Fact-Finding Hearings In Private Children Proceedings

A “fact-finding hearing” (FFH) is the first limb of a split hearing, which is a hearing divided into two parts. In the first half, the Court makes findings of facts on issues identified by the parties or the Court and recorded in a Scott Schedule. During the second part, the Court decides the case based on the findings.

When is a fact-finding hearing held?

An FFH is not always necessary. Practice Direction 12J of the Family Procedure Rules 2010 contains detailed guidance on determining whether it is necessary to conduct a fact-finding hearing with respect to allegations of domestic abuse.

The Practice Direction has been tested and clarified in two noteworthy cases, starting with H-N (2021) EWCA Civ 448, which was a Court of Appeal decision.

The latest case on the subject is K and K (2022 EWCA Civ 468) which came before the Court of Appeal on 2 March 2022 before, amongst others, Sir Andrew McFarlane, President of the Family Division.

The basic facts were that the father and mother married in 2005 and separated in August 2017. There were three children, a girl aged 12 and twins (boy and girl) aged 9. The father had regular, unsupervised contact with all three children before difficulties arose. He issued a C100 in 2019 complaining of parental alienation and seeking a child arrangements order. His application was filed in December and he used the urgency of Christmas arrangements to claim an exemption from attending the mediation information and assessment meeting (‘MIAM’).

The mother then filed a C1A form which made several relatively minor allegations against the father and she did not object to unsupervised time with the children. However, when she later spoke to the safeguarding Cafcass officer she alleged rape and, Cafcass advised the Court to consider a fact-finding hearing.

The main focus of K and K was to give general guidance on the correct approach to FFHs whilst endorsing the earlier case of H-N.

Summary of the Court of Appeal’s approach:

  1. Parties will be criticised if they do not attend MIAM appointments.
  2. The FHDRA (first hearing dispute resolution) is meant to be an opportunity to consider dispute resolution as the name suggests.
  3. The Court must ascertain at the earliest opportunity whether domestic abuse (in all its forms) is raised as an issue which is likely to be relevant to the welfare of the child/child arrangements. Fact-finding hearings will only be needed if it is.
  4. The finding that the father raped the mother during the marriage was unsafe and the judge had failed to consider all the evidence in the round.
  5. The judge should have focused on the allegations that most fundamentally affected future child arrangements, namely whether the father was demonstrating coercive and controlling behaviour which affected the children’s welfare.
  6. Whilst some inappropriate behaviour was made out, the generalised allegation of coercive and controlling behaviour was not, particularly financial control.
  7. The appeal was then allowed and the case sent back to a circuit judge for a decision as to whether a fresh FFH hearing was required based on the principles of K and K and H-N.

The protection or welfare of a child

In accordance with H-N, it was emphasised that a fact-finding hearing would not necessarily be required, even where domestic abuse was alleged. It was critical to identify at the earliest possible stage the real issue in the case and how any conduct would impact on the welfare of a child.

The very clear approach was based on FFHs being a major judicial determination which inevitably introduces delay, postpones any interim determination and is likely to be prejudicial to a child’s welfare as well as to the future relationship of the parents.

“All judges hearing children cases will know that there will almost inevitably be emotional fall out following the separation of adults who have been in a close relation­ship. Whilst the Court will not hesitate to adjudicate upon parental behaviour where this impacts upon the protection or welfare of a child, it is not for the Court to hear about, much less to resolve, issues between the parents relating to their time together, unless to do so is likely to be necessary for, and proportionate to, the resolution of a dispute relating to the protection or welfare of a child.”

No-Fault Divorce and the DDSA 2020

No-Fault Divorce represents a huge change to divorce law in England and Wales. The Divorce, Dissolution and Separation Act 2020 (DDSA 2020) comes into effect on 6 April 2022.

From that date onwards couples going through divorce will no longer have to make allegations about conduct, adultery or wait until they have been separated for at least two years.

The Divorce, Dissolution and Separation Act

DDSA 2022 simply requires one party (or both on a joint basis) to provide a statement that their relationship has irretrievably broken down, known as “no fault divorce”.

There will be no option to defend the divorce.  There are slight changes in terminology and the (current) petitioner becomes the “applicant”.  A decree nisi is known as a “conditional order” and a decree absolute is known as “a final divorce order”.

In some cases applicants may start a joint application but find they are unable to continue amicably.  In those circumstances the joint applicant wishing to proceed as a sole applicant, must give 14 days notice to the other party of their intention to seek a conditional order to be made into a final order.

How Long Will Divorce Take?

DDSA 2020 sets a timetable so that, once an application has been issued, there will be a minimum 20 week period from the date of the application to the making of a conditional order of divorce.  This gives the parties time to reflect and to resolve arrangements over children and finance.  There is also a minimum six week period after the grant of a conditional order before the final divorce order.

Any application for the cost of a non disputed (standard) divorce will need to be made on a separate form known as D11.

Finally, the online portal will not accept new applications from 4pm on 31 March 2022 until the new system arrives on 6 April 2022.

No-fault divorce FAQs

For further information please contact Kim Beatson: kim.beatson@anthonygold.co.uk 020 7940 4000.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Collaborative Practice, Dispute Resolution, and Mediation in 2023

Family practice is changing now more rapidly than it ever has done before. Just imagine before March 2020, when the vast majority of court hearings were face-to-face, where online mediation and collaborative practice was rare, and the Family Mediation Council would not allow mediators to conduct mediation information and assessment meetings by Skype or Zoom, save in the most exceptional circumstances. No-fault divorce has been approved by Parliament and was expected to be available for practical use from April 2022. This may lead to a reduction in the number of people thinking they need advice from a solicitor to divorce. The pandemic has us mainly working from home, almost all court hearings are virtual, and clients are not bothered at all that they Zoom with us in our casual clothes (smart causal of course) and rarely set foot in our office.

Pros and Cons of Technological Developments

Although the pandemic has forced change, it is not necessarily changing for the better. Whereas virtual video hearings work very well in the higher courts where the judges and advocates are used to the technology, searching bundles and preparation for virtual hearings, that is not always the reality for many in family courts at the lower level. Here, already crowded lists can become dysfunctional because not all documents have been updated to the virtual court file, emails from the parties have not been forwarded to the judge and many individual participants struggle with the technology and cannot search through a 200-page bundle on their iPhone. Those utilising the court system directly with the judges have a very different experience to those who have to proceed through the court office email. We have a two-tier system here, those with the technology, know-how and connections and those without.

But family practice was already changing anyway. Advancements in technology have meant that more and more dealings with our clients are systems-based. Comparison websites and TrustPilot are big drivers for attracting clients. What is clear is that the vast majority of clients do not want to embark upon a court process and are not willing to pay for full representation in that court process.

Out of Court Dispute Resolution

A mixture of the delays with the court and a better realisation of how the arbitration process works means that arbitration in both financial and children matters is increasing. More and more barristers and senior and retired judges are being asked to provide early neutral evaluations or private Financial Dispute Resolutions and the feedback from clients of arbitration and Early Neutral Evaluation is very positive. The reality is that arbitrators and evaluators tend to have more time to apply to the process in terms of preparation and delivery than our poor judges do. Mediation continues to be popular and with successful outcomes but is still not utilised as often as it should.

Resolution, the organisation representing family practitioners, has ongoing drive to prepare and train our members in the ever-evolving family practice world. Not just the black letter law training but the skills training that is necessary to attract clients, be a more effective negotiator, a mediator or collaborative practitioner.

Client-Led Resolution Revolution

At the end of the day, it is the clients that are choosing how they want their relationship breakdown to be dealt with. They are far more price savvy, but also want to find ways in which they can resolve issues constructively and fairly but well outside the court process. This client led revolution has meant that there are challenges for Resolution members. We must adapt our practices to meet these client needs and make our services more attractive workable and affordable for clients. MIAMs can now be conducted by Zoom and Skype. Resolution has further developed hybrid mediation which is becoming immensely popular but also practical. Hybrid mediation particularly works where the parties find it difficult to be in the same room together, when they get stuck in negotiations and where the involvement of other expert professionals, including the representing lawyers are actively involved in the process. Hybrid mediation has flown since the pandemic, with separating couples having the benefit of experts in their field being able to help resolve cases directly and effectively. Experts such as therapists, accountants, valuers and IFAs have been used.

Collaborative practice

Collaborative practice came from the USA to the UK in the early 90s and was adopted by Resolution.  The premise with regard to collaborative practice is that both parties commit to resolving issues out of court and in a series of round table meetings with their lawyers present they seek to resolve issues concerning the children and finances. Most or all of the discussion takes place within the meetings and there is little or no correspondence. Collaborative practitioners are specifically trained in the process and use a variety of skills and techniques to help the clients achieve a sensible workable solution. Collaborative practice is attractive because the client not only has the support of someone in the meetings but a lawyer there to advise them too which contrasts with traditional mediation where the lawyers generally are not present.

Resolution governs collaborative practice in the UK and there are presently around 1000 accredited collaborative practitioners. However, there has been concern by a large number of members that collaborative practice is on the decline with difficulty in being able to encourage clients to take up the process and often solicitors for the other party either not accredited or not willing to engage in a collaborative practice. Some collaborative practitioners report they are doing less collaborative work and others none at all. Some fear that collaborative practice is mortally wounded.

Reinvigorating collaborative Practice

Resolution and like-minded practitioners are very keen to reinvigorate collaborative practice. It can be the most satisfying and dynamic way to resolve family issues and personally gives me the most satisfaction of all the processes. The Dispute Resolution Committee and the Collaborative Working Party (CWP) have last year published a revised participation agreement. This is the agreement that governs the parties and their lawyers within the process. The revision of the participation agreement is most welcome. because the existing agreement was quite out of date.  The CWP has worked very hard on this as indeed they have on many other inspirational and proactive marketing ideas. The new participation agreement makes several important changes and in particular:-

  • It allows the flexibility that we now need whilst conducting collaborative practice remotely.
  • It allows for the first time for the collaborative practitioners in a case to instruct either a solicitor or barrister to provide an early neutral evaluation of a series of points or indeed refer issues – including the whole issue to arbitration. Such a course would only take place when the parties were particularly stuck on resolving issues, but it might be for example the amount and duration of maintenance; the extent to which inherited and other non-matrimonial property was required to be used for needs.

We hope these changes prove successful. We would also like to consider other ways in which collaborative practice can be made more attractive to the lawyers and particularly the clients.

 

The ‘disqualification clause’

One issue that keeps coming up for discussion is whether or not it is appropriate to retain the ‘disqualification clause’. Presently the parties are required not only to make a commitment to resolve issues out of court but to take a step further and they are required to sign a document that obliges them to transfer to new solicitors if they issue court proceedings for anything other than a consent order. The inclusion of the disqualification clause is a rule, but it is one that Resolution can change. The disqualification clause is cited by some practitioners as a reason why collaborative practice is used so little.

Other practitioners are keen to retain the disqualification clause. Several practitioners believe that the disqualification clause is a fundamental pillar of collaborative practice. It is the glue that binds the clients and the lawyers into the process, meaning that it is not only more likely to be successful, but also prevents the easy threat of issuing proceedings if a person does not like the way the discussions are going.

There is also anecdotal evidence that many people are reluctant to admit that they do not include the disqualification clause because they fear that disciplinary action will be taken by Resolution for not including the clause. That may well be a fear, but I can confirm that Resolution has never taken such action, nor do I think they ever would.

Other arguments are that it is sometimes just not possible to assess at the outset of the case whether or not collaborative is appropriate, particularly where disclosure has not been completed and there are concerns that one party may not fully and frankly disclose their financial position and that until disclosure has taken place it is too early to assess whether the case is suitable for collaborative. Also, many clients are recommended to Resolution members because of their reputation and all-around skills, and not necessarily just because they are a collaborative practitioner. That client does not want to lose the lawyer that they have been recommended and will have built up a significant degree of trust if proceedings have to be issued. Perhaps, also the practitioners are new to each other and have not worked together before and maybe there needs to be a bit of feeling the way before deciding that you can work collaboratively together.

Presently the situation is unsatisfactory in the way practitioners who do not include the disqualification clause are viewed by some. Take as an example a Resolution member who is collaboratively trained, embarks upon a collaborative process with a collaboratively trained colleague and a separating couple. Within that process there are initial telephone calls and meetings that establish anchor statements, there are four-way meetings and all commit to the principle that we wish to resolve issues relating to say children and finances without utilising court proceedings. The collaborative practitioners explain to the clients that the collaborative process is a state of mind and an approach to working on a without prejudice basis and collaboratively to resolve issues. They have a series of meetings and issues are resolved and a consent order presented to the court. The clients are happy with the process as are collaborative practitioners who are satisfied that the clients have achieved an acceptable outcome. However, they did not sign a participation agreement with a disqualification clause in it. The way our rules stand at the moment and the current participation agreements and guidance appear to state that they are not acting as collaborative lawyers. They are not engaging in a collaborative process and they cannot claim that this case has been dealt with collaboratively. To call this simply ‘round table’ discussions is not correct because of the process that has been followed and the training that has been applied. Some practitioners seek to call collaborative without the disqualification clause ‘principled round table’. This is worse, not only does it ignore the collaborative focus of the process, but implies that any other process conducted is not principled.

Is an Exclusion clause essential?

At the end of the day, I respect and understand the views of those who believe that having an exclusion clause is a powerful tool and a major commitment from all involved in the process to avoid court. However, even though I may include it in about half the collaborative cases that I do I do not personally think that such a clause is essential. Indeed, my view is that the insertion of the disqualification clause should be optional and that it should be the decision of the clients as to whether it is in or out and those clients make that decision after having the advantages and disadvantages of the clause explained to them and confirmed in writing. That is a personal view and, it is not the view of Resolution’s National Committee or the Dispute Resolution Committee who have not discussed any such change. Having a client-focused approach to the inclusion or not of the disqualification clause may indeed provide a greater level of flexibility and in turn attract more clients to the collaborative process.

Changes in Family Law

Changes are happening across our whole family law market. There are changes in how relationships and families are made and ended. It would be to my mind better for family practitioners and more importantly, the clients if the scope of collaborative practice was widened and Resolution was able to make the training in such processes to be easier, more flexible and adapted to a wider family skills base so that working collaboratively becomes the basis for most cases where it is appropriate to do so.

Whatever, mediation and collaborative practice offer the very best way to resolve the issues of separating couples rather than the very broken, underfunded and demoralised court service.

David Emmerson OBE, collaborative practitioner, accredited and hybrid trained mediator, deputy district judge specialising in finance and children cases.

Chair of Resolution’s Dispute Resolution Committee

dae@anthonygold.co.uk

Family Mediation 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 on 020 7940 4000.


Parenting not positioning after parting

We need to change the culture that gives the impression that when parents separate, their difficulties and relationships are legal or formal. The system needs to always emphasise that parents should not be disengaged from the normality of parenting their children as they did before, but now just within two households, not one.

There have been some significant advances that sow the seeds of hope that we are going in the right direction. But this campaign is a long and hard one.

Reframing Support for Families following Parental Separation

Several things hold us back. In the last month, in the media and amongst the parents I work with, I must have heard the phrases ‘custody’ and ‘access’ repeated over a dozen times. I have been working in family law for 30 years, and these terms were abolished before I started. Whilst a cultural shift away from such negative views of family life is never going to be easy, it is encouraging that The Family Law Language Project has recently been launched to try to tackle this.

Over a year ago, a report came out called: What About Me: Reframing Support for Families following Parental Separation. It set out that the way forward for parents should be centred on meeting their needs primarily away from the court, with a multidisciplinary approach and political oversight.

The hope of the President of the Family Division, on the report’s launch night, was not to see so many parents come through the legal system. “We in the court only know parents exist when they’ve issued an application and walk through the court door and often it’s too late then. They’ve got a mindset that they want a resolution based upon court processes, judges and the rest and it’s very difficult then to manage their expectations, to divert them somewhere else.”

Addressing Potential Problems

The report made clear that steering parents away from considering their issues as being legal ones only applied where there were no safeguarding concerns. The families at risk of harm still very much need to have the court as a safety net.

For all other parents, perhaps asking a few tough questions can help address where problems may lie:

  • are your children at the centre of any decisions made about their lives?
  • do your children feel and are loved and cared for by both parents?
  • do your children have contact with both sides of their families, including any siblings who may not live with them, as long as they are safe?
  • do your children have a [proper] childhood, including freedom from the pressures of adult concerns, such as financial worries?

These questions have been adapted from the wording of The Parenting Charter. The charter itself is preceded by a reminder of why it is needed. ‘Conflict is damaging, especially conflict happening between the two people your children love best in the world. Our Parenting Charter sets out what children should be able to expect from their parents if they are separating and what separating parents need to do in the interests of their children. At times of family difficulty, it is easy for adults to forget what it is like to be a child, distracted as they may be by feelings of hurt and fear for the future.’

Mediation and Parenting

Mediation is one way of helping parents come into a space where they can talk just as parents. Even if court proceedings follow, nothing said in mediation can be used against them (unless for safeguarding reasons). That allows parents to look at their roles through the lens of their children’s wellbeing alone, and not as though their issues with one another need be viewed as a form of legal battle.

Caroline Bowden

csb@anthonygold.co.uk

Family Mediation Week takes place from 17 January 2022 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 on 020 7940 4000.

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


Financial Consent Orders in Mediation

One of the criticisms that have historically been levelled at mediation is that it does not provide finality for family finances. That is not true or fair at this point, as mediators can set out a full pathway to a final settlement, especially since they can now provide the first draft of a document that can be turned into Financial Consent Orders – a binding court order.

Back in the summer of 2019, family mediation’s governing body, the Family Mediation Council, (FMC) gave the green light to this change. There has perhaps been less publicity about this evolution in how mediators work than might have been expected.

Financial Consent Orders before 2019

Traditionally mediators only drafted very top-level financial agreements. These basic summaries of intent then had to be reshaped by solicitors into much tighter and more detailed legal wording, as they had to fit the formalities of a draft court order. Sorting out long term financial arrangements, especially relating to property and pension issues, can be very complex. A draft court order, which then has to be approved by a judge, must be as well drafted as if a judge themselves had handed down the same terms after a fully contested hearing.

Before 2019, many solicitors would struggle with the expanding and reshaping process of the ideas formed in mediation. There was often not enough detail from the mediator’s memorandum to make every part of the arrangement watertight. This would mean having to have secondary negotiations of the fine-tuning and the details. As indeed ‘the devil is in the detail’, some arrangements fell apart at this stage. It was frustrating for participants who thought that they had ‘sealed the deal’, to find themselves being presented with choices, with both naturally wanting the option more favourable to them. It is also not hard to see how, if they are already experiencing an element of ‘buyer’s remorse’ about the overall terms, they may decide that even a minor extra concession or two would be a step too far.

 

Financial Consent Orders since 2019

Over the last few years, since being approved by the FMC, mediators themselves can draw up the first draft of the financial consent order. The mediation participants are taken through the drafting details that are needed during the meetings, based primarily on the judicially approved standard precedents. The initial draft of the consent order, based on these mediated discussions, will then be included in the mediator’s normal memorandum. So the only difference is not one of structure, but of providing a more granular level of detail in practice. There are two advantages to this approach.

Less negotiation and drafting

Firstly, the solicitors who advise the individuals about the ultimate terms of the consent order will need to do much less additional negotiating or drafting of new terms that were not discussed before. This will mean that there will be less threat of undermining the progress contained in the main provisions that were agreed in mediation.

 

Greater client agency

The second advantage comes about because, previously, the parties could feel more marginalised during the drafting of the secondary terms by their solicitors. The dynamic shifted around with the solicitors being in control of this process, not the clients themselves. These clients can now have greater agency throughout, as the mediator will take them through the more nuanced or technical issues whilst they are there together and facilitate a resolution to any issues that arise from them. It is much better to spot issues that make the proposals unworkable or unpalatable in mediation, than when the mediation process has come to an end.

A better outcome for mediators and clients

Of course, the parties must be allowed to make any amendments to the draft created by the mediator even after it has left the mediation process. It is hoped that these changes will now be minor, rather than a complete reworking or unravelling, as the parties have invested so much in the process of considering the detail already.

So mediation can indeed lead clients through to getting a consent order, providing a full and binding outcome on financial matters. It can be an arrangement that is truly tailored to their individual needs, as the participants have been able to be so involved in all stages, from working out the main ideas to considering the workable legal terms that will make their settlement watertight.

Caroline Bowden

csb@anthonygold.co.uk

Family Mediation Week takes place from 17 January 2022 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 on 020 7940 4000.

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


Technology in International Mediation and Child Abduction

The image of a typical mediation meeting would traditionally involve participants sitting around a table. Covid-19 has shown us how mediation meetings can be adapted and can take place remotely. At Anthony Gold, even prior to the pandemic, we would routinely undertake mediation with clients who were based in different geographical locations (national and international mediation) which would prevent face-to-face mediation and cross-border matters.

Technology in International Mediation and Child Abduction

Remote Mediation

Remote mediation has been eased over the years with changes in technology and affordable products on the market utilising the internet which has enabled free video-based communication. Mediation can take place over Skype, Zoom, Microsoft Teams or even FaceTime. The varied types of communication also allows different forms of mediation such as shuttle mediation to take place remotely.

These facilities have enabled separating couples and parents who live a distant from one another or who are in different countries, a mode of communication without the cost of, and the time involved in travelling, and being away from work for a significant period of time, which could be a huge concern for those who are self-employed.

The ability to undertake remote mediation in international cases is of great value in cross-border cases, whereby separated parents and mediators who are based in different countries can mediate online by way of video technology.

 

Technology, International Mediation, and Child Abduction

In our experience, remote mediation in international matters has been of huge benefit where speed is an issue, urgently re-establishing indirect contact with a child who has been unlawfully removed or retained and in international and national relocation cases. Issues concerning culture, language and even gender can be addressed when selecting a mediator. The voice of the child can also be raised in the mediation process.

Urgent discussions can take place in a safe and confidential environment addressing matters such as:

  1. The return of a child or their living arrangements
  2. Contact with the absent parent (both direct and indirect)
  3. Financial arrangements and maintenance
  4. Who will pay for flights
  5. Which parent will be responsible for travel
  6. How will school holidays be divided
  7. Which university will children attend
  8. Whether children will be registered in bilingual schools
  9. The religious and cultural upbringing of a child
  10. Dual passports
  11. Addressing any criminal proceedings which might be underway

Should there be a short court hearing to address specific issues to bring matters to a swift conclusion.

If an agreement is reached and recorded in a Memorandum of Understanding and the agreement is reflected in an order of the court so that it is legally binding, consideration should be given to obtaining a mirror order in the foreign jurisdiction.

For effective international mediation, you should consult a specialist mediator with a conscientious approach to the paperwork in a situation where there may be little by way of international recognition or enforcement.

Family Mediation Week

Family Mediation 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 on 020 7940 4000.

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


Family Mediation Week – Child Inclusive Mediation

Choosing a mediator

If, as a parent, you are considering child-inclusive mediation your mediator must have enhanced criminal records clearance and have attended a specialist course on direct consultation with children (DCC).

Exploring the suitability of DCC

There is an abundance of research (nationally and internationally) which supports the right of children to be heard. It shows respect for children, involves them carefully in decision making and ensures that they understand clearly what is happening to them.  Listening to a child can also help to clarify the parenting arrangements which the child feels comfortable with and this can be very different from the picture portrayed by one or another parent. It can even help to clarify whether a child wishes to spend more or less time with a parent.

However, it is not straightforward and it does require considerable preparation with different considerations depending on the age and maturity of the child and the attitude of both parents.

Usually, direct consultation does involve the child meeting face-to-face with the mediator but Zoom meetings have been commonplace over the last two years. Most children aged 10 years or over, are perfectly familiar with and comfortable with that medium.

Confidentiality

It would be usual for the mediator to write to or email the child to explain, in simple language, that the parents are “sorting things out” and that one of the issues is how much time the child should spend with each parent so that the arrangements works best for everyone. A simple explanation regarding confidentiality is important; not that the mediator will ignore issues of safety, abuse and safeguarding but that the child should feel free to speak and that the mediator will decide with the child what will be said to the parents. Sometimes children prefer to deliver the message themselves, supported by the mediator. More frequently we find that children prefer the mediator to convey the agreed message, in language which is agreed with the child. Again much depends on the circumstances and personality of the child.

If DCC seems appropriate, the mediation consultation sessions usually last for around 45 minutes.

Whether children are seen alone or with their siblings depends on the circumstances and the age range. Teenagers often prefer their own space but it is very important that the views of younger children are understood and that one sibling is not held out as the spokesperson.

Child Inclusive Mediation Resources

For tips on talking to your children about separation and parenting through the process, we suggest you consult the website of the family law group Resolution.

The author of this post is Kim Beatson who was one of the first solicitors in the country to qualify as a mediator and is accredited to consult with children.  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.

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


What happens if I cannot agree child arrangements with my ex-partner?

Any important decisions relating to a child should be made with the agreement of both parents, assuming they have parental responsibility for the child(ren). You might be able to resolve matters directly with the other parent, but if you cannot agree child arrangements then there are a number of options available to you which do not involve attending court.

You could consider attending mediation, which is a voluntary process within which an independent mediator will assist you and your ex-partner in reaching an agreement. Mediation is a less confrontational, more cost-effective approach to resolving matters relating to child arrangements and you can find out more about mediation ont the CAFCASS or the Resolution websites.

It is not necessary to have a court order in place if you agree the arrangements for your child(ren). However, you might consider putting your agreement in writing so that there is clarity, and one way of doing so is to create a Parenting Plan.

If it is not possible to reach an agreement via the above methods, a solicitor could write to your ex-partner/their solicitor on your behalf to try to resolve matters. You may also wish to explore the collaborative process.

If you still cannot agree child arrangements, it might be necessary to consider issuing court proceedings. The court can make the following orders in private children proceedings:

  • A Child Arrangements Order – known as ‘spend time with’ and ‘live with’ orders. There is now no such thing as ‘custody’ within the Family Court.
  • Prohibited Steps Order – this will prevent a parent from doing something, e.g. from taking their child out of the country.
  • Specific Issue Order – this will determine a particular issue, e.g. which school a child will attend.

When a court is making a decision about the upbringing of a child, the child’s welfare is the paramount consideration. The court must consider a range of factors known as the Welfare Checklist:

  1. The ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding.
  2. His or her physical, emotional and educational needs.
  3. The likely effect on him or her of any change in circumstances.
  4. His or her age, sex, background and any characteristics which the court considers relevant.
  5. Any harm which the child has suffered or is at risk of suffering including violence and, for example, impairment suffered from seeing or hearing the ill-treatment of another child or parent.
  6. How capable each of the parents and any other person in relation to who the court considers the question to be relevant, is, of meeting the child’s needs.

The court will not make an order in respect of a child unless it is in the interests of the child to have the order, which is known as the ‘no order’ principle.

It is easy to become distracted by irrelevant issues and get caught up in the emotional fall-out of separation. However, wherever possible do try and stay focussed on your child(ren) and what is in their best interests, and how you can work together to ensure that the arrangement works for them. Listen to their wishes and feelings and remember that no family is the same and therefore what works for somebody else may not necessarily be the best arrangement for you.

If you reach agreement outside of the court process, it may be possible to reflect this within a Child Arrangements Order which is submitted to the court for approval. However, the ‘no order’ principle will apply and it may be preferable to record your agreement within a parenting plan instead of seeking a court order.

Another alternative to the court process is arbitration, whereby an arbitrator (who will be appointed by you and your ex-partner) will provide a binding decision, known as an ‘award’. Arbitration is increasingly popular as a more flexible and efficient alternative to the court process.

If you cannot agree child arrangements with your ex-partner and would like advice or assistance, 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

 

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Parental Responsibility for Fathers: Who, what and how

Section 3(1) of the Children Act 1989 defines Parental Responsibility as “the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

It gives a person the responsibility for making all of the significant decisions in a child’s life, including (but not limited to) their name, their health and welfare, education, housing and religious upbringing.

A mother automatically has parental responsibility for her child from birth. The father will only have parental responsibility in the first instance if he is married to the child’s mother at the time of the child’s birth. If he is not married to the child’s mother, then he will not have parental responsibility unless he acquires it in accordance with the provisions of the Children Act 1989.

The issue of parental responsibility can be problematic for unmarried fathers. For an unmarried father, there are a number of routes to obtaining parental responsibility.

  1. By marrying the child’s mother
  2. Registration on the child’s Birth Certificate – s4(1)(a) Children Act 1989
  3. Parental Responsibility agreement – s4(1)(b) Children Act 1989
  4. Parental Responsibility Order – s4(1)(c) Children Act 1989
  5. Child Arrangements Order

There are numerous families that are made up of unmarried parents. According to the Office of National Statistics, the number of cohabiting couple families continues to grow faster than married couple and lone parent families, with an increase of 25.8% over the decade 2008 to 2018.

Marriage

As already mentioned a father will have parental responsibility in the first instance if he is married to the child’s mother. If the parties are not married then the mother will have sole parental responsibility at the time the child is born.

Registration on the birth certificate

S4(1)(a) of the Children Act 1989 states that a father can acquire parental responsibility if “he becomes registered as the child’s father under any of the enactments specified in subsection (1A)”. This includes registration on the child’s birth certificate.

When registering the child, the mother should include the father’s name on the birth certificate. If the father’s name is not included at the time registration, but the father wishes to acquire parental responsibility in this way, then the mother will have to re-register the child’s birth to do so. This can be done through your Registry Office and you can find further information about this here.

Parental Responsibility Agreement (s 4(1)(b) Children Act 1989)

To make a parental responsibility agreement, the parents will need to complete Form C(PRA1) and there are guidance notes attached to the Form which explain the procedure for ensuring that your agreement is effective.

The Parental Responsibility Agreement Regulations 1991 set out the prescribed form that the agreement must take in order to be valid. The signatures of the parents must be witnessed by a Justice of the Peace, a Justice’s clerk or an authorized court official. It cannot be witnessed by a Solicitor. The agreement will be recorded by filling two copies with the Principal Registry and upon filing the documents an officer of the Principal Registry shall seal the copies and send one to the child’s mother and one to the child’s father.

Parental Responsibility Order (s4(1)(c) Children Act 1989)

It is possible to obtain parental responsibility by applying to court for a Parental Responsibility Order. Through this the father is given recognized legal status as having parental responsibility for the child. This is a freestanding application and does not deal with child arrangements. You can apply using Form C1 and the court fee is £232. Before applying for a Parental Responsibility Order you must attend a Mediation Information Assessment Meeting (MIAM) with a Mediator and the Mediator will certify that you have attended.

When assessing whether to grant the order, the court will consider three factors: firstly, the degree of commitment that you have shown towards the child; secondly, the degree of attachment that exists between you, and thirdly your reasons for applying for the order. They will also refer to the Welfare checklist through an assessment of all of the specific circumstances of the case. The order is most likely to be granted if it is ultimately in the best interests of the child to do so.

Child Arrangements Order (s12(1) Children Act 1989)

When the court makes a Child Arrangements Order and that child is to live with their father, the court must make an order giving the father parental responsibility, if he does not have it already.

Where a Child Arrangements Order is made for contact alone, then the court must decide whether in those circumstances it is appropriate for the father to have parental responsibility also. If it is deemed appropriate then the order must be made (s12 (1A)).

You must apply for a Child Arrangements Order using Form C100 and there is a court fee of £232 payable. It may also be prudent to enclose a completed Form C1 at the same time. As with applying for a Parental Responsibility Order, you must attend a Mediation Information Assessment Meeting (MIAM) with a Mediator and the Mediator will certify that you have attended.

If the court makes this order, they must, when granting the order, decide whether it is appropriate to give you parental responsibility. If the court decides that it is appropriate, then the court must grant a Parental Responsibility Order in your favour.

If you would like advice or assistance on how best you can go about acquiring parental responsibility, then please do not hesitate to contact us.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

International Divorce

These days it isn’t just senior business executives or celebrity movie stars who have interests overseas.  It is not uncommon for couples to get married abroad, live or work abroad or have property overseas.  When these relationships breakdown, you need specialist advice about how to proceed.

Unsurprisingly, family law is not consistent throughout the world.  Depending on your circumstances, you may be able to issue divorce proceedings in another country.  We call this “forum shopping”.  You may find that you and your spouse cannot agree which country is appropriate and there may be significant financial advantages to choosing one  over another.

For example, the financial outcome on divorce is very different in England and Scotland.  In England and Wales pre-marriage assets can still be shared on divorce.  In Scotland these do not form part of the property to be divided except for the family home.  In England and Wales inheritances and gifts can be shared on divorce particularly where there is no other alternative and the assets are limited.  In Scotland these are generally excluded.

In England and Wales, the court can order spousal maintenance for a fixed term or until retirement, death or remarriage (known as “joint lives”).  In Scotland maintenance will last for a maximum of 3 years.  The differences between two jurisdictions is astonishing considering our links in so many other ways.  It tends to be the same throughout the world.

Our family team have in depth knowledge about how family law works in other countries.  As well as having expertise in-house, we have forged relationships with a large number of overseas lawyers we call upon.

We can help with disputes about where to file for divorce, making financial claims in multiple countries, property and other assets and child abduction.  Our experience in international cases ensures the process is as simple as possible and means we can fully support you in making difficult choices.  Kim Beatson is a fellow of the International Academy of Family Lawyers (IAFL) with considerable expertise in this area.  She also specialises in the international relocation of children.

For more information contact her on 020 7940 4011 or by email to kim.beatson@anthonygold.co.uk.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*