Tomorrow I will be appearing on the

Current child legislation is entirely focussed on the child, as David Milburn my partner in our Hale Cheshire office explains in more detail below.

One of the criticisms I had of the recent Family Justice Review, led by David Norgrove, was the large number of children-focussed professionals on the review body. I believe more attention should be paid to all members of the family, and although I accept that the welfare of the child should always be paramount, the lack of statutory rights for family members in relation to their own family does concern me. Is it not high time to accord formal legal rights to members of the family, subject to the overriding provision of the welfare of the child concerned?

Within the Children Act 1989 grandparents are not named as a special category at all, and they fall under the general category at Section 10 (2) – “All other persons”- unless the child concerned has actually been living with them in circumstances defined by the Children Act. Grandparents will require leave of the court to make an application for contact before the contact application itself can be heard at all.

Unlike David Milburn, who sets out his reasons below, I believe this additional requirement for leave is likely to encourage and potentially antagonise family members who may be opposed to contact for purely selfish reasons, and devalues the valuable status of grandparents in the family.

Whatever the arguments for and against current law, by far the best and most practical way to resolve these kinds of dispute is for a grandparent to always remain steadfastly neutral  before their child’s relationship ever breaks down. The grandparents must never allow blood to become thicker than water. Never make unkind comments about the child’s other parent, no matter how deserving those comments may seem. Grandparents do have to make huge sacrifices in these circumstances and also, should not be afraid to hold their own child to account if necessary. If grandparents are always perceived as neutral, and refrain from cutting remarks, then if and when a family breakdown occurs they have a far better chance of being involved in their grandchildren’s future.

I would be interested to hear your opinion so please feel free to leave your thoughts in the comments.

Should or should there not be automatic rights of contact for grandparents with their grandchildren? For some years now there has been healthy debate regarding whether they should be given the legal right to exercise contact.

To properly consider the question we first need to consider whether the existing system actually works. It should be noted that a grandparent is not treated the same in law as a parent.  Therefore in order to make an application for contact, he or she first requires leave of the court to do so – i.e. permission.

When the court considers the issue of leave it must have regard to Section 10(9) of the Children Act 1989 which states that the court should look at:

   (a)       the nature of the proposed application for the section 8 order;

   (b)       the applicant’s connection with the child;

   (c)       any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and

   (d)       where the child is being looked after by a local authority –

               (i)           the authority’s plans for the child’s future; and

               (ii)          the wishes and feelings of the child’s parents.

Therefore the court does have wide discretion when considering the issue of leave, bearing in mind the rights of the grandparents under the European Convention for the Protection of Human Rights and fundamental freedoms to a fair trial and to a family life.

There are many voices out there suggesting that it shouldn’t be necessary for a grandparent to seek leave. Often a grandparent has a strong relationship with their grandchildren and may have exercised regular contact with them – why then should they be forced to seek leave? They argue that the requirement only adds additional cost and delay.

Well it would seem that the answer to this question, as confirmed by the Family Justice Review report, is to prevent “hopeless or vexatious applications that are not in the best interests of the child”.  The Review felt that the requirement to seek leave was “not overly burdensome and should remain” – I agree.

While representing a grandparent I have never had a case where I have not been successful in first obtaining leave, and then achieving contact between them and their grandchildren. I would add that in all of these cases the right outcome prevailed.  Perhaps I have been fortunate to deal with cases where the merits of the case were strong. I am sure that there are many grandparents out there, who for one reason or another have been refused contact. Presumably that is because the court felt that overall it was in best interests of the child to deny them access.

I am a strong believer in the principle that the best interests of the child should be the paramount consideration, and must prevail over every other consideration – irrespective of the hurt done to parents and grandparents. I appreciate my opinion is not shared, even among the lawyers in this office. The Head of our Children’s Department, Stephen Hopwood, does not fully agree with me. While he accepts that overall the welfare of the child should always prevail, he believes that more should be done to enshrine the rights of parents and grandparents in law.

As Marilyn has stated above, she will be discussing these issues alongside Gloria Hunniford on This Morning tomorrow. I know that Marilyn has her own views on the subject, which she has shared on many occasions on this blog.

As I see it, the main problem actually facing grandparents and other litigants is the frustrating delays when making applications to the court. Cases tend to take too long to be determined and the procedure is open to abuse by unscrupulous parents who are determined to use their children as pawns in a family dispute.

As a parent myself I firmly believe that the relationship between a grandparent and grandchild is special and very important.  It breaks my heart to imagine those children who lose contact with their grandparents.  However, I believe that despite the problems with the court system it does still work in the vast majority of cases. I also think that the requirement to seek leave is still necessary to weed out those cases where contact really would not be in the best interests of the child.

David Milburn is a partner at Stowe Family Law’s Hale office. He deals with all work relating to the breakdown of relationships and the division of matrimonial assets. In particular he undertakes a number of cases involving mid to high-level assets.

An accredited member of the Law Society’s Family Law Panel and Resolution, David has represented footballers and other professional sportsmen. He places a strong emphasis on excellent client care.

Image credit: The Apparition of the Artist’s Family (1935-47) by Marc Chagall

For example, in the past few days a reader called Lily has left the following request in the comments section of a post about my appearance on GMTV in early 2010.

“Hi! I need some information about financial settlement for divorce. I was married for 5 years and I left the marital home rented a new flat and took my 5 year old daughter with me. He was controlling and used to threaten me. It has been 1 year and a half that we are separated. The divorce is going through. I’m the petitioner and the judge agreed to unreasonable behaviour. Decree nisi will be granted tomorrow. The child contact it was agreed by the court through a contact order so he sees her every other weekend and half of school holidays. My question is he is saying he will not sign any clean break or any settlements. As I left home he says I’m not entitled to anything. But by law I know I am. The house is in his sole name. He used to pay the mortgage but I used to pay all the utility bills. When I left my solicitor put a charge on the house but I can’t afford solicitor no more, I don’t know what to do now. Do I have to apply to court to decide the financial bits? To be honest I’m not that interested in house but I’m worried that there was some debts in both names that not been paid. Thanks for your time.”

Sometimes I don’t have enough information to answer detailed questions from readers, but this one caught my eye and I can answer it on a general basis because what Lily wants is some general advice about what she can claim financially upon divorce. I’m happy to give her a reply and I intend to do so in a novel way for this blog.

On Wednesday 8^th February I will be answering similar readers’ questions in real-time from 2pm to 4pm in our forums. If you have a general question concerning the financial implications of divorce that you would like answering, then please post it over the coming week, or during Wednesday afternoon. I won’t give you detailed advice as to what you should specifically settle for, or how to resolve your dispute with the CSA, because only a lawyer retained by you can provide such a level of professional support. But my advice is given entirely free of charge and without liability.

So I am happy to guide you and the rest of my readers along the journey and if you would like to write to me on that basis then I’m happy to provide an opinion.

Your questions could concern:

·        Financing divorce proceedings and costs

.        The process

.        The Law

·        Financial disclosure – pitfalls

·        Maintenance arrangements, interim, term or lifetime

.        The impact of cohabitation on maintenance

.        Bankruptcy

.        Pensions

.        The division of Matrimonial and Non-matrimonial Assets such as inherited, and pre-acquired assets

.       Trusts

.       Children

It is a huge subject and understandably readers have their concerns. I look forward to your questions and will endeavour to answer all of them. Please pose all questions on the forum, as you are unable to comment on this post.

The subject matter came to mind a week ago when I was doing a spinning class in the local gym -I couldn’t help noticing that there are a lot of ‘glammed up’ men and women who never end the class looking as bad as me! It set my imagination going, and gave me something to concentrate on through a long spinning session and this post is the result. So far over 700 US readers have left comments on HuffPost Divorce and it is now tagged as one of its Most Popular posts. It has also been reprinted in various languages across the world. I’m really thrilled that my thoughts have transferred with such overwhelming approval to an American and worldwide audience.I hope you enjoy it too. I do like being called “Attorney Stowe”!

HuffPost Divorce was inspired by HuffPost’s thrice-married editor-at-large Nora Ephron, best known as the screenwriter of romantic comedies including When Harry Met Sally… and Sleepless in Seattle.  It was Nora who came up with the section’s tagline: “Marriage comes and goes but divorce is forever…” Since its launch, HuffPost Divorce has gained a community of loyal readers and, if you are currently going through separation or divorce, I recommend that you take a look.

To read the Top 10 Stereotypical Marriage Wreckers, click the image below.

During his year as Mayor there was a service at Ripon Cathedral to honour the return of troops from Afghanistan to their barracks near the city, and I stood in for the day as the Lady Mayoress. It was a day I won’t forget. The thanksgiving of the people who packed the Cathedral, many of them the troops and their families, was very moving. All of those in attendance were grateful for their safe return from one of the most dangerous places in the world.

Until we met in 2004, I don’t think Andrew had a longstanding relationship with a Jewish person before, and he and I have had long conversations about Judaism and how I deal with anti-Semitism. He knows I will stand up for who I am. Surprisingly perhaps, I don’t “blame” people for being anti-Semitic. I am sorry they are. However, I regard discrimination as an unpleasant part of the human psyche. I think people do naturally tend to differentiate against those who are unlike them – because of their race, religion or colour.

Last week Andrew took his mother out for tea. He does this every week, but this time he was seated near to an elderly man who appeared to be deaf. The man was making remarks that were anti-Semitic. “I’ve never met a decent Jew” he shouted loudly, and kept on in this vein until Andrew decided he had heard enough. He approached the man and told him he found his comments offensive. The man immediately changed the conversation.

Anti-Semitism is thousands of years old and is still alive and kicking across the world. Sometimes people make anti-Semitic comments that they have no idea are actually offensive. “I’m instructing you because you’re a clever Jew” said one client to me. Another said: “I’ve only come to you because I think you can handle that Jew boy lawyer in London. You’re all the same”.

But on a more positive note, what is marvellous about being English and living in England is that overall, we are not a country packed full of extremists. We do tolerate free speech, but only so much of it. We recognise that you can overstep the mark and we don’t slavishly adhere to the principle as they do in the USA, irrespective of who may be harmed in the process. We have a balance.

On the whole we are a country of moderation. We don’t execute people for murder as they do in the USA or China, although we do imprison serious criminals for life. We don’t have extreme swings of power in Government; we tend to replace one ruling party with another that isn’t too radically different, unlike Continental Europe where an extreme left-wing party can follow a right-wing one. We pass laws that are generally respectful and tolerant of people, although we don’t let them over step the mark. We have a monarchy that puts duty first, and is seen to work for the good of the country and its people, and a system of checks and balances between the Executive, the Legislature and the Judiciary that works very well overall and does not allow dictators to seize absolute power.

Yes, I am unashamedly proud of being English and living in this green and pleasant land. The country isn’t perfect, and nor are we, but overall we are a very decent country and enjoy a pleasant lifestyle. So I count myself and my family as incredibly fortunate to be English. Twists of fate over the centuries have meant that my ancestors have certainly known the most severe financial hardships in faraway lands, and suffered terribly at the hands of an absolute monarch. They struggled under the Tsar in Russia and had to flee the destructive pogroms. But by escaping, and being given a safe haven in England, they ensured their descendants escaped the horror of the Holocaust.

Today is Holocaust Memorial Day in the UK, when we honour the memory of all those people who died during the Second World War Holocaust and subsequent genocides around the world.

I grew up with people who experienced the horrors of the Holocaust first-hand. I was once with a girlfriend whose father told us the story of a little boy being put onto a train, given a kiss by his deeply saddened parents, and sent with fellow children to live in a foreign country – England. He said the little boy never saw his parents again, and then added sadly: “the little boy was me”.

His story has stayed in my mind from all those years ago. I remember another friend showing me his family photo album and telling me that everyone in that album had been killed in the Holocaust. His parents had managed to escape but the rest of their family had all perished.

I have seen elderly people with numbers tattooed down their arm; the branding they received when they entered a concentration camp.

And at school, in Jewish Assembly, we used to read the terribly sad diary of teenager Anne Frank, living her pitiful life hiding in Amsterdam during the Holocaust. She always lived in hope that one day the war would be over and she could be free again. It never happened. Her family betrayed, she died in Auschwitz.

But for the twists and turns of fate it could so easily have been my family too. In fact, but for the backbone showed by the people of this country in the Second World War, the fate of the entire world could have been entirely different.

My Holocaust education has shaped me. What I learned, determined me thereafter to stand up for what I believe, never stay silent and never ignore what I believe to be wrong even though it is often easier to look the other way and not get involved. Last March I went to view the beautiful golden portrait of Adele Bloch Bauer by Gustav Klimt at the Neue Gallery, New York. It was lost to her husband during the Holocaust, he had to flee Vienna and died penniless but the family never gave up and ultimately had the portrait returned to them by the Austrian government. For me, this painting is not only visually stunning but represents a triumph of the spirit and a family who never gave up – who were determined to survive the enduring nightmare of the Holocaust.

There are some people who oppose Holocaust Memorial Day and who argue it is unnecessary. It is not. Revisionist historians would have the world airbrush it from history. They argue it never happened. That it is a fiction that was invented. Or grudgingly, that it was all exaggerated.

It was not.

Today is a day for all of us to remember the unspeakable horror of the evil, that if left unchecked, men can do to each other.

I have visited the memorial to the Holocaust, Yad Vashem in Jerusalem, Israel many times. Each time it becomes harder for me to face the memorials to those who died in the concentration camps –selected to live or die on a whim – and to view the photos of people subjected to grotesque medical experiments. The photos of injections, operations, real shoes of murdered children piled high and children being forced by grim faced soldiers onto trains at gunpoint.

Many people also go to visit concentration camps such as Auschwitz, some of which today even look peaceful. Little is left of them. Mass graves are grown over with woodland and visitors have no real idea of what confronted captives some 70 years ago.

There is a brilliant post in today’s Times written by a young man called Oliver Hughes about his visit to Auschwitz with his father. What he writes reminds me of what my husband and son Ben thought when they visited it with my husband’s business partners, Arthur Bateson and Andrew Walker, and their sons. They all went because they believed they needed to see it; to show their boys the despicable sign above the entrance “Arbeit Macht Frei” and let them try and understand the sheer size and scale of the horror that resulted in the murder of millions – of which six million were Jewish. They also wanted to help them understand it happened within the lifetime of their grandparents and to ensure above all, through educating the younger generation, that it never happens again.

There is another very good reason for Holocaust Memorial Day. Soon the survivors with their tattooed arms will be no more. And only those who choose to never forget the truth and preserve it for future generations will be able to continue honouring the memory of an entire people almost, but not quite, wiped out.

From my latest Solicitors Journal column “Family Business”, 20/01/2012.

Firms that focus on short-term gain rather than long-term stability are playing a dangerous game, says Marilyn Stowe

Many would see it as a natural business instinct to welcome the decline or demise of a competitor. For me, there is little sadder news than hearing about a firm closing, downsizing or being forced to merge. This month has been characterised by such announcements, some particularly close to home which came as a shock. It seems the entire profession is suffering from the ‘January blues’ in more ways than one.

So why do I feel so genuinely saddened by such news? Mainly at the thought of those in my sector who are losing jobs. There is also the loss of keen competition, which I believe invigorates a market and stimulates work in the area. And also because it provides a salutary reminder to us all: ‘there but for the grace of god go I.’

Our London office finally opened at the beginning of the month. Within days, I had professional headhunters emailing me. Was I interested in acquiring an entire set of fee earners from another firm, who could bring their work with them?  If so, could I give them a call to start the ball rolling? One company told me they only had a conflict of interest with one family law firm in London. The rest were fair game. I rejected their offers.

False economy

I accept that fee earners and their departments are often dissatisfied and want to make a move. But the growing phenomenon of poaching key fee-earners or entire departments and excusing it as a ‘lateral hire’ is happening with increasing frequency. While some firms may see it as financially desirable, a fast-track to an immediate and much larger turnover, it seems to me a false economy. You cannot expect to buy and retain loyalty, nor expect that the same will not be done to your firm. Furthermore in my field, when the short-term work is done, the new fee earners will need to be kept well-fed, which can be far from easy in a market where work may have declined.

The fall-out also often leaves firms at loggerheads, causing massive arguments that aren’t easily forgotten and can lead to litigation. All in all, it seems to me a dangerous ‘cannibalism’ of our industry and I often wonder what the legal sector will be reduced to if firms continue to pursue short-term gain over long-term stability and success.

As a keen runner I do regard business as a marathon, not a sprint. Hours of running have taught me you have to maintain a decent pace to finish the race, but it is best to keep a steady rhythm. If you overdo it, you may drop out with exhaustion or suffer an injury. Marathons are run best when you conserve energy beforehand, take advantage of opportunities and, ultimately, fight your way to the front of the pack. Too often perhaps, it seems some law firms over indulge in the spoils of a strong market and sprint to grab a few yards, failing to make provision for the long run and inevitable downturn – especially those whose clients do not provide repeat business.

Bold but sensible

There is no doubt we are going through some of the toughest of times any of us have ever experienced, but I am a firm believer that the economic climate also presents significant opportunity.

An obvious but much-overlooked quality is to stay bold, but financially sensible. With the launch of our new office in London we waited until the timing was right, safe in the knowledge that we hold a strong business platform which has allowed us to grow gradually and successfully during the past three years. Time will tell.

Perhaps the most important thing is to remain in touch with your fundamental values and the qualities that helped your firm to thrive in the first place. Clients appreciate honesty and quality, and staff want to be valued and feel they have a solid future. I don’t forget that the public always knows who is good and who isn’t. There are no quick fixes.

“We are getting more and more people coming to court in private law cases without the benefit of sensible, structured legal advice, wanting to spill blood on the court carpet. Angry with each other, they shout across the court, they refuse to listen when you try to calm them down and it is very difficult to find a solution that they will go away and work with.

“The government wants people to stay out of court but it is very difficult to get people to mediate when they are still very angry and haven’t had the benefit of decent legal advice. These cases take an inordinate amount of time, which is having a knock-on effect on public law cases getting before a judge”.

For an experienced and well-respected senior judge to make those comments publicly, in a professional journal, the situation must have reached crisis point and children caught up in public law cases are suffering the backlash.

As practitioners, we all know that representing a client against a Litigant in Person (LiP) is very difficult. The judge has to be seen to be neutral but always needs to keep addressing the general ignorance of law and practice, language and conduct of the LiP – who is not bound as legal representatives are by the professional conduct rules. No wonder these cases are blocking all the court lists. It has a knock-on effect too because clients who do pay for legal representation perceive themselves to be at a manifest disadvantage, constantly noting the courtesies that judges extend to self-representing parties.

Cases that might normally take fifteen minutes can turn into hours. Plus the number of these cases is growing, which is frustrating the judges. When unrepresented litigants finally get to trial, the judge is then left with possibly the worst job of all, dealing with running the entire case.

So why are there such a growing number of unrepresented litigants? You might assume that given the economic gloom, people assume that they can’t afford a lawyer – a situation that isn’t helped by diminishing eligibility criteria for legal aid. But I have another explanation. I wonder whether inadvertently, the judiciary in supporting changes to the costs rules, might not be responsible for their own misfortune.

The ‘No Order’ principle.

The removal of the costs risk from private family law cases, has also removed lawyers from many cases. Some may say it’s a good thing. Although I suspect most judges and all LiPS forced into litigation who would instruct a lawyer if there was any prospect of recovering their expenditure, would not share that sentiment.

In children cases, the ‘No Order’ principle is routinely applied. Each side pays their own costs except in the most exceptional of circumstances. But why? I understand that people should have unhindered access to the courts when it comes to their children and I also accept that in most cases, one parent is usually as concerned as the other; but costs risks can be a powerful deterrent against frivolous actions by both parties.

If at risk of a substantial costs bill from both sides, parents may conduct themselves better and settle faster. Conversely, given the lack of a costs risk, more applications are being made to clog the courts and fewer litigants in children cases are minded to instruct solicitors; they argue there is no point if they can’t recover costs and if the judges are so obviously patient in assisting LiPs.

In 2006 the costs rules relating to finances were also changed with judicial support and encouragement. The “No Order” principle was introduced. The court still retained discretion to make costs orders in certain circumstances, but in general it was intended there would be no order for costs – each party would pay their own costs.

Some had argued for such a change in the interests of fairness and simplicity, the costs of both parties should thereafter come off the top slice of the family’s assets and the rest could be divided between them. Others supporting change argued that the system encouraged secret offers that the judge did not hear about until after the hearing and therefore caused unfairness to the parties, particularly to husbands. A senior costs judge also expressed his concerns that: “The successful spouse on one side vows to bleed the other dry of any penny if at all possible, while the paying spouse goes out of his way to deny the other the possibility of any recovery”. Solicitors apparently had “a vested interest in maximising the costs recoverable from a paying party”.

However, from my perspective, offers of settlement before trial undoubtedly had teeth. Both the settlement and the costs of the action depended on the outcome. All offers post the trial would be carefully scrutinised by the trial judge. If the “winner” beat their own offer of settlement, they could expect their costs to be paid on an indemnity basis and recover virtually every penny they had spent. If the winner beat the offer made by the losing party, around two thirds of the costs would be repaid. So the risk in costs for the losing party was very real on both sides. It concentrated the minds of both parties, neither of whom could be oblivious to the serious risk they were running.

Unfair to the weaker party

The changes, although well intentioned have probably caused as many problems as they sought to resolve including an increase in the numbers of litigants in person. I have written before about the unfairness of the new costs rules: the weaker party is indisputably affected by the about-turn. A wealthier spouse can keep litigating, safe in the knowledge they may do better at trial and the only risk is his lawyer’s increased bill. He or she has no risk of paying two sets of legal fees which could affect their decision. If the spouse is well off, he or she may gamble it’s worth it. And for those who can afford to string out their case in a bid to outgun the financially weaker spouse and force them to settle, it certainly is.

The position is discussed in this month’s copy of ’Family Law’ in relation to the provision of interim funding, through interim costs orders, by the wealthier party to the other, a practice which has arisen since the case of AvA (Maintenance Pending Suit: Provision for Legal Fees) (2001 ) 1 FLR 377. The unsatisfactory position which has resulted has added still further to the problem, not least since interim orders usually stop after the FDR and before trial. This has occurred since the case of Currey v Currey (No 2) (2006) EWCA Civ 1338. Furthermore, the FDR Judge may not extend the order to trial, which is the role of a Judge not connected with the FDR. More time, more costs, more pressure.

The weaker spouse is now in the invidious position of being forced to litigate at greater cost, which they won’t recover, if they refuse a low and clearly inadequate offer. Although the court could make an order for costs at trial in those circumstances, it often does not. In those circumstances, the weaker spouse may feel they have no choice but to settle. If they continue with litigation, they will still have to pay increased costs that will be taken from whatever they receive. Like an increasing number of people, including many readers of this blog, they decide to go it alone and see how they fare in court.

The  “No Order” principle for financial cases became enshrined in Part 28 of the  Family Procedure Rules 2010.  The wider powers to make costs orders if the court is inclined are at Rule 28.3.7, as mentioned in my earlier blog post on the subject. Post 2006 there were expectations that costs orders would be made in appropriate cases, the courts are generally not doing so. Constrained by the “No Order” principle, my experience is that costs orders are rarely made in the average case. This encourages more litigants in person who understandably see little reason to pay lawyers if there is no prospect of a costs recovery. And this is, I suspect, the real reason for the “horrendous” situation of which District Judge Crichton complains.

But all may not yet be lost. There is hope on the horizon in the form of Family Arbitration for financial claims in family law which begins on 22^nd February 2012. Cases may be resolved out of court and will be legally binding on the parties. Yet arbitrators need not be constrained by the same lengthy procedural process as judges. The cases they deal with are expected to be dealt with more quickly and in many cases more cheaply. How the costs are to be dealt with too, is up to the couple involved.

Image credit: ‘The Auction’ by L.S. Lowry

Occasionally I am pleased to publish a guest post from contributors other than myself and my colleagues at Stowe Family Law, if I think it will be of real interest to readers generally. Given the concerns of many in relation to Child Support I am delighted to publish a guest post by Anna

They are campaigning against the Government’s proposed introduction of charges to use the Child Support Agency (CSA). A cause that has received some powerful support from the former Lord Chancellor Lord Mackay of Clashfern in the House of Lords, and which is also reported in The Times today.

I particularly hope the email advice package to which Anna refers will prove useful to readers.

Child maintenance is an essential form of support for many single parent families. However, making arrangements to ensure it gets paid can be complicated, confusing and sometimes distressing for all involved.

There are different ways to set up an arrangement for child maintenance – from making private arrangements, to using the CSA – and the emphasis is on the parents involved to choose the one that best suits their circumstances.

Easier said than done, for many. Especially if you’ve heard a lot about child maintenance, but are suddenly thrust into the position of actually having to arrange for it to be paid – sometimes with an ex-partner with little or no interest in helping this happen.

With this in mind, and the fact that the government is talking of overhauling the way child maintenance is currently managed through the Child Support Agency to include charges to allow parents to access it, it pays – quite literally – to have all the facts.

At Gingerbread, the national charity for single parent families, we regularly receive calls to our helpline (0808 802 0925), and questions in our online forums, from single parents who are trying to make sense of how they should approach making arrangements for child maintenance.

Some want to know how much their child’s other parent would be expected to pay. Others have had a private arrangement breakdown and are investigating alternative options. Many are struggling to navigate their way through the CSA.

The common thread we hear is that single parent families aren’t always clear on how to get to child maintenance – money to which their children are entitled and which many families, as one single mum told us: “completely rely on to stay afloat”.

In order to help single parents find the information they need to make informed decisions about child maintenance, Gingerbread has launched an email advice pack bringing together expert advice on key areas of the child maintenance process from our extensive collection of factsheets.

The email advice pack includes information about:

• Getting the right amount of child maintenance
• Coming to agreements with an ex-partner
• Enforcing payments
• Using the Child Support Agency.

Single parents can get the pack sent straight to their inbox by heading to www.gingerbread.org.uk/emailadvice.aspx and entering their email address.

Gingerbread’s campaign against CSA charges

Gingerbread is campaigning against government proposals to charge single parents an upfront application fee (around £50-100) to use the CSA to claim child maintenance, and an ongoing ‘collection charge’ of up to 12% per payment and an ongoing ‘collection charge’ of between 7 and 12% on any maintenance paid to the parent with care, as well as an extra 15-20% charge added to the non-resident parent’s payment.

We think the charges are deeply unfair, and in the end it’s the families that will suffer. And we’re not alone. Senior Tory Peer Lord Mackay of Clashfern, who introduced the Child Support Act in 1991 under Margaret Thatcher, is also in opposition to the charges and has tabled an amendment that would exempt parents who have no option but to use the CSA to receive money for the care of their children from charges.

In an interview with The Times published today, Lord Mackay described the charges as “utterly unfair” and placing multiple “hurdles” in the way of parents who need support.

Commenting in the article, our Chief Executive Fiona Weir said: “the indications of support Lord Mackay has received so far show the high level of cross-party concern at the government’s proposals.

“We fully support efforts to help separated parents work together to deal with the financial, emotional and practical consequences of separation. But the government needs to realise that in very many cases that isn’t possible, and if charges are introduced then it will be children who lose out.”

For all those unacquainted with Section 36 Law of Property Act 1925 may I first suggest reading my initial post on this subject three years ago, which looked at severance of joint tenancy and will help you to better understand the case I am about to cover.

I explained how in English law, property is jointly owned in one of two ways: as “tenants in common” or “joint tenants”. These are tricky concepts to understand and law students have to spend long hours trying to do so! In the interest of straightforwardness, it relates ultimately to the difference it makes to the survivor when the first party dies.

If the property is owned as “joint tenants” on the death of one party, the survivor automatically inherits the deceased’s share. If the property is owned as “tenants in common” the deceased’s share will pass to their estate and will be inherited by the beneficiaries of the estate, not the surviving co-owner. So this technical difference, which most people don’t have a clue exists in law, could mean the survivor will lose out on a lot of money and also being obliged to sell the property to pay out any beneficiaries. Sometimes it is inheritance tax efficient for spouses to buy property jointly as tenants in common, but at the same time they will each make a will and if so advised, leave their share to their surviving spouse in any event. You can get further advice from a specialist in that area, which I am not.

Where parties are separating (whether married or not), and they own the property as joint tenants, practitioners know this subject should be reconsidered. Either party may sever the joint tenancy if they wish, by serving a notice on the other that is registered with the Land Registry. Thereafter they will continue together to own the property as “tenants in common”.  The decision to sever usually occurs because the person concerned no longer wishes the other to automatically inherit their share of the property, on the off-chance they may die before the property dispute has been resolved either by the court or between themselves.

Severance does not affect any final division of shares in the property that may ultimately be agreed or ordered by the court. It is a “just in case” proviso because, a death during a divorce or cohabitation dispute is very rare. But it happens.

The recent case of Davis v Smith (2011) EWCA Civ 1603 was heard before the Master of the Rolls and Lord Justices Kay and Sullivan. It concerns a situation in which the divorce process was on-going, and whether a joint tenancy was severed – even though a notice of severance was never served. Despite the fact that it arose out of a divorce, this type of case is not decided by the family courts. Like Kernott  v Jones, it is strictly a property matter and therefore a case for the Chancery Court with all the attendant costs.

On the surface the judgment appears quite dry, one that is easy to pass over, although it actually deals with chilling circumstances. In giving his judgement Lord Neuberger detailed the facts of the case, which like Kernott v Jones relates to two ordinary, everyday folk; this couple lived in a former council-owned property in Suffolk until divorce proceedings began and the husband left home. He then refers to the “untimely” death of Mrs Smith, who “apparently…fell down the stairs”.

Before the death of Mrs Smith, the parties had been in negotiations through solicitors. Both of them intended to serve notice of severance, but neither did so. So if the joint tenancy had not been severed, Mr Smith would have inherited the entirety of his late wife’s interest in the house despite their separation and the divorce proceedings. He argued it had not. The executors of Mrs Smith’s estate argued that it had.

The law relating to severance is set out in the leading case of Burgess v Rawnsley (1975 Ch. 429), where Lord Denning, Master of the Rolls, giving judgment referred back over a century to another case called Williams v Hensman (1861) 70 ER 862. In addition to the service of a notice under Section 36 (2) Land Property Act 1925, severance of a joint tenancy can also be effected in three other ways:

1.      A certain type of act by either party

2.      By mutual agreement

3.      A course of dealing.

Thus in accordance with the law, and with reference to the comment of Lord Denning that “the thing to remember today is that equity leans against joint tenants and favours tenants in common”  Lord Neuberger, the present Master of the Rolls, went on to carefully examine all the facts and ultimately reached the conclusion that the joint tenancy had been severed, through their course of dealings, and upholding the decision of the lower court. Mrs Smith’s interest did not pass to her estranged husband but instead passed to her estate.

It was a close run thing, since as Lord Neuberger remarked: “Neither the proposal nor the agreement to put the house on the market nor even the acceptance of a subject to contract offer could have severed the joint tenancy on their own. Even a sale could have been said to have been entirely consistent on the face of it at least with the joint tenancy continuing and applying to the proceeds of sale…what passed between the parties…went further than that”.

Lord Neuberger made reference to the detail of correspondence and the content of a meeting, as well as the advice both parties were receiving through their solicitors, and the “inevitable” application of a 50/50 split of assets on the facts of this particular case. The judge also made reference to the unequal distribution of the net proceeds of a policy in favour of the wife given the inevitability of the split in relation to the net proceeds of sale of the house. He added it was appropriate only for the course of dealings between the parties to be considered, and not “what went on in a party’s mind”. Given all those circumstances, he considered the joint tenancy to have been severed.

To what extent might this affect a case in which readers are involved? To be certain of your situation if so advised, you should sever the tenancy by notice and in any event, you should make a will.  Making a will is not easy either, and I suggest taking good legal advice beforehand. Please don’t think you can simply do it yourself.

To leave it  all open to argument on the basis that “it will never happen to me” is to risk an unnecessarily high tax bill, a nasty fight in potentially tragic and unforeseen circumstances and, at the very least, a substantial bill of costs which may significantly deplete an estate.

I would also refer any concerned readers to a point made in my original post. Even if it is too late, if a death has occurred and the joint tenancy is ultimately found to have been severed, an application can still be made in appropriate circumstances under the Inheritance (Provision for Family and Dependents) Act 1975.

But with it the conundrum can start all over again.

It seems like an easy question. But in fact it is far from it, and happens to be one that is leading debate-upon-debate in political, social and legal circles in this country and around the world.

There wasn’t time to explain the convoluted situation we have at present in England and Wales before we went live. The subject didn’t come up on the show, although it was scheduled so I thought I would cover the topic here, as few people fully understand the current law. I also wish to pose a few questions of my own, on the current state of affairs from a parent’s perspective.

Parents and their rights

Parents are the people who usually plan, bear, nurture, educate, maintain and care for their children. They love them unconditionally – even in times of extremis (and I’m sure every parent will have their own definition of what extremis entails!). As parents, we selflessly do whatever we can for our child. We do so regardless of their advancing age, because we unashamedly have natural and profound feelings of love and attachment to them, so much so that we cannot ever love any other in the same way.

But the feelings of parents, as raw and deeply felt as they may be, are often ignored or simply not recognised in law.

This “stiff upper lip” approach, which ignores the rights of parents, is applied to private law child legislation that was formed as a result of the prevalence of child-centred sociology 20 years ago. Back then the concept of custody and access to a child, which had given rights to parents, was done away with. In favouring such a child-centred approach, especially within a catch-all legislation that encompassed both public and private law, I have to wonder whether the baby was not thrown out with the bath water. And I also have to ask: should public and private law for children be dealt with together?

Entirely child-centred legislation may well be understandable in cases of child abuse and parental neglect that occupy the public law courts. But it is not as easily comprehensible if a dispute arises as a result of a broken relationship between parents, given that accepted sociological thinking has for many people moved on.

Nowadays parental needs and rights are at the forefront of family law, as a result of parents literally demanding recognition. However, not everyone agrees and we continue to adopt the same approach. This was highlighted by The Law Society’s family law committee in a recent press statement that queried the Government’s proposals for a legal presumption of shared parenting after divorce.

With such conflicting opinions, what is the state of the current law in relation to the rights of parents?

The relevant legislation is set out in the Children Act 1989. Section 2 of the act defines what is known as “parental responsibility”, which married parents both have for their children.

So what is “parental responsibility”?

According to Section 3 of the Children Act 1989, parental responsibility is:

“all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

(N.B: Unmarried mothers automatically acquire parental responsibility for their children, but unmarried fathers do not – unless their child was born after 1st December 2003 and their name appears on the birth certificate, or they have acquired parental responsibility by agreement or court order. Even if the unmarried father has lived with the children for years, this does not automatically confer parental responsibility on him. The court will only consider giving him parental responsibility if he can demonstrate good reasons for his application and a sufficient degree of commitment and attachment to the child. In making its decision, the court will consider all of this from only one perspective: that of the child.)

Unhelpfully, and deliberately no doubt, the statute does not go on to further define what this definition of parental responsibility actually means – in particular, the rights to which it refers, including those of a parent to a child.

So with no legal definition how does a court make a decision involving children, and parents who have “parental responsibility” for these children?

According to Section 1 of the Children Act 1989, the court must make its decision solely on the basis that “the child’s welfare shall be the court’s paramount consideration”. Similarly, the issue of “delay” is considered so important it has its own subsection:

“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”

To assist the court in its decision, there is a welfare checklist at Section 1 (3) of the act, detailing other factors that it must take into consideration:

(a)          the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)          his physical, emotional and educational needs;

(c)           the likely effect on him of any change in his circumstances;

(d)          his age, sex, background and any characteristics of his which the court considers relevant;

(e)          any harm which he has suffered or is at risk of suffering;

(f)           how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)          the range of powers available to the court under this Act in the proceedings in question.

It is interesting to note that only point (f) makes any mention of the parents, and only then from the perspective of the child. It could easily be argued  it is that clause alone which has given rise to all the problems experienced by  separating parents. The test is one of fitness which a court is bound to apply. Why so? Surely fitness to parent and meeting a child’s needs should be a given? Why is a parent required to prove fitness to parent a child? If there is to be a test, should it not be coming from the opposite position – why isnt a parent fit to parent a child?

As the Children Act 1989 is vague in relation to the meaning of parental responsibility, and in particular what “rights” means in relation to parents, I checked Directgov for further information. The website interestingly refers instead to “key roles” of parents – and these are as follows:

• providing a home for the child
• having contact with and living with the child
• protecting and maintaining the child
• disciplining the child
• choosing and providing for the child’s education
• determining the religion of the child
• agreeing to the child’s medical treatment
• naming the child and agreeing to any change of the child’s name
• accompanying the child outside the UK and agreeing to the child’s emigration,  should the issue arise
• being responsible for the child’s property
• appointing a guardian for the child, if necessary
• allowing confidential information about the child to be disclosed

We are not alone in this country in specifically failing to define the rights of parents. The position is the same in Australia for example. However, here in England and Wales we seem to have reached a stage where only the rights of the child count, despite the notion of parental responsibility. While this may ultimately have arisen as the preferred option following bitter custody fights in the past, are we not capable of reaching some meaningful middle ground?

In a perfect world when parents are not in dispute, the lack of a definition of parental rights may not matter. But if they are, parents will unhappily discover that phrases such as “parental responsibility” and “key roles” mean very little. Instead, they will find that the parent with whom the child is living holds all the cards – and not because of the law, but because of the lack of it. In reality parents have no presumptive rights to any form of shared parenting, contact or residence of the child, even though the Directgov site seems to encourage parents to believe otherwise.

So from the perspective of a parent, is this right?

In order to begin to answer this question, I first have to ask myself how I would have felt had I surrendered my child to an estranged spouse and found myself physically separated from them with no redress and no presumption of any form of shared parenting in my favour? Unhappily I imagine, particularly if I then had to build a case as to why I should have my child living with me, or see him. Surely this balance is wrong?

We are told that a debate is currently swirling within Cabinet as to the pros and cons of the Family Justice Review report, which was entirely created by child-focussed professionals. The Law Society Family Law Committee is similarly represented by a number of respected child lawyers. The consensus of these professionals seems to be that there should be no presumption of shared parenting – but are they right?

If a strong case has been made over the last few decades for the rights of parents, which I for one think it has been, the argument moves on to the extent to which parental rights should be enshrined within law while maintaining a built-in safeguard for the child concerned.

I don’t see what harm can be done by amending the welfare checklist to include a presumption of shared parenting in favour of both parents. This would include the right to exercise contact and have their child live with them, providing of course that this is not deemed harmful to the child. Altering the balance in favour of both parents’ rights simply echoes the “key roles” on the Government’s own website and seems to me to be just as important as highlighting the evil of “delay” in Section 1 of the Children Act 1989.

Ignoring parents’ rights entirely, merely paying lip service to their “key roles”, while knowing it will count for nothing in a dispute devalues the more important role of a parent particularly living with a child. While there are other statutes which require parents to support their children, parenting a child is a unique relationship and a privilege for all concerned. Consequently I see nothing wrong with a presumption in favour of shared parenting. It will be up to the courts to interpret what that means in each case, and in many cases it will potentially make no difference at all. But at least both parents can go to court confident that in law, each of them has a right to parent their child and “parental responsibility” has real meaning for them both.

So, do you agree that in law this special relationship should remain a one way street? Please let me know your thoughts in the comments section below, or discuss the issues in our new forum.

Image credit: Edgar Degas

What would you like to know about divorce?

Many first-time visitors to this blog arrive after searching for answers about divorce and family law on the internet. Others submit enquiries directly to the comments section on this blog, or contact me directly.

Today (Tuesday 10 January) I appeared on the sofa alongside Phillip Schofield and Holly Willoughby on This Morning to offer advice to viewers.

If your question wasn’t covered, please feel free to add it to the comments at the bottom of this post.

One topic that arose at the end of the programme was the annulment of a marriage. For anyone wondering about whether or not they can annul their marriage (if it was celebrated in England and Wales) this excellent government website will give you all the information you need.

The distinction is made between void marriages and voidable marriages. A void marriage has never existed, while a voidable marriage does exist, but can still be annulled. A void marriage should also be annulled, as explained on the website.

It’s an interesting and technically complex area of the law. Further issues arise  if a marriage in this country has not been celebrated in accordance with the requirements of English law. Can the marriage still be recognised in law?

There are also issues involving marriages celebrated abroad, and whether those marriages can be recognised.

All these topics will be covered by me in later posts, but this weekend, after a hectic week in our offices in both London and Yorkshire, I’m going to have a well-earned rest!

I hope everyone has a very good weekend,
Marilyn