Archive for March, 2010

What’s in a label? – a brief look at court orders about children.

When parents separate, they are faced with a myriad of terms that are suddenly attached to the time they spend with their children.  It remains the first position of the Courts in England and Wales that it should not get involved unless required and for the majority of parents who are able to agree arrangements for their children these terms may seem irrelevant. However, for those who need the involvement of the courts, these labels can become very important.  So what are they?

Parental Responsibility (“PR”):-  this means 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.  Mothers automatically have PR when they give birth to a child.  If the Father is married to the Mother when the child is born then he will automatically have PR as well.  If the parents are not married but the child was born after 1st December 2002 and the parents have registered the Father properly on the birth certificate, then the Father will automatically have PR. Second parents in civil partnerships, step parents or other relatives, and unmarried fathers of children born before 1st December 2002 or who are not named on the birth certificate can acquire PR by agreement or through the courts. 

 Residence order:- means an order deciding the person with whom a child is to make their main home.

 Contact order:- This is an order by which sets out in detail the frequency with which a child is to see the parent with whom they do not make their main home. This can include overnight staying contact or visiting contact. A contact order can also be made in favour of someone not the parent of the child, for example a grandparent.

 Shared residence order:- this order means that the child has two homes one with each parent.  It has become more popular in the courts over recent years to make this order as the courts have sought to show children that both parents are of equal importance.  It does not mean in practice that the child must live 50:50 with each parent, but only that they will spend time with each parent.  The effect is also that there is no detailed contact arrangements set out in the order, as, since the child is “living” with both parents, it is up to the parents to agree the contact arrangements between themselves. 

Joint residence order:- The difference between this order and an order for shared residence is  that this order is reserved for cases where the residence order is made in favour of two people who reside together e.g. a father and stepmother.

There are orders that can be made in addition to these in respect of schooling or medical treatment or any other specific issue on which the parents cannot agree.  What the court will always have foremost in its mind however, is what is in the best interests of the particular child, not the wishes or rights of the parents. 

 If you would like further information on this topic contact info@flip.co.uk

Financial disclosure – how to help yourself and your lawyer: Part 2

In Part 1 of this blog we talked about the importance of full and frank disclosure and how you can keep yourself in a good place with your lawyer, your spouse’s lawyer and the court by presenting your financial position in a well ordered and honest way. In this part we look more closely at the Form E and how to fill in specific sections of it and organise the documentation that is necessary to support what you say.   The paragraph numbers are the numbers of the sections of Form E which is the system for financial disclosure used in England and Wales. The principles will apply worldwide.

 2.1     The family home: if possible, see if you can agree its value with your spouse. If you can, it can save significant fees later. You can do this by agreeing with your spouse to get two or three estate agents round to give you a market appraisal.  Ask your mortgage company for a recent statement if you do not have one and find out if there would be any penalties if you redeem the mortgage (or pay off a significant amount).

 2.3     Bank accounts: if you have more than a couple, list them in a sensible order – perhaps starting with joint and/or current accounts before moving on to those of more of a ‘savings’ nature. Alternatively, perhaps group the accounts together by bank. You need to append 12 months worth of bank statements for each account. If you receive (and retain!) paper statements then that is great. If you do not, you need to think about:

  1. Applying to the bank for duplicates – they should not charge you more than about £10 for this; or
  2. Obtain copies online. If you opt for this approach, do not cut and paste the information into another program, such as Excel as, theoretically, you could manipulate the data. Try to print the information in as ‘formal’ a format as possible.

 Put all the statements in chronological order and use dividers so that it is clear to your lawyer where one account stops and another begins. Check that you have a consistent run of 12 months with no gaps. If there are any unavoidable gaps, give your solicitor a note explaining why this is.

 Do not annotate the statements at this stage – or, if you really want to, provide two sets to your solicitor – one annotated and the other ‘clean’. 

2.8     Personal belongings: if you are including a vehicle, there are various ways to get a rough idea of its value – for example, see www.parkers.co.uk.

 2.9     Credit (and store) cards: you need to refer to all cards, even those with a nil balance. It is not strictly necessary to append copy statements to your Form E but these may be requested later – so it probably makes sense to gather copy statements now in much the same way as you will be for your bank accounts.

 2.10    Capital Gains Tax:  if this is likely to be relevant, ask your accountant to give you an estimate of the potential liability and ask him to provide details of his calculations.

 2.11    Business assets: If you have your own business, you need to provide fairly extensive information, including copies of the business accounts for the last two financial years. It probably makes sense to pass the relevant page of Form E to your accountant as soon as possible and ask for their assistance.

 2.13    Pensions: Most schemes send members a valuation once a year as a matter of course. If you received one recently, it may be unnecessary for you to apply for another (some schemes charge) – check with your solicitor. If you are applying for an updated valuation, send the scheme a blank copy of the relevant page of Form E.  Valuations can take a long time to come in so it is worth applying for these as soon as you can. Discuss Forms BR19 and BR20 with your lawyer. These are necessary to establish the level of your state and additional state pensions.

 2.15    Income from self employment / partnership: if relevant, when you ask your accountant to help with providing details of your business assets, you might want to ask them to help with this. If you haven’t kept copies of your last tax assessment(s), they should have. It probably makes sense to pass your accountant’s details on to your lawyer and authorise each to discuss matters with the other.

 3.1     Income needs: Your lawyer should have a ‘budget’ form to work with. You will have gathered copies of your bank statements for the previous 12 months – go through them to help assess what you spend on the itemised living expenses, for example food, car, mortgage, clothes etc.

 Capital needs: If you are listing any, it might be helpful to have some supporting papers – for your lawyer at least. For example, if you are asserting that you need £400,000 for a 3 bedroom property, produce some property particulars showing the sort of property you consider suitable.

 Hopefully, the above tips will enable you to complete Form E quickly and efficiently. From your lawyer’s perspective there is little worse than receiving a draft Form E with a mountain of supporting papers in no order whatsoever – containing irrelevant documents, duplicates, unhelpful annotations and papers with information which does not marry up with what has been said in the Form itself!   Rather than pay your lawyer to spend hours trying to sort out the muddle, and for the form to then go through 5 or 6 drafts, it is much better to take more time yourself and present your lawyer with something which will be far closer to the finished article. This could save you considerable legal fees.    

To find a specialist family lawyer visit www.resolution.org.uk which lists all family law specialists around England and Wales.

 For more information contact info@flip.co.uk

Financial disclosure – how to help yourself and your lawyer: Part 1

One of the fundamental principles of resolving financial matters following divorce in England and Wales is that both parties must give ‘full and frank’ disclosure of their financial positions. This obligation to provide complete disclosure continues right the way through until matters are concluded – so if there are any material changes in your circumstances after the initial disclosure stage, you should bring it to everyone’s attention.

 In England, the principal way of giving financial disclosure is by completing an extensive form called “Form E”. Even if matters are being dealt with outside the formal court process, for example through mediation or the collaborative process, it is often a good idea to use the Form E.

Completing Form E is a very time consuming process. I It is a hugely important document. As well as setting out your financial position, it also sets out your ‘case’ – what outcome you seek and why you say that is appropriate. If you are not instructing a solicitor, you should seriously consider doing so.  However, a large part of the form is basic data collecting and presentation.  How you go about dealing with this aspect can make a significant difference to:

1.     Your legal fees – the more efficiently you and your lawyer work as a team to complete the form, the less time your lawyer will need to spend on it and, therefore, the less it will cost you; and

 2.     How you come across – you will want your spouse, their lawyer and, if necessary, the court to perceive you as transparent and open; and ideally you do not want to be late in completing the form because this too can have negative connotations.

How ‘user-friendly’ the completed form and accompanying material is can also subtly affect a judge’s perception of you. It is hardly going to help your position if a judge is irritated because your form and supporting documents are not easy to follow.

 The rest of this blog provides some general tips to help you complete your Form E.   Part 2 (which will follow tomorrow) addresses some specific disclosure points in the order in which they feature in the Form E

General

  1. The form requires you to exhibit a lot of supporting papers. It is quite easy to forget an enclosure and there is a lot of paperwork to marshal. It sounds obvious but:
    1. Get a lever arch folder and some dividers (20 or so);
    2. Read the form through first (to gives you a sense of what information is required where) and highlight wherever it tells you to attach a document;
    3. Tick these highlighted sections off as you insert the required documents
  2. Early on consider with your solicitor who is going to obtain what information. The more you do, the less your legal fees will be.  However, if the reality is that you are too busy to deal with this it may be sensible to authorise your solicitor to get some of the information. You will be charged for this work but that may be preferable to being criticised for being late with your disclosure.

 To find a specialist family lawyer visit www.resolution.org.uk which lists all family law specialists around England and Wales.

For more information contact info@flip.co.uk

Are you worried about Domestic Abuse?

Domestic abuse is a pattern of controlling and aggressive behaviours from one adult towards another within the context of an intimate relationship. 

It can be physical, sexual, psychological or emotional abuse or a combination.  The violence and abuse can be actual or threatened and can take place occasionally or on a regular basis. It can happen to anyone, and in all kinds of relationships.  People suffer domestic violence regardless of their gender, social group, class, age, race, disability, sexuality or lifestyle. The abuse can begin at any time – in new relationships or after many years.  Children are affected by domestic violence both in the short and the long term.

Your safety and that of any children must be the primary concern; in an emergency you should always call 999. 

People may advise you to leave the home or end the relationship.  However, it will often not be as simple as that.  There will be a lot of things to think about (e.g. housing or financial issues) and how any decisions you make may affect others such as any children who are involved. 

There are numerous organisations which can offer help and advice e.g. Women’s Aid (www.womensaid.org.uk), Refuge (www.refuge.org.uk) or the National Domestic Violence Helpline (08082000247). 

You may decide however that legal protection is necessary;

1. The Protection from Harassment Act 1997. 

The police can issue your abuser with a caution on the basis of their intimidating and harassing behaviour.  If they continue this behaviour, they can be arrested and the court can impose a restraining order. 

Alternatively, you can apply for an injunction in the civil courts.  In either case, if your abuser continues to do anything they have been prohibited from doing, they will be guilty of an offence and will be liable to a fine or imprisonment for up to 5 years.

2. The Family Law Act 1996. 

You can make an application in the civil courts to protect you or any relevant child from molestation (“deliberate contact aimed at a high degree of harassment”).  The court can then make a non molestation order, a breach of which is a criminal offence.

You can also make an application to ask that the occupation of the family home is regulated.  The court can then make an occupation order and give the police the power to arrest someone who breaches this.

 If any of the matters in this blog resonate with you please get legal advice straightaway. For details of solicitors in your area see www.resolution.org.uk

Contact info@flip.co.uk for more information.

Divorced abroad but living in England? You may be able to bring financial claims here.

 Some people living in England and Wales get divorced in other countries because their spouse lives in another country or for other reasons, for example a Talaq  entitled to recognition under English law may be granted abroad.

Today, the Supreme Court of England and Wales gave judgment in the case of Agbaje which concerned a Nigerian couple who had been divorced in Nigeria. The husband lived in Nigeria but the wife lived in England, and had done for a number of years. There were properties in both countries and the couple’s children had been educated in England.

The Supreme Court decided that the wife was allowed to bring her claims for financial provision in England even though the divorce had been in Nigeria and the Nigerian court had made financial provision for her there.

If you think that this case may apply to you, you should immediately take legal advice. An application must be made to the court to get the court’s permission (called “leave”) to bring your financial claims in England. Leave will not be granted automatically. You will have to show the court, amongst other things:

  • That you and/or your spouse have a strong connection with England and Wales
  • What connection exists with the country where the divorce was granted
  • The financial orders that would be, or have been made, in the country where the divorce took place and whether those orders (if any) made, or would make, inadequate provision for your needs
  • Whether there is any property belonging to you or your spouse in England and Wales.

 If the court decides on the basis of this and other information that you are entitled to bring a financial claim here then the court must, when deciding what orders to make, consider the following:

  • The welfare of any children still under the age of 18. This is the paramount consideration.
  • All the other circumstances of the case
  • The reasonable financial needs of both the husband and the wife.

Although there is no need to demonstrate that an injustice would  happen if there was no award in England an application cannot be made simply to “top up” an award from a court in another country. A financial order made in England in these circumstances will never be more than an order that would have been made if the divorce had been in England and Wales.

This is a very complex are of law and the above is the briefest summary of it. If you think that this affects you then you should take immediate detailed legal advice from a specialist family lawyer. For details of family lawyers in your area visit www.resolution.org.uk.

For more information contact info@flip.co.uk

Are you concerned about the risk of child abduction?

Child abduction is the illegal removal of a child from the child’s home, usually by a parent. According to the charity Reunite, the number of child abductions where the child is removed from their home country by a parent and taken to live abroad or kept on abroad after an agreed holiday for example is increasing year on year.

 Under the Child Abduction Act 1984, it is a crime for a “connected” person, including a parent, to take or send a child under 16 out of the UK without “appropriate consent”, i.e. without permission from everyone who has “parental responsibility” for the child or permission from the court. If convicted, the abductor faces up to seven years imprisonment. 

 People who have parental responsibility are i) the child’s mother, ii) the child’s father if they are married to the mother, iii) the child’s father who is not married to the mother provided the child was born after 1st December 2003 AND the father is named on the child’s birth certificate, iv) anyone who has been given parental responsibility for the child by a court.

 It is always wise to obtain the prior agreement of the other parent with parental responsibility before taking any child under 16 years of age abroad. If you do not have their agreement then you should make an application to the court.

 If you are worried that your child is in danger of being abducted or has already been abducted abroad, you should consider taking the following measures without delay:

 1. Seek specialist legal advice from a family law practitioner as soon as possible – their advice will depend on whether you need to take steps to prevent the child’s removal or steps to bring the child back to their home country and they will be able to tell you if you will be able to get public legal funding.

  •  Preventative measures might include: safeguarding the child’s passport; applying for a restraining court order, an interim “residence order”, a prohibited steps order preventing the other parent’s trips abroad with the child, or an order limiting contact with the other parent to supervised contact (in a recent case, a mother with a history of abducting her child agreed to be tagged).
  • If your aim is to bring the child back to their home country, you will be advised of the best way of making this happen. Much will depend on whether the home country and destination country have signed up to one of the international conventions, for example the Hague Convention which supports the swift return of an abducted child to the home country for the child‘s future to be decided there. Hague Convention countries have agreements in place to cooperate with each other over the return of children to their home countries.

 2. Contact the international charity Reunite’s advice line (tel 0116 255 6234/ www.reunite.org) which provides support and constructive advice to parents of any nationality whose children are in danger of or have been abducted as well as ‘abducting’ parents

 3. Contact your local police station if the child is with the other parent and you suspect the child is about to be taken out of the country illegally.  If you take recent photographs of the child and the abductor and details of where they might be heading, the police can issue a “ports alert” at airports and ferry terminals lasting up to 28 days.

4. Always take advice about your particular circumstances. This applies whether you are the parent who has taken the child or the parent who is left behind.

 For more information contact info@flip.co.uk