The Supreme Court unanimously rejected Mrs Owen’s appeal in the case of Owens v Owens and brings to the fore the issue of whether Parliament urgently needs to introduce changes to the current law with the introduction of ‘No fault’ divorce.

Today’s decision means that Mrs Owen who is said to have been contemplating a divorce since 2012 will have to wait until 2020 to divorce her husband on the basis of 5 years separation having only left the family home in 2015.

Mrs Owen had petitioned on the basis of her husband’s unreasonable behaviour. Mr Owens denied the behaviour and pointed to Mrs Owen own behaviour as perhaps the cause if any as to the breakdown of the marriage.

The appeal judges expressed having ‘uneasy feelings’ in giving their judgment but they were bound by the current legal framework. The examples given by Mrs Owen of her husband’s behaviour were considered to be ‘flimsy and exaggerated’. Mrs Owen sought to argue that she should not have to prove that Mr Owen’s behaviour was unreasonable. Mr Owen’s legal team disagreed and the Supreme Court agreed that as the law stood at present it was the case that the wife would need to prove the behaviour alleged if disputed.

Based on the experience of many of our clients MWSL supports the call for  a change in the law.  The problem with the current law is that to get divorced couples are legally required to assign blame for the relationship breakdown, unless they have lived apart for 2 years.  This makes an amicable separation more difficult, and can have a negative impact on any children, as it increases tensions at what is already a difficult time.  As we all know sometimes in life things just don’t work out, but the current law does not allow for that, and currently one party has to blame the other with sufficient detail to met the legal test, this forces many couples into coming up with something to be able to divorce, which is a legal fudge.  It is the view of all the leading lawyers’ organisations that the current divorce law is not fit for today’s modern society.

We Can Help

At MW Solicitors, our mission is to "To make quality legal services accessible to everyone" including those couples going through the breakup of a marriage or civil partnership.  

Our team of dedicated Family Lawyers have years of experience dealing in all aspects of Family Law and can help you to resolve your dispute with your former partner in a pragmatic and cost effective way.  If you would like to speak to one of our specialist Family Solicitors call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

Family Law

I am a Family and Childcare Solicitor based in McMillan William’s Bognor Regis office and I also service our Brighton office along with other MW colleagues from our other offices along the South Coast.


Lisa Ursell
Lisa Ursell
Solicitor - Family & Child Law

I am asked frequently by parents going through family proceedings when and how a child can have his/her own solicitor and speak for himself/herself in court?

The Welfare Principle

Every decision that the Court makes in family proceedings is based upon a principle enshrined in the The Children Act 1989 called the welfare principle which states:

“… the child’s welfare shall be the Court’s paramount consideration”.

There is also the principle that “..any delay in determining a question about a child is likely to prejudice the welfare of the child”.  The court attempts to work to tight timescales especially in care proceedings where there is a 26 week limit.  However, in family proceedings where disputes between parents regarding who the children should live with, or access arrangements, there is no fixed timescale.

A court will only make an Order relating to a child if it is better for the child than not making an Order at all.  The legislation supports the general principle that it is always better for families and children if the parents can come to an agreement instead of having to involve the Court to make a decision.

The Welfare Checklist

The Court considers and weighs up many factors when reaching a decision as to what Order to make.  This is referred to by the lawyers and the court as the, “Welfare Checklist”.  There are 7 factors which are taken into consideration:

  • the wishes and feelings of the child (in light of his/her age and understanding)
  • his/her physical, emotional and educational needs
  • the effect on the child of a change in his circumstances
  • his/her age, sex, background and any special characteristics which are relevant
  • any harm he/she has suffered or is at risk of suffering in the future
  • how capable each of the parents are in meeting the child's needs
  • the range of powers the court has available to make the best decision for the child

A frequent misconception of parents going through stressful and worrying court proceedings is that if ‘Johnnie’ or’ Jane’ says what they want to happen then this will surely be what the Judge will listen to and the Court must arrive at this decision? 

However, the Court has to balance many factors within the welfare checklist and the child’s wishes and feeling are just one factor in the complicated weighing up process which the Judge has to carry out.  The older the child, the greater the weight is attached to what they say they would like to happen, but the Judge will make a decision based upon all of the welfare checklist factors and it is that child’s overall welfare which takes priority.

Public Law Proceedings and Guardians

Family proceedings may involve disputes between the state and parents called public law proceedings, (where a local authority and children’s services are involved e.g. care proceedings), and disputes between parents and/or other family members for example grandparents, called private law proceedings.

In public law proceedings the child is made an automatic party to the care proceedings and the court appoints a guardian for the child.  The guardian is independent of the local authority and is a neutral party on behalf of the child.  The guardian will be from an independent organisation called CAFCASS, (Children and Family Court Advisory and Support Service).  Following on from their appointment the guardian appoints a children panel solicitor to be the solicitor for the child.  Should there be a delay in appointing a guardian then the court may appoint a solicitor for the child direct.  That child’s interests and welfare are then put before the court within the care proceedings by the child’s solicitor.

In care cases involving an older child often the situation can arise whereby the guardian believes that it would be best for the child/young person for one course of action to happen, but when discussing matters with that child or young person, that child strongly believes that the outcome suggested by the guardian is something which they do not agree with nor could they go along with. For example the child is in an interim foster care placement and the child wishes to return to one of his parents.  Due to risks posed to the child the guardian would not be supporting this.

In these cases the child’s solicitor has to carry out an assessment of that child/young person. The child’s solicitor will consider the age of the child and how much they understand the concerns and worries that the local authority has about their care from the parent(s) which resulted in the court application, and if they understand the consequences of the instructions they wish to give about what should happen to them in the future?  If the child’s solicitor assesses they can give separate instructions then an order may be granted by the Judge for their specific views to be argued in court through their own solicitor.  The guardian will still put forward separately what he/she considers is in that child’s best interests.

Private Law Proceedings

In private law proceedings which concerns a dispute either between parents and/or other extended family members, the general rule is that the child is not a separate party to the proceedings.  The court will ask a member of CAFCASS to prepare what is called a section 7 welfare report.  The report is drawn up after discussing matters with the parents and meeting the child(ren) concerned to ascertain their wishes and feelings. 

However, in a minority of difficult cases the court may decide that the child does need separate representation from the parent(s)/family members.  In such cases the court will appoint a guardian to represent a child and take over the child’s case. 

These cases are rare and only occur if one of the following is present:

  • if the S7 report author recommends the child should be a party in their own right
  • if there is an ‘intractable’ dispute over where the child should live or how much time they should spend with the other or if all contact has stopped altogether and there is implacable hostility which may be harming the child as a result
  • an older child is opposed to a course of action being put forward by the S7 report author
  • complex medical or health issues
  • an international element possibly involving child abduction
  • serious allegations of physical
  • sexual or other abuse or domestic violence allegations

If a child is made a party to private law proceedings and they have their own guardian, a solicitor for the child will also be appointed to be the advocate in court. 

A more mature child/young person can seek to instruct his/her own solicitor if they consider themselves to be affected by a family dispute.   Upon meeting that child/young person, a children panel solicitor would need to carry out the exercise of assessing if they are capable of giving separate instructions and whether they understand the court process and the implications and consequences of any instructions they give to the solicitor and what they wish to happen.  An assessment of their emotional intelligence and maturity would be carried out by the solicitor instructed.  Legal Aid may be available for a child but in private law cases a full merits and means assessment would have to be made to the Legal Aid Agency including why the child/young person requires legal representation and confirming that they have no financial means to pay for the legal advice and representation themselves.

Can a child or young person give evidence?

There was a general presumption that only in an exceptional case should a child be called to give evidence in court.

In a Supreme Court case from 2010 called Re: W the circumstances surrounding when and how a child should give evidence were looked at closely and guidelines were issued which are followed by the courts today.  There needs to remain a balance between protecting the child and the right that any child has to a family life, as well as the rights of the parent(s) to a family life and to a fair trial under their European Convention Rights.

At the heart of any decision,  the court will look at the advantages in that child giving evidence to get to the truth of what has happened and achieving the best possible evidence before the court as against the possible damage or harm to that child’s welfare from the act of giving evidence.

There are now practical guidelines, safeguards and protections in place which must be followed by the Court and the lawyers before any child gives evidence.  In my experience it is still only in the most exceptional cases that a child/young person has to face the ordeal of attending court and giving evidence.

We Can Help

 

At MW, our mission is "To make quality legal services accessible to everyone", especially children..  Our expert Family Solicitors have years of experience dealing with all aspects of Family Law

If you would like to talk in confidence to one of our team of specialist family solicitors call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk

 

 

 

Divorce

On 7th August 2017 a new Divorce Petition went into circulation and can now be used by anyone applying as a Petitioner for a divorce, judicial separation or to end a civil partnership.

 

The new style Divorce Petition will be mandatory from the 4th September 2017 onwards.  However, Petitioners will still be able to issue the old style Petition upto and including the 3rd September 2017 and any old style Petitions submitted to court on or after 4th September 2017 will not be accepted. 

Welcomed by Divorce Lawyers

The changes to the Divorce Petition have been welcomed by practitioners, but as ever with anything there are a few areas of improvement. The new style Divorce Petition now needs to be verified by a Statement of Truth. The layout is straight forward, requiring, save where necessary, very few words. It is a precursor to the plans for online Divorce  and aims to make it more accessible to the lay person in plain English.

What are the New Changes?

The new Divorce Petition:

  • Makes reference to both the Applicant and the Petitioner which may cause some confusion.  However, these legal terms mean the same thing, the person applying for the Divorce.

  • Contains a specific confidentiality clause which allows a party to withhold their contact details when filing a confidential form.

  • includes individual boxes for recording Solicitors details.

  • amends the jurisdiction clause which now includes all the legal grounds, rather than simply accepting that the parties are habitually resident in England and Wales.

  • includes summary notes which explain the circumstances where the court accepts that a couple might be living apart even while living under the same roof.  This makes the petition much easier to understand.

  • includes a revised "Prayer for financial claims" which removes the specific list and abbreviates the claims of the Petitioner and those made on behalf of any children.

  • includes a "Statement of Truth" in place of the signature that was traditionally used by the Petitioner (or a Solicitor on the Petitioner’s behalf).

  • provides clarity regarding when costs orders can be made.

  • removes the need to include the names and dates of birth of any children from the Divorce Petition, bringing it into line with current legislation.

We Can Help

At MW Solicitors, Our Mission is "To make quality legal services accessible to everyone", including those who are going through a divorce or legal separation.  Our solicitors are experts in all aspects of Divorce and Legal Separation including Mediation and Ancillary Relief. 

If you have any questions or would like legal advice on the impact of the changes to the Divorce Petition, call our Divorce and Separation team, today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

Child Maintenance

If you are involved in court proceedings to divide assets following a divorce, dissolution of a civil partnership or separation of non-married parties, maintenance for children is most likely to be a factor where children are involved.

Non Resident Parent

The parent who does not live with the child full time and who does not have day-to-day care of the child is known as the non-resident parent.  They have a responsibility to pay child maintenance up until the child is a minimum of 16 years old or a maximum age of 20 years old if the child decides to stay enrolled in full time education.

Full time education is defined as being more than 12 hours per week and includes A-levels. Child maintenance is still payable during school breaks and if a child turns 16 years old and leaves school in the summer, child maintenance is usually still payable up until the first week of September of that year. 

Non-resident parents do not have to pay child maintenance if the child decides to continue education to advanced study after A-levels, such as college or university. At that point, children are deemed able to work and pay for themselves.

Private Child Maintenance Agreements

Child maintenance can be agreed privately by the parties directly or through solicitors. Private agreements can be recorded on a private agreement form through the Child Maintenance Options.

This is a flexible option whereby both parties can agree on the amount payable and can change the maintenance rates by agreement if their circumstances change.  In addition neither party will have to pay the Child Maintenance Service fees.

However, privately agreed maintenance agreements are not legally binding.  If the non-resident parent decides to stop paying the child maintenance agreed, the resident parent cannot enforce the agreement.

Application to the Child Maintenance Service (CMS)

If an agreement cannot be made between the parties, the resident parent can make an application to the Child Maintenance Service.  There is an online calculator available to help calculate the amount that the non-resident parent will have to pay a month.

Consent Order

The resident parent can apply to the court to have the private agreement or application to the CMS turned into a consent order to make the agreement legally binding.

If the court makes the order and the non-resident parent fails to pay the maintenance agreed in the consent order, the court will have the power to enforce the order.

Periodic Maintenance Payments and other Financial Provisions

Under the Children Act 1989 the non-resident parent or resident parent can apply to the court for child maintenance to be paid by way of periodical maintenance payments, a lump sum or by a transfer of property into the sole names of one of the parents.

When deciding an application the court will consider all information in the case and in particular the welfare of the child and will look at the following factors:

  • the income, earning capacity, property and financial resources of both parties now and in the future;
  • the financial needs, obligations and responsibilities of the parties now and in the future;
  • the financial needs of the child;
  • the income, earning capacity, property and other financial resources of the child;
  • the physical or mental disability of the child and;
  • how the child is or is expected to be educated or trained

Any financial provision that the court orders will last until the child reaches 18 unless they are still in full-time education or there are special reasons why the child maintenance should be continued, for example if the child has a disability.

Mediation before Application

Please be advised that before the parties apply to the court as above, the parties are expected to try and resolve their issues through negotiation and mediation.

We Can Help

At McMillan Williams, our mission is “To make quality legal services accessible to everyone” including those families struggling with Child Maintenance issues.

If you are going through a separation or wish to talk to one of our specialist family solicitors dealing in Child Maintenance issues please call us on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

With primary school offers being sent out on 16 April, parents may be concerned about what to do if their child doesn’t get offered a place at their preferred school. 


Louise Tunstall
Louise Tunstall
Associate Solicitor - Civil Litigation

Louise Tunstall, an Associate Solicitor at McMillan Williams, explains what parents can do if they are disappointed with the place offered.  

When Can You Appeal?

Parents have the right to appeal if their child is not offered a place at their chosen school. The offer letter should set out the right to appeal and will generally give parents 20 school days to submit any appeal.

Often a place if refused due to oversubscription of that particular school. Each school must have an oversubscription policy which sets out the criteria against which places will be allocated. Parents can request a copy of this from the school or relevant admission authority. Common oversubscription criteria will include, but not be limited to, a policy where priority is given to :

  • Children with siblings at the school
  • Children who live closest to the school
  • Children who are looked after
  • Faith schools where the pupil is of the same faith

Appeal Hearing

The relevant Admission Authority will set a hearing date to consider the appeal which must take place within 40 school days of the deadline for submitting the appeal, which will happen in 2 stages:

Stage 1

The panel will consider whether or not the school complied with the relevant admission policies and procedure and whether those policies comply with all the relevant legislation. The panel will then consider whether the admission of additional children would prejudice the provision of education or the efficient use of resources.  This involves a thorough review of a number of factors including:

  • The capacity of each year group
  • The actual pupil number in each year group
  • Average class room capacity
  • School size in relation to safety of certain numbers of pupils
  • Whether staff levels are at full capacity

Where the school receives a number of appeals and individually, the school could accommodate one additional child but collectively it would cause a prejudice if all were admitted, the panel must proceed to stage 2.

Stage 2

The school will seek to balance the prejudice to the school against your case for admitting your child. This will involve consideration of why you feel that particular school is better suited than others. This could include evidence from independent parties such as doctors and youth workers.

Parents can attend the appeal hearing although decisions will be sent out in writing in any event. There are very limited rights to appeal the decision of the panel.

We Can Help

McMillan Williams can draft the appeal on your behalf, making all appropriate representations including locating the relevant school data regarding capacity and can guide you through the whole process through to the final hearing.

Should anyone have any queries relating to school admissions or appeals, contact us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk.

It takes courage for parents to turn to Local Authorities for help when things are going wrong. 

A Local Authority may suggest “accommodating” children for a period of time.  But what happens if parents don’t agree? And what happens if parents agree for a short time but then Children’s Services refuse to return their children?  Who determines how long is long enough where there are no Court proceedings, no Judge and crucially no Guardian or representation for the child?   What rights do parents and children have in these situations?

What is Section 20?

Section 20 Children Act 1989 places a duty on local authorities to provide accommodation for children in need.  However, s20(8) is very clear that “a person who has parental responsibility for a child may at any time remove the child …”.  The reality is that in practice, this fundamental right of parents is often ignored by local authorities.

Following judicial concern in recent cases where children have been accommodated for in excess of 2 years and where there have been questions over whether a parent has truly “consented”, the President of the Family Division, Sir James Munby, set out guidance in Re N [2015] EWCA Civ 1112 [paras 157-171] - http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html.  

The President highlights four problems:

  1. The failure of local authorities to obtain informed consent from parents [para 163-164].  Does the parent have capacity to consent?  Does the parent understand the consequences of consenting?  Is removal actually necessary?  Particular care should be taken in seeking consent from a Mother directly after birth.

  2. Care should be taken over the form of consent, which ought to be in writing, translated if necessary and ought not to be “compulsion in disguise” [para 165].

  3. Far too often, s20 arrangement are allowed to continue for far too long [para 166].

  4. The reluctance of local authorities to return a child to its parents immediately upon request:

Regarding the fourth point, the President is clear: 

“This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence.  

A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority.

I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right”

The message to local authorities is clear  

“The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop”.

We Can Help

At MW, our mission is to make quality legal services accessible to everyone including families affected by Section 20 misuse and abuse.  We have a team of specialist family solicitors waiting to help.  

If you have concerns about Section 20 accommodation call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

McMillan Williams are proud to announce that our Head of Family Law, Nicola Jones-King has been shortlisted for the Family Law, Partner of the Year Award 2015.

This prestigious award, sponsored by Goldsmith Chambers, recognises the effort and dedication that Nicola puts in on behalf of her clients and the MW Family Law Department.

Family Law has been making headlines this week with runaway mother Rebecca Minnock being accused of “Manipulating the press”.  Ms. Minnock disappeared with her three year old son after a District Judge in the Family Courts concluded that the child should reside with his father under a “lived with” Child Arrangements Order.

The decision by the Supreme Court in the case of Wyatt v Vince has received a lot of press in recent days.

The case concerned a couple who at the time of their divorce some 20 years ago had no financial assets at all, they had been living what was described as “a hippy lifestyle” with no assets and no income. At the time of their divorce no application was made to the Court to dismiss their financial claims against one another, a relatively simple procedure, which protects the divorced spouse from claims cropping up in the future.

Although the couple had no assets at the time of the divorce the husband has subsequently built a highly successful green energy firm, now worth many millions, all of which was acquired after the divorce. However, because the financial claims were not dismissed the wife has now made an application to Court seeking a financial settlement. It is her case that she was left destitute whereas her ex-husband went on to develop and grow this highly successful business.

Nicola Jones-King, Partner and Deputy Head of our Family and Children Law Department gave evidence to the House of Commons Justice Committee as part of their enquiry into the effects of the Legal Aid and Sentencing of Offenders Act.  This Act introduced significant changes to Legal Aid in family cases but was intended to ensure Legal Aid remained available for vulnerable people and children.  Legal Aid was taken away from divorce, residence and contact (now Child Arrangement Orders) and financial order proceedings.  Unless the individual had been the victim of domestic abuse or the child is said to be at risk of harm.  These two exemptions are established by producing specific documents to the Legal Aid Agency and only certain documents will do.  Legal Aid remains for mediation, for children who are parties to a case or applications brought by Social Services.  The concept of exceptional funding was expanded all allowing individuals (or solicitors on their behalf) to seek Legal Aid, if without it they would be unable to access justice and their human rights would be infringed.

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