Category Archives: Grandparents Rights

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.

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Launch of New Grandparents Legal Centre Website

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http://grandparentslegalcentre.co.uk/

I am really pleased to be able to announce that we have just launched our updated website, for Grandparents seeking advice about seeing their grandchildren, having their grandchildren livingwith them, caring for grandchildren, care proceedings and welfare benefits.

At Ridley & Hall we are all too aware of the difficulties that grandparents face when they go through the family justice system, and the problems that they have with funding.

We decided that we would update the website to provide a lot more comprehensive advice to people who are struggling through difficult times with their grandchildren, and I hope that you find it useful.  After all, we have helped thousands of families in this situation.

Protecting your children financially

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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.

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.