Family law

What do I do if my child doesn’t want to see their other parent?
12 September, 2018
by: Cripps

Relationship breakdowns can be difficult. Not only for parents, but also for the children involved. Separations are often fraught with arguments, bitterness and a general lack of love and affection for one another. Children will feel and experience all of this, but without the same understanding as the adults around them as to what is happening, and without the same emotional toolkit. Unfortunately, one of the consequences of a child being exposed to such acrimony on the breakdown of their parents’ relationship is that they will, often unconsciously, take sides. Having been exposed to constant arguments, the child may think the only way to stay safe is to side with one parent and reject the other.

Such are the conclusions of Cafcass, the Children and Families Court Advisory Service, a body of private social workers who assist the court when grappling with the increasing number of applications made by parents to determine future arrangements for their children.

Parent clients have been telling me and my colleagues about their concerns of “parental alienation” for many years. This means that they are worried that their child has been deliberately turned against them by the other parent. This can happen, of course, and is greatly distressing for all concerned. Our experience is that it is rare and children are often reacting more to the unstable emotional environment they are in, rather than the other parent deliberately influencing their choices.

It is now enough of a live issue for Cafcass to issue new guidelines to their social workers, so that they will now specifically consider the possibility that a child has been deliberately turned against one parent by the other. It is a delicate issue and one which must be considered carefully. The court’s approach to children cases in England and Wales is centred on the child’s best interests and, depending upon their age, they may be asked to tell Cafcass what they want for the future – called their wishes and feelings. It is important, in an age appropriate way, to listen carefully to what the child says about their feelings. The child’s voice is incredibly important in the process – and must not be ignored purely because one parent alleges that the child has been “alienated”.

In a relationship breakdown, it is important to try to shield your children from adult matters. Try to open a dialogue with your child’s other parent as early as possible – and try to agree arrangements between you without dragging your child into it. It is very important to a child’s identity to know and have a positive relationship with both parents so try not to let the causes of your adult relationship breakdown influence your decisions for your child’s care (except where you have concerns about physical or emotional abuse – in which case, we advise consulting a solicitor).

If you need extra help, consult a solicitor or a mediator – the earlier you do this, the better for you and your child.

If you have any questions on the above, then please contact Helen Fisher on helen.fisher@cripps.co.uk or 01892 506 258.


Light at the end of the tunnel for no fault divorce?
11 September, 2018

It has been reported that the Justice Secretary, David Gaulke, is to begin a consultation on no fault divorce, calling for the current fault based system to be abolished.

The current divorce law is governed by the Matrimonial Causes Act 1973, however in 1990 the Law Commission identified a number of problems with the legislation.  Of particular note is that they identified that the fault based divorce rules provoked unnecessary hostility, and caused problems for children by making the conflict between their parents worse.  The Family Law Act 1996 included provision for no-fault divorce provided couples had taken part in compulsory information meetings.  Unfortunately that part of the legislation never came into force, and today divorce law in this country is still being governed by an act which is almost 50 years old.

The Supreme Court in the recent case of Owens v Owens concluded that within the parameters of the law, they were unable to do anything but uphold the lower courts’ decisions.  They indicated that Mrs Owens had not sufficiently proven that the marriage had broken down due to Mr Owens’ behaviour.  She was therefore not entitled her divorce at this time, but would have to wait until 5 years had elapsed at which point she would be able to reapply on the basis of 5 years separation.  Mrs Owens won’t be able to do that until May 2020.

The judgment of the Supreme Court concluded with a clear invitation to Parliament to consider reforming a law which is no longer fit for purpose.  That the call appears to have been heard will no doubt come as a great relief to family solicitors, judges and the public alike.  

It is understood that the consultation covers proposals for a single ground for divorce of irretrievable breakdown and would end the requirement that that be evidenced by one of five facts.  This would also apply to civil partnerships.  It is anticipated that the proposals will include a notification system, whereby after a defined period, if one spouse maintains the marriage has broken down they become entitled to divorce.  

There will undoubtedly be opposition to these proposals, with fears that it will undermine marriage, and make it too easy for spouses to separate.  My view, as a practitioner, is that the decision to divorce is never made lightly.  The current system involves needless acrimony and conflict for no apparent purpose other than to service a historic legal requirement.  It would be of great benefit to the spouses going through the process and their children if as much of this could be removed as possible.  This would enable them to better co-parent together if necessary, and gives them the best opportunity to remain on good terms.

It remains to be seen exactly what is proposed by the Ministry of Justice, but it is essential that moving forward we have a divorce system fit for the 21st century, which meets the needs of modern families. 

If you have any questions on the above then please contact Claire Tollefson on Claire.tollefson@cripps.co.uk or 01892 506191.


Parental alienation
12 July, 2018

Parental alienation, at its most severe, has caused children to think their alienated father is a cannibal. This may be an extreme example but demonstrates the effect that parental alienation can have.

Parental alienation is a phenomenon whereby one parent damages their children’s perceptions of the other parent through brainwashing and demonising that parent. In other words, they effectively turn the child against the other parent and seek to exclude that parent from the life of the child.

It is thought that around 11-15% of all UK divorce cases involving children are affected by parental alienation. Needless to say, parental alienation can be very damaging to a child’s development and can adversely affect the child into adulthood. However, the role of the family court, and other professionals, in identifying this phenomenon is challenging because it is sometimes difficult to distinguish parental alienation from the issues that can arise in setting up successful contact arrangements, following a strained and bitter divorce i.e. where parental alienation has not taken place.

So what can be done for children, where alienation has already taken grip and has resulted in the child saying they do not wish to see the alienated parent?

As a starting point, parents should acknowledge the bitterness of the divorce and do all that they can to reduce the psychological impact of that conflict on their children.

Whilst the law says that the wishes and feelings of a child must be taken into account by the court, judges must be prepared to attach less weight to the child’s views where parental alienation has taken place. The general approach of the court will be to look to factors such as the age and maturity of the child; the older and more mature they are, the more weight the court may give to their wishes. With younger children this can be more complicated. The court has to bear in mind that what a child wants and what is best for their welfare is not always the same. The court’s duty to promote contact has been reiterated in a recent and important case (Re M (Children)[2017] EWCA Civ 2164), where it was confirmed that stopping contact with a parent really is a last resort and will only be ordered when it is clear that the child will not benefit from contact.

In this case, the Court of Appeal overturned an order for indirect contact between the children from an ultra-orthodox Jewish community and their transgender father. The case confirms that the courts have to take into account the fact that contact is a fundamental element of family life and that it is almost always in the interests of the child. The issue here was the risk of the children being ostracised from their community if they had direct contact with their father, but the Court of Appeal recognised its positive duty to promote contact and acted accordingly.

Bearing in mind the court’s duty to promote contact, how can the court deal with an extreme parental alienation case ?

Ultimately, the court may have to use the fairly draconian sanction of changing the residence of the child such that he/she will live with the alienated parent. A starting point may be a suspended residence order, directing that the child reside with the alienated parent, whereby the  order is made but suspended on the condition that the alienating parent  does all that he/she can to ensure that contact takes place. The use of suspended orders is becoming more frequent by the court. 

Whilst the change of residence sanction is infrequently used, such orders are made by the court in these cases and may increase in frequency as the spotlight on parental alienation continues to grow.

If you would like to discuss any issue arising out of the above please contact Benjamin Carter by email at the following address: benjamin.carter@cripps.co.uk


Civil Partnerships for all
28 June, 2018

Yesterday the Supreme Court ruled unanimously in favour of a heterosexual couple to have the right to enter into a civil partnership rather than a marriage.

The Supreme Court ruled that The Civil Partnership Act 2004 is incompatible with the European Convention on Human Rights Article 14 (no discrimination) and Article 8 (the right to respect for private life) as it only applies to homosexual couples. 

Currently, heterosexual couples have one option; marriage. Whereas homosexual couples have two options; civil partnerships and civil marriages. A civil partnership is a legally recognised relationship between homosexual couples; it confers the same rights and responsibilities as marriage.

So why would a heterosexual couple choose a civil partnership over marriage?

The applicants in the case heard by the Supreme Court had genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that a civil partnership reflects their views and gives due recognition to the equal nature of their relationship.

Other couples say that they do not want to take each other as husband and wife and that marriage is a patriarchal system, for example having to put your father’s name and occupation on the marriage certificate but not your mother’s.

Unmarried heterosexual couples describe the current arrangement as grossly unfair as they are denied the legal rights of a civil partnership.

What are the benefits of being in a civil partnership or married?

In 2017, 3.3 million families were cohabiting. Cohabiting couples do not have the same legal rights as civil partners or married couples.

There are tax perks of marriage and civil partnerships, for example gifts on death to a spouse are exempt from inheritance tax. A deceased spouse or civil partner can pass an estate of any worth to the surviving spouse without immediate tax consequences. There are then further tax reliefs on the surviving spouse/civil partner’s death.

In the event of separation of cohabitees, the primary child carer has no entitlement to receive financial support from their former partner, whereas spouses and civil partners do.

In addition, some organisations do not recognise partners in cohabiting couples as next of kin. A spouse or civil partner will always have authority to act as next of kin.

It should be noted that although the Supreme Court judgment is a step in the right direction, it does not oblige the government to change the law.

Alex Davies, head of the family team, discussed the ruling on the Julia George show on BBC Radio Kent.  You can listen to the recorded version here: https://www.bbc.co.uk/radiokent. If you would like to discuss any of the issues above, or indeed any other aspect of family law, then please contact Alex on Alex.Davies@cripps.co.uk  or 01892 506 326 for a free, no obligation telephone call.


January blues? Looking forward
26 January, 2018

Statistics show that the number of separating couples regularly spikes in January. This is perhaps not surprising. Christmas is an intense period, carrying high expectations for fun, frivolity and wonderful presents, all fuelled by the power of advertising.  Immediate and extended family are thrown together, present buying in overcrowded shops is costly and stressful, the cold and dreary weather doesn’t help and neither do all the winter illnesses; it can all conspire to bring a relationship to breaking point.

 

So, what are your options if you find yourself in this unfortunate situation?

 

Try taking some time out for yourself, and for each other. Sometimes, a short holiday away, separately or together, can allow you both to gain some perspective, remember what made the relationship work in the first place, and what you need to do to fix it. This need not be a holiday to the Caribbean or even a local walking holiday together, a few hours out at a time on a regular basis, away from the usual routine and pressures, can help you both reconnect.

 

You could go and see a relationship counsellor. Counselling can be helpful because it gives you time away from your situation, and to view and understand your circumstances from a fresh perspective, with some helpful guidance from a trained outsider. It also allows you and your partner to discuss complex and confidential issues in a reassuring and confidential environment. An initial session with a counsellor can be all that is needed to gain some clarity, and to work on bringing new life to a relationship, or, to take the appropriate steps to bring it to an end.

 

Have a discussion with a family solicitor anyway, whatever option you may choose. This need not spell the definite end of a relationship but can be a one off meeting to discuss what life might look like financially and with arrangements for any children should the relationship be brought to an end. It can help you feel more in control and informed about the consequences of ending a relationship and realities of life after that. It is important that if you are considering ending your relationship, you know exactly what this entails.

 

Our family team appreciates that separations can be distressing. Our approach is sensitive and explains your options and their consequences clearly and carefully. All our family solicitors belong to Resolution, an organisation committed to the constructive resolution of relationship disputes.

 

If you would like further information in relation to the contents of this post, or any aspect of family law, please contact Sophie Barrett on 01892 506249 or sophie.barrett@cripps.co.uk.


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