Pannone Family Law Blog feed

Family courts & the media - another election headache for Gordon Brown

2010-03-05 00:00:00

With the general election looming on or before 3 June 2010, Justice Minister Bridget Prentice has been forced to accept a new clause to the government's Children, Schools and Families Bill requiring a full, independent review of media access to the family courts.

The review is to assess the impact of the rules allowing media access to the family courts, which came into force last April.

The government had planned to extend the scheme, giving journalists the right to review court documentation within family proceedings. However it is not clear whether this extension is compatible with the EU Convention on the Rights of the Child.

Family law practitioners have also raised concerns over welfare issues, central to any case involving a child following the Children Act 1989, as well as the diminution of children's privacy.

The shadow Justice Minister Henry Bellingham confirmed that the Tories are keen to scrap the bill and start again with a new Family Proceedings Bill, given that the government has already announced that there is to be a major review of the family justice system.

The Children, School and Families Bill is now with the House of Lords.

Decision Pending from Japan over Hague Convention

2010-03-02 00:00:00

Japanese Prime Minister, Yukio Hatoyama, has recently revealed that a decision as to whether the country will become a signatory to the Hague Convention will soon be made. The Hague Convention has been in existence for almost 30 years, and if Japan decides to enter into it, it will become the 75th government to ratify it.

The Hague Convention is of fundamental importance to parents of children who are victims of international parental abduction. It provides an infrastructure within the signatory countries, and swift communication between those countries which is designed to enable the fast return of a child who has been abducted. It also enables a missing child to be located within the country that they have been taken to.

It will be welcome news to family law practitioners in England and Wales if Japan does decide to sign the Convention. It makes the process of obtaining the return of the abducted child more straightforward, and usually much faster. Currently there are very few countries in Asia that are signatories. If a child has been taken to a non-Convention country it will often be necessary to gain the assistance of the Foreign and Commonwealth Office, and the help of a lawyer located in that country. This can make the process a lot slower, and there is often a much lower chance of success in bringing the child back.

The prospect of having your child abducted is extremely worrying to any parent. Prevention is certainly better than cure, and a parent who is concerned that there is a very real threat that the other parent will leave the country with their child should contact a family lawyer, and/or the police immediately, as there are steps that can be taken within the UK to prevent this.

Fear over 'child court crisis'

2010-02-26 00:00:00

Judge Graham Cliffe, a senior family judge based in York has warned of an 'alarming deterioration' in the protection of vulnerable children in court proceedings, primarily those involved in care proceedings.

His concern relates to the provision of services from CAFCASS (Children and Family Court Advisory Service), which he has commented as being at crisis level in his region. The North Yorkshire region is not however alone in experiencing a lack of CAFCASS resources.

The backlog of cases means there are delays in children cases coming to court as a result of the delay in CAFCASS officers being allocated to that case.

The service acts for children in care and also those at the centre of a dispute between divorcing or separating couples and is facing an unprecedented backlog as more and more cases come to court.

Certainly in private children act disputes between divorcing or separating couples, where there are no concerns about the welfare of the children concerned, this backlog in CAFCASS should be seen as an opportunity to encourage separating couples to look towards achieving a voluntary agreement between the two of them as to the arrangements for the children, if necessary with the advice of solicitors, but in the absence of any formal court proceedings.

Resolution, a national organisation of family lawyer, strongly advocates parents themselves coming to an agreement about the children, providing extremely useful and user friendly information and guidance on their website (www.resolution.org.uk/).

Delay in reaching a decison about with whom a child is to live and how much contact they are to have with the other parent is acknowledged to be detrimental to children and should be avoided whenever possible.

"Cheryl Cole Dumps Ashley By Text"

2010-02-23 00:00:00

If the stories in the press are to be believed, Cheryl Cole has told her husband, Ashley that she wants a divorce. And how has she broken this significant news to her? "By text" we're told.

This is reminiscent of the early 1990s with Phil Collins telling his then wife he wanted a divorce by fax. At the time it was viewed as outrageous that he could do such a thing, whereas Cheryl does not appear to be facing the same criticism for sending a text message. Surely her text was far shorter than the fax which apparently ran for many pages.

So presumably this marks the end of the "Dear John" letter. In fact, who sends letters these days anyway? By telling your partner you wish to end the relationship by post, isn't there the danger that they don't discover the news until several days later?

So, if texts or faxes are inappropriate and letters are unreliable, shouldn't we be brave enough to tell our partners face to face? Surely it's the first step in a civilised divorce.

To divorce or not to divorce in the UK?

2010-02-15 00:00:00

On Sunday, 14th February 2010, the Sunday Telegraph reported how the wife of the former commercial director of the steel giant Corus has been unable to pursue divorce proceedings in the UK.

The Telegraph reports that the couple were living in France at the time their marriage broke down but married in Wales, lived together in the UK for nine years, and are both British. The report states that the wife managed to file for divorce in the UK but that the proceedings will continue in the French courts because the UK courts have decided that the jurisdiction for the proceedings should remain in France. The article describes how less favourable the French system is for the wife in comparison to the UK.

Upon marriage breakdown and in the event that the parties have international connections, it is extremely important to seek legal advice quickly. Whether or not the UK will have jurisdiction will depend upon various factors. The timing of any proceedings is likely to be important. It may be that for one spouse, it is better to litigate somewhere other than the UK, as decided by the husband in the above mentioned case. At Pannone we can advise you as to how the UK courts will treat your case and such advice should be sought at the earliest opportunity.

Marriages drop to lowest level since 1895

2010-02-12 00:00:00

The Office of National Statistics has revealed that the number of people who married in 2008 has dropped to 232,990 - the lowest number since 1895.

People are also waiting longer to marry. The average age for a man to walk down the aisle is now 32.1 years and a woman 29.9 years.

A range of factors have been touted as the reason for this statistical shift.

The fact people are older when they get married has been attributed to people trying to establish themselves in careers prior to "settling down". The increased cost of homes means that couples can feel they do not have sufficient financial security to tie the knot until they have the level of income which comes from being more senior.

There is also an ageing population in this country. Older people will have already married or are less likely to marry. It will be interesting to see whether the widely reported baby boom which has stemmed from the recession will lead to a corresponding "marriage boom" in thirty years' time.

The biggest factor, however, is the cultural shift in society. It is now socially acceptable to co-habit and have children without being married. Couples feel they can be emotionally committed without having to spend on an expensive wedding or go through a ceremony which can feel meaningless for many.

The concern, however, is the ongoing belief that co-habiting gives rise to a "common law marriage". This is wrong.

When a couple gets married a set of rights and obligations is automatically created. This includes, for example the potential obligation to financially support your husband/wife if the marriage breaks down.

Co-habiting does not create the same rights. This means that a couple can live together for 20 years and have had two children but if the relationship breaks down one half of the relationship can, quite literally, be left with nothing.

Couples should, of course, feel under no obligation to marry - an important and significant decision which should be made for the right reasons rather than merely because society demands it. However, if people are not marrying because of a mistaken belief that living together is "basically the same" this is concerning and there could result in a rather nasty and disappointing shock in the event the relationship breaks down.

Berlusconi and wife trade allegations of

2010-02-02 00:00:00

Various media reports have claimed that the Italian Prime Minister and his wife, Veronica Lario, have been trading allegations of adultery in the context of their divorce.

Mr Berlusconi's antics have been widely reported and it is understood that Ms Lario left Mr Berlusconi when she heard claims that he attended the party of a lingerie model and lavished gifts on her.

Conversely, it is thought that Mr Berlusconi has leaked to a newspaper that Ms Lario had an affair with her bodyguard.

It is not clear whether the publication of the allegations is intended to engender support/sympathy with the Italian Court or the wider public. It may simply be that they feel they need every tool at their disposal given the distance between their positions in their divorce. Ms Lario is apparently seeking 3.5 million a month in maintenance. Mr Berlusconi has offered 300,000.

Such allegations would be unlikely to have any impact in this country. The system in England deliberately keeps the divorce (and the reasons for it such as adultery etc) separate from issues relating to finances.

This can be very difficult to come to terms with for some people. Quite understandably it feels terribly unfair to be financially worse off (as a result of a divorce) when you were in no way to blame for the separation.

The intention, however, is to try and minimise the animosity between the parties. The primary aim of the court is to ensure the needs of any children and the parties are met. This primary aim could become forgotten under the weight of "he said, she said" exchanges which can become emotional and heated.

The result is that a Court in England would not award more maintenance as a result of a husband's attraction to a lingerie model or less maintenance as a result of a wife's affair with her bodyguard, something Mr Terry is presumably rather relieved about.

Grandparents targetted by Labour

2010-01-20 00:00:00

Children's secretary, Ed Balls, has today announced plans to abolish the legal requirement for grandparents to apply to court for permission ('leave') subsequently to apply to the court for contact with their grandchildren when this is denied.

This requirement for leave creates an additional hurdle which is not applicable to parents applying for contact. They can immediately issue their application at court without restriction.

Grandparents with a genuine desire to spend time with their grandchildren are increasingly seeking advice from family solicitors with a view to them regularising contact with their grandchildren through the courts. This demonstrates the preliminary requirement for leave to be out of touch with reality.

Ed Balls focuses on grandparents as the 'unsung heroes' when it comes to informal care arrangements and has also revealed measures to ensure children's centres are more accessible and welcoming for grandparents.

Other measures set out in the Green Paper on families and relationships released today, include providing fathers with more support, together with parents with disabled children.

A full copy of the paper is available online from the department for children, schools and families.

Over My Dead Body

2010-01-19 00:00:00

On Friday 15^th January, Fiona Woods blog highlighted the importance for the unmarried father who is not named on the birth certificate to acquire Parental Responsibility by agreement or by court order if he wishes to be endowed with status allowing him a voice in the major decisions in his childs life.

The importance of Parental Responsibility is not just relevant to decision making during the mothers life but also to a fathers legal standing in the childs life in the event of the mothers premature death.

A mother can choose and appoint another individual to be the childs guardian and to stand in loco parentis on her death. In circumstances where the father does not have Parental Responsibility such an appointment will take effect and confer Parental Responsibility on that individual immediately on the mothers death.

The father would, of course, be able to apply to the court for Parental Responsibility, Residence and such other Orders as maybe necessary but the court will determine the issues on the basis of what is in the best interests of the child from a welfare perspective.

As highlighted in the recent case of Re B (referred to in the 1^st December Blog), unmarried fathers can not rely on their biological links with a child as the trump card in such applications.

It is not just fathers who need to be aware of very the significant obligations of Parental Responsibility. Where there is a surviving parent endowed with Parental Responsibility prior to the mothers death, the mothers testamentary appointment will not take effect.

Mothers and Fathers may have been separated for years, acrimony or circumstance may have resulted in them losing touch. The mother may think that by directing the appointment of a guardian in her will she has secured the best future care of her children. In fact, she will leave such a person with the task of tracking down the father and seeking the Courts endorsement of the mothers belief that they can provide the best upbringing for the children.

Parental Responsibility is not a badge which can be taken off or taken away when it suits. It is a commitment bestowed for life and as such prospective unmarried mothers and fathers should consider carefully, fully and with advice if necessary before they accept all the implications that go with the title.

Unmarried Fathers - What Are Their Rights?

2010-01-15 00:00:00

When a relationship ends and there are children involved parents often worry about their "rights" concerning the children. This is particularly true for unmarried fathers, who often wonder if they have less rights because they are not married to their child's mother.

Mothers of all children automatically have parental responsibility for their child, which entitles them to a say in the important decisions in the child's life, such as education or consenting to medical treatment. Married fathers also automatically have parental responsibility for their biological or adopted children. Unfortunately the same cannot be said for unmarried fathers.

If a child was born before 1st December 2003 their unmarried father would only obtain parental responsibilty for the child by entering into a Parental Responsibilty Agreement with the child's mother, which has to be formally registered. Alternatively if the mother did not agree to this, a Court Order may be obtained the father parental responsibility.

If a child was born after 1st December 2003 and the father's name is on the child's birth certificate, the father will automatically have parental responsibilty for the child, like a married father. If his name is not on the birth certificate he will need to enter into a Parental Responsibility Agreement or obtain a Court Order him this.

It is important that a father has parental responsibility for his child. If you do not have parental responsibilty for your child you should contact a specialist matrimonial lawyer like those as Pannone LLP. We can also assist with problems relating to contact (access) and residence (custody).