Category Archives: Children

Mediate not Litigate

And that is the rallying cry of Mr Justice Holman in the case of Ekaterina and Richard Fields

The couple have been married about 10 years, have two children, and at the start of the case, the Judge has urged them to try and resolve their financial issues without the intervention of the court.  He explained that court hearings can be “awful” and described them as being like a boxing match.  The couple’s fees are expected to be in excess of £1 million by the end of the trial, and the Judge asked them to consider what else they could have spent the money on.

As a mediator and a solicitor, I am aware that some cases are suitable for mediation, and others are not.  For most however, it’s a question of timing.  At the start of the separation, feelings are very raw, with clients ranging from angry to distraught.  This is usually when clients are told about the benefits of mediation.  This is usually when most people are not ready to try and work with their ex – there is likely to have been a massive breach of trust, and by embarking on the mediation process, clients have to trust their ex to make the process work.

By the time the court system kicks in, many clients are weary of the process, are fed up of paying legal fees, when they don’t feel like they have got very far, and are more likely to be receptive of mediation and the benefits – it’s quicker and cheaper, and far less stressful, and clients can dictate the pace (provided they agree).

What is the answer?  Our system is built on the basis of litigation.  There have been various suggestions over the years, as to how to improve our divorce system – by introducing no fault divorces, and by having a “cooling off” period.  The difficulty is that our system is a one size fits all and as a practitioner of over 20 years, no two divorces are the same.

Mediation needs to be promoted, not as an alternative to litigation, but the main option.  It is only when mediation is at the forefront that people will be more accepting of the system.

Some clients think that having a judge make a decision is somehow easier than making a difficult decision for themselves.  It is only when they have been in litigation for a few months do they realise that that isn’t the case at all.

Cases involving Children – Court, or not Court?


Three business people are meeting

I have just read an interesting article by a Social Worker called Gar Direnfeld from Ontario Canada, and I was struck by the similarities between the English Judicial system and the Canadian one.

It made me think about what people need to know before they embark on Court proceedings, which are sometimes seen as a panacea to cure all ills.   So here are my top observations that will help enable people to decide whether court proceedings are the right forum for their dispute:-

1.  The Court is not there to apportion blame – they will not adjudicate one person right and one person wrong.  Whilst they may not condone behaviour they will not mete out punishment.

2. The Court is not there to be on anyone’s side, other than the child, or children that they are being asked to make decisions about.

3. The Court will make a determination, and it is, in most private law disputes, likely to be somewhere in the middle of the representations by the two sides.  This means that neither of you will be particularly happy about the outcome.

4.  If there is a section 7 report, prepared by CAFCASS, or Social Services, the Court is likely to follow it.  If they do not, they have to have very good reasons to depart from it.

5.  If one side is perceived to have “won”, the other “lost”, the arrangements that the Court have imposed are less likely to be adhered to, and often can make the situation worse.

What alternatives to Court are available

1. Mediation – where both of you discuss the arrangements with a neutral third party, and try and come to a mutual decision.

2. Collaborative process – where both of you instruct lawyers who are collaboratively trained and you all meet together to try and come to a mutual decision

3. Lawyer led negotiations – where you meet with your solicitor, and discuss proposals, which are then put in writing, or discussed at a meeting that all of you attend.

Sometimes these options are not possible – where the welfare of children are at risk, or where one side refuses to engage in the process at all.  But where these options are available, whilst the decisions you reach will often be difficult – compromise is key – they are likely to have longevity as the decisions have been made by both of you, and not imposed by a Court.


The Changing Tide


child with milk caught in the middle isolated on white


I have recently read a series of articles, which I think are all related to the Government’s legal aid cuts in family law.  The first was how the Government is announcing a £2 million support package for separating couples, the second was how there has been a decrease in cases concerning children as a result of separation or divorce by 25% in September, and the third was about the address made by Simon Hughes that more people are resolving disputes outside the Courts.

As a mediator, it is great to see that the Government are really encouraging mediation, and are really trying to promote the positive benefits of achieving an out of court settlement, in relation to children and/or finances.  As a mediator, there are few cases that are unsuitable for mediation, and this is why the Government feel that everyone should be using it.  The reality is that for some people, it is not the right time.  What the Government have failed to take into consideration is that the breakup of a relationship is really emotional.  People are quite often in different places emotionally, and this makes sitting in a room with the other person really hard.  Quite often, people feel angry or bitter, and this prevents them from being able to make rational and good decisions about their future, and their children’s future.  Sometimes both people feel angry or bitter towards the other, and are simply unable to make decisions together.  Quite often it can take a long time for parents or ex partners to get over a break up.  It is for these people that the Government’s policy regarding legal aid has had the biggest impact.

Mediation is great for some, but is not a panacea that cures all ills, and the Court system is still vital for some families.  It is no surprise that there has been a 25% reduction in September in respect of Children Act applications for a Child Arrangements Order (contact and residence as was).  As a solicitor, I see a lot of clients for the first time, and they are simply not in a position to pay for solicitors to represent them through proceedings.  A lot, I know, will walk away, without seeing their children.  This has a massively damaging impact on the children.

I am pleased that the Government is now using some of the money that it has saved with the legal aid cuts, on supporting separating couples.  I am really proud that in Huddersfield, the local firms all support the Legal Support Service, where a “duty” solicitor speaks to people who are acting without a solicitor and who have a case in Court at that time, to offer them some guidance on how to present their case and what to expect.  The Government are piloting that at certain court centres, with the aim of rolling it out across the country.  The work appears to be done by the Personal Support Unit, LawWorks and Law for Life.  However, whilst this may alleviate the burden on Judges, it still doesn’t go far enough in helping clients to make sensible decisions about their future.  I know that Resolution, the Family Law organisation, was trying to get the Government to fund solicitors offering one advice session, so that at least separating couples were getting some legal advice from the outset.

The other positive thing is that the Government is funding a CAFCASS-run Helpline, for parents wo have been unable to resolve disputes, and want to avoid court battles over their children.   However, it takes two to tango.  If one parent is not in a position to negotiate, or try and make arrangements, the Courts will still be needed to help to sort the situation out.

Sadly, I fear that due to the Government’s policy, and lack of understanding about separation, many children will go without seeing a parent, and many couples will find that they have madeunsuitable agreements about financial issues because they can not afford legal advice.


Doing your best for your children


child with milk caught in the middle isolated on white


My husband and I have just spent another hectic weekend running around after our children.  Don’t get me wrong, we love it most of the time, but we sat down yesterday evening and bemoaned the fact that we don’t have any time to ourselves, and that the children are the top priority.

It must be even more difficult when you are separated.  It is easy for the focus of the children to be lost.  Whereas you have both had that same focus when you were together, your priorities change, and you are looking at things from different perspectives.  Sometimes, that is really hard to see.

I read an article in The Hamilton Spectator, an american newspaper,  the other day, which helped highlight the difficulties.

“FAMILY LIFE: Access must gradually change to respect child’s needs

SEE MOREarticles from this author

Q: I have been the primary parent in my four-year-old son’s life. I separated from his father two years ago and he has been fighting me for 50-50 access ever since. I am convinced he is only doing it so he won’t have to pay child support. He never took much interest in my son before so I don’t get the sudden interest. He already has every other weekend and one visit a week. How can I keep him from getting more access?

A: It is most often the case that mom is the primary parent in an infant to toddler’s life. As such the mom develops more competencies in caring for the child and the father may not show the same confidence, which may be taken as a lack of interest.

As the child develops language and is less fragile, fathers are typically more comfortable with the child and take a greater interest in the child’s care. This is a normal process in intact families as the family grows and develops.

Along with those natural changes, the mom observes the dad’s growing interest and competency and would come to rely on him more to join in childcare responsibilities.

Separation early in a child’s life interrupts that natural process. As the process is interrupted, mom may be frozen in time, not having seen what would have been a natural progression. Dad views mom as thwarting his relationship with the child when he is ready and more capable to care for the child. This dynamic is a setup for parental conflict.

The important thing to realize is that your son is not yours alone or his alone. He is a product of you both. Now that dad is away from you, he realizes he must put in the work and time to have a relationship with his son. This is good news as it signals an interest to your son of his value to his parents, which creates self-worth and self-esteem.

The challenge for you and the dad is to develop a process where the access schedule can shift gradually to respect your son’s need to have a meaningful relationship with both parents. This does not mean that the residential arrangement has to be equal, but you both will have to find a better balance.

These matters do not resolve well if left to lawyers or courts. There you will find experts at law, but the expertise you need is different. Work with a social worker, psychologist, mediator or parenting co-ordinator who has expertise in child and family development as well as expertise working with separated parents in conflict.”

I thought this brilliantly highlighted some of the conflicts that exist between parents, and how looking at the conflict differently helps to find solutions that may not have been apparent in the first place.  I am hoping to use this article in mediation.

Protecting your children financially


A question that I get asked frequently as a family solicitor is “How can I protect my children’s interests in my finances now that I have moved in with a new partner?”.  There can often be a real struggle for a parent in protecting their children, but wanting to live with a new partner.

The answer is communicate, communicate and communicate.  And, do it before the new partner moves in.  This is because the best way of protecting property is by entering into an agreement with the new partner that effectively, certain assets with be ring-fenced, or dealt with in a certain way.  If you can show that this was the intention at the time cohabitation began, then a partner’s potential claim further down the line is very much diluted.

Under Trusts of Law and Appointment of Trustees Act 1196 (we call it TOLATA) for short, the first thing that a court has to establish is what was intended between a couple, at the time a property was purchased, or a significant triggering event – such as one of them moving into the other’s home.  They then have to establish whether or not the partner has contributed for money or “money’s worth”.  So, if you can satisfy a court that the intention was that the new partner was to get nothing, their claim would have to fail.

Sadly most couples do not have discussions about what they would intend to happen if they split up later down the line.  In addition, a word of caution – if you marry new partner, the divorce rules governing finance and property are a whole different ball game, and you would be wise to enter into a pre-nuptial agreement – plenty of time before the marriage, and where both of you have had the opportunity of getting legal advice, and finding out what financial position you are both in.  Whilst pre-nuptial agreements are not yet officially enforceable, the Law Commission has recommended that certain pre-nups, which satisfy certain conditions, should be legally enforceable.  In addition, after the case of Radmacher, the courts are looking at them a lot more favourably.  However, again, the longer the marriage, the less likely it is that a court is going to be bound by a pre-nuptial agreement – particularly if there have been children.

If you are worried, please see a solicitor.  Most solicitors now offer fixed fees to prepare documentation of this nature, and most offer an inital free consultation.

SOS Family Court

green mazeThe Judicial Executive Board’s evidence to the Commons Justice Select Committee’s enquiry into the effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has just been published.

This shows that there has been a large increase in litigants in person – those who represent themselves – in the private family courts.  This covers cases about where a child should live, and who a child should spend time with and financial divorce settlements.  This is causing the Courts huge administrative problems, and, as predicted by Resolution, could cause massive delays to the Family Court system.

This is at odds with the Government’s stance that the Family Courts performance has not altered since the 2012 Act came in.  This Act decimated the future public funding of family cases.  As a practitioner, I have seen a massive fall in the number of clients who now qualify for legal aid.  These are often vulnerable members of society who can not contemplate dealing with the case themselves.  The Government said that this was covered by “Exceptional case” funding.  Figures from the Legal Aid Agency tell a different story. Less than 2% have been
granted.  In family cases, 617 were applied for and 8 granted – 1.29%.

As a family solicitor and a family mediator, I spend time with people going through a very traumatic time in their lives.  They need the support and advice of someone who is able to help guide them through difficult proceedings.  A lot of clients I have seen since April 2012 haven’t been able to afford fees, but have borrowed rather than facing it alone.  They want someone to be able to give them dispassionate legal advice and guidance.  Myself and most of my colleagues want to help clients avoid court rather than face it, and we give advice about the options available, without involving the Courts.

The Judicial Executive’s Board found that the Judicial perception is that cases where lawyers were not involved are not settling when they should, and these are now taking up valuable court time.

The new changes brought about by the Children and Families Act 2014 makes forms easier to complete, but it doesn’t get rid of the need for good quality sensible advice.

Child Maintenance Service – Son of CSA?

Happy group of kids

So, is it going to be third time lucky?  The Government are once again setting about reforming the rules to child maintenance.  This time, they have decided that as it is better for parents separating to try and agree, they have decided to introduce a rule that says that if they don’t agree, they will have to pay!  Whereas the CSA hasn’t previously charged either parent for their service – save when a father had denied paternity, and the CSA have paid for DNA tests which have proved that he is the father, then they do ask for that money back – they are charging now!  It is £20 to register a claim for Child Maintenance with them, and then the paying parent will pay an extra 20% on top of their child maintenance, and the receiving parent will pay 4% to receive it.

There is a formula, as previously.  Whereas the CSA looked at people’s net wage, the Child Maintenance Service looks at gross income.  For one child, the broad formula is that they would be expected to pay 12% of their gross income, for two children 16% and for three or more children 19%.  Money may be knocked off if the paying parent has other children in their household, and there is a formula for where the children stay with the paying parent for 1 night or more each week.

So, the CSA was universally hated.  Hated by the people who received money, because they found it cumbersome, beaurocratic and slow.  Hated by the people who had to pay, because they found it beaurocractic, unyielding and inefficient.   Will the Child Maintenance Service be more popular, or will it simply be seen as the son of CSA?

For most parents, they want to ensure that the children are provided for.  The CSA regulations meant that people in receipt of certain benefits HAD to approach the CSA.  This often caused huge problems within families.  Hopefully CMS will help.  People are encouraged to be less adversarial, and agree things between themselves.  On the website, there is a helpful calculator, which helps calculate what the maintenance liaibility should be.  Couples are being encouraged to go to mediation rather than through the courts, and this is an area that has been covered with mediators up and down the country.

However, there are those parents who will do anything in their power not to pay child maintenance.  It seems very unfair that for the parent with care of the children in those circumstances will be financially penalised at having to use the government agency, because they are unable to get anywhere with a difficult ex partner.  As an old cynic, it does smack of the Government trying to make a bit of money in difficult times.

iphone work 010

Children and Families Act 2014 – A Play on Words?

iphone work 010


The Children and Families Act 2014 was passed by parliament on 13th March 2014.  Most of this Act involves adoption, and Local Authorities responsibilities to children.  However, it has once again changed terminology in private children proceedings.

As a solicitor, I used to find it really frustrating that the words “access” and “custody” were still being used, despite the fact that the Children Act 1989 introduced the terms  “contact” and “residence” to replace them.  We are about to undergo another change.  This is that contact, residence, access and custody are being done away with, and are being replaced with Child Arrangement Orders.  The Court will have power to make Child Arrangement Orders when determining where a child should live, and who they should spend quality time with.

But is it all just a play on words?  I remember meeting with a very experienced family mediator, and she said that she was going to replace the words “access” and “contact” with “quality time”.  Initially I thought that this was just another play on words, but then I realised that she was subconsciously trying to get across to parents in dispute that this time was something good, not something to be feared, resented or hated.  It was for the parent to have some good time with the child/children.  I do applaud this suggestion.

However “Child Arrangement Order” does sound very clinical to me.  It reminds me of making an appointment for my children to see the dentist, or having to go to the Doctors.  It doesn’t sound like two parents co-operating to help their child have a future with certainty.  In addition, if it’s been over 25 years since the Children Act came into force, and the terminology from previous law is still around, how long is it going to take before we start talking about Child Arrangement orders?  It doesn’t exactly slip off the tongue!

The one really big change for family law is that there is now a presumption that involvement of a parent in a child’s life will further their interests, unless the contrary is shown.  In my experience this is very much the starting point of a court in any event, so it will be interesting to see how much difference this actually makes in practice – watch this space!

Grandparents – Are you getting a raw deal?


It occurred to me when I was making arrangements with both sets of Grandparents to help with child care over the weekend, that Grandparents get a raw deal in the eyes of the family courts.

Parents rely on Grandparents to bail out financially, and to help with childcare.  But, when there’s a family feud, Grandparents have to try really hard to get to see their children.  Parents can apply to see their children if the other parent won’t let them – Grandparents have to get permission to bring an application.

They have to show that they have an arguable case.  The test is a fairly low one, but I was recently involved in a case where paternal grandma wanted to have contact with her grandchild, who was looked after by the mum.  Mum and Dad it is fair to say were not getting on at all.  Mum said that she didn’t agree to Grandma having permission from the Court to bring her application, so the case had to be listed for a contested hearing.  This meant that Mum, Dad and Grandma all had to give evidence.  It was really unpleasant, and hasn’t made relations between Mum and Grandma any easier at all.  Grandma was given permission to bring her application by the Judge, but this has added to the length and stress that all of the people involved in the case have to go through.