-known chef and his 22-year-old daughter, an aspiring singer-songwriter.

Novelli married young, had little money and worked all hours. He pulled no punches about the fate of his first marriage, which ended in divorce when his daughter was six: “Her mum and I had absolutely nothing in common apart from this unique child”.

The interview was angled fairly sympathetically towards him, although I suspect his first wife would probably tell a different tale.

I have heard such stories many times before, of course. It isn’t my function to judge; there are many reasons why marriages don’t work.

At this point, the interview could have become yet another recitation of marital breakdown. Instead it took an interesting direction, focusing upon the effects of the divorce and the subsequent parenting arrangements upon the daughter. Continue reading »