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

Over the festive period I gave you a

We had a number of fantastic entries and I’d like to thank you all for taking the time to submit your thoughts. As the issues surrounding the case were very much related to children law, the Head of our Children’s Department, Stephen Hopwood, will explore the scenario and announce a winner.

It is also worth noting that a Government announcement made today concerning the rights of divorced parents to see their children would have a significant bearing on a case of this kind in the future– a move that contrasts with proposals contained in the Family Justice Review  – but which I suggested should be done.

Although this is a fictional scenario, our children department at Stowe Family Law see cases with such difficult and complex issues each and every day. It can be easy to lose sight of how the children of the family are being affected when the parents have strong feelings against each other. It is our job to ensure that, whatever happens, the children’s best interests are at the forefront of everyone’s minds. It is vitally important to ensure that the children have proper parenting time with both parents. The advice of children lawyers must always bear this in mind and keep their client focused on this and not adult issues.

There was one answer that recognised this more than others: Carol Wright’s. Her response was family focused and accords very well with children legislation and the prevailing thinking about parenting. It also avoided the trap of allowing adult issues to impinge. Significantly, she spots that the situation is deteriorating fast and needs stabilising before there can be any improvement.

Carol considered that “the major issues will mean some serious compromise and good honest communication”. This is extremely important and in this situation we would seek to help the parties communicate for the sake of their children, despite how deeply they may feel they’ve been wronged. However, sometimes this can be the most difficult hurdle to overcome and therefore other third party professionals have to become involved such as therapists, mediators and counsellors. Ultimately, if the parents cannot make decisions for their children then a Court will, and its decision may not always be what either parent will want to hear.

It is indeed wrong to place children in a situation where either one of the parents is relying on the children emotionally, or even sometimes physically, if they do not realise they are doing it. This can cause emotional harm to the children and this must be avoided at all costs. The children need to rely upon their parents for support through a difficult and confusing time in their lives. They need to know that they are still going to have a secure home and upbringing. This is imperative when exercising parental responsibility.

There were hints within the scenario that perhaps the mother was trying to move away from the area to start a new life away from her estranged husband. This would be a valid reason if the circumstances of the marriage involved a fear of safety. In this scenario it could well be interpreted that the mother wants to move to punish the father. I believe Carol noted this when she said that: “The boys need to repair their relationship with their father or at least start to build bridges and ripping them away from all things familiar will not solve these issues”. Also, in order to help rebuild relationships between parents and children there has to be parenting time for both.

With regards to the new girlfriend, I agree with Carol that the father should not have introduced the children to her before the end of the marriage or at least until these confusing issues were resolved for the children. However, if Naomi does become a big part of the father’s life then the children will be introduced to her at some point in the future. But this has to be when the children are ready.

The children are going to be very upset about their parents separating and in order to do what is correct for them, the starting point has to be both parents taking time to provide reassurance. As Carol stated: “Above all the boys must be reassured that they are loved by both their parents, that the breakup is not their fault and things will be ok again.” Doing so will help them to deal with the separation and divorce in their own way.

Once again thank you to all who entered and Carol – we’ll be in touch to deliver your prize of chocolates and a bottle of champagne. 

Stephen Hopwood is a child law specialist and Head of the Children’s Department at Stowe Family Law. He has been involved in aspects of child law for over ten years and has particularly advanced the concept and practice of joint residence. He has also been involved with cases with complex foreign elements, and specialises in cases that have become “bogged down” or “written off”.

Sir Nicholas Wall said:

“Allegations of sexual abuse were first made by the mother and not by X [the child]… X was coached by the mother to make allegations of sexual abuse against the father.”

He explained his decision to sit in open court as follows:

“The father is entitled to tell the world, and the world is entitled to know, that he is not a paedophile, that he has not sexually abused his daughter and that the allegations made against him are false.”

Now the father has been publicly exonerated in national news reports. The damage done to him has been corrected, although I expect that there will always be some people who believe him guilty. That is the way of the world. The child now lives with him, and Vicky Haigh may make no applications to the court about the child for two years. She is living in Ireland, having given birth to a second child there to evade concerned social workers.

Vicky Haigh’s sexual abuse allegations were examined and rejected by two judges at previous High Court hearings, which took place in private. However the allegations were also repeated elsewhere. Yesterday Sir Nicholas Wall sentenced Elizabeth Watson, a private investigator engaged by Vicky Haigh, to nine months’ imprisonment for contempt of court.

Sir Nicholas Wall said that Vicky Haigh had been “wholly unable to accept the court’s verdict and, with the misguided assistance of Elizabeth Watson has unlawfully and in breach of court orders put into the public domain via e-mail and the internet a series of unwarranted and scandalous allegations about the father and others”.

The Court could not have come out more strongly against Vicky Haigh and her supporters. There will still be those who side with her. As for me: based on what I have read in the newspapers today, I find this to be one of the most repugnant cases I have ever come across.

I am sorry to say that it is not the only case of women behaving badly that I have encountered. Over the years I have, on occasion, come across other women who are prepared to stoop this low. There is, perhaps, a taboo about discussing women who behave badly. But during a family breakdown both sexes can behave towards each other with conduct so bad, it beggars belief. So in this post, which I understand is likely to prove contentious, let’s look at how women can behave. Fortunately such cases, in common with those of men who stoop similarly low, are rare.

Sometimes, I have found myself acting for a less sinister version of the mother whose conduct was laid bare in the High Court yesterday. At our first meeting she will tell me, in graphic detail, about her suffering at the hands of her monster of a husband. She and the children are at his mercy. She will be intelligent and persuasive. However as the case goes on, and the excuses for not settling come thicker and faster, it becomes apparent that far from being the victim, she is in fact in complete and utter control of the family’s situation. For example, she will do all she can to ensure that the father never sees his children at all. She will make arrangements for all their free time. She will have ready excuses for why he can’t have the children for contact when he comes to collect them. She will always blame him for this state of affairs, ultimately because of what he has done to her. It will never, ever be her responsibility. Perhaps she makes him jump through hoops of fire because he has left her, and this is “payback time”. Perhaps she feels that she hasn’t had enough money from him, so he must pay.

In such cases, there is little doubt that once I twig what is really going on, and the extent of her determination to stop him seeing his children becomes clear, she will likely part company with our firm. We cannot continue to act for a client who is playing out a charade for revenge, who lacks insight, and who has no comprehension or concern of what she is denying her own children: the right to a relationship with their father.

Such people portray themselves as victims, their partners as predators when nothing could be further from the truth. The perceived wrongdoings in a relationship should have as little impact upon the children as possible, but every effort we may make to resolve the situation falls on stony ground. This particular client has no intention of settling with the father, none at all. The intention is to completely alienate the children from the other parent.

(Don’t overlook the fact that even if we don’t see eye to eye with a client, another firm of lawyers will. An individual will have his or her own version of what is happening, and everybody has the right to have a case heard by the court – which is as it should be.)

I have also acted in two cases of a type rarer still, for innocent fathers who never faltered in their accounts of what had happened. In one case, the mother made an allegation of paedophilia -whereas it was the mother herself who was the paedophile. She had lost control of herself and, emboldened by all the steps the court and social services were taking to protect the children from the father – removing him from his home and allowing him the strictest possible supervised contact – she sexually assaulted one baby on a day when the father could conclusively prove that he’d had no contact with the child. The children were ultimately removed from the mother by social services, and placed with their father.

In another case, the father had to move out of his home following allegations of violence, which he disputed. There followed an arduous battle for contact with his children. Ultimately the father was successful, but the struggle wore him to a frazzle. It was a lengthy case, and our firm ended up doing the last part of it pro bono. The mother made all the nastiest allegations that she could, did all she could to avoid giving him any contact, then permitted only the most limited contact. She almost got away with it, hoping he would give up – but with our support, he did not.

There are, I am very sorry to say, those who are so driven by a desire to punish their former partners that they will do anything to hit back. Anything at all.

The problem is that it is much easier to believe these types of allegations, because in certain cases, they are true. There are fathers who do abuse their children. And because the allegations can be true, we think they must be true. We desperately want to protect the innocent children who are at risk.

And these accusers know it. So do the courts and social services, who need no reminding of obligations that can make front-page news. They have to make decisions in cases where the “facts” may not exist at all or can be swept away, if examined with greater care. But how many courts and local authorities have all the resources to do this? They struggle to do their best. And they are not helped by these types of cases.

Such cases remind me of the circumstances I came across when I became involved with Sally Clark’s case. Sally Clark finally walked free from court on her second appeal against convictions for murder of her two babies, three years after her original conviction. Because two babies died in her care, it was argued, they must have been murdered. And she must have done it. The jury and even the Court of Appeal agreed. Only after the most careful digging, to unearth what had really happened, did the truth come out.

And that’s the problem. When serious allegations are made against an innocent man, the tendency is to believe that “there is no smoke without fire”. His back is up against the wall. He can have the entire system ranged against him, as two of my clients did.

Thankfully in the Vicky Haigh case (and in my clients’ cases too), justice has ultimately been done. A wicked vendetta and a misguided campaign have been caught and stopped.

The price that may ultimately be paid, if social services and the courts relax their vigilance and get it wrong, is by a child or another parent. And how easy it is, to get it wrong.

UPDATE 05/09/2011: The judgments have been published in relation to Ms Haigh and Ms Watson. After applying to purge her contempt, Ms Watson has now been released from prison. Instead, a  two-year suspended sentence has been imposed by the court.

Doncaster Metropolitan Borough Council v Watson [2011] EWHC B15 (Fam) (22 August 2011)

and

Doncaster Metropolitan Borough Council v Haigh [2011] EWHC B16 (Fam) (29 August 2011)

Image credit: Toulouse-Lautrec.

K v K

The case of K v K (children) (removal from jurisdiction) [2011] EWCA Civ 793 concerned a Canadian mother and a Polish father, both of whom lived in the UK. The couple had two daughters and shared residence.

The mother wished to return to Canada following the breakdown of the marriage, as she felt isolated and stressed  but on appeal, the father successfully overturned an order permitting the mother to relocate to Canada with their two children.

Lord Justice Thorpe stated that in K v K the case of Payne v Payne was not the correct test to apply when parents share the care of the children equally. He stated that a later case called Re Y (leave to remove from jurisdiction) [2004] 2 FLR 330 should be applied:

Since the judgment of Hedley J in Re Y there is clear authority that the Payne v Payne line is not to be applied in cases where the applicant shares the care of the children more or less equally with the respondent.

In K v K, the girls spent five nights with their father and nine nights with their mother every fortnight. However the father was released from work on Fridays and Mondays, so he had six consecutive days with them. The mother did not work on Wednesdays, so on that day and at weekends she was with the girls. The remainder of the time the girls spent with their nanny.

Although the mother spent more nights with the girls, they actually had more daylight hours with the father. Therefore there was “not only a shared residence order but also an arrangement for the sharing of care under which the father’s part is not inferior to the mother’s”.

Re Y

In the 2004 case of Re Y, the mother was American and the father was English. They had one child together. The family settled in Wales but, following the breakdown of the marriage, the mother felt increasingly isolated there and wanted to return with the child to America and be with her family.

In an informal arrangement, the child spent four nights a week with the mother and three nights a week with the father. The child’s home was equally with both parents and Mr Justice Hedley stated:

In those circumstances … many of the factors to which the court drew attention in Payne v Payne whilst relevant carry less weight than otherwise they commonly do.

Mr Justice Hedley adjourned the case into open court for various reasons, one of which was as follows:

This type of case of transnational marriage is and will continue to become increasingly common, and it seems to me that there should be public awareness of and discussion about the intractable problems that it can raise and the sad consequences it can ensue.

In Re Y, the mother’s application to remove the child was refused, and a shared residence order was made.

Another look at Payne v Payne

As discussed in my previous external relocation post, Payne v Payne evolved from another case, Poel v Poel, which was decided in the 1970s when custody was awarded jointly to both parents only in exceptional circumstances.

In K v K Lord Justice Thorpe had this to say about the two older cases:

The survival of Poel into this century, in my judgment depends crucially upon the primacy of the applicant’s care…Payne does not anywhere consider what should be the court’s approach to an application where there is no primary carer…Despite a considerable degree of criticism, the decision in Payne has been consistently applied over the last decade in cases in which the applicant is a primary carer.

Lord Justice Thorpe agreed with Mr Justice Hedley’s observation in Re Y, in that it is not the label of “shared residence” that is important, but the practical arrangements that are in place for “sharing the burden of care between two equally committed carers”.

He went on:

Where each is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v Payne should not be utilised. The judge should rather exercise his discretion and grant or refuse by applying the statutory checklist in section 1(3) of the Children Act 1989.

Payne v Payne has been heavily criticised – not least by readers of this blog! – but it is apparent that when the care of the child is shared equally by both parents, Payne is not the correct approach to take. The fact that Lord Justice Thorpe was involved in both cases – Payne v Payne as well as K v K – provides a useful insight. He is clear that when care is shared equally by both parents, Payne v Payne should not be applied.

As ever, it is important to remember that in all cases involving children, the child’s welfare is of paramount consideration. In K v K, Lord Justice Moore-Bick stated that the only principle of law from which no departure is permitted is that the welfare of the child is paramount; everything else is guidance. Also in K v K, Lady Justice Black stated:

The only authentic principle that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with the view to measuring its impact on the child.”

Mr Justice Hedley made a similar finding in Re Y:

When everything has been said, done and considered the ultimate test remains the welfare of the child, which in the last analysis overbears all other considerations, however powerful and reasonable they may be.

Some thoughts

It is becoming more common for people from different countries to marry and unfortunately couples do not always “live happily ever after” together. However when there are children involved it is important to put their welfare first.

When one parent wishes to relocate to a different country there will never be a perfect solution. Whatever the outcome, one parent will more than likely feel that the wrong decision has been made. I think that Mr Justice Hedley summed it up very well when he said that in a case such as Re Y, putting the child’s welfare first inevitably means that one parent will be dealt “a crushing disappointment”.

However this is not a complete move away from Payne v Payne. It is important to point out that it seems that it is only departed from when the care of the children is shared more or less equally between the parents. The recent case of H (Children) [2011] EWCA Civ 529 did not allow the father’s appeal against the decision to allow the mother to relocate to Canada with the children. However in that case, the mother was the primary carer of the children rather than the care being shared equally.

In cases where the care is shared more or less equally, it seems that the court is following the decision in Re Y. In the recent case of C v D [2011] EWHC 335 (Fam) the mother made an application to move to America with the children, which the father opposed. The mother was not granted permission, based on the fact that the parents shared the care of the children; the regime they had worked well and was in the children’s best interests. They cared for them on a 20/10 split throughout the month (dividing term time so that 20 days were spent with the mother and 10 with the father), but the father made an application that the time be split equally between them. This application was refused as the court felt that the regime in place was in the children’s best interests.

As understandably difficult as it is for a parent who has had an application to remove a child refused, I agree that a child should not be taken to another country when their care is shared equally by both parents. One parent’s unhappiness, as a result of remaining in a country they no longer want to be in, may have some form of negative effect on the child. But what would the impact on that child be, if he or she went from seeing a parent every week for a significant amount of time, to only seeing them a handful of times a year?

Yes, children who are relocated overseas can still talk to their parents on the telephone and use video calling so that they can see each other, but even this is not without its difficulties when the child moves to a country with a big time difference. In my view, it is entirely appropriate that a different test is applied when dealing with cases in which the parents share the care equally, compared to those in which the non-resident parent has contact once or twice a fortnight.

Laura Guillon is a trainee solicitor at Stowe Family Law. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.

Would legislation for shared parenting time help children?

This question is asked in the latest study published by the Department of Social Policy and Intervention at the University of Oxford.Its authors focus upon research in Australia, where changes to encourage shared care parenting were made in 2006.

Shared parenting arrangements, in which childcare is split 50:50 between parents, have become more popular in England and Wales in recent years. Even so, just three per cent of separated parents share the care of their children equally. Fathers’ groups have called for legislation to promote shared parenting in cases that go before the family courts.

However the University of Oxford’s researchers conclude that there is a need for caution. They highlight difficulties in Australia, suggesting that a presumption of shared parenting is not always in the child’s best interest, when the stress and burden of moving from one house to another outweigh the benefits.

There is strong evidence that “high ongoing post-separation conflict is damaging for children”, and “growing evidence that shared time arrangements involving ongoing high levels of parental conflict are more damaging than other parenting arrangements with entrenched high conflict”. A recent Australian study has indicated greater difficulties in attention, concentration and task completion for children in this group.

Another Australian study, quoted in the University of Oxford paper, has found that:

“Regardless of socio-economic background, parenting or inter-parental cooperation, shared overnight care of children under four years of age had an independent and deleterious impact.”

The Oxford researchers point out that, ironically, legislation promoting shared time is most likely to be directly applied where shared time is least likely to be beneficial for children.

In my experience, most parents are eventually able to reach an agreement between themselves, or with the assistance of a good mediator. Some cases do end up in the courtroom,however, and it is those cases where legislation is used to determine the arrangements. When parents end up in court, there is likely to be a high level of conflict between them, and it may be difficult for a shared care arrangement to work in practice.

This said, there are acknowledged flaws with the current system in England and Wales. These include the court backlog and the length of the court process. These can sometimes prevent a parent from seeing their child for weeks, if not months, through no fault of their own.

When a relationship ends and the parties have children, parents have the added stress and anxiety of dealing with arrangements for their children. They need to agree arrangementsfor contact,which allow both parents to play a full part in the child’s life. In some of the saddest cases, parents may use their child as a weapon to try and hurt the other parent, by not allowing that parent to see the child. This is often in the initial stages of separation,when emotions are running high and the parent is struggling to come to terms with the end of the relationship. They cannot, at that time, see the impact that their behaviour has on the child.

Although there are exceptions when a child may be at risk of significant harm from the other parent, in most cases it is wrong to prevent a parent and child from having contact. However I am not convinced that the solution is for the legislation in the mould of the Australian model, where the “presumption” or starting point is shared care parenting, with the child spending an equal amount of time with each parent.

Shared care arrangements on a 50:50 basis often mean that a child has to move between two residences, usually splitting the school week in half.  For such an arrangement to work successfully, the parents need to co-operate and communicate with each other. For this reason, such an arrangement is most likely to be successful where the arrangement is agreed between the parties without the intervention of the court. It will only work if the parents are child-focused and co-operative.

Although I believe that it is important for a child to spend time with both parents, I would argue that it is the quality of the time that is important, not the quantity. Under the Children Act 1989, the welfare of the child is the court’s paramount consideration when dealing with arrangements for residence and contact. The court is guided by the child’s welfare, rather than a presumption of the parent’s entitlement. It is my view that any legislation should be child-focused, not parent-focused.

Two Private Members’ Bills are currently before Parliament, tabled by Brian Binley MP in July 2010 and Charlie Elphicke MP in March 2011. Mr Elphicke’s Bill requires courts to operate under the presumption that the rights of a child include the right to grow up having contact with both parents. The purpose of Mr Binley’s Bill is to create a legal presumption that shared parenting orders enhance a child’s welfare, unless certain exceptions apply.

I agree that it is important for a child to spend time with both parents,who should consult one another about all major decisions in a child’s life. But isn’t this already provided for under the Children Act 1989, with both parents having “parental responsibility”?  Both parents should be present at parents’ evening, school plays and so on. They should both be able to spend quality time with their child.

My concern is that if a child is ordered to spend an equal amount of time with each parent, irrespective of the circumstances in most cases, that is not “shared parenting”at its best. Rather, it is treating the child as a possession and dividing him or her in two.

Mr Binley’s Bill is to have its second reading in House of Commons on 17 June 2011, and I shall be interested to see if the University of Oxford’s study provides Parliament with any food for thought.

Kelly Briggs is a solicitor at Stowe Family Law’s Hale office. A Resolution Accredited Specialist in Advanced Financial Provision and Domestic Abuse, she specialises in all areas of family law including divorce and resolution of financial issues. Kelly has experience of high net worth cases and also deals with issues involving children, including contact and residence disputes.

For example, what if parents reach a private agreement for child maintenance in the context of an overall financial settlement, which is likely better than that which the CSA would award to the receiving parent? Recently a client of mine was startled to discover that even though a generous private agreement had been proposed by the other party, it would be invalidated after 12 months if that party decided to apply to the CSA in a bid to reduce child maintenance payments.

If you have children and are going through divorce or considering it, I recommend that you acquaint yourself with the following rules:

1.            When a court order has been made before 5 April 1993: the court retains jurisdiction. The CSA will only have jurisdiction if the parent with care claims income support.

2.            When a court order has been made between 5 April 1993 and 6 April 2002: the court retains jurisdiction unless the parent with care claims income support, or the court discharges the order.

3.            When a court order has been made after 6 April 2002: the court has jurisdiction for agreements reached between the parties. Once the order has been in place for more than 12 months, however, either party can apply to the CSA after giving two months’ notice to the other party. The CSA will then take over and assess child maintenance. The parts of the court order relating to child maintenance “fall away” and will never be reinstated, even if those parts of the court order had provided for child maintenance beyond the CSA statutory provision.

4.            When there is no court order: in those circumstances, there would be no Court jurisdiction unless the parties agree or the CSA does not have jurisdiction, for example step parents. The CSA has jurisdiction.

As an example of the third and largest category, let’s take a couple who, upon divorce, settle their financial arrangements. The parent with care secures capital, pension, income or agrees to a clean break on favourable child maintenance terms (in excess of the CSA formula, perhaps, or ignoring any overnight staying contact for the purposes of deduction of child maintenance). All is well.

Twelve months later, the parent who pays child maintenance applies to the CSA to undertake an assessment. To the horror of the parent with care, the child maintenance payments are reduced. All the good intentions and the work done to achieve the global settlement are completely undone.

Can the parent with care do anything to prevent this from happening?

Any agreement that seeks to exclude a parent’s rights to apply to the CSA is void. However, as my client was delighted to discover, there is an often overlooked way for those looking to create an arrangement to minimise the impact of the CSA…

A solution in contract

The parties can “protect” themselves from the CSA if they set up payments by means of a contractual agreement. To put such an arrangement in place will usually require all of the following:

1.            A recital in the preamble of the order setting out the party’s intention

2.            Provision for child maintenance in the order itself

3.            A separate child maintenance agreement (“the contract”) setting out the obligation to pay.

The contract is designed to create a “compensatory debt”, to equal any advantage secured by either party on application to the CSA.

The contract can also be used to provide for a minimum child maintenance payment (for example if a substantial lump sum has been paid instead, or in situations where one party is concerned that the work or income of the payer is likely to be reduced or purposely depressed).

It’s flexible

With a contractual agreement, parties can reach child maintenance agreements, safe in the knowledge that they have contractual claims against their former spouse if the CSA becomes involved and assessment of maintenance falls below the original agreement.

It’s enforceable

If necessary, the same remedies are available as for breach of contract, including damages, judgment summons and potentially even bankruptcy.

In one case in which I was recently involved, we went one better. We secured provision in the order so that if the payer defaults, the final order can then be set aside in full, thereby reopening the receiving party’s matrimonial claims in their entirety.

If you are struggling with the conflicting and often contradictory jurisdictions of the court and the Child Support Agency, and you want to make provision to minimise the impact and uncertainty of the CSA, I suggest that you consider a contractual solution. It won’t work for everyone – but it may work for you.

James Thornton is a lawyer mediator at Stowe Family Law Settlements and a partner at Stowe Family Law’s Harrogate office. With 15 years’ experience, James’ specialisms include dealing with the financial issues arising from divorce, particularly when substantial personal, business or pension assets are involved. His expertise also extends to cases involving children. A former member of the Law Society’s Family Panel, James is an Accredited Specialist member of lawyers’ organisation Resolution, sits on the North and West Yorkshire Resolution committee and is a member of the West Yorkshire Family Justice Council.

A blog in which our team of top-name lawyers will give regular comment on the news and developments – from criminal to family, commercial to human rights.

The lineup includes:

• Shami Chakrabarti, Director of Liberty
• Judge Stephen Gerlis, District Judge at Barnet County Court
• Stephen Parkinson, head of criminal and regulatory law at Kingsley Napley
• Mark Stephens, media, IP and human rights partner at FSI
• Tony Williams, legal management expert at Jomati Consultants

I am delighted to have been asked to provide the family law commentary.

The Law section on The Times’ website contains a wealth of legal news and information – far more than appears in the newspaper – and has established itself as a useful resource for lawyers, students and clients alike. For the benefit of those who do not subscribe, however, my Times posts will also be published on this blog. My latest contribution to The Experts is below.

Browse expat forums, and you will discover that there are many “stuck parents”. It is sad to read that so many people now feel that they are “trapped” in a country where they do not wish to live. The alternative – moving back to the UK and leaving a child or children behind – is unthinkable for most parents. As a result, a parent can be left to grapple with life in a strange country, with no family to support them other than their former partner. The parent is left feeling lonely and isolated, which can in turn have a detrimental effect on the child.

When the court denies an application to leave, this is usually because the court believes that it would not be in the child’s best interest to relocate. The child’s welfare is of paramount consideration. However it seems nonsensical to think that it is in the child’s best interest to force a parent to leave the child behind or stay in a country to which the parent has no real attachment.

A note on emigration

When a couple decides to emigrate from the UK, little thought is given to what will happen if the relationship breaks down while they are living in another country. Many parents think that if their children were born in the UK that they will simply be able to return with them from Australia, New Zealand, USA and so on, but this is simply not the case. Sadly, a lot of parents find this out the hard way.

Many parents have new wills drafted before they emigrate, to state what will happen to the children if the parents die while the family is living in another country. So why do so few parents ask a family lawyer to draft an agreement about what should happen to the children if they split up? It is advisable to have, at the very least, a discussion about will would happen to the children in the event that the parents split up and one parent wants to return to the UK.

Obtaining the court’s permission

If a relationship breaks down and one parent wishes to return to the UK, that parent needs to have the other parent’s consent to take the child with them. If they do not have consent, they need the foreign court’s permission.

Obtaining the court’s permission is often a long and expensive process, with much emotional turmoil. Some parents spend tens of thousands of pounds in legal fees, fighting to be allowed to take children back to the UK with them. Having an agreement in place could, at the very least, minimise some of this. The parent who wishes to stay could still try and fight it, but if there was an agreement in place the relocating parent could have a stronger case.

The Hague Convention on Child Abduction

Many parents are tempted to return to the UK and “see what happens”. I can understand why parents might want to do this, but it is not a good idea. If the country from which the child has been removed is signed up to the Hague Convention, the parent left behind can make an application for the child to be returned.

Many of the countries to which Britons emigrate to are signed up to the Hague Convention, and a full list can be found here.

In these circumstances, the parent who has taken the child back to the UK will be treated as having abducted their child, because they have removed the child from the country in which the child is habitually resident. If a return is ordered though, it does not necessarily mean that the court is saying it is in the child’s best interest to live in that country. It means that the foreign country’s court has jurisdiction, and that the parent must secure permission to relocate from that court.

Under the Hague Convention, there are certain instances when the court does not need to order that the child is returned. These are as follows:

• If more than one year has passed since the child was removed from the country of habitual residence, and the child is settled in his or her new environment.
• If the other parent consented to the relocation or the court granted permission beforehand or afterwards.
• If “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
• If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”.

Should a parent be faced with a Solomonic choice?

Certain countries are notoriously hard to relocate from. Take the recent case of B v K [2010] NZCA 96. The court decided that the mother could not relocate from New Zealand to Australia because, due to the length of the litigation, shared parenting had been put in place and appeared to be working. The “risks associated with parental conflict or the risk that the mother might become isolated to the extent that it affects her ability to be a good parent” were not sufficient to justify what had become a “good working solution for the children”.

My thoughts on this are that if the mother becomes so isolated and unhappy that it affects her ability to be a good parent, the court’s decision would not be in the children’s best interests.

In the UK, the rules regarding relocation take into account the effect that not allowing the move will have on the parent, and the subsequent effect that upon the child’s wellbeing. To me, this is much more logical than simply ignoring the parent’s state of mind. If a parent is isolated, unhappy and has no support system in terms of family, the parent’s distress is likely to have an adverse effect on the child. Surely it cannot be in the child’s best interest if, in these circumstances, the court forbids the child and parent from returning to the UK.

The reader who contacted this blog and shared her story told of the Solomonic choice that she was forced to make:

In this country, the parent who wishes to relocate is first asked by the judge and also the court psychologist whether he/she will stay with the child if denied relocation, even when the reasons for wanting to return are good. An answer of “no” is often taken to be proof of a lack of care for the child, resulting in the child being handed over to the non-relocating parent.

This seems wholly unfair. The parent is faced with the terrible choice of being stuck in a country where they are unhappy, or returning to the UK without their child. It could also be argued that if the parent answered “yes” to this question, the court could infer that it would not be so terrible if they denied the parent permission to relocate. This puts the parent in a terrible position, pitched against a system against which they may feel that they cannot win.

The American case of re Marriage of Burgess (1996) 13 Cal.4th 25, which concerns the relocation of children, states that neither parent “should be confronted with Solomonic choices over custody of minor children”, and this is entirely correct in my view.

Coming next: what rules are applied to cases in which one parent wishes to move, with the child, to another country?

Laura Guillon is a trainee solicitor at Stowe Family Law. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.

On the blog this week, we are going to look at the fraught subject of relocation in more detail. We will be examining external relocation (leave to remove from England and Wales) and internal relocation (within England and Wales). When one parent wishes to move away with the children, there are no easy answers. In different countries, different rules and priorities apply. Compare this reader’s experience with that of a father in a case recently heard by the Court of Appeal. It is often impossible to reach a solution that satisfies all parties.

“I’m a stuck mum”

I am, I believe, one of a great number of women who have been trapped by family court decisions. My relationship with an overseas national fell apart, and now I live in a remote area of the world (let’s call it “Faraway Land”) where I have no family or support system.

I have two children from a previous marriage, who have always lived with me.  I met a new partner, a native of Faraway Land, and we had a baby. My partner informed me that in his home country, life was safer, healthier and more family-friendly. He also persuaded me that if we moved there, it would be to our financial advantage.

In retrospect, the relationship already had a few cracks in it. I also believe that he may have wanted to improve his prospects of winning custody of his own child, a toddler at the time, by being able to draw upon his own legal and financial system, which he knew well.

We moved to Faraway Land, to a rural area, and for a couple of years we shuttled the older two children back and forth between their biological father and their new stepfamily. However we soon ran into debt as it was simply not an affordable scheme. The cost of living was much higher than at home. My older children and I found it difficult to settle in, and my relationship with my partner deteriorated. It was a clear flop. We just wanted to go home.

My partner dug his heels in. He refused to take any actions to sell up and return, then informed me that Faraway Land had jurisdiction because our child had lived there nominally longer than in the child’s country of birth. He demanded that the arrangement continue as it was. I tried to find local accommodation, but ended up in a women’s refuge, having left him the house and car so that he could find a job.

I consulted a few lawyers, one of whom told me that despite the circumstances, I had a four per cent chance of being permitted to relocate. This was due to my older children being of an age to make a decision, and the youngest too young to do so. In this country, the parent who wishes to relocate is first asked by the judge and also the court psychologist whether he/she will stay with the child if denied relocation, even when the reasons for wanting to return are good. An answer of “no” is often taken to be proof of a lack of care for the child, resulting in the child being handed over to the non-relocating parent.

The lawyer who took my case was not the one I should have picked, as he never had much time and he was not clear in his communication with me, but he was recommended by someone I liked and trusted and all the other lawyers in town were busy.

I was panicking at this point. None of us wanted to live here, but seemingly we would be forced to do so anyway. The ladies at the women’s refuge told me to “do a runner”,  so that I would at least have a few years left to enjoy my children’s youth before I was dragged back to Faraway Land by the Hague [Convention]. I thought this would be illegal and decided to play with a straight bat, as my lawyer recommended.  I encouraged my child’s relationship with his father and tried to keep things as civil as possible despite our pain and panic. Ultimately my good behaviour didn’t matter in court, but I know women who did do runners and who were pulled back to Faraway Land by the Hague [Convention].

It took almost three years just to obtain a decision, such was the bureaucracy.  My child’s father’s lawyer regurgitated all manner of concocted and irrelevant assertions, in an effort to cast aspersions on my parenting. No evidence of anything was offered.  Only accusations and mud.  All my evidence remained in stacks and files in my lawyer’s office, never introduced either in affidavits or in court.

The half-siblings did not matter to the court.  I was blamed for the financial problems, for being “disorganised in my finances”. This, despite the fact that I had managed my own business at home for 30 years without a hitch. Their dislike of living here and their stepfather’s treatment of them were dismissed as no longer relevant.  So while the mother (myself) and other children did not want to stay in Faraway Land, the father played his home advantage. I was denied leave to remove my youngest child. I found I could not convey the tragedy and causality of our situation in court.  I was of the impression that they wanted to rush the case through because of their backlog and the amount of time it had already dragged on.

My child’s father made a big deal out of my son’s grandparents being very available to him, one of the benefits of our child staying in Faraway Land. Yet he barely saw them at all, and rarely mentions them.  They have since moved out of the area.

The proceeding felt like an anti-relocation farce to me. This didn’t seem to be about “families” at all – it was a simple belief that all one child needs in order to be happy is the isolation of two parents in a status quo situation.  It is a very simplistic formula, being applied to one complex case after another, just to move them through an inefficient court system.

My child’s father won shared parenting, and we don’t know when we will be able to go home. Ever? Soon? Next year? When my youngest child turns 16 and the others are all grown up? This process itself is abusive of families. We can’t make any longer-term decisions about any of our lives while pinned down to a place where no one actually wants to be, and the provisional misery being generated cannot be good for this child.  The courts are pinning us down like butterflies on corkboards and saying, “this is how we will create stability for this child”.

I have struggled with the debt left by the marriage, the loneliness and the high cost of living. The recession is awful here, and citizens of Faraway Land have been fleeing to healthier economies. We don’t even have the freedom they have to do this! One of my older children lives with his biological father in our home country, and homesickness is the overweening flavour of our household.  This is not good for anyone, including my youngest child who is the object of the case.

I have held it together, working like a maniac to stay afloat. I co-parent, am pulling myself out of debt, studying, caring for my children.  But genuine emotional cracks started to develop after the court permitted us to return home for a visit.  This visit was made after years of being prevented from leaving Faraway Land. Home was everything I remembered it to be. Family, friends, natural beauty, emotional warmth, comfort, ease, stimulating activities, inexpensive living… It was glorious. My youngest child loved it there as well, and he has uncles, an older brother, similarly-aged cousins to play with and no lack of male role models and relatives, unlike here.  We could own our own home and not be bumped from rental to rental.

It was terrible returning to Faraway Land after this visit. Now I am living day to day, unwilling to jeopardise my professional work by going on anti-depressants.  I was told by local doctors that anti-depressants are a “solution” to which many unhappy expats resort, whether they are stuck due to children or some other reason.

I have spoken to so many other women in the same situation. In one case the mother had to “import” her own mother from the UK on a humanitarian visa just to have family nearby, she was in so many bits due to the decision.

My youngest child deserves to experience the culture he was born into, for at least part of his childhood, so he can make an informed decision as a teen about which society he prefers to live in as an adult. His remaining sibling and mother both want to be home. It is all the harder for me to have two other children affected by this case as the years drag and drag. It is not about just the youngest. It is harming my mother, my other kids, other people back home who want to be a part of our life, to help and be helped by us – and cannot because we can’t make any long-term plans!

I perceive that the vision of families in the courts these days is not an organic one, and the judges are not weighing enough factors in making their decisions.  They are focusing on the child-made-happy-with-status-quo-and-two-parents formula and decreeing unnatural, stressful situations to try and bring a dead fairytale to life for that child, whose world has already irrevocably changed with the splitting-up of his parents.

Image credit: Orin Zebest.

For me, Sara’s comment was well-timed, coming as it did after the Law Commission had published its provisional proposals for the legal status of prenuptial agreements. An editorial of mine had just been published in the Yorkshire Post. In it, I concentrated on the emotional impact of prenups. I noted that in my experience, the resulting power imbalance between a couple can serve to increase hostility and resentment. Far from saving a marriage, a prenuptial agreement may be the cause of its irretrievable breakdown.

Although Sara isn’t married, I wonder if her words don’t add weight to this argument:

“There are people like myself, who have been in a 10-year-plus relationship, who have never been married but would very much like to get married. My partner is divorced, has been stung by his ex wife who took everything she “was entitled” to – although she had never worked, lazy and contributed very little, hence why the marriage broke down. He now, even though I have had the same job for last 15 years, pay my way, have a mortgage with him albeit in unbalanced shares, and his proposal was “subject to you taking the same percentage out of the house as you financially contributed” (approx 10%), I can have a car and that’s it.

“I work very hard, I am the driving force behind home, I organise everything and quite frankly, he would be lost without me. We will never be on the same salary – he earns a lot – I earn approx 0.25 of his salary. But do you really think that is fair? I am now 40 years old, being asked to consider children out of wedlock – which yes is possible but not something I am comfortable with in the slightest. Do you also think it is fair that our relationship should be “because we choose it”? No – it is because of what happened to my partner in his divorce and he doesn’t want to have that happen again. Do you think it’s fair that because of his situation, I either can stay as a partner, never have the experience of a marriage ceremony, and God forbid should I sign the document and something goes wrong, I end up having to start all over again whilst he stays in the house, benefits from all my hard work (decoration etc) and I end up working the same hours as I did when I first scraped together the deposit on my first flat, which was sold to put the funds into the house? And if I have a child – I would have that to contend with too?

“Is security of a marriage not a two-way thing? Is it no longer about knowing the person before you marry them? I am 40 as I’ve said, my partner is 47. We have been together for over 10 years, known each other for 12 years and that apparently, holds absolutely no value. What for me would be a fair document in the event of a split (i.e. keep the proportional split in the house but split 50/50 any increase in the value of the house) is apparently not acceptable.

“Quite frankly, am sick to death with it all! I cannot blame my partner – it is the law that stops things being about values and instead about deal breakers before you head down the aisle…….marvellous!”

So let’s summarise Sara’s position, which I would describe as unhappily unmarried. She has been in a relationship with her partner for 12 years. She has actually been cohabiting with him for 10 of those years. When they began living together, they agreed that they would own their house in unequal shares, the same as their respective financial contributions, and that when the house was sold, the net proceeds would be split in those same proportions. They agreed nothing else, because Sara didn’t see the need or perhaps had no choice, because her partner has been divorced. He has had one divorce payout, and he did not wish to be “caught out” again. So this was the only deal to which he would agree and Sara went for it.

Despite the passage of time, all that they have shared and done together, all she has done for him, for them both, his position has not changed. He won’t marry her, even though he would appear to know full well of all her fears about finances as she gets older. He knows that she works hard in the relationship. He knows too of her perception that the contribution she has made deserves greater recognition. But he won’t budge or alter his deal. It’s take it or leave it for him.

Sara, on the other hand, is increasingly anxious. She has become acutely aware that her own contribution to the relationship has been completely undervalued. His former wife did far better and never worked, although she presumably made her own contributions. His former wife had needs, which the court recognised. Such is the value of marriage in current law.

Decision time

There is little that Sara can do about her own situation which, probably correctly, she assesses as more financially valuable than that of her partner’s former wife. But once bitten, he won’t even agree a prenup. He won’t change his mind.  Why should he?

As far as she can make out, in law she can only be pinned into place by the equivalent of a watertight prenup, which her partner holds in the palm of his hand. Worse still, from what I can gather, it appears to be only on that basis that he would have a child with her. She has given and given. Now she is finding out that he intends to stick to this quasi agreement.  She is being held to her bargain.

The decision is now hers. Does she stay or does she go? Clearly, she has no chance of convincing her partner to marry. If he won’t even give a child of his the stability, comfort and security of marriage, what will convince him?

Sara blames his former wife and our current divorce law for her predicament. But I don’t. The decision was his, is his and remains his. He could alter his position at will, but he won’t.

So what does Sara do?

The Law Commission is proposing that clauses in prenups would be overturned if they made insufficient provision for children. So if Sara did marry and was held to a prenup under the terms described above, she could legally obtain provision for her child. This would be exactly as the court ordered for Mr Granatino’s children, even though they dismissed his own claims and held him to his prenuptial agreement, unfair as that prenup appeared to be.

But Sara isn’t married. Can the law help her?

One option, of course, is that she could simply walk away. Perhaps she would rather live alone than be part of an unequal relationship that causes her such distress. She could take it on the chin, cut her losses and start again. He might even miss her, recognise he loves her… and who knows? Anything is possible when emotions are involved.

If he remains immovable, should she willingly bring a child into the relationship? That is a difficult question, and is one for Sara to answer.

But if Sara did decide to bite the bullet and have a child, her situation in law would dramatically change if her relationship with her partner broke down. Ironic, isn’t it? She would be able to make financial claims against him – and he would not be able to contract out of them. A Carer’s Allowance, payable to Sara during her child’s minority, would be calculated in a similar way to spousal maintenance, plus housing, lump sum and income claims for the child.

Overall, however, if proof of the appalling impact that a binding prenup can have upon the weaker spouse is required, this is it. And there isn’t even a prenup.