Wednesday, 30 April 2008

The Two Ronnies - my favourite shop sketch

This is nothing to do with law. But it is very funny. xx

Happy Birthday John Bolch!

Something that doesn't seem to be a secret is that it is John Bolch's birthday! Happy Birthday John. John is the author of the fantastic Family Lore blog .


I had a brilliant idea a while back that there should be a blog about secrets along the lines of the Postcard Secrets series. I am almost relieved to find they have beaten me to it & set up their own blog. Another job I can cross off my list. Some delicious and some sad insights into family life such as "I'm the reason my best friend has genital warts" & "When I wash my children's clothes, I keep the money I find in their pockets".

How to get divorced without losing your shirt

I was reminded of this great article in the Times written by divorce specialists Sue Bland & Anna Wagstaff of Gordon Dadds by Sam Hasler's Indiana Divorce & Family Law Blog . Gordon Dadds' website has another useful article about prenuptial agreements by Kathryn Peat and some more sensible advice from Anna Wagstaff on how to approach the financial side of divorce.

Children Caught Up in Parental Conflict

The Missouri Divorce & Family Law Blog has 3 interesting posts on A Dozen Ways Children of Divorce Get Caught in Their Parents' Conflict contributed by James Roberts, a Missouri social worker. I recognise each and every one of them, with one or two cases of mine sadly featuring practically all of them. I was particularly struck by the last one - parents hiding behind an apparently noble position - "I want her to make her own decisions" - as a justification for denying contact (when the child's wishes & feelings are not so readily accepted when it comes to refusing to do homework or going to school or going to see that boring old aunt. For any parent dealing with separation and contact issues these posts repay careful reflection to ensure that the child is not damaged and that you are not kidding yourself about being right or righteous.

Monday, 28 April 2008

The consequences of separation

A mother wrote to me recently setting out a history of problems with the father of her child including that he has a major mental illness, cannot organise himself financially so that he often runs out of food or basics like electricity and she is always having to bail him out. To add insult to injury he has also had unprotected sex with others and accused her of violence towards him. She concludes:
I really dont want to see him again as it is too much pain to take and I still love him. Can I enjoy life with my son without seeing him?? what if he goes to court to ask for contact order,,,will he get it?? Can I change baby's surname??

Packed into these questions is the stuff of family law itself. She loves him, she hates him. She wants to help him, he throws it back at her, but he can't help himself, or can he? Can she just sweep him under the carpet because he is too much trouble. I have a great deal of sympathy for what she is going through, bearing in mind as I do, that I am only hearing it from her side.

I couldn't advise her directly as the questions and the background need much more exploration. But I can make a few general comments.

Unless his mental illness makes him a direct danger to the child, the court will not simply assume that the best solution for the child is to cut him out. Even if there is some level of risk, the court will look to see whether it can be contained through supervision of contact or something similar.

If his behaviour over a period of time is such that no reasonable mother could be expected to deal with it or this particular mother has reached the end of a very long tether, then this will be relevant to the court's consideration and it might take the view that at the very least contact should be organised so she does not have to deal with him directly and might take the view that he should be cut out of the child's life at least for a time. Even that may be the subject of future review, particularly if he can show that he has improved in terms of his mental health or attitudes towards mother and child.

Strictly speaking, if the father does not share parental responsibility, the mother could change the child's surname without his consent.

What she also needs to consider is:

  • contact is the child's right not the father's (whether it should be or not is a whole separate blogpost). It may be the right thing to stop contact temporarily because of the father's presentation. But this is unlikely to be the end of the matter if the father persists in future. The child will in due course seek an explanation of why mother did not allow contact and it will be the mother who is resented by the child if she cannot explain it.

  • at moments of high stress it may be tempting to wish away the other parent and very difficult to forgive them for what they have done as seemingly responsible adults. But just how responsible they are for their actions in the moment is a moot point with people who suffer from significant mental illness or personality disorder. This does not mean the court expects you to put up with anything. But a parent is a child's parent warts and all and personality type and all. In time that parent will be part of the child's identity and cannot simply be airbrushed out.

  • the court does often expect a great deal of the parent in this situation who does not have the personality difficulties in terms of accommodating the other parent, but not to the extent of putting their own safety or mental well-being at stake.

  • What the court will want to focus on if an application is made is what is the direct risk to the child if contact of some sort is ordered as well as what is the risk to the well-being of the parent with primary care.

  • change of surname is a whole different legal bag of problems. Even if it can be done lawfully, if you are the one contemplating the name change, think long and hard about why you are doing it. Better reasons include confusion for the child if they are known by a wholly different name from the mother and maybe the new partner. Even then, what about a double-barrelled name, even if one part of the name is not formally used very often. If the surname is a symbol of the attitude to the non-resident parent, the rat will be smelled.

Monday, 21 April 2008

Equal parenting time

A questioner asks me whether I have experience of fathers getting anything like 50/50of parenting time. The short answer is yes, but this, of course, does not do justice to the question.

Over 15 years in practice, I must have seen just about every permutation of time division between separated parents from zero to 90% and whether the resident carer is mother or father. There is a hugely variable range of reactions from Judges. The younger the child, the more likely it is that contact to father is going to be restricted in time. But there are Judges who will look at what the arrangements were pre-separation and who decline to make any differential between children of 6 months and children of over 5. There is no hard and fast rule and no research which assists or is regularly referred to in court.

To give some specific examples from my recent cases:

In a case involving a child of nearly 5 and a history of regular involvement by father though essentially primary care by father, the Judge said that father could not have staying contact at weekends in part because he had consented to an earlier order for visiting contact only.

In another case, where a father had pretty much hijacked the mother into shared care, the Judge would not interfere on an interim basis with a 3 day on and 3 day off arrangement for a child of 7.5 even though many other Judges have indicated that this would not be seen by them as viable.

In a case involving a group of children from 8 to 12 a mother & father had agreed, with a little judicial direction, that the contact should be Mondays & Tuesdays to mother, Wednesdays & Thursdays to father and alternate weekends Friday to Monday to each parent with a more flexible arrangement in the school holidays. This was working well but involved a great deal of cooperation from both parents and a geographical proximity with home and school.

Midweek contact as an isolated occurrence eg every Wednesday for older children is often frowned on. Judges tend to prefer that children have the same home base on school nights, unless the parents can agree otherwise.

If a serious allegation of say, possible sexual abuse is made, this can lead to the temporary suspension of contact (including with the resident parent) for 1 month, 6 months, 1 year depending on how long it is before the court can spend enough time on the case to reach a view on the likely outcome of a contested hearing or to deal with a contested hearing. In other words there are some cases where it can quickly become apparent that these allegations have little substance, and some which take a longer forensic enquiry and some which fall into the first category but the court does not have enough time at an early hearing to take a robust view.

If the parents manage some sort of pretty much split arrangement for a period of time, I have known a Judge to contemplate an arrangement which involved a pre-school child attending two nursery schools in order to spend equal time with each parent.

I have had two cases recently where the difference between what the parents wanted was 6 nights a month. It may scarcely seem to matter to an objective view. But all of them had their reasons for advocating the slightly larger number of nights with them / smaller number with the other one and a common suspicion on both sides that the objective was control of both the child and access to finances (more benefits and greater access to public housing may follow if each parent has equal time).

It seems to me that there is a fairly simple rule of thumb adopted by many courts in relation at least to children over 5 and that is that the starting point should be 50% of the so-called quality time, maybe with a bit extra. For example, alternate long weekends from Friday to Monday during term-time with an extra visit or overnight in the non-weekend contac week and half the holidays including half-terms. Whether this has a sound research basis I do not know.

What I would encourage separated parents to consider is this:

Contact should not be approached on a mathematical basis. What is important is what works for the child and all members of the family. There is no point insisting on or against a 50 /50 split for the sake of it. If you are, for example, a working father, who cannot get home before 7.30 pm then perhaps think about abandoning your view of strict entitlement to those weeknights when you cannot get home and would have to use alternative carers yourself. If you are a working mother then do not insist on the child remaining in your care for the sake of some illusory stability or routine, when again, what it means is that you will have to call on an au pair. Both of you should, however, acknowledge, that the involvement of grandparents after hours while you are at work enables the children to spend time with their grandparents, if there is nothing about this which puts the children at risk.

Like the big yellow taxi , parents often don't appreciate what they lose in terms of casual opportunities for contact until it's gone. Maybe focus on indirect contact ie telephone and email to replace as best it can the popping into the children's bedroom at the end of a busy day or the casual conversation over a sandwich about what happened at school. Children remember not so much what you did with them as how you made them feel.

McKenzie Friends: New Guidance from the President

  • President's Guidance: McKenzie Friends
    14th April 2008

    In the light of the growth of litigants in person in all levels of family court, the President issues this guidance, which supersedes that of 13th May 2005. [2005] Fam Law 405, and is to be regarded as a reminder that the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing.
  • A litigant who is not legally represented has the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend ("MF"). This is the case even where the proceedings relate to a child and are being heard in private.
  • A litigant in person wishing to have the help of a MF should be allowed such help unless the judge is satisfied that fairness and the interests of justice do not so require. The presumption in favour of permitting a MF is a strong one.
  • A litigant in person intending to make a request for the assistance of a MF should be encouraged to make the application as soon as possible indicating who the MF will be.
    It will be most helpful to the litigant in person and to the court if the particular MF is in a position to advise the litigant in person throughout the proceedings.
  • A favourable decision by the court, allowing the assistance of a MF, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the MF or on the ground that the MF's continuing presence will impede the efficient administration of justice.
  • When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.
  • The litigant in person should not be required to justify his desire to have a MF; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend.
  • Factors which should not outweigh the presumption in favour of allowing the assistance of a MF include
  • - the fact that proceedings are confidential and that the court papers contain sensitive information relating to the family's affairs
  • - the fact that the litigant in person appears to be capable of conducting the case without the assistance of a MF
  • - the fact that the litigant in person is unrepresented through choice
  • - the fact that the objecting party is not represented
  • - the fact that the hearing is a directions hearing or case management hearing
    - the fact that a proposed MF belongs to an organisation that promotes a particular cause
  • The proposed MF should not be excluded from the courtroom or chambers while the application for assistance is made, and the MF should ordinarily be allowed to assist the litigant in person to make the application.
  • The proposed MF should produce a short curriculum vitae or other statement setting out relevant experience and confirming that he/she has no interest in the case and understands the role of a MF and the duty of confidentiality.
  • If a court decides in the exercise of its discretion to refuse to allow a MF to assist the litigant in person, the reasons for the decision should be explained carefully and fully to both the litigant in person and the would-be MF.
  • The litigant may appeal that refusal, but the MF has no standing to do so.
  • The court may refuse to allow a MF to act or continue to act in that capacity where the judge forms the view that the assistance the MF has given, or may give, impedes the efficient administration of justice. However, the court should also consider whether a firm and unequivocal warning to the litigant and/or MF might suffice in the first instance.
  • Where permission has been given for a litigant in person to receive assistance from a MF in care proceedings, the court should consider the attendance of the MF at any Advocates' Meetings directed by the court, and, with regard to cases commenced after 1.4.08, consider directions in accordance with paragraph 13.2 of the Practice Direction. Guide to Case Management in Public Law Proceedings.
  • The litigant in person is permitted to communicate any information, including filed evidence, relating to the proceedings to the MF for the purpose of obtaining advice or assistance in relation to the proceedings.
  • Legal representatives should ensure that documents are served on the litigant in person in good time to seek assistance regarding their content from the MF in advance of any hearing or advocates' meeting.

  • What a McKenzie Friend May Do

    Provide moral support for the litigant
    Take notes
    Help with case papers
    Quietly give advice on:
    - points of law or procedure;
    - issues that the litigant may wish to raise in court;
    - questions the litigant may wish to ask witnesses.
    What a McKenzie Friend May Not Do

    A MF has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a MF.

    A MF is not entitled to address the court, nor examine any witnesses. A MF who does so becomes an advocate and requires the grant of a right of audience.

    A MF may not act as the agent of the litigant in relation to the proceedings nor manage the litigant's case outside court, for example, by signing court documents.
    Rights of Audience

    Sections 27 & 28 of the Courts and Legal Services Act 1990 govern exhaustively rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant lay individuals such rights.

    A court may grant an unqualified person a right of audience in exceptional circumstances and after careful consideration. If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an application must be made at the start of the hearing.

    Personal Support Unit & Citizens' Advice Bureau

    Litigants in person should also be aware of the services provided by local Personal Support Units and Citizens' Advice Bureaux. The PSU at the Royal Courts of Justice in London can be contacted on 020 7947 7701, by email at or at the enquiry desk. The CAB at the Royal Courts of Justice in London can be contacted on 020 7947 6564 or at the enquiry desk.

For a basic guide to what a McKenzie friend is see this askthefamilylawyer post

Mr Larch

Link to a very brilliant plea in mitigation

Monday, 14 April 2008

Step-parents & parental responsibility in UK family law

I am a stepfather. I have been living with a woman who has 3 children for about 4 years. I have 2 children of my own who also live with us. We are about to get married. Will this give me parental responsibility for my partner’s children? Do I need parental responsibility?

Getting married to your partner will not give you parental responsibility for your step-children (although you will have responsibilities for the welfare of any child in your care and for maintaining any child of the family).

Since 5th December 2005 step-parents and same sex partners in a registered civil partnership can acquire parental responsibility through a formal agreement or court order. However, anyone else who has parental responsibility has to sign the agreement – this will usually mean that the child’s biological father must agree.

You can also acquire it by applying to the court for a residence order or by adopting the children. As a married step parent with whom a child has been living for 3 years you have a right to apply for a residence order. You also have the right to apply if the child has lived with you for at least 3 years during the last 5 years, and within the last 3 months or you are a civl partner and have treated the child as your own. Much will depend on the attitude of the children’s father. If he is not involved with the children, asking for a residence order may be reasonably straightforward (although the father will have to have notice of your application). If he is involved and especially if he has parental responsibility, you would be well advised to try to get him to agree that you should have a residence order. It may help if you explain to him clearly why you want it (for example, to enable you to be fully involved in the children’s schooling or medical treatment) and to offer any appropriate reassurance about his continuing role in the children’s lives. If he has parental responsibility, you would share it with him as well as the children’s mother. In other words it does not take it away from him.

You should take legal advice about the best way forward.

Sunday, 13 April 2008

It's been so long

Sorry folks, have been rather neglecting this blog because of a combination of the call of other blogs & websites, some training on the new Public Law Outline, a hectic social schedule of wild celebrity parties and the fact that I am in mourning for a certain football team that is not doing quite as well as it might. But you are not forgotten so here's a little something to cheer you up.

No wonder so many marriages hit the rocks if this is what happens in Relate!