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 »

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 »

I recently heard a case about a father, living overseas, who was billed £12,000 for child maintenance by the Child Support Agency (CSA) when he returned to England. My first thought was there had been an administrative error. The rules on child maintenance state that the CSA is unable to become involved in a case when the non-resident parent is habitually resident abroad.

When I explored the facts before me, however, I was soon engulfed in the CSA’s labyrinthine complexities.

According to the CSA’s Quarterly Statistics, more than 6,200 non-resident parents are living abroad but only a quarter of these are paying child maintenance through the CSA. The CSA is unable to enforce maintenance abroad, but this does not mean that the assessed maintenance is written off. Instead, a debt accrues at the CSA in each case. No wonder the CSA has a resource problem – combined, these debts could be in the millions!

Legislation introduced in 1991 meant that on the face of it, a move abroad and habitual residence there was the ideal way for a non-resident parent to evade financial responsibility for a child. This changed in 2000, when the rules were amended to allow for certain circumstances when the CSA would still have jurisdiction to enforce maintenance. These circumstances include: 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 »

The Mature Times asked me to write about divorce and grandparents’ rights. My article also offers advice to grandparents who are caught up in such a situation and are concerned that they may lose contact with their grandchildren.

On family breakdown the bulk of attention will, of course, focus upon the couple and their children. However grandparents are also an important part of family life.

When I was growing up, my grandparents were my closest confidantes. My grandmother would buy me books and records; later, when I was living in France, letters filled with wise counsel would arrive almost daily.

As a maturing teenager, I could discuss with my grandparents all sorts of things that I didn’t feel I could tell my parents. I adored my grandparents and benefited from their unconditional love. They were there when needed and could be trusted to keep my secrets. My grandfather had a sweet stall at Leeds Market. As a teenager I worked alongside him; thanks to him, I learned how to deal with people. He was unfailingly friendly to everyone; several years after he died, a Leeds judge who attended his synagogue wrote to tell me how much he had liked and admired him. My grandfather made his boiled sweets in a little factory. Life in that factory and on that market stall was very tough, and the cold weather undoubtedly shortened my grandmother’s life. She suffered from pleurisy and died aged 61, when I was very young.

My other grandmother was my best friend. She came from a different background: when she was young she used to “take the waters” at Harrogate with her grandmother. Well-educated, she was one of the first women journalists in Leeds. During the war she worked in a munitions factory and lost a finger in an accident, but she never mentioned it or complained. My grandmother was a remarkable woman whose life story would make a quite a novel! I used to meet her for lunch once a week in Leeds; she always wore a silk scarf with great elegance.

It is difficult to imagine my childhood and my early adulthood without my beloved grandparents at my side. On my dressing table I keep a treasured photograph of them, taken when I graduated from Leeds University.

It is a sad fact that in some cases, relationships with grandchildren can be fractured or faded by divorce. In a worst case scenario, grandparents may seek contact orders through the courts; it is preferable, however, to resolve issues amicably. Continue reading »