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.

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.

The court’s all important duty to manage family law cases is expressly enshrined in Rule 1.4. The court’s duty arises in order to further the ‘overriding objective’, which as we discussed yesterday enables the court to deal with a case justly, having regard to any welfare issues involved.

It may seem self-evident that the court must manage a case. But some may have experienced going to court, appearing before a judge who may be inexperienced or even downright unpleasant, and coming away with little idea as to what is happening. Their case seems to have made little progress and they may be despairing of ever seeing a resolution. All the while their costs are increasing.

The outcome always largely depends on the skill of the particular judge involved and the time available to the court at that hearing and for future hearings. In that respect there will always be some handicaps, but it doesn’t harm to have some background information that may help you to ensure your case is proactively handled.

What does active case management mean?

Rule 1.4.2 of the Family Procedure Rules states that:

Active case management includes—

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b) identifying at an early stage—

(i) the issues; and

(ii) who should be a party to the proceedings;

(c) deciding promptly—

(i) which issues need full investigation and hearing and which do not; and

(ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

(e) encouraging the parties to use an alternative dispute resolution procedure if the court

considers that appropriate and facilitating the use of such procedure;

(f) helping the parties to settle the whole or part of the case;

(g) fixing timetables or otherwise controlling the progress of the case;

(h) considering whether the likely benefits of taking a particular step justify the cost of

taking it;

(i) dealing with as many aspects of the case as it can on the same occasion;

(j) dealing with the case without the parties needing to attend at court;

(k) making use of technology; and

(l) giving directions to ensure that the case proceeds quickly and efficiently.

Given that all these duties are incumbent on the court, fast forward to Rule 4 (P35) and “General Case Management Powers.” This tells you what powers the court actually has, and you will see they are wide and far reaching.

At 4.1.3, (P36) a list of powers is provided:

(a) extend or shorten the time for compliance with any rule, practice direction or court order

(even if an application for extension is made after the time for compliance has expired);

(b) make such order for disclosure and inspection, including specific disclosure of

documents, as it thinks fit;

(c) adjourn or bring forward a hearing;

(d) require a party or a party’s legal representative to attend the court;

(e) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;

(f) direct that part of any proceedings be dealt with as separate proceedings;

(g) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;

(h) consolidate proceedings;

(i) hear two or more applications on the same occasion;

(j) direct a separate hearing of any issue;

(k) decide the order in which issues are to be heard;

(l) exclude an issue from consideration;

(m) dismiss or give a decision on an application after a decision on a preliminary issue;

(n) direct any party to file and serve an estimate of costs; and

(o) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

Everything you could reasonably want the court to do in proactively managing your case is on that list. And, even if there isn’t an express provision, the final entry on the list is the one to go for. But it is well worth taking all these factors on board, particularly if you believe your case has hit the buffers.

What should you do if your case grinds to a halt?

Let’s take a common example. In a typical finance case all may appear to be going reasonably well up to the First Appointment before the court. Directions for what is to happen next are also agreed at this hearing. The parties usually ask for more information from each other and will argue over the value of a business, property or pensions. So questionnaires then need to be answered, valuations are required and a timetable is needed to make further progress. The parties need to agree the identity of the valuer, a draft letter of instruction to them and so forth.

Then things start to go wrong. There are arguments about which valuer is to be appointed. There are delays in replying to the agreed questionnaires. Then when the valuation arrives, one or both parties aren’t happy with it and want more information from the valuer and perhaps may even want to instruct another. Time passes, costs increase and tempers fray. Sometimes the parties try and agree between themselves that they will extend the timetable. Under Rule 4.5(3) (P38) however, time may not be extended by the parties. Once ordered by the court, the timetable must not be allowed to slip.

But what do you do if it has, or is about to? One thing is for sure, you don’t waste time on useless letters. Make a fast application to the court. Tell the court what the problem is and ask for a swift resolution of it. Of course this isn’t new, and it certainly isn’t rocket science, but in most cases it works. Judges are more than capable of deciding which valuer should be appointed or how much more information is needed (Note, the courts can act at the request of either party or on its own initiative under Rule 4.3 at (P36).

Despite this you find that you are still experiencing problems. How can the court obtain cooperation?

Obtaining cooperation

Apart from striking out the case or an application, the court has the power under Rule 4.5 (P38) to impose sanctions. Most commonly these are Costs Orders.

Although the general rule in financial cases is “no order” (Rule 28.3.5 (P217)), I have raised concerns in the past as to the overall unfairness of a “no costs order” on the poorer party, who may have been forced to litigate. The lack of a costs order means the richer party can use their wealth to financially “outgun” the poorer party and force them to settle, or litigate at great and irrecoverable cost. I have found that in making these orders, courts tend to compensate for this by making larger awards – but it is not the same as a costs order.

Despite the general rule, and given that at Rule 28.1 (P25) it states “The court may at any time make such order as to costs as it thinks just”, that provision coupled with the overriding objective could well mean that more costs orders will now be made.

So, in cases where either party is failing to cooperate by adhering to the orders of the court, pursuing Alternative Dispute Resolution (ADR), making offers to settle or allowing the timetable to slip, the courts have the power to make costs orders – particularly in financial cases. Despite the general rule, I believe they will toughen up and do just that.

Applying for a costs sanction

If you wish to apply for a costs sanction, it states at Rule 28.3.6 (P217) that:

The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them).

Factors to be taken into account at Rule 28.3.7 (P217) include:

(a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;

(b) any open offer to settle made by a party;

(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(d) the manner in which a party has pursued or responded to the application or a particular allegation or issue;

(e) any other aspect of a party’s conduct in relation to proceedings which the court considers relevant; and

(f) the financial effect on the parties of any costs order.

These are very important, well worth noting and should be used on the appropriate occasion.

Other powers of the court

Other powers of the court are far reaching. Rule 20 (P190) deals with the powers of the court in relation to “interim remedies”, which include freezing orders and Anton Pillar orders – recommended by the court in the Imerman case. As to costs involved, the court can now make a security for costs order at the request of a respondent to such an application. It will potentially be yet another pressure on the applicant, who since the Imerman judgement may not resort to any form of “self-help.”

One of the issues continually thrown up since the Imerman judgement is the level of pressure applied by one party to the other when they suspect that person to be guilty of self-help. It seems to be on the increase as a particularly nasty weapon used to apply pressure on the weaker party to settle, or face the consequences of criticism in a court and potential costs orders or worse.

And finally, what if you don’t like what the court has done? What if you consider the outcome too tough or wrong?

Appeals now need permission at all levels. So first you have to tell the judge you intend to appeal and request permission. Don’t be too deflated if the answer is no. The answer is rarely anything else. You then need to ask permission from the judge at the next level…and so on.

Coming up

A Financial Order is also a Financial Remedy…

Lord Justice Wall dwelt upon the state of current law, the approach of the judiciary to such case and in particular, the case of Payne v Payne (2001). The full text is here. Payne v Payne, in which permission was given for a divorced mother to move back to New Zealand with her daughter, against the wishes of the young girl’s father, is regarded as the leading case on the subject.

As he pointed out, the Payne v Payne decision takes into account as an important factor the potential harm that could have been caused to the mother if leave to remove the child had been refused, and the consequential impact on the child in determining the test of the interests of the child’s welfare:

The mother’s reasons for her desire to return to New Zealand were appropriate and entirely understandable. Her situation in England was not a happy one. The judge found that the effect of her being forced to stay in England would be devastating. He found that her unhappiness, sense of isolation and depression would be exacerbated to a degree that could well be damaging to the child. The father who has had a close relationship with his daughter would be able to afford to visit her or have her visit him two or three times a year which mitigated the loss to the child and to him. (Payne v Payne [2001] EWCA Civ 166.)

Not surprisingly, critics take the view that this is incorrect and that children’s interests are better served if they have two parents to raise them.

As family lawyers, we urge our clients to put their children’s welfare above all else – and that is as it should be. However I would like to take a look at the parents’ welfare – which is not so much displaced at present, as utterly ignored. Instead the parents’ welfare is considered indirectly, and the impact assessed on the child or children. This in itself is difficult to do: experts agree that the impact of relocation and the resiliency of a child to adjust to relocation is difficult to ascertain, and I would assume that it depends greatly on each child and his or her circumstances.

An application for leave to remove

When an application for leave to remove a child is made, the court must decide which option is in the best interests of the child, on the basis that the child’s welfare is paramount. There is a welfare checklist, which the judge must take into account. The approach of the court in giving appropriate weight to each of the criteria is critical. Thus, if one parent can no longer play an active part in a child’s life by virtue of distance, the court needs to attach weight to it. But how much weight? Is the presence of two parents playing a constant role in a child’s life, of such paramount importance that it outweighs every other factor?

And so the question can simply become:  “Should a child ever be permitted to leave the jurisdiction at all, if he or she thereby loses an enduring relationship with one parent?”

In Payne v Payne, the court decided that the arrangements for contact with the father were satisfactory and ordered, in accordance with section 13 of the Children Act 1989, the removal of the four-year-old child to New Zealand to live with her mother. The court found there was no breach of human rights legislation as a consequence.

The case of Re H (2010)

In one recent case, heard by the Court of Appeal on 20 May 2010, permission was similarly given for a mother to relocate to Australia with a child. The desperate father appealed to the Court of Appeal on the basis that the original judgment was only four pages long. He argued that the judge failed to fulfil the minimum requirement of providing explanations to the parents, covering all the section 13 considerations and the weight that had been attached to each.

The Court of Appeal dismissed his appeal. It held that the judge was not obliged to go through the checklist, each in turn.

It should be noted that not all applications for leave to remove a child are granted. In another recent case, applying the same factors, the swashbuckling Mr Justice Mostyn refused to permit the relocation of a French mother and her child to France – but am I alone in thinking that he could have been powerfully affected in his decision because he is a father himself?

What about the parents’ needs?

From my perspective as a parent, losing a child halfway round the world must be the equivalent of a lifelong dagger in the heart. The carefully built nest is tipped upside down and is left starkly empty. There is little prospect of it ever again being filled with the laughter and tears of a child.  The parents undertook to raise the child together, but instead the child will grow up far away, with only one parent instead of two.

Can that ever be in the best interests of a child? Is it in the interests of both parents? Can it really be said that the interests of a child are not taking precedence to the interests of the parent who is moving away?

The answer that most of us would give to that last question is probably “no”. Sir Bob Geldof and his band of followers are calling vocally for a change to the law which they describe as “state sanctioned kidnap”. They call as parents, anxious to protect themselves from being deprived of the right to be parents.

Payne v Payne revisited

Then I wonder: from another perspective, is Payne really so wrong?

This blog is read by many desperate Englishwomen (and men) living around the world. They contact me and keep in touch because I am an English lawyer who may be able to offer them some assistance out of their misery. I have read heartbreaking stories of the circumstances in which they have found themselves. They fell in love, married and ended up living abroad, following their spouse’s career, nationality or simply the offer of a new life in a new country. Caught up in their hopes and dreams, they never gave a thought to what might happen if the marriage ended.

I am often contacted after a marriage has broken down and a mother finds that she is unable to return to her homeland with the children, because her husband refuses and she can’t leave their current home without a court’s consent. It is often near on impossible because elsewhere in the world, many courts point blank refuse permission for “their” children to leave the jurisdiction.

So these mothers are forced to stay, often without spousal support forced to live without a partner in a hostile environment. Living in misery, they suffer acute emotional and financial harm. Can that also be in the best interests of their children?

Should they and their children be obliged to continue to live in such circumstances? These women left the UK in ignorance of a future legal position that they had no idea could or would ever apply to them. But it does, and increasingly so. (As an aside, the number of child abductions from one country to another is growing and this, I believe, is why.)

So I can see both sides of the coin, having heard from various parents who have been caught up in this agonising dilemma.

Where do we go from here?

Perhaps a more pragmatic, conciliatory view is one way forward. For example, Stowe Family Law’s International Department recently had a case in which a child went to live with our client in a faraway country. There had been bitter battles, but I am pleased to say that following careful discussions and a hearing in a local English court, the  situation was resolved. (Earlier this year the case of AP v TD (2010) was also heard in an English court. This case concerned a mother who had relocated to Canada with two children. She had applied to the Canadian court in a bid to alter contact arrangements with the children’s English father, but the case was heard in England.) Even the most intractable disputes, involving great distances and time zones, are capable of settling.

In the meantime, what of these “difficult” cases? Should we condemn a parent to lead a life of misery in a foreign country, or give up any prospects of happiness altogether following the breakdown of a marriage?

The approach in Payne is now under attack from campaign groups and high profile individuals. As with so much in family law, however, there is no perfect solution.

At present, those who have to judge these cases shine a spotlight upon the child, working through the welfare checklist and examining each parent’s ability to meet the child’s needs. But if a child’s happiness is entwined with that of its parents, as the judgment in Payne v Payne would have it, wouldn’t everyone benefit if the family’s needs were given more prominence than they are currently? Perhaps it is time to bring the parents out of the shadows.

But Mr Justice Mostyn appears to be unhappy with the actions and findings of a District Judge below in a bitterly contested children case. That the case was fraught with difficulties, there is no doubt. But it is the manner in which it was dealt with by the judge that concerns him.

This case included a total of 17 days of hearings over a lengthy period. Thirteen other witnesses gave evidence, there were 300 pages of handwritten notes, a court transcript of the evidence running to over 1600 pages, and costs estimated at £120,000 for the father, who was paying privately. Similar sums were spent on the legal aid budget for the mother and the court-appointed Children’s Guardian.

It is unusual for an appellate court to set aside findings of fact in the lower court on the basis that the original judge is in a unique position to make those findings, having actually heard all the evidence. However, Mr Justice Mostyn set aside all the district judge’s findings and then enquired whether it was legitimate for him to conclude that “there was in fact no purpose to the inquiry at all”.

So it seems that nearly £400,000 – including a substantial sum of taxpayers’ money – was spent on a completely useless exercise. Ouch!

A High Court Judge is in a position to make his concerns about a particular judge public – as he should when the occasion warrants in order to retain public confidence in our legal system. It is important for all of us, within and outside of the legal system, to have confidence in the abilities of the judiciary and to speak out on the occasions when judges do not appear to meet the standards we expect of them.

My concern is along slightly different lines. From time to time practitioners have concerns about the decisions made by a judge, not usually in such spectacular circumstances, but when they appear to lack uniformity in line with decisions of other judges at the same level in the same courts, or elsewhere. If a judge’s decision is “plainly wrong” in terms of the case itself, then an appeal is probably the answer. But not always. The Judge may not be “plainly wrong” but the decisions coming from that judge still attract overall criticism because they are markedly dissimilar from the outcome before different Judges.

I recently attended a family law conference at which one experienced barrister, who sits as a judge himself, expressed concerns about judicial abilities lower down the scale. He told the conference audience how, when advising his clients in one particular city, when there might be 12 judges sitting on the same day, his advice would boil down to these words:

“If you walk through the courtroom door, it is a lottery as to which judge will deal with your case, and there is no guarantee as to what the outcome will be. My advice to you is DON’T walk through that door. Settle your case now.”

The standard and quality of judges making vital decisions that will affect people for the rest of their lives can not only sometimes differ from city to city, but sometimes, from room to room within the same courthouse.

One reason why I became a solicitor is that I don’t enjoy handing over control of my client’s case to an independent third party, who has to make a decision that must be fair to both sides and the outcome may not even be predictable. I much prefer to reach an out of court settlement, on terms that my client and I have negotiated together with the other side, and with which both parties are happy. The client can move on, with a tailor-made settlement – and preferably without the memory and cost of an unpleasant courtroom battle haunting them. They are better placed to establish a relationship with their former spouse that is at least cordial.

For most cases judicial input is required at the outset in order to set the timetable for the case, with the aim of keeping control of it. In financial cases within a divorce, the procedure itself is “front loaded” in terms of time and costs. This means that when a new client instructs us, a great deal of work will need to be done in order to begin to shape the case for the future. That is particularly so where the spouse is likely to be obstructive in relation to disclosure. Experienced judges do recognise and understand the problem.

In London last week at the 1KBW Party, I heard about one case where a QC and junior barrister had compiled a 100-page, 1000-question questionnaire to start a case. In the Principal Registry in London the questionnaire was allowed in its entirety. If it had been the provinces, however, this could have caused some problems particularly had the case come before a deputy district judge. The Questionnaire may have been allowed in its entirety – or it may not. Some questions may have been allowed by one judge, different questions by another.

I have additional concerns about the decision making abilities of some part-time deputy district judges, who sit in the first tier of the system and are expected, unfairly I believe, to deal with complicated family law issues. Even when they have insufficient experience of the issues, they deal with them in order to get through the court’s caseload within the time scales allotted by the court. Some of these deputy judges have little or no family law background at all. If certainty and uniformity is one aim of our justice system, deputies do not always provide it.

Some deputy judges are sensible enough and indeed brave enough, to decline the challenge, rather than make a mistake that could have a serious impact on a technically complex case. However in some cases they decide(or believe they have no choice), but regrettably, to plough on, whilst complaining about the workload. Then it can become necessary to salvage the outcome. In cases involving difficult children matters, or the investigation, determination and distribution of millions of pounds between couples, this should not happen. But I am afraid sometimes it does.

In our court circuit in Harrogate, there was a court report produced in 2007 (York: Family Courts Report, April 2006-March 2007), which commented specifically on the amount of additional work that our family law firm had introduced to the court. Sensibly, the court administrators have dealt with this situation by ensuring that there are almost always two full-time district judges available to deal with the vast majority of our work. They adjudicate at every stage of a case, and the judges have seniority and experience. Consequently we can be confident that our clients’ cases will be met with the skill, expertise and objectivity they require the outcome being uniformity and certainty. That is not to say these judges do not give us an easy ride, and nor should they. They are demanding and perceptive, applying high standards. So much so, that in one recent case involving the hearing of a contested children application, in which both clients and the children were living in Southeast Asia, both parties (the other being represented by London lawyers) were content for the Harrogate court to adjudicate. The outcome resolved the problems that the parents had encountered in every respect.

However up and down the country, as practitioners know only too well, outcomes cannot always be predicted with confidence – and we witness the lottery that the barrister at the conference described. This is a prickly and difficult topic, one which practitioners do not usually have the opportunity to air in public for fear of offending the judiciary. But if concerns in relation to the lack of uniformity and certainty are not made public, they are unlikely to be fully addressed or corrected.

Suppose that your former spouse is behaving very badly during this process.

Suppose you both know that the court is likely to make the usual costs order in the case, with each side being asked to pay their own costs.

The party who decides to behave badly decides there is not much to lose. This party takes a gamble and increases their own costs in an effort to minimise the eventual settlement, safe in the knowledge that he or she will not have to pay the costs of the other side.

On the other side the frustration is clear. Costs are going through the roof and a nasty game is being played out. It is extremely difficult to find out what the opposing spouse is worth at all. Smokescreens and mirrors prevent anything other than a lengthy and convoluted legal process. The stronger spouse, confident the weaker one is getting nowhere, makes derisory offers.

It is pretty clear to all concerned that the intention (usually unspoken, but obvious nevertheless) is to rack up costs as much as possible, raise as many obstacles as possible to avoid disclosure, to avoid coming to the table and in general, to make life as hard as possible so that those derisory offers become more “palatable” as an end to this protracted saga.

This type of behaviour is not uncommon, especially when a spouse has much to lose. One of the worst examples I encountered recently was a client who told me her husband had telephoned the solicitor she had previously instructed, and personally threatened him and his firm with ruin if they touched her case. When she instructed another firm, he did exactly the same.

Suppose you are at your wits end, you are approaching court and you believe that you will ultimately succeed. However your costs have cleaned out all your savings. You desperately need to have your legal costs met, or your struggle will have been in vain. What can you do about it? How can you make the court depart from the normal “no order” principle?

Here is my advice:

1.      Your starting point should be a clear understanding as to how a financial case should be conducted.

The relevant pre-action protocol can be found here, at the HMCS website. If you read it carefully you will note that the protocol is designed, in common with other court based protocols, to “build on and increase the benefits of early but well informed settlement which genuinely satisfy both parties to the dispute”.

This intention is also expressly enacted in the Family Proceedings Rules (known as the FPR, they govern the operation of family law cases) and is, importantly, described as “the overriding objective”. Cases should be conducted in accordance with the pre-action protocol and the FPR.

Reading through the pre-action protocol, you will note how the process should ideally be conducted and what is expected of both parties.

I would expect that if you are dealing with a particularly hostile spouse, you will find a breach of practically every paragraph: the wrong tone of the correspondence; failure to make full, frank and clear disclosure of documentation; failure to carry out the procedure with minimum distress to the parties; failure to act in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances, and so on. You will also note that “trial by correspondence”, the raising of irrelevant issues or causing the other party to adopt a polarised or hostile position should all be avoided if possible.

The overall intent of the pre-action protocol is to establish and narrow the issues so that even if settlement is not ultimately possible, the court should be assisted to do so. Has that happened in your case? I doubt it. So go through all the correspondence carefully, and put your arguments together.

2.      If there is evidence of breaches galore, collect it.

Under Rule 2.71(4) (5) of the FPR, “The court may make such an order at any stage of the proceedings where it considers it appropriate to do so because of the conduct of the party in relation to the proceedings (whether before or during them)”. Under Rule 2.71 (5) the court must take into account the following:

(a)    Any failure by a party to comply with these Rules, any order of the court or any practice direction which the court considers relevant;

(b)   Any open offer to settle made by a party;

(c)    Whether it was reasonable for a party to raise pursue or contest a particular allegation or issue;

(d)   The manner in which a party has pursued or responded to the application or a particular allegation or issue;

(e)    Any other aspect of a party’s conduct in relation to the proceedings which the court considers relevant; and

(f)    The financial effect on the parties of any costs order.

Consider all the breaches in your case and fit them in, one by one, under each of the above sub-headings. In particular, bear in mind (f) and the financial position in which you find yourself, chasing your spouse uphill and down dale.

3.      At the conclusion of the case, ask the Court for your spouse to pay your costs.

4.      You can also go one step further. Ask for an award of ‘Indemnity Costs’.

When there has been what lawyers call litigation misconduct, the court may not only make a costs order against one of the parties to the case. The court may also make an order for Indemnity Costs, if the conduct of the losing party warrants it.

What does that mean? Usually when the losing party is ordered to pay costs, the order would be Party and Party costs so that only costs reasonably incurred in the proceedings are to be paid by the other spouse.

Take for example an application for variation of a periodical payments order. The case is evenly fought between the parties, both having good arguments, but ultimately the order is varied. The court will probably make a costs order against the losing party, but only the costs that are payable on a party and party basis. The court would then have discretion to reduce the charge-out rate of the successful party’s lawyer, and a greater discretion to reduce the overall amount to be paid, to a sum that the court considers reasonable to be paid by the losing spouse to the winning spouse. So if the winning spouse has instructed a lawyer costing say £500 per hour, the court might find that £200 per hour is more reasonable and make an award on that basis. The losing spouse would pay costs but typically, in my experience, up to about two thirds of the winning party’s legal bill.

However if the conduct of the losing party warrants it, and if the court is satisfied it takes the case out of the norm, the court will award Indemnity Costs, and thus the costs of the recipient party will normally be paid in full.

Under the Civil Proceedings Rules 44.4 and in particular, sub-rule (3), “where the amount of costs is to be assessed on an indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party”.

This type of costs award can be a massive body blow for a losing party who has been playing games and racking up both sets of costs, instead of following the overall objective of the pre-action protocol and the Family Proceedings Rules. Not only would the losing spouse be paying the settlement, but also their own legal fees – and potentially could end up paying double those legal fees, or more than double, if the recipient party lawyer is even more expensive than their own.

If you are in this situation: play hardball, refuse to despair – and use the law. I wish you the best, and please feel free to leave any questions in the comments section below.

Within ancillary relief proceedings, each party will give full and frank disclosure of their financial situation. As part and parcel of that disclosure process, each party must also complete a budget sheet, setting out what they say they need to meet their outgoings. We provide all Stowe Family Law clients with a budget sheet at the outset of the proceedings, so that they can consider their own needs early on.

I thought of this as I read an article over the weekend in the Saturday Telegraph Magazine, about a family who had been asked to account for every penny that they had spent in a month. The point of the article was to highlight whether we are in fact aware of what we spend, even in the current recession driven economy. The couple in question were successful, with an income of £150,000 per annum, an income that most people would consider enormous, yet they were still spending more than they earned. Even after breaking down their expenditure and analysing why they were overspending, they concluded that they would not alter their spending, save for limiting their last minute trips to Sainsburys, and did not consider themselves to be extravagant.

Of course, deciding to manage your finances in this manner when you are operating as a family unit, and have one household to run is one thing. It is quite another to decide to continue to do so following a divorce, when there are two households to run out of the same income pot. Upon separation, items that are considered an essential during the marriage become impossible to fund.

The courts have been very clear in their view that when parties disclose their financial situations, they do themselves no favours by submitting inflated budgets that do not reflect the reality of their lifestyle pre-separation, or indeed the income available between the parties. One only has to look at the approach that the court adopted towards Heather Mills and her income claims against Paul McCartney to see the sort of response that such exaggeration receives from the judiciary.

Of course, the levels of income that are talked about in that case and many of the other publicised cases bear no resemblance to the vast majority of the cases that go before district judges on a daily basis. In those cases, the judges may only be able to give scant regard to what parties claim their needs are, and will simply have to divide up what limited income there is between the parties in a way that is fair. So both parties will have to cut their cloth accordingly.

In such a case, an income need for cable television may seem to be a luxury. In cases with surplus income, however, £1,000 per month or more on holidays plus similar sums for savings might be considered legitimate needs.

In essence, what constitutes a need and what constitutes a want in family cases will very much depend on the available income, the lifestyle prior to the marriage and the circumstances of the case as a whole. In almost every case, save those where the income exceeds the needs of both parties, items that were fundamental before the marriage must, by necessity, be regarded as luxuries.

So how do you go about completing a budget?

The starting point is to break it down into categories, which you can set out as follows:

• Housing, fuel and power
• Household goods and services
• Transport
• Communications
• Food and drink
• Recreation and culture
• Health
• Eating out
• Holidays and accommodation
• Clothing and footwear
• Child specific costs
• Miscellaneous goods and services

You then list each cost in the appropriate category. For many items, a client can simply review previous bank statements and work out fixed sums, such as the mortgage and utility costs. Other items, perhaps household maintenance and clothing, will be less straightforward, as the costs are often irregular and met as and when they arise. In those circumstances, it is best to take an average over a period of time, taking into account unforeseen costs that inevitably arise from time to time.

In some cases, budgets will need additional categories. Examples include second houses, boats, yachts, horses and the like. Again, a budget has to be determined by the lifestyle enjoyed prior to separation within the context of what is likely to be available after separation and is individual to each person. We have had clients with monthly budgets of £5,000 per month for clothing, and other clients who wouldn’t spend that in five years.

It is important not to understate your budget. Before the landmark decision of the House of Lords in White v White (2000), a wife’s maintenance and overall requirements were generally limited to their reasonable needs, regardless of the wealth of the paying party. We have long since moved beyond that point. Now the idea that one party, usually the husband, can retain the bulk of the income simply because the wife can objectively “manage” on a small portion of it is not an approach adopted.

Recent case law such as McFarlane v McFarlane even introduces the concept of compensatory maintenance in – admittedly rare – cases of surplus income for wives who have given up potentially excellent careers for the benefit of family life.

Nevertheless, in some cases reasonable needs will still be a feature of the Judge’s thinking when deciding on an appropriate level of maintenance. For that reason, the budget figures are important. Any party completing a budget sheet should do so with care, ensuring that it accurately reflects their needs, is realistic and can be evidenced by past expenditure.

Careful preparation, together with documented evidence, will help a budget stand up to cross examination in Court. It will also stand a client in good stead to manage their finances within the context of the financial settlement going forward.

Regardless of divorce proceedings, perhaps we should all do this budget exercise to have an honest look at our financial expenditure!

Rachel Roberts joined Stowe Family Law in 2002 as a trainee solicitor. Since qualification in 2004, she has become one of the key senior solicitors in the practice. Notable highlights of her career to date were the location and securing by way of an injunction over a million pounds in assets and representing several well-known television personalities. Her particular interest lies in ancillary relief and the tracing and protection of assets.

Abacus image credit: aussiegall.

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 the blood relationship between a child and a grandparent means nothing in law.

If grandparents want automatic access to their children or if, as in more extreme cases, they want their grandchildren to live with them, they must jump through two sets of legal hoops. First, they must obtain leave of the court to make their application. If successful, only then may they apply for an order.

Given the state of current law, many hapless grandchildren become caught up in a tug of war. So in practice, although grandparents may apply to the court for an order, the potential impact on their grandchildren and the non-recoverable cost of applying to the courts means that in many cases, the grandparents simply give up.

Current law states that the welfare of the children is paramount. Therefore the court must look at the situation from that perspective. And in so doing the root of the problem becomes immediately clear.

I have spoken to many grandparents who all appear to have made the same mistake. They can’t help themselves. It’s natural because blood is thicker than water. They side with their own child against the spouse, often to prevent their own money passing out of the family. They become too emotionally involved in the divorce, feeling their child’s pain of their child; they worry too much; they become distressed. Worst of all, unable to prevent themselves, they speak badly of their former son or daughter-in-law to their grandchildren. Inevitably the grandchildren repeat those comments – and thus at some stage, another battle begins.

I have lost count of the emotional and agitated grandparents who come to my office and sit with their son or daughter, throwing petrol on the fire. They think they are helping their child; in fact they are causing substantial harm to themselves.

My advice?  Don’t go near the lawyer’s office!

If your child was old enough to get married and have a family without parental help, then that child is old enough to get divorced without your help. There is little you can do, and you need to keep calm.

“Ah yes”, you will reply, “but parents are parents all their lives! How can they stop being parents? Their first loyalty is to their child.”

That is true: I tell my son that I will always be his mum through thick and thin. But parenting skills don’t stop when a child becomes an adult. Standing back from the fray and offering wise counsel to all is infinitely better than diving in headfirst.

Of course, money can complicate matter. It can make people – grandparents included – lose their senses.

I was involved in one recent case in which the husband and his father combined forces to defeat the wife’s claims. The husband pleaded poverty; all his assets were acquired in his father’s name. No surprise then that his children refused to have anything to do with the paternal grandparents who, in their view, had betrayed their impoverished mother.

The children were old enough to instruct the judge when the grandparents attempted, fruitlessly, to renew contact. These grandchildren never want to see their grandparents again.

I have had some clients who have praised their in-laws. It must be said, however, that the vast majority have not. The simple truth, I suspect, is that nobody is perfect. We reap what we sow.

Even if your grown-up children are just finding their potential partners, I recommend that you bite your lip and hold your tongue. You can never know how long someone will hold a grudge for. You don’t ever want to find out. Neither do your grandchildren.

Image credit: ubg43.

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. 

In this particular case, the court was persuaded to accept jurisdiction because the child is a British citizen and was present in the UK when the proceedings were issued. This shows the willingness of the courts in England and Wales to accept responsibility for assisting children with British passports in need in certain situations, even if they no longer live here.

At the First Directions Hearing we took an unusual step. We asked for the child to be granted permission to be present in the courtroom, and asked that the judge take evidence from them. This enabled the child’s wishes to be at the forefront of the court’s mind from the very beginning of the case. It also dispensed with the need for a CAFCASS report, which is usually how the judge would be made aware of what the child wanted. A 16-year-old’s wishes and feelings are an extremely important factor when the judge is making a decision, compared to the wishes and feelings of a much younger child.

In the past, judges have rarely had the experience of speaking directly to the children involved in particular cases. However attitudes are shifting. Sir Mark Potter, who heads the Family Division, supports the notion of children being in the court room to express their wishes, so long as the child is of suitable age and intelligence. Indeed it is not surprising that some children want to speak to the person who is going to decide their future. He encourages judges to be ready to speak to any child involved in a case, particularly if the child requests they do so or if CAFCASS or another party thinks it appropriate.

In this particular case, after hearing evidence from the child, the judge praised our client’s intelligence and maturity. Hearing from the child directly also meant that the court hearing was a lot shorter. The child’s wishes did not have to be heard via a third party.

This case is not meant to demonstrate that CAFCASS does not have a role to play. Indeed its role is extremely important and crucial to many cases, especially when the welfare of younger children and complex issues are involved. However, what this case does show is that a pragmatic and forward thinking approach sometimes works. It also shows that ascertaining the wishes and feelings of a child of a certain age is best done by talking to the child directly. I am pleased to say that in this case the judge took on board the wishes of the child and supported our case that the relative was able to provide a loving stable home environment.  

Thus we attended court for a First Directions Hearing, but were successful in persuading the judge to get to the heart of the matter, and to reflect the reality of the situation by making the final Order there and then. The relocation was both in the child’s best interests, and clearly her desire. 

It is heartening to see the shift in legal opinion, which has meant that the courts are willing to be flexible and recognise the changing roles in society.  This highlights how we are moving from a culture in which children are “seen and not heard”, to an increased recognition of their very real feelings and concerns.  We were pleased to have helped this child and relative to create a future. We look forward to the courts’ growing recognition of young people’s rights to be heard, as well as their responsibilities towards British citizens in an increasingly mobile society.

Eleanor Webster graduated with first class honours and won the Resolution prize for the Family Law Elective as a law student. She completed her training contract with a large national law firm in Manchester, and joined Stowe Family Law LLP upon qualifying in September 2009. She specialises in Children Law.

Child image credit: pinksherbert.

Cafcass

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. In some cases, contact had to be stopped. On more than one occasion I had to report a parent for saying things to their children such as, “Daddy does not want to see you because he cannot be bothered with you anymore. He is too occupied with his new child and does not want you anymore”. It was heartbreaking to see the child’s face when they thought that Daddy no longer wanted them. I could see that Cafcass was much needed in these cases as the courts could not see what happened behind the scenes. These experiences inspired me to pursue a career in children and family law.

In my opinion, Cafcass is a necessary element in children law. Its employees are viewed as experts in child services and their values support a child-focused organisation that promotes equality, honesty, openness and realism. So I have found it disturbing to read some of the recent news about Cafcass.

Since the case of Baby P hit the media, the number of care cases in the public law sphere has rocketed. This rise has placed Cafcass and other child services under pressure, because of the increased caseloads. These pressures have also affected the private sphere, with delays lengthening. At present it can be as long as four or five months before a Cafcass report can be provided to the Court. This is not good enough. Even the Children Act states that delay in determining the questions about a child’s upbringing is “likely to prejudice the welfare of the child”. The delays are unnecessary and also prolong parents’ agony.

The stretching of Cafcass’ time and resources has led to failings in certain areas around the county. Ofsted has this year reported that in Durham and Tees Valley, Birmingham and Black Country and in North Yorkshire and Humberside, Cafcass’ service is inadequate. In North Yorkshire, recent experiences have left me wondering about Cafcass’ condition. Here, the organisation is attempting to cope with an overload of cases, limited and restricted funding and an increased drain on resources.

Cafcass must also contend with a shortage of qualified guardians, a shortage of general staff and considerable problems when allocating cases. It has been reported that in London, Cafcass cannot afford to pay its self-employed guardians for the rest of the year.

So what happens now – and can anything be done?

During my time as a volunteer, I noticed that there were weekends when a family had been allocated a slot for supervised contact – and nobody would turn up. Such absences cause unnecessary delays to other families who are waiting for places and for parents who have earlier been denied contact without good reason. No-show families should bear these consequences in mind.

Earlier this year Sir Mark Potter, the President of the Family Division, stated that he views part of the problem to be due to many judges’ surfeit of enthusiasm. Rather than ask focused questions before continuing with a case, they have been requesting full reports.

It has been noted that Cafcass is now working with senior judges to cut the time and drain on resources, by requesting shorter reports for those cases in which welfare is not a problem and concentrating on the case’s specific issues. Judges should dispense with all reports if it is not necessary to request one.

It is my belief that this situation must improve so that children agencies such as Cafcass can provide the job that they set out to do. Until this happens, Cafcass is stuck between a rock and a hard place, trying to provide the best service possible for children but not being able to because of the drain on the system. For further information on Cafcass, please see its website.

Children lawyers: urge parents to be amicable and to settle their children disputes out of court if they can. This would help in reducing delay for those cases where child welfare is a real and proper concern.

My legal mentor Stephen Hopwood, Head of the Children’s Department at Stowe Family Law, advises that it is not usually the separation of their parents that adversely affects children. It is the fact that their parents cannot make decisions for them as to what is in their best interests that leaves the children floundering, not understanding what is happening to them. It is therefore very important for parents to try to find avenues in order to agree on their disputes for the sake of their children.

At Stowe Family Law we are finding that, increasingly, our Children’s Department is negotiating agreements based on our own Stowe Family Law parenting plan. In such cases, parents sit down and try to reach agreement about the issues at stake, for example determining in advance the times that each parent will spend with the children. Such measures can help to avoid arguments in the future. I will say that we are certainly not afraid to give firm, practical and pragmatic advice to our clients. Fortunately most parents appreciate that the welfare of their children is paramount, and that children should never be used as tools to “get at” the other side.

Trainee solicitor Jennifer Hollyer joined Stowe Family Law LLP in 2008.

Family image credit: pdam2.