F v M [2023] EWFC 5: Section 91(14) Orders to Prevent Litigation Abuse and Coercive and Controlling Behaviour in Private Children Proceedings

This is the latest judgment by Mr Justice Hayden in a long running private children matter. I discussed the previous fact finding judgment in my blog on identifying controlling and coercive behaviour in the Family Court.

In summary, this case concerns two children, now aged 8 and 5. In January 2021 Mr Justice Hayden made a number of serious findings against the father, described as being ‘at the highest end of the index of gravity’ including that he had raped the mother on a number of occasions and that his behaviour constituted a pattern of coercive and controlling behaviour. Within the fact finding judgment, Mr Justice Hayden described the father’s abuse as ‘a brutalising, dehumanising regime…which subjugated her and was profoundly corrosive of her autonomy’.

I would recommend reading the judgment in full as it provides an important insight into issues which may arise in cases where the court has made findings of coercive and controlling behaviour, and how these apply in particularly serious circumstances, as was the case in F v M. This blog is divided into two parts and will address two key issues, the first being orders made pursuant to section 91(14) Children Act 1989.

What is a section 91(14) order?

A section 91(14) order can be made at the conclusion of private or public law children proceedings and will prevent a party from making any further application without the leave of the court. A section 91(14) order may be made on the application of either party or on the court’s own motion.

In F v M, Mr Justice Hayden commented that section 91(14) had ‘always been intended to provide a protective filter from inappropriate applications. The filter exists to protect the child and, not infrequently, the parent with whom the child lives. It is not a punitive measure towards a recalcitrant parent. Neither is it a bar on access to justice.

The widening scope for use of section 91(14) orders and key principles

Mr Justice Hayden set out the relevant guidance in respect of section 91(14) orders and described the provisions within section 91A Children Act 1989 (which was inserted in May 2022 pursuant to the Domestic Abuse Act 2021) as ‘transformative’.

Mr Justice Hayden referred to the case of Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders) [2021] EWCA Civ 1749, in which King LJ stated that social media and wide access to smart phones had opened considerably wider scope for the greater use of section 91(14). Further, King LJ had identified a concept of ‘lawfare’ – the use of court proceedings as a weapon of conflict.

Importantly, in F v M Mr Justice Hayden emphasised that section 91A ‘provides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm.’

Further, ‘this amended provision strikes me as properly recognising the very significant toll protracted litigation can take on children and individuals who may already have become vulnerable, for a variety of reasons. It also dovetails with our enhanced understanding of the nature of controlling and coercive behaviour. When all other avenues are lost, too often the Court process becomes the only weapon available. Lawyers and Judges must be assiduous to identify when this occurs, in order to ensure that the Court is not manipulated into becoming a source of harm but a guarantee of protection.

This is a significant acknowledgment that abusers can use the court process to exert further control. It is extremely important that both judges and lawyers are alert to this and are more proactive in preventing the court process from being manipulated in this way.

Mr Justice Hayden emphasises the utility of section 91(14) orders in such cases, in addition to the more traditional situation where there has been a history of repeated and/or vexatious applications. Case law over the last few years has affirmed that section 91(14) orders are available in a broader range of circumstances, and F v M further clarifies this.

Practice Direction 12Q provides further useful guidance on section 91(14) orders, including the following: 

  • The court has a discretion to determine the circumstances in which an order would be appropriate. These circumstances may be many and varied. They include circumstances where an application would put the child concerned, or another individual, at risk of harm (as provided in section 91A), such as psychological or emotional harm. The welfare of the child is paramount.

  • These circumstances can also include where one party has made repeated and unreasonable applications; where a period of respite is needed following litigation; where a period of time is needed for certain actions to be taken for the protection of the child or other person; or where a person’s conduct overall is such that an order is merited to protect the welfare of the child directly, or indirectly due to damaging effects on a parent carer. Such conduct could include harassment, or other oppressive or distressing behaviour beyond or within the proceedings including via social media and e-mail, and via third parties. Such conduct might also constitute domestic abuse.

  • A future application could also be part of a pattern of coercive or controlling behaviour or other domestic abuse toward the victim, such that a section 91(14) order is also merited due to the risk of harm to the child or other individual.

  • In proceedings in which domestic abuse is alleged or proven, or in which there are allegations or evidence of other harm to a child or other individual, the court should give early and ongoing consideration to whether it would be appropriate to make a section 91(14) order on disposal of the application, even if an application for such an order has not been made.

In F v M, Mr Justice Hayden concluded that father had ‘found the opportunity to extend his controlling behaviour into the Court arena.’ He made a section 91(14) order until the youngest child had turned 18, highlighting that, as sections 91(14) and 91A Children Act 1989 are silent on the duration of section 91(14) orders, the court has a discretion as to the appropriate duration. He stated that ‘any time limit imposed should be proportionate to the harm it is seeking to avoid’ and ‘the court should explain its reasons for the duration ordered’.

Moving Forward With Your Family In 2023

The New Year is a time when many people decide to push the reset button and commence a ‘New Beginning’ in their lives.

Your family may have been experiencing significant relationship difficulties, tension, abuse or a breakdown in your marriage or relationship. You could be seeking to move forward with your life with minimal stress and be contemplating divorce or separation.

The Family Team at Anthony Gold Solicitors can assist you with taking that first step – obtaining advice about how to move forward and finding out what the best solution is for you and your family to resolve issues.

We offer various methods to resolve family disputes which include mediation, collaborative law, arbitration, solicitor negotiations, round-table negotiations and litigation (Court proceedings if necessary).

All of our solicitors are also members of Resolution (the National Association of Specialist Family Lawyers) and are accredited. Our solicitors are committed to resolving disputes in an amicable and constructive way aimed to secure a solution that benefits you and your family in the long run. We understand that once negotiations or proceedings are concluded, the solicitors will be gone and the family will still need to be able to work together.

As Resolution members, we are required to:

  • Reduce or manage any conflict and confrontation.
  • Support and encourage families to put the best interests of any children first
  • Act with honesty, integrity and objectivity.
  • Listen to you, be honest with you and treat you with respect.
  • Explain all the options and give you the confidence to make the right decisions.
  • Help you focus on what’s important in the long term.
  • Help you balance financial and emotional costs with what you want to achieve.
  • Work with others to find the right approach and the best solutions for you.
  • Manage stress in what can be an already stressful situation.

For advice Family Law advice in relation to children, divorce, finances and relationships, please contact Trainee Solicitor, Lola Ajayi at ova@anthonygold.co.uk or on 020 7940 3903 to arrange an appointment.

Throughout January 2023, Anthony Gold is not charging for attending a Mediation Information and Assessment Meeting (MIAM), as part of National Family Mediation Week. Find out what is a MIAM and register for a free MIAM with one of our mediators today.

Book A Free MIAM With Anthony Gold

Transcendental Mediation at Anthony Gold: Speak Freely, Listen, Understand, and Then Problem Solve

As Family Mediation Week draws to a close, David Emmerson of Anthony Gold considers mediation in more depth and looks at some of its advantages for families. Mediation can be a transcendental experience, especially with one of Anthony Gold’s family mediators. The Anthony Gold family team was voted highly commended for family dispute resolution at the 2022 Family Law Awards.

Family Mediation

Family mediation is a voluntary confidential form of alternative dispute resolution. A mediator is a neutral and impartial third party who helps the separating couple reach a negotiated solution to their family problems such as the arrangements for children, finances, property, pensions and capital. It works because the mediator and the process itself encourage people to have a voice and speak freely.

The mediator will also ensure that each listens to what the other person is saying, sometimes in a way you have not done before, so that each participant at least understands what their issues are. One does not necessarily have to agree with what the other is saying, if they did then that would help, but it certainly helps to understand and that leads to effective problem-solving. Unlike a court, it is the participants that decide the outcomes, not a judge.

Information is gathered and verified so that each person’s financial position is clear. Once this has happened, it is the role of the mediator to help agree an agenda of the issues to solve so that a fair and workable outcome is achieved.

Mediation has the advantage of being able to deal with issues relating to the children at the same time as dealing with the finances. In the court process, two separate applications would have to be made as the children and finances are never dealt with together in the court process which is often a considerable disadvantage, as well as very expensive and time consuming. Solving issues relating to the children are often connected to finance solutions too.

Potential problems with mediation

If each person has not fully and frankly disclosed all information and documentation relating to the finances, then the mediation cannot proceed, but the mediator will make every effort to ensure that full disclosure is made as the alternative is invariably the other person issuing court proceedings where the disclosure is ordered by the court.

Mediation sessions at times can be intense, challenging and even upsetting, not least because these issues are invariably very important to both. The mediator will ensure that the sessions never get out of hand and that time is allowed for each to “recompose”. However, the tension that can be caused in a mediation is nothing compared with the pressure and anxiety that a contested court case can bring with the prospect of giving evidence, being cross-examined and someone else [a judge] making a decision about your children and your finances.

Types of mediation

The most common form of mediation is where both are with one mediator sitting in a comfortable room where separating couples are free to discuss matters in a relaxed atmosphere.

In some cases, co-mediation, where there are two mediators, can be beneficial because that can help in a case where there are complex dynamics. However, this naturally is more expensive.

Shuttle mediation can be used where there are particular anxieties by one person with regards to safety or coercive and controlling behaviour. Here, both are in separate rooms and the mediator works between each room facilitating discussion.

Hybrid mediation and Using experts

Another advantage of mediation is that both can agree to bring in the expertise of a specialist to help resolve issues. This might be instructing a valuer to value a company, business, or properties. It could be bringing in a pensions expert to work out what the best way for both is to reschedule pension investments. It may well be bringing in an independent financial adviser who can help each person in a neutral way of fixing budgets which can be far cheaper than contested court maintenance proceedings.

Other experts can include divorce coaches and therapists where one or both are finding the emotional side of separation particularly challenging. Hybrid mediation can be used alongside shuttle mediation.

Hybrid mediation can also involve each participant’s lawyer joining in the mediation session to help support and advise.

Mediation is a very flexible process and the use of such experts, although adding to the costs, can be extremely beneficial. It is not necessary to use experts in every case.

Role of the mediator and the lawyer

The mediator can be, and often are, trained family lawyers but mediators cannot give specific tailored legal advice in mediation. They are able to provide key information about what the law is. Sometimes, this legal information can be detailed and very helpful to the participants to help them understand.

It is still important for each participant to have the benefit of independent legal advice from someone like a Resolution accredited specialist. Here, the specialist will listen and understand the background to the children and financial issues.

The lawyer will then explain both what the law is, but also importantly how it applies to the individual person’s particular case, so each person is in a strong position to know how to negotiate in the mediation process. It is also helpful to keep in touch with the lawyer as the mediation process develops. Whereas family case law and statutes can be found easily on the web, the internet cannot tell how the law applies to individual circumstances.

A good experienced lawyer can tell you when you can let go a position or demand or whether your case is strong enough to stick with something.

Safeguarding

Mediators are comprehensively trained in safeguarding and understating domestic abuse. The mediator would not approve a case as being suitable for mediation where there are relevant safeguarding and domestic abuse issues. Mediation is voluntary, and you cannot be compelled to engage in mediation. Safeguarding includes considering the effect of coercive and controlling behaviour.  Mediators are trained to deal with an imbalance in bargaining power or indeed bargaining skills.

Children

Naturally, both parents will say the children are the most important factor. In a court of law, the welfare of the children will be both the paramount consideration in children cases and the first consideration in a finance case.

However, parents can often have differing views as to what is best for their children and what arrangements should be put in place for the children to spend time with each parent. In mediation, it is important that the views of each individual child are taken into account.

This can be done in a number of ways and one of them is for a mediator, who is specifically trained in children issues, to speak with the children individually on a confidential basis and the children’s views fed back into the main mediation.

In many cases, this is not necessary but in certain cases it can be vitally important, particularly with children of a particular age and viewpoint. This does not mean that the children themselves are making decisions, but simply that their views, uncomplicated by the pressures of speaking with either parent, are known and taken into account.

In child arrangements, it may well be in difficult and complicated cases that interim arrangements need to be put in place and tested and then reviewed so a mediation process can be staggered, so there is a review after three or four months with a further session.

Confidential and private

A major advantage of mediation is that it is private and confidential. So no one else can access the documents or hear what is being discussed. This is unlike court proceedings, where even in family cases, the press can have access and transparency rules may involve details of the history and issues being made public.

Outcomes

Both research hand statistical information shows that most mediations resolve issues successfully and that the vast majority of participants are happy with the outcomes and the process.

Costs

The costs of mediation, even if you use a solicitor to support and assist you throughout, is very significantly less than the costs of a contested court process. The length of the mediation process varies but the number of sessions really depends on how the negotiations develop and also how complex the issues are.

It is not uncommon for matters involving children and finances to be resolved in two to four sessions, which might be spread over a two to three-month period. This compares very favourably with a fully contested court process, which can often take 12-18 months.

David Emmerson

Partner Anthony Gold. Accredited and hybrid trained family mediator.  Collaborative practitioner. Deputy District Judge specialising in complex financial remedy and children cases. Solicitor Advocate

david.emmerson@anthonygold.co.uk

  • ‘David Emmerson is a calm, reassuring and experienced hand who will steer his clients back into safe waters’. Legal 500 .
  • ‘David Emmerson – his measured and courteous style is universally admired and welcomed by clients and other lawyers – non-confrontational and solution focused.  For a number of years he has chaired the Resolution DR committee with considerable people skills‘. Legal 500 .
  • ‘Entirely sensitive to the fact that in family law, the relationships often have to continue when the lawyers leave’ – Legal 500
  • Clients say: “He is a lovely man (incredibly kind and supportive) and a very well respected as a lawyer. He is one of the leading lights of Resolution, an organisation committed to handling family break up in as conciliatory was as possible – but he has real steel about him also, so I would totally trust him to protect a client’s interests if the going got rough.”

Legal 500 says the ‘skilled’ David Emmerson ‘puts clients at ease’. He ‘is an experienced problem solver: calm and reassuring. He gets to the issues quickly whilst holding the client’s confidence. He is a skilled mediator who is able to combine his extensive legal knowledge with the empathy and impartiality needed to mediate complex cases’.

Family Mediation Week – Something to Celebrate

I attended a wedding a while ago where the atmosphere was tense rather than joyful because the bride’s parents had divorced ten years previously and animosity between them was still apparent from the seating plan.

Marriage, as an institution, has been steadily declining since the 1970s and the UK divorce rate is estimated at 42%. Cohabiting couples are the fastest growing family type year on year. Whatever the relationship, a bad feeling lingers after an adversarial separation which continues to spoil the atmosphere of family gatherings in future years.

So what can a separating couple do to make sure they attend their children’s celebrations without ruining the happy day?

 

Mediation is the obvious dispute resolution option.

It is a civilised way of resolving separation and relationship issues, such as the timing of divorce, grounds for a divorce, parenting arrangements and finance. It has nothing to do with reconciliation or counselling. A trained mediator meets with a couple and helps them identify the areas of disagreement and explore the areas for settlement. The process is confidential and both parties are encouraged to take independent legal advice. Ultimately, they take control of their own separation.

A good example is a mediation I conducted recently with Susanna and Alan. They had accepted that their marriage was over but were still living in the same house and wanted to reach an agreement about their children.
Alan had a new relationship and this was upsetting for Susanna. She was also worried about how it would affect the children.
In mediation, it was possible to agree a parenting schedule so that Alan was spending frequent time with the children. He agreed that the children should not be brought into contact with his girlfriend until after he had separated from Susanna. The couple then went on to agree that the family home should be sold but Susanna would receive a greater proportion of the proceeds to reflect the fact that Alan had more pension provision. Both Alan and Susanna had independent legal advice, but their legal fees were kept in check as most of the hard work was done in the mediation process. An agreement was reached without them having to go through slow, expensive and emotionally traumatic legal proceedings.

 

Mediation is a flexible process.

It is equally valuable for married and cohabiting couples and those ending civil partnerships. It is usually a three-way process (either face-to-face or by Zoom) where the couple discuss their separation and outstanding issues with their chosen mediator. However, in high conflict situations a couple may choose to be in different rooms (or Zoom rooms) with a mediator moving between them (known as shuttle mediation). It is also possible to attend mediation with legal advisors (known as hybrid mediation).

The author of this post is Kim Beatson who was  one of the first solicitors in the country to qualify as a mediator. She was the first person to win the prestigious Family Law Dispute Resolution Practitioner of the Year (2011). She is a Band 1 mediator in Chambers & Partners where she is described as “An outstanding mediator who has a huge amount of emotional intelligence”. For information about her mediation service please contact her at kim.beatson@anthonygold.co.uk 020 7940 4011.

Mediation Information & Assessment Meetings Explained

What is a Mediation Information & Assessment Meeting?

The initial meeting during the mediation process is called a Mediation Information & Assessment Meeting, commonly referred to as a MIAM or a first meeting. The primary aim of a MIAM is to provide essential information and to have a discussion separately and confidentially with each participant before the mediation process commences.  It is not a mediation session.

A MIAM session is confidential. Anything discussed in a MIAM with a participant will not be shared with the other participant, nor will it be disclosed to the court if court proceedings are issued later.  Exemptions will apply on the point of confidentiality if there is a real risk of harm or abuse or unlawful activity.

Only information that has been agreed to be shared with the other participant will be disclosed.

Who must attend a MIAM?

Intended court proceedings:

The compulsory requirement to attend a MIAM applies to any individual who intends to issue proceedings for a relevant family court application. The requirement to attend applies to both the intended applicant (the individual who commences court proceedings) and to the intended respondent (the individual who has to respond to the issued court application).

The intended applicant should provide contact details of the intended respondent to the mediator so that the mediator can discuss the purpose of a MIAM with the respondent.

Intended settlement out of court:

Even if the participants in mediation intend to settle their dispute out of court via the mediation process, both participants must attend a MIAM separately with the agreed mediator before the mediation process commences.  This will allow an assessment to take place as to whether mediation is suitable.

What to expect during a Mediation Information Assessment Meeting

The mediator should provide you with sufficient time and attention so that you can:

  1. discuss your situation,
  2. understand what mediation is,
  3. how mediation works,
  4. what options are available to you, and
  5. for the mediator to properly assess whether mediation is suitable.

The purpose of attending a Mediation Information Assessment Meeting is to essentially explore whether mediation or any other form of family dispute resolution is suitable for you and your circumstances.  This could include collaborative practice, solicitor negotiation or arbitration.

By attending a MIAM session, you are not signing up for the actual mediation process.  This is only done, once each participant and the mediator have signed the Agreement to Mediate form after the MIAM sessions.

At the end of the MIAM session, the mediator will inform you if mediation is deemed suitable or not.  You will also be provided with an opportunity to consider whether you wish to proceed with the mediation process or consider an alternative form of dispute resolution.

You might also be provided with information specific to your circumstances which could include information on the effects of separation for children, debt management, counselling, accommodation, benefits and other personal professional support services.

Must you mediate and attend a MIAM?

There will be cases where it is deemed that mediation is not suitable or appropriate.  This is usually in cases where there is domestic abuse although domestic abuse should not in itself be a bar to mediation.

This is so, provided the appropriate safeguards and structures are put into place including the use of shuttle mediation.  However, your ability to negotiate freely should not be hindered in any form.  If it is, mediation is not appropriate.

Other exemptions also exist and the mediator should discuss if any of these apply to you during the MIAM.

How long is a MIAM?

A MIAM usually lasts for around 45 minutes to an hour in duration.

How much does it cost to attend a MIAM?

If you are entitled to legal aid, then the MIAM and mediation sessions will be free.  If you are not eligible for legal aid, then there will be a charge for the MIAM session.

Mediation Awareness Week takes place from 16 January 2023 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January. For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone at 020 7940 4000.

What happens after the first MIAM?

If each participant and the mediator agree that mediation is appropriate, then the first joint mediation session will be arranged.

Please note, that all information received by the mediator during the mediation process will be shared with each participant, although the information will remain confidential outside of the mediation process.

You can, and are often encouraged, to take legal advice from a solicitor whilst the mediation process is underway.

If court proceedings are to be issued, only mediators accredited by the Family Mediation Council (accredited mediators) can sign the relevant court form to confirm that you have attended a MIAM.

Can Mediation Information Assessment Meetings be done remotely?

MIAMs can be conducted remotely and certainly have been during the pandemic. However, subject to restrictions, you should consider whether a MIAM should take place on a remote basis or whether an in-person assessment would be more beneficial for a proper assessment of suitability.

Mediation Awareness Week takes place from 16 January 2023 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone at 020 7940 4000.

Child Abduction: Getting Your Child Back After Ex-Partner Took Them To Another Country

There are various legal remedies in the domestic Courts of England and Wales to assist parents in returning a child that has been abducted. However, in a child abduction case, the ease and likelihood of a child’s return depend on whether the child has been taken to ‘Hague’ country or a ‘Non-Hague’ country.

What is a Hague Country?

A ‘Hague Country’, is a country that has signed up specifically to the international convention on applications under the Hague Convention on the Civil Aspects of International Child Abduction 1980 and the subsequent 1996 Hague Convention.

The primary objectives of the Hague Convention are to:

  1. Secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
  2. Ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

A list of current contracting countries can be found on the HCCH website here.

The Hague Convention essentially provides the Courts with the mechanisms and processes for Orders made in England and Wales to be recognised and enforced.

In addition to the Hague Convention, the UK also has protocols/declarations in respect of Pakistan and Egypt to secure the return of children who have been abducted and taken to these countries.

Child Abduction: Remedies in the Courts of England and Wales

Firstly and most importantly, the Court can order the return of a child from both a Hague and Non-Hague foreign jurisdiction. However, before making any order, the Court will first establish whether it has the jurisdiction to deal with the matter concerning the child and if so, under which mechanism.

The key statutory provisions are the Hague Convention 1996 (for Hague cases), the Children Act 1989 (for cases involving Orders that have already been made in England and Wales pertaining to children), the Domicile and Matrimonial Proceedings Act 1973 (for matrimonial proceedings) and the Family Law Act 1986 (for other orders where a child is/was habitually resident or where a child is currently present in England and Wales).

In matters concerning Hague countries, there is a detailed process involved whereby each country utilises their Central Authority and the Courts have strict interventions and reciprocal agreement to secure the prompt and safe return of the child.

Child Abduction in Non-Hague Countries

In Non-Hague countries, the processes vary drastically.

Applying for an Order under inherent jurisdiction is considered the most effective way of securing the return of a child to England and Wales. The inherent jurisdiction of the High Court is unlimited and generally cannot be circumvented except by an order of the Court or by the law itself via a Statutory instrument.

A Wardship Order is one of the ways in which the court exercises its inherent jurisdiction in relation to a child. A Court can make a range of orders in relation to a child who is a ‘ward of the Court’ which it deems necessary for the protection of the child. In addition to the Tipstaff orders described above and pursuant to section 33 of the Family Law Act 1986,  the Court can direct parties and any other person who may have information, to disclose the whereabouts of the child, attend a hearing and or/or give evidence in relation to the child’s current location.

Pursuant to section 37 of the Family Law Act 1986, the Court can also require a person to surrender the UK passport of a child or any UK passport with his/her details on it. This usually will coincide with an order to the UK Passport Office prohibiting the issue of any new passports until further order. Where the other parent has a foreign passport,  a Tipstaff Passport Order can be used under the inherent jurisdiction to restrict the abducting parent and request that they surrender their passport.

The Court can also make an Attendance Order requesting that the abducting parent returns to the UK and presents themselves for attendance in the Royal Courts of Justice.

There are also a number of draconian orders the Court can make to secure and enforce the return of a child. Many of these orders are rarely utilised but are readily available to the Court. These include a Committal Order (committing the abducting parent to imprisonment for contempt of Court), freezing orders (restraining the abducting parent from disposing or dealing with assets in England and Wales) and a writ of sequestration (whereby the Court seize and retain the abducting parent’s assets until the order in question is complied with). To assist with enforcement, particularly when there is a case involving a Non-Hague country, the Court can on rare occasions, identify the parties and publicise the case in the press or threaten foreign countries with doing so.

In addition to the above orders, it is normal practice for the Court to also make a Child Arrangements Order stating that the child should live with the remaining parent with a Prohibited Steps Order prohibiting the child’s removal from England and Wales. By doing so, this has the dual benefit of securing jurisdiction in England and Wales and can also aid a parent requiring evidence of ‘rights of custody’ to secure the return of the child from the foreign jurisdiction if there are also simultaneous proceedings occurring in the foreign Court.

In conjunction with the above information, you may find it useful to read our other blogs on the subject:

What can I do to stop my ex-partner from taking or abducting my child to another country? 

 My ex-partner has abducted my child and taken them to a Non-Hague country. How do I get my child back? 

As all child abduction matters whether Hague or Non-Hague are complex, these cases are heard at the Royal Courts of Justice.

These types of cases move quickly and are dealt with on an urgent basis. Whilst you can represent yourself, it can be overwhelming and difficult to follow. It is always best in these type of cases to obtain advice from a child abduction specialist. Many of our solicitors at Anthony Gold have been trained in and specialise in complex child abduction matters and can provide you with urgent advice to help you return your child no matter which country they have been taken to. We will advise you thoroughly throughout the process, let you know which type of application is best in your situation, advise you on your prospects of success and provide you with excellent representation at Court if required.

Please contact Trainee Solicitor, Lola Ajayi at ova@anthonygold.co.uk or on 020 7940 3903 to arrange an urgent appointment.

Get Free 20 minutes of initial advice

As an introduction to our service, we offer free 20 minutes of initial advice on all aspects of Family Law including:

  • Divorce
  • Finance
  • Pre-nuptial Agreements
  • Post-nuptial Agreements
  • Cohabitation Agreements
  • Property Ownership Agreements/Deeds of Trust
  • Child Arrangements/Parenting Agreements
  • Child Abduction
  • Surrogacy/Parental Orders


Shared Care and Relocation

If one parent wishes to relocate with their child, either abroad or to another part of the country, they must obtain the consent of the other parent or permission of the court (assuming they both have parental responsibility for the child). If the other parent does not consent to the proposed relocation, the parent wishing to relocate must make an application to the court to decide the issue and this is often an extremely finely balanced exercise. Under Family Law, the outcome of relocation cases is also binary; either the parent will be permitted to relocate by the family court or they will not and the outcome will have a significant effect on both parents as well as the child.

Applications for relocation

When considering a relocation application or seeking permission to relocate with a child, the family court must have regard for the welfare checklist. This will include consideration of the motivations of both parents, the impact on either parent of the application being granted or refused and whether the application to relocate has been well researched and investigated.

In a relocation case, the amount of time that the child is currently spending with each parent is relevant. The court will want to know more about parental responsibility. Specifically, how the parent wishing to relocate will promote the child’s relationship with the other parent, and what the spending time arrangements would look like following a relocation. The child’s best interest is at the core of the decision-making process.

Also Read: Child Abduction: Getting Your Child Back After Ex-Partner Took Them To Another Country

Shared care for equality in parenting

There has been an increase in shared care arrangements over recent years, as the law moves towards greater equality in parenting. There is no legal definition of ‘shared care’, however for the purpose of this blog, it is being used to describe certain child arrangements which involve the child spending a roughly equal amount of time with each parent.

Relocation will, in most family law cases, mean that the child is no longer able to spend the same amount of time with the left-behind parent. Therefore, the effect of relocation where the child has been spending a similar amount of time with each parent is even more marked and will have a significant impact on both the nature and quantity of time that the child will spend with the other parent. For this reason, it is likely that child relocation applications will be more difficult in circumstances where a shared care arrangement is in place. Further, as a part of a child arrangements order, parents may be deterred from making such applications – which are often costly and time-consuming – if the prospects of success are lower.

Also Read: Parental Responsibility for Fathers

How does the family court decide

However, it is important to note that different criteria do not apply in shared care cases. In Re L (a child) (internal relocation: shared residence order) [2009] EWCA Civ 20 the Court of Appeal emphasised that the fact of a shared residence order will be an important factor, but it is not a trump card preventing relocation. In each case what the court has to do is to examine the underlying factual matrix, and decide in all the circumstances of the case whether or not it is in the child’s interest to relocate with the parent who wishes to move.

Also Read: Compensation for Neglecting Child Support

Victoria Rylatt is a Senior Associate Solicitor at Anthony Gold. She specialises in the Family and relationships department, based in our South London offices at London Bridge.

Victoria practices in all areas of private family law, including divorce, dissolution, financial and children arrangements. Contact her on victoria.brown@anthonygold.co.uk .

Financial Remedies: Hard vs Soft Loans

An issue which commonly arises within financial remedy proceedings is whether money advanced by a family member is a gift or a loan and, if it is a loan, whether it is to be treated as a ‘hard’ or ‘soft’ liability. If it is considered a soft loan, the amount may be left out of the court’s calculation of the parties’ liabilities and therefore the net effect of the final outcome. There is no statutory definition of a soft loan, however case law provides extremely helpful guidance.

In the recent case of P v Q (Financial Remedies) [2022] EWFC B9, HHJ Hess provided extremely useful guidance. Firstly, in terms of the distinction between gifts and loans, HHJ Hess stated that, as a matter of general principle, for an advance of money to be a gift there must be evidence of an intention to give. If it is determined that the advance was a loan, the court must determine whether it is to be treated as a ‘hard’ or ‘soft’ loan.

How does the court decide if it is a Hard or soft loan?

Having considered a number of authorities on the issue, HHJ Hess derived the following principles which should be applied when a court is considering whether a liability is a hard or soft obligation:

(a) Once a judge has decided that a contractually binding obligation by a party to the marriage towards a third party exists, the court may properly wish to go on to consider whether the obligation is in the category of a hard obligation or loan, in which case it should appear on the judges’ computation table, or it is in the category of a soft obligation or loan, in which case the judge may decide as an exercise of discretion to leave it out of the computation table.

(b) There is not in the authorities any hard or fast test as to when an obligation or loan will fall into one category or another, and the cases reveal a wide variety of circumstances which cause a particular obligation or loan to fall on one side or other of the line.

(c) A common feature of these cases is that the analysis targets whether or not it is likely in reality that the obligation will be enforced.

(d) Features which have fallen for consideration to take the case on one side of the line or another include the following and I make it clear that this is not intended to be an exhaustive list.

(e) Factors which on their own or in combination point the judge towards the conclusion that an obligation is in the category of a hard obligation include:

  1. the fact that it is an obligation to a finance company
  2. that the terms of the obligation have the feel of a normal commercial arrangement
  3. that the obligation arises out of a written agreement; (4) that there is a written demand for payment, a threat of litigation or actual litigation or actual or consequent intervention in the financial remedies proceedings
  4. that there has not been a delay in enforcing the obligation; and
  5. that the amount of money is such that it would be less likely for a creditor to be likely to waive the obligation either wholly or partly.

(f) Factors which may on their own or in combination point the judge towards the conclusion that an obligation is in the category of soft include:

  1. it is an obligation to a friend or family member with whom the debtor remains on good terms and who is unlikely to want the debtor to suffer hardship
  2. the obligation arose informally and the terms of the obligation do not have the feel of a normal commercial arrangement
  3. there has been no written demand for payment despite the due date having passed
  4. there has been a delay in enforcing the obligation; or
  5. the amount of money is such that it would be more likely for the creditor to be likely to waive the obligation either wholly or partly, albeit that the amount of money involved is not necessarily decisive, and there are examples in the authorities of large amounts of money being treated as being soft obligations.

(g) It may be that there are some factors in a particular case which fall on one side of the line and other factors which fall on the other side of the line, and it is for the judge to determine, looking at all of these factors, and maybe other matters, what the appropriate determinations to make in a particular case in the promotion of a fair outcome.

 

The assessment of whether a loan is hard or soft is therefore a discretionary exercise and will turn on the facts of each case, having applied the above principles.

If you require assistance in respect of financial arrangements on divorce or have any queries regarding the treatment of loans within financial remedy proceedings, please do not hesitate to contact us.

Victoria Brown is a Senior Associate Solicitor in the Family team, who practices in all areas of private family law, including divorce, dissolution, financial and children arrangements. If you would like to discuss these issues please contact her at vgb@anthonygold.co.uk or on 020 7940 4060.

Separated Parents’ Guide to Traveling with Children: Legal FAQs

Summer is a popular time of year for travelling abroad, to spend the school holidays with friends and family living elsewhere in the world or simply to escape the office and the unpredictable British weather! However, for separated parents wanting to travel with their children, there is more to think about than which flight to book and what to pack, so it is very important that you start making plans early.

Jump to the relevant question in your case:

  1. Do you have the consent of all persons with parental responsibility?
  2. Do you have a court order/ child arrangements giving you permission to travel?
  3. Is the consent/court order conditional?
  4. What are the legal requirements of the country you are travelling to?
  5. What are the covid-19 travel restrictions in place for the country you are travelling to/returning to?

 

You will need the consent of all persons with parental responsibility unless you have a court order giving you permission (see below).

Parental responsibility means having 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 parental responsibility. Fathers automatically have parental responsibility if they were married to the mother at the time of the birth or (for children born after 1 December 2003) they are registered on the birth certificate. Fathers can also acquire parental responsibility by way of a parental responsibility agreement, or court order.

If you are not the only one with parental responsibility and you travel abroad with a child without the other’s consent then this constitutes child abduction and is a criminal offence, (unless this is to Scotland, Wales or Northern Ireland). So it is important to ensure you have their consent before you travel.

 

Do you have a court order/ child arrangements giving you permission to travel?

If you do not have the consent of all persons with parental responsibility then you will need to apply for a court order giving you permission to travel, if you do not already have an order in place.

You can apply for the following orders: –

  • A child arrangements order stating that the child lives with you. This will enable you to take the child abroad for up to 28 days without consent, unless there is a separate order that prohibits this (known as a prohibited steps order). However, where it has been made clear that someone with parental responsibility objects to you going abroad with the child, it is best practice to apply for a specific issue order even if you already have a child arrangements order in place.
  • A specific issue order giving you permission to remove the child from the jurisdiction for a holiday, known as an application for temporary leave to remove.

Both orders can be applied for using the Form C100 and will be decided by the court in the best interests of the child in accordance with the welfare principle and welfare checklist, which takes into account the wishes and feelings of the child, their needs, their age, sex and background, the impact of any change in circumstances, any harm they are likely to suffer and how capable each parent is of meeting their needs. These proceedings can take several months so it is important to know at an early stage whether consent will be forthcoming or if a court application may be necessary.

 

It is common for consent or permission to be given on certain conditions.

These can include:

  • Providing the other parent with full details of the planned holiday a certain number of days/weeks/months in advance e.g. dates of travel, flight or other travel arrangements, accommodation and contact details, who else will be travelling with you, and the reason for the trip.
  • Only allowing travel to certain countries e.g. countries which are a party to the Hague Convention, where it is easier to secure the return of a child unlawfully removed/retained, or for a certain number of days.
  • Specifying the arrangements for handing over/returning the child’s passport.
  • Making alternative arrangements for the children to spend time with the other parent, if the holiday spans time when the children would otherwise have been with the other parent in accordance with child arrangements previously agreed or ordered.
  • Indirect contact (via Skype, or FaceTime) with the other parent whilst away, for example on days when they would otherwise have spent time with the other parent if at home, or on special occasions such as birthdays.
  • In some cases, providing the other parent with some form of security in the event that you do not return as promised e.g. payment of money into court, or handing over certain documents (e.g. your birth certificate), that will only be returned once you are back in England.

You should consider these things when seeking consent or permission, and ensure you have as much information available as early as possible regarding your proposed trip.

 

Each country has different requirements for allowing a child to travel abroad without both parents.

For example, if you wish to travel to South Africa or Canada then you will need a signed parental consent affidavit (South Africa) or letter of authorisation (Canada) from the other parent and a court order granting the parent wishing to travel full parental rights and responsibilities and permitting them to take the child on holiday without the other parent.

If you have been able to deal with the child arrangements between you directly to date, and therefore do not already have a court order in place, then this means going to court specifically for an order by consent, which can be frustrating, costly, and time-consuming. So it is important to check the requirements of each country far in advance of your proposed trip.

 

What are the covid-19 travel restrictions in place for the country you are travelling to/returning to?

You will now also need to check the rules for travelling with children in the country you are travelling to and from, including whether there is a requirement for each child to be vaccinated or whether a negative PCR test is required.

If vaccination is a pre-requisite for travel, and your child is not already vaccinated, then you will need to get the consent of all persons with parental responsibility before vaccinating. If this consent is not forthcoming then you will need to apply for a specific issue order seeking permission for the vaccination to be administered.

Again, this specific issue order can be applied for using the Form C100 and will be decided by the court in the best interests of the child in accordance with the welfare principle and welfare checklist. These proceedings can take several months so it is important to consider this at a very early stage and ensure all necessary orders are sought at the same time, if an application to court is necessary.

Last but not least, don’t forget your passports (and any other necessary documents).

Make sure that you have your passport and your child’s passport before you travel. This might mean arranging a time to collect your child’s passport from the other parent in advance, if it is not already in your possession.

You may also need proof of vaccination, a negative PCR test, and/or a passenger locator form, depending on the location of travel.

It is also advisable to travel with a copy of the child’s birth certificate, particularly if your child has a different surname to you, as well as any documentation evidencing any change in your name e.g. your birth certificate, marriage certificate, decree absolute or change of name deed.

If you are considering travelling abroad with your child, during the summer holidays or any other time of the year, it is important that you consider the need for legal advice at an early stage. If consent is required, but not forthcoming, then you should try to resolve matters in mediation before applying for a court order. This will give you an opportunity to discuss the proposed trip in more detail and hopefully reach an agreement that enables you to travel. However, if time is of the essence or it is clear that no agreement will be reached, then it may be best to issue proceedings straight away.

At Anthony Gold we are experienced in dealing with all aspects of family breakdown, including arrangements for children and the need to seek consent or permission from the court to remove a child from the jurisdiction temporarily, or permanently. If you think you may require legal assistance a member of our family team can advise you in more detail on your options and agree the best course of action for your specific circumstances.

Checklist on Divorce

At Anthony Gold, we know that any divorce is stressful and that there are a number of things to think about. The process of getting a divorce will be just as much practical as technical, especially if there are children. Below is a checklist to consider when going through the separation process.

 

Divorce checklist

 

Money

In relation to the finances, some of the tasks will be set out in the court order that is drawn up. For example, how to deal with the ownership of property, bank accounts, investments, pensions and debts. However, there are other important practical points to consider which are included in the following non-exhaustive checklist:

  1. Agree if any maintenance/works needs to be done to a property and agree costs before the spouse moves out (eg. roof or boiler repair)
  2. Check and/or change any beneficiary nominations under your pension
  3. Check and/or change the nomination under any death in service benefit from your spouse to an alternative beneficiary
  4. Close or transfer joint accounts to sole name or open a new bank account if needed
  5. Close any joint credit cards
  6. Check life policies and change the beneficiary if appropriate
  7. Check medical cover for or as a spouse and whether it covers you both after separation and up to decree absolute
  8. Change any key passwords and separate financial paperwork/ID docs
  9. Notify DVLA and car insurer if you are moving
  10. Notify banks/pension providers of new address
  11. Notify vet and insurer if pets relocate address and amend microchip details
  12. Notify GP of change of address
  13. Apply for single person’s council tax
  14. Change utility bills
  15. Check what benefits you may be entitled to
  16. Consider if a change of name is necessary to ID documents
  17. Change locks to a property once ownership transferred
  18. Redirect post
  19. Change your Will or make a Will
  20. Amend or make a new Power of Attorney

 

The Children

You do not have to obtain a Court Order or even draft an agreement in relation to how you will care for your children. Although you may find written agreement helpful. Here is a checklist of practical items you may wish to consider:

  1. Notify childminder/nursery/school of any address change/contact details and status of parents’ relationship and ensure documents are copied to both parents if possible
  2. Notify childminder/nursery/school of who will pick up and drop off the child and when
  3. Purchase new sets of clothes/uniform/shoes/toys/books/medicine so that both homes are equipped if something is forgotten
  4. Agree any medical/health/allergy treatment that may be necessary (eg asthma inhalers) and when that is to be administered
  5. Agree on the GP and dentist to be used
  6. Work out dates/holidays/special occasions with reference to a calendar and who will hold or attend parties
  7. Work out if parents’ evenings/school events are to be attended separately, together or alternately
  8. Agree contact with grandparents and wider family members if they are to provide a caring role
  9. Consider using a parenting app such as “Our Family Wizard” or paper diary if communication is difficult

If you are thinking of separating, you should always take legal advice as to the implications, risks and protections you should put in place. If you would like further information, please contact the family team at Anthony Gold LLP at mih@anthonygold.co.uk.

 

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