New law on 'parental involvement' comes into force despite anxiety from legal advisers

A new legal provision, contained within the Children and Families Act 2014, will impact on all separating couples with children.

Clause 11 of the Act, which came into force recently, requires courts making child arrangement orders to presume, unless otherwise shown, that the involvement of both separating parents in the life of a child will further its welfare.

However, legal advisers have campaigned to ensure this clause did not undermine section 1 of the Children Act 1989, which requires the child's welfare to be the court's paramount consideration when reaching decisions on their upbringing.

The campaign was successful and an amendment was inserted to make clear that 'parental involvement' does not mean 'shared parenting', and there is no presumption parents will 'share' their children on a 50/50 basis.

The amendment makes clear that 'parental involvement' is defined as 'involvement of some kind, either direct or indirect, but not any particular division of a child's time'.

Coram Children’s Legal Centre's director of international programmes and research, Professor Carolyn Hamilton, commented: "It is essential that the best interests of the child remain paramount in all decisions affecting children. Decisions about where a child should live and how much the child should see each parent should be made in accordance with the child's best interests and not on the basis of parental rights."

Professor Hamilton continued: "We campaigned hard for a definition of 'parental involvement' to be included in the Act so that it was clear to separating parents that neither mothers nor fathers are entitled to a legally binding presumption of shared parenting. Ninety per cent of cases relating to contact are settled out of court, so this amendment is crucial. It will make it clear on the face of the Act that the welfare of children remains paramount."

Landmark ruling for cohabiting couples

Whilst judges are still calling for new legal rights for cohabitees, a woman who wasn’t married to a man she lived with has won £28,500 from him because he ‘promised her a home for life’.

The woman, Catherine Blackburn, moved in with David Southwell, a businessman, after they got together and started a relationship. She had two daughters by a previous relationship, and they moved into the shared house too.  Mr Southwell put £140,000 of his own money into buying the house and the couple took out a £100,000 mortgage, which Mr Southwell paid.  He claims to have also paid most of the household bills, bought her a new car and funded her way through university while she studied to become a speech and language therapist.

Now, in a landmark ruling, Ms Blackburn has been awarded £28,500 after the couple split and Mr Southwell changed the locks on the house, leaving her and her two daughters homeless.

The ruling could well open the floodgates for other similar claims.

Ironically, Mr Southwell didn’t commit to marrying Ms Blackburn because he feared the payout involved if they did marry and then split.

What to do about Litigants in Person?

The Legal Aid and Advice Act 1949 established a scheme of legal aid intended to provide practical equality before the law 'for those of moderate means'.  At its height it cost around £2bn annually and was therefore incredibly expensive.  In 2012 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 took away legal aid for parties in most family proceedings.  Since then, Judges have had to contend with Litigants in Person (LiPs) turning up with a bin liner full of papers and not really knowing what to do.  There has been a growing sense of 'something should be done'...

Recently, Sir James Munby, president of the Family Division looked at three cases.  In one case, about contact of a child, the father spoke no English, couldn't afford a translator and was therefore unable to cross-examine the social workers involved.  In both the other cases the mother accused the father of rape - in these cases, without legal representation, the fathers needed to challenge the accusations against them, and the mothers faced being cross-examined by their alleged assailants.

Legal Aid is still available in some cases where a party has suffered (or is at risk of suffering) domestic abuse and so in these three cases the mothers (and only the mothers) obtained representation.  This clearly brought about an inequality in the parties in court which goes directly against the Family Procedure Rules 2010 which requires the court to ensure 'in so far as practicable' that parties are 'on an equal footing'.

Sir James Munby came up with an unexpected solution - 'If there is no other properly available public purse, the cost will have to be born by HM Courts & Tribunals Service'.

At this stage this is simply a recommendation - no Judge has made such an order, and there is as yet no precedent.  It seems we continue as we are for the time being, LiPs will continue to struggle and the court system may clog up with unrepresented parties and their bin bags.

If you or someone you know finds yourself needing to be in court and without representation, do remember that we are happy to work on a 'pay as you go' basis for LiPs.  Have a look at our website or contact us for more information - we'd like to think we can help you.

Couples converting from civil partnerships will get backdated marriage certificates

The government has confirmed that backdated marriage certificates will be issued to couples converting their civil partnerships to marriages.

After criticism earlier in the year about how conversions were to be carried out, the Government Equalities Office has this week confirmed that a full, backdated marriage certificate will be issued to couples – and not a ‘certificate of conversion’ as previously speculated.

The new marriage certificate has been developed in discussion with the LGBT Consortium and Stonewall and it will be almost identical to a marriage certificate issued without a conversion, but there will be a few necessary differences.

To ensure that there is no doubt that the marriage is to be treated as having subsisted since the date the original civil partnership was formed, as required by the Marriage (Same Sex Couples) Act 2013, the marriage certificate will show the ‘when married’ date as the date the original civil partnership was formed.  The certificate will also show the date the conversion took place.

This will ensure that there is no confusion over why the ‘when married’ date could be earlier than the first date it became legal for same sex couples to marry in England and Wales.

Couples in England and Wales will be able to convert their civil partnerships to marriages at registry offices from December 10.

To see the full article which appeared in the Pink News, click here

Dating before a divorce is finalised might harm your financial position...

A High Court Judge has recently ruled that if a woman starts a relationship with another man whilst still sorting out the finances during a divorce, it may affect the settlement she receives.

In a case involving a Swansea couple, the husband’s legal team during their ‘routine investigations’ found out that the wife was dating, although not living with, another man.  Mr Justice Mostyn reasoned that "She says she is not going to live with him, although it is perfectly clear that the relationship is strong. Relationships like this always are a significant fly in the ointment in the assessment of need. One cannot make assumptions, if it is not full-blown cohabitation akin to marriage, that it will grow into that, because if it does not, the wife may be left stranded if the assumption is wrongly made. On the other hand, if one makes a needs assessment on the basis that she is a single woman and she soon cohabits, then the paying party can rightfully feel significantly aggrieved.”

In this case, and believing that the wife might soon live with her new partner, the Judge awarded £250,000.  However, he did say that if she didn’t end up living with him then £250,000 might not be enough.

Unless Judges are going to be equipped with crystal balls, there is no way of knowing how any fledgling relationship is going to turn out.

There’s a lesson to be learnt here - if you’re going through a divorce, be careful about new relationships and, if possible, steer clear until any settlement is finalised.

Catholics to get easier divorce?

It has been reported this week that Pope Francis has ordered a group of theologians and lawyers to come up with ways to help Catholics divorce more easily.

The 11-member commission, announced on Saturday, will seek to "simplify the (annulment) procedure, making it more streamlined, while safeguarding the principle of the indissolubility of marriage," the Vatican said.

At the present time Catholics can obtain annulments if they can show their marriage was not valid in the first place, perhaps because a partner declined to have children.  However this process, through the church, can be complex and often costly.

If Catholics instead opt for a simpler civil divorce – which is not recognised by the Church – and then remarry, they can be refused communion because the Church considers them to be still married and living in sin.

New protocol launched for tackling stalking and harassment

As stalking-related prosecutions rise, prosecutors and police are being reminded by the Crown Prosecution Service to focus on the devastating impact these crimes have on victims. Prosecutions for all stalking and harassment offences, using both new and older legislation, have increased by more than 20 per cent in 2013-14. In order to maintain this upward trend a new protocol was launched last week to ensure consistency of approach when tackling all forms of stalking.

The new Protocol focuses strongly on the needs of stalking victims and reminds police and prosecutors to:

• ensure that in every case the victim has the opportunity to provide a Victim Personal Statement to court and is able to read this out personally should they wish;
• fully investigate the reasons behind any victim withdrawing a complaint, ensuring it is not the result of pressure from others;
• ensure that victims are consulted on issues such as bail and restraining orders.

Rachel Griffin, Director of the Suzy Lamplugh Trust, the charity that runs the National Stalking Helpline said:

“Stalking is a highly complex crime that has devastating impacts on a victim and because of this we are pleased that the very real issue of online stalking has been addressed in the protocols. The next steps have to be to ensure that all officers are trained to ensure that the guidance in the protocols become a reality for every victim of stalking."

If you are worried about a stalking or harassment issue, please do get in touch with us - Sally Fitzherbert has experience of womens' issues relating to violence.

To see the original article which appeared in Family Law Week, please click here