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May 21, 2019
Mediation vs Arbitration

Mediation vs Arbitration

Arbitration and Mediation are the two main forms of Alternative Dispute Resolution (ADR).

There is no ‘one size fits all’ form of ADR. Every case is different. Every party has different needs and objectives. Below we’ve set out some key information which may help you decide which form of ADR is right for you, but our friendly team of clerks are available on a no-obligation basis to chat through your options and help you decide – call them on 01273 81 00 11 or fill in our online enquiry form.

Arbitration

Arbitration is essentially a ‘private court’ which means that someone independent (the Arbitrator) is appointed and that person makes a decision about your dispute. The arbitrator takes the same role that a judge would take at court.

You might choose arbitration instead of mediation in the following circumstances:

  1. When the parties know that they will not be able to reach an agreement, even with assistance
  2. When the timescales are such that there is not time for negotiations to try to reach an agreement
  3. When the parties wish to be able to fix and limit fees by limiting the amount of meetings you have with the arbitrator

Arbitration is a well-established scheme. The arbitrators making the decisions are experienced lawyers who have undertaken additional training and are accredited and regulated by professional bodies relevant to their area of law.

The main benefits of arbitration are:

  1. Practical convenience

Arbitration is more relaxed than going to court. The arbitration itself can take place at a venue and time to suit you and the other party. That could be outside of court hours and in a far more comfortable setting such as barristers’ chambers or a solicitor’s office.

You can choose your own arbitrator who will be a specialist in the area of law in which you which to arbitrate. If you and the other party cannot agree on an arbitrator the regulating professional body can appoint one for you. You will also be able to ensure, where there is more than one meeting, that there is continuity of arbitrator; this is by no means guaranteed in court proceedings.

  1. Price

You will fix the price for your arbitration in advance.

Prices are structured so that you can choose to instruct the arbitrator to determine one distinct issue such as holiday contact with a child or the instruction of an expert, or ask the arbitrator to determine all of the issues in your case.

There is no possibility of further meetings with the arbitrator being needed; the arbitration is listed to be heard on a given day and a decision will be made.

With mediation there is the possibility of further meetings with the mediator being required (with a further fee), the aim being that each party shifts their position between each mediation until an agreement is reached.

  1. Streamlined process

Arbitration is not like court proceedings in which you fill out lengthy application forms, send them to the court and wait for a date for your hearing, and then wait months between each court hearing for your case to be decided.

Arbitration is also not like mediation where the aim is to get you and the other party to reach an agreement which could take an unknown amount of meetings with the mediator.

Arbitration is a simple process where you tell the arbitrator which issues you want determined, provide the arbitrator with the evidence (orally or on paper), and then await the determination which will be with you within seven days.

  1. Delay

One of the main benefits of arbitration is that delay is minimised. An arbitration can usually be listed within two weeks and a decision will follow within seven days. Your case will be the only one which the arbitrator deals with on that date and so there is no chance of it being adjourned because the arbitrator has run out of time or needs to deal with another matter.

Arbitration is a swift, cost-effective alternative to court and has the advantage of providing a final determination of your dispute. Barrister For Me offers arbitration in disputes relating to children and you can find out more about it on our family arbitration pages.

Mediation

Mediation is a confidential and flexible process in which an independent person (the Mediator) facilitates negotiations between the parties to help them achieve a voluntary settlement of their dispute on terms which they agree.

Unlike arbitration no binding decisions are made unless the parties reach agreement on the proposed settlement. This means that the option of reverting to the Court for a determination by a Judge remains open if either party is unhappy with the settlement proposals and means that no outcome is ‘forced’ on either party.

The Mediator will be an experienced litigator who will be able to focus discussions and break down barriers to settlement. Anecdotally the success rate of mediations is around 80%, meaning there is a very good chance that the dispute can be resolved on the day.

The Mediator will speak confidentially with each party in separate rooms about the strengths and weaknesses in their case and their opponent’s case. The Mediator will help the parties formulate and analyse settlement proposals with a view to helping the parties find a suitable settlement point.

Some of the key benefits of our mediation service:

  1. Convenience
  • Our service is available to parties before or during court proceedings.
  • It can be arranged at a time and date of the parties choosing rather than the one prescribed by the court listing officer.
  • The parties can choose a venue which suits their needs. Our mediation suite is included in the fixed price for our mediation service and is often preferred by parties as ‘neutral’ ground.
  • The parties can choose a mediator based on their knowledge and experience.
  • It can be accessed whether or not you have legal representation.
  • You can mediate the whole dispute or particular issues.
  • Our Mediators are flexible in their approach and will adapt the mediation process according to the needs of the parties.
  • Mediations can result in solutions, which Judges can’t order.
  • Mediations can help parties resolve their differences and improve future relationships in contrast to the court process which often further entrenches the parties’ differences.
  1. Price
  • Significant costs savings can be achieved by mediating a dispute compared to the costs associated with litigating a case to trial.
  • A clear fee structure is quoted in advance so you know how much the process will cost.
  • The Courts now strongly encourage parties to seek to resolve their dispute using alternative forms of dispute resolution (known as ADR). Mediation is one of the main forms of ADR and a failure a party to constructively engage in mediation can result in the Court making a costs order against that party.
  1. Streamlined Process
  • Mediations can be arranged at short notice.
  • Unlike a trial which can last many days, most mediations only take 1 day.
  • There is no need to give evidence or be cross-examined.
  • If settlement is achieved it will be written down and signed by the parties there and then.
  1. Avoids Delay
  • Rather than wait for a court listing date, which can often be many months later, a mediation can be arranged at short notice.
  • Increasingly trials are being adjourned at very short notice which builds in further delay and frustration into the court process.
  • Mediations can be arranged at any point during your dispute, whether at the very start or after positions have become entrenched.
  • Even after a trial has finished there can be delays in obtaining a Judgement which might then be subject to a lengthy appeal process. In contrast a successful mediation can achieve immediate solutions which can’t be appealed.

We offer mediation services in the following areas of law:

  • Civil and commercial disputes – including disputes concerning businesses, consumers, contracts, debts, property, landlords and tenants, land and real estate, neighbours, boundaries, wills and inheritance, trusts, personal injuries and employment.
  • Family disputes – including financial arrangements following divorce and child contact

Read more on our mediation pages.

If you have any queries about our arbitration or mediation services or think it could be useful in your case please contact the Barrister for Me clerks on 01273 81 00 11 or fill in our simple online contact form.

Stuart WrightJulie Stather MCIArb  | Arbitration & Mediation

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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January 10, 2019
Family legal terms explained: Children

Family legal terms explained: Children

Family proceedings can be stressful and as well as learning to navigate the legal process there is also a whole set of jargon to understand which can add to your anxiety. You’ll find below some of the most frequently used legal terms with descriptions to help you understand what they mean.

Choosing a barrister who can advise you and represent you in court if necessary is a very important decision. You need to have the utmost trust and confidence in your barrister as they try to make the process as straightforward and stress-free as possible for you.

If you are ready to start the process of instructing a family lawyer, read our simple step-by-step guide then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next.

CAFCASS

CAFCASS is the acronym for the Children and Family Court Advisory Support Service. The organisation represents children in family court cases where required, and produces reports to enable the court to take decisions in the best interests of the children. CAFCASS was formed in 2001 and is sponsored by the Ministry of Justice.

Child Arrangements Orders

A Child Arrangements Order is a type of Section 8 order of the Children Act 1989 (see below). It governs who a child lives with and who a child spends time with. Read more on Child Arrangement Orders.

Child Maintenance

Child maintenance is a sum to be paid, usually monthly, to cover the day to day living expenses of a child. If parties cannot agree they can apply to the statutory child maintenance service (CMS).
Consent Order A consent order is a mechanism which allows parties to make an agreement legally binding, and therefore enforceable. The Court will only make an order where required (see the no order principle below).
This sort of order will be signed and dated and attached to a C100 form. There is no legal requirement to attend mediation before submitting a consent order.

FHDRA

An FHDRA is the First Hearing and Dispute Resolution Appointment in proceedings involving children.

At the FHDRA the court will focus on what the issues between the parties are, and how to progress the case. The court will want to know what the parties are looking for, and why.

Before a FHDRA parties should receive a “schedule 2” letter from CAFCASS, following a telephone call from someone from CAFCASS. CAFCASS is also likely to speak with the parties at court.
Sometimes agreements can be reached at this stage and they can be recorded in a binding court order. This would mean that a case could be finished at this stage. Read more about what to expect at a FHDRA.

No Order Principle

When making an order concerning children the court must be satisfied that making an order is better for the child than not making an order at all.

Prohibited Steps Order

A Prohibited Steps Order (PSO) is a type of Section 8 order (see below) preventing a certain action. A PSO may be made against anyone, regardless of whether they have parental responsibility or are a party to proceedings. PSO’s should not be made in respect of a child who has reached the age of 16 unless there are exceptional circumstances. The order must concern an aspect of parental responsibility.

The order can be made with or without notice to the other parent, in the course of proceedings or on a free-standing application. Making a Prohibited Steps Order without notice is a serious and exceptional action and the Court will consider such an application rigorously. You must have grounds, such as exceptional urgency, to make an application without notice. An absent respondent should be given notice of the application as soon as possible and an order made by the court in these circumstances should be limited in time. Read more on Prohibited Steps Orders.

Schedule 1 Cases

Schedule 1 pertains to Schedule 1 of the Children Act 1989. These cases concern financial provision for children. Applications under Schedule 1 can include: top up maintenance, lump sums, carers allowance, transfer/purchase of property; etc.

Section 8 Orders

Section 8 orders include child arrangements orders, specific issue orders and prohibited steps orders. You can apply for one using Form C100. They are called this because the court’s power to make the order comes from Section 8 of the Children Act 1989.

Specific Issue Order

This is a type of Section 8 order sought to determine a specific question in connection with an aspect of parental responsibility. It can be made on its own or with a child arrangements order but the contents should not be duplicated. They should not be made where the child is in the care of the local authority or where they would deny the High Court the exercise of its inherent jurisdiction. Read more on Specific Issue Orders.

Undertaking

An undertaking is a solemn promise to the court. If you break an undertaking you could be fined or sent to prison. It is as binding as an order of the court.

Welfare

Checklist Section 1(3) of the Children Act 1989 sets out seven criteria for the court to consider when making an order concerning children:

1. the wishes and feelings of the child concerned
2. the child’s physical, emotional and educational needs
3. the likely effect on the child if circumstances changed as a result of the court’s decision
4. the child’s age, sex, background and any other characteristics that will be relevant to the court’s decision
5. any harm the child has suffered or may be at risk of suffering
6. the capability of the child’s parents (or other relevant people) in meeting the child’s needs, and
7. the powers available to the court

Natasha Isaac | Family and Children

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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January 3, 2019
What is Parental Responsibility?

What is Parental Responsibility?

Under section 3(1) of the Children Act 1989, Parental Responsibility (‘PR’) is the legal term meaning the rights, powers and authority of an individual concerning a child, as well as the responsibilities and duties of the individual towards that child. Section 2(5) of the Act permits more than one person to have PR for the same child. When a decision needs to be made about a child’s upbringing, such as which school they attend, what religion they may follow, or whether to undertake certain medical treatments, all individuals with Parental Responsibility may have an influence in that decision. However, the wishes and feelings of the child will not be unimportant, and in accordance with their age and understanding will be taken into account when making any decision. An older child’s wishes will have more of an impact on the decision made, given their greater levels of understanding.

How do I obtain Parental Responsibility?

The child’s birth mother will automatically have Parental Responsibility. By virtue of section 2(1) of the 1989 Act, the child’s biological father will have PR if he was married to the mother at the time of the child’s birth. Where the mother and father were not married, the father may still obtain PR in a number of ways, for example being registered on the child’s birth certificate, by court order, or where both the mother and father agree (note, agreement must be evidenced in a specific document, Form C(PRA1), signed and witnessed). The same applies in respect of same sex marriages and civil partnerships. If married or in a civil partnership at the time of the birth, the mother’s partner will also have PR.

The law governing same sex couples has been modified in recent years. Female couples can now include both their names on their child’s birth certificate without needing to register a male sperm donor. Upon registration, both female partners will be considered the legal parents of the child and will both obtain PR as a result. Note that where same sex female couples use a sperm donor, the donor will not be considered the legal parent of the child where the process of artificial insemination is undertaken, but a father who impregnates the mother through sexual intercourse will obtain status as the legal parent. This does not, however, mean that a father with legal status will automatically obtain PR, and the other methods discussed in this article should be explored.

Specific rules are applicable to couples who use a surrogate. In such cases, it will be necessary either to obtain a parental order transferring PR from the surrogate mother to the new parents. An application for such a court order must be made within 6 months of the child’s birth, and the child must have been living with the commissioning parents within that period. Note also that the surrogate mother must consent to the court order for transfer of PR to the commissioning parents.  Alternatively the commissioning parents could adopt the child.

In cases of adoption, where neither partner is the biological parent, the formal court issued adoption order gives the adoptive parents PR over the child, and terminates the PR of the biological parents.

It is possible for persons other than the child’s biological parents to have Parental Responsibility, such as a child’s adoptive parent, step-parent, partners, family members or carers who are in involved in the care of the child, to bring an application to the court for PR.

Unless discharged, PR will run until the child reaches the age of 18.

Can my Parental Responsibility be removed?

It is possible to have PR discharged by making an application to the court. An application may also be made by another person with PR, or by the child in question (where they are mature enough and have sufficient understanding), to have a person’s PR discharged.

When making an order to grant or remove PR, the court must always give consideration to the paramount welfare of the child, and whether it is in the child’s best interest to make the order. However, it should be noted that it is only in very rare circumstances that PR will be removed, and there will need to be a cogent reason and supporting evidence for doing so. It is also possible, though equally rare, to curtail a person’s exercise of PR. It is generally accepted that it is better for the child’s welfare to have both parents retain their full powers under PR, but the court may limit a person’s exercise of powers where, for example, there is risk of harm to the child if the person in question has an influence over their upbringing (see the case of H v A (No.1) [2015] EWFC 58 concerning curtailment of a father’s access to his children’s school reports following imprisonment for offences against the mother).

I’m a surrogate mother, do I have Parental Responsibility?

A surrogate mother is deemed to legally be the child’s birth mother, and therefore has PR. However, it is possible for a surrogate mother to appoint another to be the child’s mother, and obtain a court order deeming that person to have PR.

If Parental Responsibility has become an issue in your case, and you need specialist advice or representation, our dedicated team of skilled family practitioners will be able to assist. To get the best help and advice, contact our clerks using our online form or call 01273 810011.

Kayleigh McChambell  | Family and Children

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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December 5, 2018
I’ve secretly recorded my ex-partner – will the Family Court listen to it?

I’ve secretly recorded my ex-partner – will the Family Court listen to it?

This post is in respect of applications in private law proceedings and does not relate to recordings of professionals.

The answer is maybe!

As the majority of people in the UK now have access to a smart phone and purchasing a recording device is just an amazon-click away, the issue of secret recording (aka covert recording) is arising more and more frequently in family cases.

You may be tempted to start making recordings if your ex-partner is being abusive towards you or making allegations of abuse against you; for example, at handovers of the children. However, you should be cautious before you start making such recordings because it often reflects badly on parents in Court and doing so may be considered abusive in itself. If you have done so or plan to do so it is highly advisable to discuss this with your solicitor or barrister at the earliest opportunity.

In what circumstances will the Court listen to the recording?

There is no hard and fast rule about whether covert recordings will be admissible in the Family Court and it will depend on the circumstances of the case. The main question will be: is the recording relevant to the issues that the Court is considering? Or is it relevant to the considerations of the child’s welfare? If it is not, then it is unlikely that the Court will agree to hear it.

Other considerations about the admissibility of recording (and what weight the Court attaches to it) will include the following:

  • was it lawfully obtained?
  • it is a complete recording or has it been edited (potentially in a way which is unfavourable to the recorded person)?
  • are there problems in relation to sound and picture quality which mean that it cannot be relied upon or which raise questions as to the authenticity of the recording?

It’s important to note that if the Court does agree to admit the recordings then they may need to be transcribed, which can be costly.

What about recording the children?

It is likely that secret recording of children will be viewed unfavourably by the Courts. In many cases there are allegations about what happens during contact sessions, but if sessions are recorded parents risk being criticised for this very act.

Guidance from previous cases

There is currently no published guidance on the admissibility of covert recordings so we have to look at previous cases for assistance.

In the case of Lancashire CC v Z (Parental Hostility) [2017] EWFC B71 a father had recorded a mother during an argument, and although it          showed the mother’s uncontrolled anger and bad language, the father was also criticised for his part in the argument and for secretly recording it in the first place. In that case, the father was subjected to even more criticism for recording the children, which ultimately resulted in the child being scared that her father had hidden a recording device in one of her toys.

In Re W (minors) [2017] EWFC 80 the judge stated that he considered the father’s covert recording of the mother and children was a ‘deceitful act’ which only undermined trust between the parents.

In M v F [2016] EWFC 29 a father was very harshly criticised for sewing ‘bugs’ into his daughter’s school uniform. The Court agreed to hear the recordings but relied on them as a reason that the child should be removed from her father’s care and live with her mother instead. The fact that the father had made the recordings was taken as evidence that he could not meet his child’s emotional needs.

If covert recordings are an issue in your case our specialist family barristers will be able to advise and represent you. If you would like to contact one of our team, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best suited to your case.

By Vanessa Long | Family and Children

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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November 23, 2018
How to get the best out of your Direct Access Barrister

How to get the best out of your Direct Access Barrister

The aim of this article is to enable you to get the best out of your direct access barrister. Getting the best means being happy with the service you have been given. Here is the step by step to getting there:

1. Choose the right barrister.

Barristers only qualify after rigorous assessment. They are required to keep their skills up to date. You are highly unlikely to get a ‘bad barrister’. The vast majority of barristers are good, but you need to choose the right sort of ‘good’ for you. You may want to rely on a friend’s recommendation but do ask what made that barrister good. Otherwise, barristers’ clerks are the best place to start. Clerks are highly skilled in their own right; they will know their barristers’ strengths and personalities, how that barrister works, and which areas of law the barrister specialises in.

Prepare before you call the clerks: be ready to tell them what your dispute is about and how you would like it handled. Some barristers are skilled in negotiation whilst others take a more combative approach. Be ready to tell the clerks what you want in your barrister. In that initial call you should tell the clerks about court dates or other timescales involved. The clerks will discuss fees with you and can explain why fees vary so much between barristers. The other major resource available to you is the chamber’s website – each barrister will have a full profile which should enable you to make that all important final decision.

2. Preparation, preparation, preparation.

Once you have identified your barrister, ask for a conference in chambers (the name for a Barrister’s offices) or immediately before the hearing if time is an issue. The extent to which your barrister is able to assist you will, to some extent, be determined by how much information the barrister is given. Arriving at a conference with a bag full of unsorted papers will waste valuable time. You should sort your documents into chronological order and separate them into correspondence, documents/evidence, court orders, and finally your own notes. Send a copy of those papers into chambers before your conference.

If you don’t have access to copying facilities the clerks will make a copy for you. Ideally you should prepare a short document for your barrister to accompany your papers. It should tell the barrister what your problem is, the result that you would like to achieve, and provide a short history including efforts made to resolve the problem. If you have specific questions do list those too. You and your barrister can then work through your questions together and come up with a plan of action for your case. By the time you leave your conference you should have a clear understanding of the strengths and any weaknesses in your case, any evidence which you need to collect, and how you and your barrister are going to work together to try to achieve your desired outcome.

3. How to have an effective day at court.

Making the best of a very stressful day at court starts before the day itself. Make sure you have sent everything to your barrister, the court and to the other side on time and do ask them to acknowledge receipt. A couple of days before the hearing it’s helpful to send your barrister an updating email even if it’s just to say that nothing has changed. Arrive at court on time so that you are calm. Most courts have no parking facilities and are in areas where the on-street parking is limited. If you are running late do let the clerks at chambers know.

When you arrive at court you check in at the usher’s desk and your barrister will come and find you. Your barrister will run the case for you at court and guide you through the process. If you have followed steps 1 and 2 above, you have the right barrister for you, that barrister will be fully prepared, and you will be in the best position to achieve your desired outcome.

Your barrister, and the barrister’s clerks, are there to help you through what could be the most stressful time of your life. Help your barrister to help you.

If you need some advice or require representation at an upcoming hearing give the clerks at Barrister For Me a call on 01273 810011 or get in touch using our contact form. They will guide you through the process and help you to make that all important choice of barrister.

By Julie Stather

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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November 20, 2018
Fact-Finding Hearing FAQs

Fact-Finding Hearing FAQs

If you end up in the Family Court following the breakdown of your relationship you may hear the term ‘Fact-Finding’ being used regarding where your children should live or how their time should be split. This will usually occur where there are allegations of domestic abuse; either because your ex-partner was abusive towards you/your children or you are accused of being abusive.

What is a Fact-Finding hearing?

A Fact-Finding hearing is similar to trial where the Court decides whether the alleged abuse happened or not. At the Fact-Finding hearing the Court will consider all the evidence and make a decision on the balance of probabilities, which means that the Court decides whether it is more likely than not that the allegations happened.

The Court can deal with Fact-Finding at the final hearing i.e. at the same time as it decides the arrangements for the children or it may have a separate Fact-Finding hearing.

How and when does the Court decide if a Fact-Finding hearing is needed?

The Court will usually make this decision at the first hearing. However, it must keep this decision under review and may decide at any hearing that Fact-Finding is necessary. One of the factors the Court will consider when making this decision is whether the allegations are relevant to the arrangements for the children e.g. if abuse occurred it may impact on whether a parents’ contact with a child should be supervised or include overnight stays.

What evidence will be used at the Fact-Finding hearing?

This varies widely depending on the allegations. It is usually necessary to have witness statements from all the parties to proceedings. The parents may also want to rely on the evidence of other people e.g. if they witnessed any of the incidents, were told about them afterwards, or if they can give an alibi.

Parties may also rely on copies of text-messages, emails, photos or any other material which supports their case.

If reports of abuse have been made to the police, doctors, local authorities or other organisations, in some circumstances you can obtain the records. You may require a Court Order to obtain these records so you should raise it with your representative and ask the Court about it at the earliest possible point.

Do I have to give evidence in the hearing?

If you have made allegations of abuse or are accused of abuse you will usually be expected to give evidence in Court. This means that you will take an oath or affirmation swearing to tell the truth and you can be asked questions by the other parent’s legal representative.

Where one or both of the parents are unrepresented, the Court may prevent the parent accused of abuse from asking the other parent questions directly. The Court can also be asked to put up screen so that the parents cannot see each other during the hearing.

If you have a Fact-Finding hearing coming up or you think you may need one in your case our specialist family barristers will be able to advise and represent you.

If you would like to contact one of our team, please read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best suited to your case.

By Vanessa Long | Family and Children

Make an Enquiry

Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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November 6, 2018
What is a settlement conference?

What is a settlement conference?

Settlement conferences take place at court during proceedings concerning children. They can take place in public law cases involving local authorities (care proceedings) and in private law cases between individuals.

Settlement conferences were pioneered in Canada over 15 years ago, where all the indications are that they have been a success.  They are now being piloted in several areas in the UK including Liverpool, Devon and Cornwall and Brighton after senior judges, including the former President of the Family Division, looked at innovative ways of minimising delay and costs within the family justice system.

It is an entirely voluntary and consensual process conducted in the presence of the parties’ lawyers with ample opportunity for advice to be given outside the process and for careful reflection by all parties before decisions are made.

During the course of the settlement conference the judge will hear from all parties on a without prejudice, confidential and legally privileged basis. If a settlement conference does not succeed in reaching agreement and there is a subsequent trial nothing disclosed at the settlement conference may be used at the trial which, moreover, will not be heard by the judge who conducted the settlement conference. Where a child is a party the child’s solicitor and/or guardian will ensure that the child’s wishes and feelings are made known.

The ethos of the settlement conference is not to pressure parties to settle but to explore whether the honesty and confidentiality of the process can help to reach common ground.

At any stage, if every party in the case agrees, a judge may refer the case for a settlement conference.  This usually occurs at the IRH (Issues Resolution Hearing) in public law cases and at the FHDRA (First Hearing Dispute Resolution Appointment) in private law proceedings. At all private law settlement conferences, someone from CAFCASS will be there to represent the interests of the child. The expectation is that CAFCASS meet with parties first to see what, if anything, they might be able to achieve.

What can I expect at a settlement conference?

The conference itself is conducted by an allocated trained judge. The purpose is to try to resolve some or all issues or to find creative ways of helping the parties reach an agreement without the need for any further hearings.

After introducing themselves and reminding you of the principles and reasons for settlement conferences, the judge will sit with you and discuss your case directly with you in an informal way to explore the issues which need to be resolved.

The judge usually sits at the same level as parties and parties can be called by their first names. The conference is not as formal as a normal hearing and is designed to put people at ease.

No party or legal representative has to say anything to the judge if he/she does not wish to do so.  Parties will never be separated from their legal representatives who are free to speak at any time but not to argue the case. Publicly funded (legal aid) representatives within ongoing publicly funded cases will also be funded to attend settlement conferences.

All parties will be given the opportunity to reflect or obtain advice from their legal representatives at all stages during the settlement conference.

Although everything said during the settlement conference is confidential to the process of the settlement conference and will not be referred to at hearing, if it is discovered during the process of the settlement conference that a child is at risk of significant harm, the judge will immediately end the conference and take appropriate steps to protect the child.

Any party can withdraw at any time from a settlement conference and this will not prejudice their case or lead to an adverse inference at any time.

The judge will not make the decision but if parties wish the judge can give an indication of what they would do if they were deciding the case.

At the end of the settlement conference some or all of the issues might be agreed. If all of them are agreed, an order can be made if it is needed or the agreement can be recorded. If not everything is agreed, whatever has been agreed will be recorded. In order to resolve the rest of the issues, there will always be the option of a hearing before a different Judge. This judge will make directions for filing of evidence and list for a final hearing (which may already be listed).

Laura Bayley is an experienced Family Law practitioner, who specialises in public and private law cases concerning children.  In private law Laura provides advice and representation in disputes relating to living and contact arrangements for children following the breakdown of relationships, applications to remove children from the jurisdiction and specific issues relating to education, medical procedures and religion.

If you require the services of Laura Bayley to help with your case, get in touch with the clerks in our central Brighton office who will be able to put you in contact with her.

Laura Bayley | Family and Children

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October 2, 2018
What is a Non Molestation Order?

What is a Non Molestation Order?

A Non Molestation Order is an order that prevents a person from ‘molesting’ another person.

Person A can apply for an order to prevent Person B, who is connected to them, from molesting them or a child who is connected to them.

‘Molesting’ means behaviour where Person B has been physically violent but can also include intentional harassment including using or threatening violence, intimidation or pestering. The dictionary definition of ‘molestation’ is ‘to cause trouble to; to vex; to annoy; to put to inconvenience’ and can include behaviour by Person B which has an indirect impact on the life of a child.

A Non Molestation Order is an order of the court which contains requirements preventing Person B from certain behaviour set out in the Non Molestation Order.

The types of behaviour that a Non Molestation Order can prevent include:

  • Contacting by telephone, text, email or social media;
  • Using or threatening violence;
  • Intimidating, pestering or harassing;
  • Entering Person A’s home;
  • Damaging Person A’s property;
  • Going to a child’s home or school.

The purpose of a Non Molestation Order is to prevent the behaviour that was leading to Person A or a child being molested.

When a Family Court is considering whether to make a Non Molestation Order it will look at all of the circumstances of the case as well as the need to secure the health, safety and well-being of Person A and any child.

How long does a non molestation order last?

There is no maximum period for a Non Molestation Order but it is likely that a Family Court will make a Non Molestation Order for a specific period.

If Person B does not comply with the requirements in the Non Molestation Order they may have ‘breached’ the Order which is a criminal offence.

Applying for a Non Molestation Order

Person A can apply for a Non Molestation Order by filling out court Form FL404a and sending this to the Family Court along with evidence to support the application. The application will be issued by the Family Court and sent to Person B unless Person A is applying ‘without notice’.

‘Without notice’ means that Person B is not sent the application and does not know about Person A’s application for a Non Molestation Order. The Family Court will consider a without notice application for a Non Molestation Order if there is a risk of significant harm to Person A or a child; or if Person A will be prevented from making an application otherwise; or if Person B is aware of the application but cannot be sent the application.

Applications for Non Molestation Order can be factually sensitive and it is important that all of the relevant circumstances are known to the Family Court when making any order.

Cases about domestic abuse can be difficult both emotionally and technically. The support of a lawyer with specialist experience who can advise and represent you could assist in achieving the outcome you want.

Our Public Access Family Barristers are experienced lawyers and advocates, who can advise you on all aspects of your case and represent you in Court if necessary. Our clerks can discuss your particular needs to make sure you are matched with the barrister best able to support you.

To get in touch with a member of our team, first read our simple step-by-step guide, then our clerks can advise you on your next steps and put you in touch with the family lawyer best able to accommodate your needs.

By Kate Richmond | Family and Children

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July 31, 2018
A recap on Specific Issue Orders

A recap on Specific Issue Orders

A specific issue order (an SIO) is an order that determines a question in relation to a child’s upbringing where those that hold parental responsibility cannot agree.

In family law cases it is often applied for by one parent against another parent, but an application can be made by anyone who holds parental responsibility for a child (including step-parents and special guardians) and anyone who has a child arrangement order as a person with whom the child should live. Anyone else, including in some cases the child themselves, needs the permission of the court to make an application for an SIO.

An SIO can deal with a wide range of issues. Some examples include:

  • Questions concerning medical treatments (such as whether a child should be given vaccinations or a blood transfusion)
  • How and where a child should go to school (whether they should have a state or private education, which specific school a child should go to)
  • Religion (what religion the child should be brought up into, what religious customs should the child follow, such as circumcision)
  • Changing a child’s name

An SIO must determine an issue that concerns the exercise of parental responsibility, and they cannot be used where a Child Arrangements Order (which determines where a child lives and how much time it spends with each of the parents) would be best placed, an SIO cannot determine where a child should live, for example.

An application for an SIO can be issued either on its own or during the course of other Children Act Proceedings; usually when one parent applies for a Child Arrangements Order.

An application for an SIO is sometimes accompanied by an application for a Prohibited Steps Order (an order which prevents someone from doing something). For example, an SIO may be applied for to return a child from outside the country, along with a Prohibited Steps Order stopping anyone from taking the child away again.

There are some restrictions on making an SIO. They cannot be made in respect of a child in Local Authority Care. Also, an SIO should not be made in respect of any child aged 16 or above, or extend beyond their 16th birthday, unless the circumstances of the case are exceptional. No SIO can have effect beyond the child’s 18th birthday.

When a Court considers making an SIO, the welfare of the child is the paramount consideration and the Court will, at each stage, have regard to the following:

1) the welfare checklist as set out in section 1 of the Children Act 1989,

2) that it must be better for the child for an order to be made than to make no order, and

3) that any delay in deciding matters is contrary to the welfare of the child.

If you need to instruct a family lawyer to help with any aspect of an SIO, read our simple step-by-step guide, then get in touch with our clerks who will discuss your needs and put you in touch with the barrister best able to help you.

By Matthew WithersFamily and Children

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July 25, 2018

Wrongful removal of a child under the Hague Convention

Summary of a recent decision in the High Court.

MK v RP [2018] EWHC 1475 (Fam)

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1475.html

This is an interesting case concerning the interpretation of what is meant by ‘clear and unequivocal consent’ in cases of alleged child abduction and consideration of the defence under Article 13(b) where it  must be established that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

Both parents were Israeli. The child, D was 6 years old at the time of the application. The parties agreed that prior to her removal D was habitually resident in Israel. The questions for the court were whether there had been a wrongful removal by D’s mother to the UK, the mother asserting that the father had consented to the child’s removal and whether, in any event, that to return the child to Israel would place the child in an intolerable situation.

The mother claimed that in 2013 the parties registered their divorce at the Rabbinical Court of Jerusalem and that there was an amendment to the divorce petition to allow her to relocate, should she re-marry, without needing to obtain the father’s consent. The mother then applied to the Rabbinical Court of Jerusalem in November 2017 for a declaration that she be permitted to leave the jurisdiction which was granted. The father disputed that the additional clause had been added to the divorce petition but in any event said that the agreement was unenforceable due to there being no jurisdiction over family matters by the Rabbinical Court. He further stated that he was not served with the November 2017 declaration and that the mother did not notify him when she left the country (a fact which was accepted by the mother).

Expert evidence as to the law and procedure in Israel was obtained and the judge accepted the expert view that both translations of the divorcee agreement obtained by each of the parties was unsatisfactory and that his own interpretation was that the paragraph relating to the ‘consent’ was poorly drafted. Furthermore he advised that under Israeli law the permission of the court in Israel is required to relocate a minor and that the Rabbinical Court had no jurisdiction to authorise the removal of a child from the jurisdiction of Israel.

Ultimately the judge concluded that the written divorce agreement itself did not provide the ‘clear and unambiguous consent’ required for an international relocation as asserted by the mother

It was also apparent that once the mother had left Israel she did not tell the father she had moved and he only discovered the information after he issued an application to the family court in the UK. In a subsequent letter to the court the mother asserted that the father would act violently towards her and the child if he were to be given details of the mother’s address and their precise whereabouts.

As to the Article 13(b) defence it was said on mother’s behalf that she and the child would be homeless if they returned to Israel as the mother had given up her tenancy when she relocated to London and was unable to live with family members with the child. Her case was that she and the child would return to destitution even though she said in her statement that if the child was to return to Israel she would be able to live with her parents. The Father also offered undertakings that he would not attend the airport when Mother and the children returned to Israel, would not support any proceedings for the mother’s punishment in respect of the wrongful removal to London, would continue to pay the mother maintenance, would not seek to separate the child from the mother’s care save for periods of agreed contact until the first hearing in the family courts in Israel and would pay the cost of a flight for the child to Israel.

On that basis the judge concluded that the evidence fell far short of establishing, on the balance of probabilities, that the child would be exposed to a ‘grave risk of physical or psychological harm or otherwise place the child in an intolerable situation’. The judge ordered the child’s return to Israel immediately where the mother, should she wish to pursue her application to relocate to London would be required to make an application to the family court in Israel, that being the child’s country of habitual residence.

This is perhaps a helpful reminder that the evidence required to establish that a parent has given ‘clear and unequivocal’ consent to an international relocation should be solid. Where there is doubt about the interpretation or wording of an agreement, clarity should be sought before relocation is attempted. On a practical level any parent seeking to relocate should obtain the other parent’s consent in writing, and, if necessary, via lawyers. It is also a reminder that to satisfy the court that a return to the country of habitual residence would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation clear evidence needs to be provided that this would indeed be the case. Simply being an unsatisfactory situation for the child and relocating parent in returning back to the country of habitual residence after a failed relocation is quite clearly not enough as appeared to be the situation in this case.

By Clare Ciborowska Family and Children

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July 18, 2018

What to expect at the First Hearing Dispute Resolution Appointment (FHDRA)

NB. This post is in respect of an application under s. 8 Children Act 1989 and applies to general applications where a party is seeking a live with/spend time with order or a Prohibited Steps or Specific Issue order where there are no particular complicating factors.

In family law, a First Hearing and Dispute Resolution Appointment (FHDRA) is the first court hearing once an application has been made to court. The FHDRA has two main functions; To see if agreement can be reached and a Child Arrangements Order made by agreement or, if this is not possible, to make directions for the gathering of evidence to progress the case towards a Dispute Resolution Appointment and/or final hearing.

Assuming the application has been made on notice (i.e. the application has been served on the other side) then both parties and the court will already have the C100 (application form), possibly a C1A (list of allegations/specific concerns) and a safeguarding letter which will have been prepared by CAFCASS (The Children and Family Court Advisory and Support Service) in advance of the hearing.

An officer of CAFCASS will be present at the FHDRA and will request that both parties meet with them (usually separately) to provide further information so that they may update the court as to the parties’ positions and their own recommendations. They may also encourage agreement to be reached if they consider that this is in the child’s/children’s best interests and there are no safeguarding concerns.

If agreement can be reached then the legal representatives, or the court if neither party is represented, will help the parties in drawing up an agreement or a final order and there will be no further hearings.

If agreement cannot be reached then the following directions may be made:

  • Parties to file witness statements setting out their case.
  • CAFCASS (or the Local Authority if applicable) to file a s. 7 report making recommendations in respect of the application.
  • One or both parties to file a letter from their GP (if there are concerns in respect of physical/mental ill-health which may affect the outcome of the application).
  • A letter to be obtained from the school (to ascertain whether the child’s behaviour/education is affected by one/both parents’ care).
  • Hair strand testing (if there are allegations in respect of alcohol and/or drug misuse).
  • List for Dispute Resolution Appointment/Final Hearing.
  • Both parties to attend the Separated Parents’ Information Programme (SPIP).

There are a number of other directions which may be made but these are the most common, in the author’s experience.

The court is also under a duty to consider, at the earliest opportunity, whether a fact finding hearing will be necessary. Such a hearing will be required where one party makes allegations against the other, which will have a material impact upon the order being sought, and where these allegations are denied.

If the court considers that a fact finding hearing is necessary then they will direct that the person making the allegation(s) files a witness statement and schedule of allegations, along with other evidence in support of the allegation(s), after which the respondent will file a statement in response. The court may also order police disclosure if the police have been involved at any time. The court may list for the next hearing to be a fact finding hearing or direct a further hearing to consider this evidence before deciding on whether to list a fact finding hearing and, if so, when and how long that hearing should take.

The court is under a duty to consider cases justly and proportionately.

The court is also encouraged to consider, at every hearing, whether Alternative Dispute Resolution (i.e. mediation, arbitration, solution focused therapy etc) would be more appropriate than proceeding with the application via the courts.

If you require assistance with any aspect of your case, please follow our simple step-by-step guide then contact our clerks who will put you in touch with the family lawyer best able to help you.

By Eleanor Battie | Family and Children

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July 13, 2018

Creating a Culture of Respect in proceedings concerning children

The Sussex Family Justice Quality Circle met on 9th July to discuss what was required to create a culture of respect in proceedings in the Family Court. It was inspired by, an article in Community Care entitled ‘Divisive, demeaning and devoid of feeling: How SW jargon causes problems for families’ and written by Surviving Safeguarding

The discussion was led by Tom Stibbs the Principal Children and Families Social Worker at Brighton and Hove City Council supported by Francis King Lead Practitioner in Brighton, Andrew Pack AKA Suesspiciousminds  and Martin Downs.

The article sought to demonstrate the impact on children and their parents of being subject to Local Authority involvement/proceedings, in particular in respect of the language used and the confusion and bewilderment this can cause.

During the meeting all those in attendance sought to explore the impact of the language used in court practice and paperwork on a day-to-day basis and how we could improve our communication to make the process more easily understood by all involved. The Quality Circle also focused on how we would work toward helping those subject to proceedings to feel more valued, listened to and respected.

Surviving Safeguarding  (who sent a special message to the meeting) referred to the problem for parents when professionals use language, jargon or acronyms that they don’t understand. At worst, the parent may feel a sense of injustice, that decisions will be made about their future and that of their child based on responses to questions/statements they don’t understand.

The article concludes with a plea to “social workers, senior social workers, team managers, conference chairs, independent reviewing officers – any and all health and social care professionals not to use certain terms that are so often used within the family court arena.” These include terms like “contact”, “Siblings”, “placement” and “LAC”.

During the meeting the group discussed other words that cause problems to parents, as well as to many professionals. These included: “Attachment”, “Parentified”, “Shared”, “Verbalised”, “Permanency”, “Insight” and “Implement”. Top of the list, however, was the word “Disclosure” when used to refer to a person making an allegation. Those present were implored not to use this (emotive) word but to replace it with “Account” instead.

Those at the meeting concluded that those who write reports will do so with both the parent and court in mind. Jargon will be avoided and simplicity is key. There was agreement that the tone and language in court documents as well as that used in court (by all present) is really important.

There was recognition that it can be easy to use jargon or complex words as shorthand for difficult concepts and that in an emotional and charged setting sometimes taking the time and making the effort to be courteous and respectful can be overlooked, but that both issues can potentially have a bearing on outcomes and experiences and every effort must and will be made to treat those engaged in court proceedings with courtesy and respect.

The principal of respect is key, as is treating one another politely and with dignity. This applies to all, whether a parent, professional witness, lawyer or the judiciary.

By Eleanor Battie | Family and Children

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June 8, 2018
I am being prevented from having contact with my grandchildren – what can I do?

I am being prevented from having contact with my grandchildren – what can I do?

When relationships break down and children are involved, this can affect the children in a number of ways. Not only can it have an impact the relationship they have with their parents, but also their relationships with members of their extended family.

Family Courts recognise the important role that grandparents often have in the lives of their grandchildren so there is something you can do if a problem arises. The court will usually expect to see that you have tried to reach an agreement before making an application. However, if contact has broken down and you are unable to agree a way forward, you can apply for something called a Child Arrangements Order.

Some people have a right to make this application automatically (for example, a parent, guardian or someone with Parental Responsibility). For others, they first have to ask the court for permission (also referred to as ‘leave’) to make the application. Usually, grandparents have to apply for leave to make an application.

Leave to apply.

When you apply for leave the court will consider things like the nature of the application, your connection with the child as well as any risk that the application you want to make will disrupt the child’s life so much that they would be harmed by it. The court will also consider the merits of your application for a child arrangements order at this stage. You should be aware that the law is slightly different if the child is looked after by the Local Authority.

Importantly, if the court gives you permission to make your application, it does not necessarily mean that your application will be successful but it does mean that you are now entitled to make your application. You can then apply for an order that sets out the time that you spend with the child.

Application for a Child Arrangements Order.

A child arrangements order is an order which defines where the child should live, the time the child should spend with someone or otherwise have contact with them. This does not just mean face-to-face contact but can also include ‘indirect contact’, for example the exchanging of letters, emails or text messages, as well as things like Skype or FaceTime calls.

When making a decision about a Child Arrangements Order, the court’s paramount consideration will be the welfare of the child. When making a decision, the court will consider something called ‘the welfare checklist’ which includes the following things:

  1. the wishes and feelings of the child (considered in light of their age and understanding)
  2. his physical, emotional and educational needs
  3. the likely effect on him of any change in his circumstances
  4. his age, sex, background and any characteristics of his which the court considers relevant
  5. any harm which he has suffered or is at risk of suffering
  6. how capable each of his parents, and any other person in relation to whom the court considers the questions to be relevant, is of meeting his needs.

The court will be assisted by an organisation called CAFCASS (Children and Family Court Advisory and Support Service) who represent children and make recommendations they believe to be in the best interests of the children. A CAFCASS officer will often call you before your hearing to ask questions about your application, or may ask to meet with you at court when you arrive. CAFCASS will then make recommendations to the Judge.

If you require assistance with any aspect of your application, follow our step-by-step guide to contact our clerks who will match you with the barrister who is best able to help you.

By Kirsten Japp | Family and Children

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May 22, 2018
What is a Prohibited Steps Order?

What is a Prohibited Steps Order?

A prohibited steps order (a PSO) is an order that prevents a certain type of action from taking place.

In Family cases it is usually applied for by one parent against the other parent, but it can be made against anyone even if that person does not hold parental responsibility for the child and can be made against an individual who is not even a party to the proceedings.

A PSO can deal with a very wide range of issues. Typical examples include to prevent a parent from removing a child from the country or from moving home to another part of the UK. It can be used to prevent the removal of a child from its main home or residence, from the care of the other parent or perhaps, anyone to whom that parent has entrusted a child’s care (for example a Grandparent, or from the child’s school or nursery). It can also be used to prevent a child coming into contact with an individual the Court considers should not have contact with the child or to prevent a change of the child’s surname.

An application for a PSO can be issued either on its own or during the course of other Children Act Proceedings; usually when one parent applies for a Child Arrangements Order (which determines where a child lives and how much time it spends with each of the parents). When an application is issued, notice of the application is usually provided to the other parent by the Applicant unless there are good reasons (usually safety) as to why ‘notice’ should not be given. These will need to be justified by the Applicant at the first hearing.

There are some restrictions on making a PSO. They cannot be made in respect of any child aged 16 or above unless there are exceptional reasons and even then it will not have effect beyond the child’s 18th birthday. Also, a PSO cannot be made in respect of a child in Local Authority care and every PSO order should be time limited.

When a Court considers making a PSO, the welfare of the child is the paramount consideration and the Court will, at each stage, have regard to the following (a) the welfare checklist as set out in S.1 Children Act 1989, (b) that for an application to be successful it must be better for the child for an order to be made than to make no order and (c) that delay in deciding matters is contrary to the welfare of the child.

If you require assistance with any aspect of a PSO, please follow our simple step-by-step guide to contact our clerks who will put you in touch with the family lawyer best able to help you. 

By Bruce Tregoning | Family and Children

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May 4, 2018
I am adopting a child: when might I need an adoption lawyer?

I am adopting a child: when might I need an adoption lawyer?

Adopting a child is a momentous and life-changing time filled with both excitement and trepidation. Adoption fundamentally alters the legal relationship your child has with you and the making of an adoption order is one of the most significant orders that can be granted in the Courts of England and Wales.

Adoption orders can be made in a variety of different circumstances: adoption by a stepparent, private adoption (directly with the birth mother), or public adoption (fostering to adopt, i.e. adopting through the local authority) but in each case the Court is concerned with whether making the order is in the child’s best interests taking account of the rest of his or her whole life. It is often the case that prospective adopters represent themselves or, where an adoption agency is responsible for the placement, rely on the local authority who is involved to pursue the case before the Court. However, for many prospective adopters getting legal advice and instructing their own lawyer is absolutely vital.

Instructing a lawyer can help to make sure that you are able to navigate the technical requirements which must be fulfilled to make sure that the application can proceed as smoothly as possible. It can also be reassuring to know that you have access to advice to help guide you through the process of pursuing your order.

Over recent years a number of important cases have emphasised the need for Courts to take great care to make sure that adoption orders are only made where they are necessary. This has led to an increase in the number of adoption order proceedings, which have become fully contested, often involving the child’s birth parents. These can be some of the most difficult cases for the Courts to resolve and can be a challenging and stressful time for prospective adopters. Instructing a lawyer makes sure that you have someone on your side to advise you, reassure you, and represent you in Court.

In the case of adoption proceedings, it is essential to have the utmost trust and confidence in your legal representative and this can be a very personal choice. Our experienced Public Access family Barristers can advise you on all aspects of your case and represent you in Court if necessary.

If you are ready to instruct a family lawyer to help with your adoption, read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will discuss your needs and match you with the barrister best able to support you as you proceed with your plans to adopt.

By Anita Mehta | Family and Children

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March 23, 2018
What is a Child Arrangements Order? 

What is a Child Arrangements Order? 

Over recent years the terminology for the orders governing where children live and who they spend time with has changed. What was once ‘Custody’ and ‘Access’ became ‘Residence’ and ‘Contact’ Orders. Since 2014, Contact Orders and Residence Orders have been replaced with Child Arrangements Orders. These orders can be obtained from Family Courts if parents can’t agree on the best arrangements for their children or where one, or both, parents want to have their arrangements set out in a formal Court-approved order. 

Different arrangements can apply in different situations and Courts will always seek to make the best possible decisions for children. The best interests of these children will always be the paramount consideration of the court.  

What type of Child Arrangements Orders are available? 

There is a huge variety of arrangements which can be put in place. Where the most serious concerns arise the time children spend with a parent could be restricted, or provided only in a supervised setting such as a contact centre. At the other end of the spectrum there are cases in which the Court considers that the care of children should be shared between their parents. 

There are two main types of Child Arrangements Order: a “live with” order (which replaced Residence Orders), and a “spends time with” order (which replaced Contact Orders).  

“Live with” orders tend to be made to a parent which whom a child spends most of their time and who may be considered their primary carer. “Spends time with” orders are there to make sure a child is able to see a parent and this might include time at weekends, after school or nursery, or overnight stays. Child Arrangements Orders are also used to set out how children spend their time during school holidays which might involve longer periods of contact. 

With permission from the Court, in appropriate circumstances, it is also possible for Grandparents (or other relatives) to apply for a Child Arrangements Order. This might occur if the grandparent wishes to spend time with their grandchild, or if the child cannot be looked after by their parent it may become necessary for them to live with another relative. These decisions can be put in place through a Child Arrangements Order. 

Legal advice on Child Arrangements Orders 

Cases regarding your children — or grandchildren — can be emotionally charged and the technicalities and procedures can be complicated. Many people feel more comfortable with the support of a lawyer and it’s important to make sure that if you do take this route you choose someone with the specialist experience needed to give you the best possible advice and representation.  

Our Public Access family Barristers are experienced lawyers and advocates, who can advise you on all aspects of your case and represent you in Court. Our clerks can discuss your particular needs to make sure you are matched with the barrister best able to support you as you make arrangements for your children. 

To get in touch with a member of our team, first read our simple step-by-step guide, then our clerks can advise you on your next steps and put you in touch with the family lawyer best able to accommodate your needs. 

By Anita Mehta | Family and Children

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March 6, 2018

Richard Ager successfully represents Mother accused of parental alienation.

The children, aged 9 and 11, refused to see their father alleging that there had been aggressive behaviour on his part and treating them differently.  The father says the children have been alienated. After a contested hearing the court found the Mother had done all she could to promote contact, that the children were genuinely concerned about their Father’s behaviour and orders him to attend a parenting course as recommended by Social Services and , should the children want it, contact supervised in a contact centre

Richard Ager | Family and Children 

February 28, 2018
What is a Specific Issue Order?

What is a Specific Issue Order?

A Specific Issue Order is made under section 8 of the Children Act 1989 (‘CA 1989’). It can be used to determine questions about a child’s upbringing, for example, where a child should go to school (state or private), to change the child’s name/surname, in relation to medical treatment or in relation to a prospective geographical move for the child. A Specific Issue Order will need to be applied for in the event that a person with parental responsibility is not prepared to give consent and thus the Court needs to determine the issue.

When deciding a Specific Issue order, what does the Court need to consider?

In deciding the issue, the child’s welfare will be the court’s paramount consideration. The court must have regard to the welfare checklist, as set out in CA 1989.

When can a Specific Issue Order not be made?

CA 1989 sets out the circumstances in which the court should not make a Specific Issue Order, including when the child is adopted, in the care of the Local Authority and in any way, which denies to the High Court the exercise of its inherent jurisdiction.

How to apply for a Specific Issue Order:

CA 1989 sets out the categories of applicant who can apply for a Specific Issue Order without obtaining permission from the Court to do so. Any person who is not automatically entitled to apply requires the permission of the court to make such an application.

The applicant must file a Form C100.

The procedure governing an application for a Specific Issue Order is contained within the Family Procedure Rule (FPR 2010) Part 12 and in FPR 2010, Practice Direction 12B.

Note that attendance at a Family Mediation Information and Assessment Meeting (‘MIAM’) is compulsory before an application for a Specific Issue Order can be made. There are exemptions to having to attend a MIAM and the relevant exemption must be confirmed in the Form C100. Where the exemption relates to an allegation of abuse, violence or harm, a form C1A must also be filed.

In the case of a Court Hearing:

A First Hearing Dispute Resolution Hearing Appointment (‘FHDRA’) will be listed and the parties to the application are required to attend. The Specific Issue may be resolved at the FHDRA if agreement can be reached. Otherwise, the case will be listed for a Dispute Resolution Hearing (‘DRH’) and then a final hearing, if required.

If you are in need of legal support to guide you through the steps of having a Specific Issue Order created, our Public Access specialist family barristers can help you with all aspects of your case. Read our simple step-by-step guide, then get in touch with our clerks who will discuss your particular needs and match you with the barrister best able to support you as you make arrangements for your children.

By Camilla WellsFamily and Children

Make an Enquiry

Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

Enquire
January 18, 2018
Bruce Tregoning successfully represents father

Bruce Tregoning successfully represents father

Bruce Tregoning represented a Father against whom 14 allegations of serious abuse (including sexual abuse) against his two children had been made by the mother; necessitating a 4 day fact finding hearing involving several professional witnesses attending Court including a NYAS Caseworker (Guardian). He successfully persuaded the Circuit Judge to dismiss every single allegation made against the Father in the schedule of allegations produced by the mother resulting in no findings being made against the Father and to order at the end of the case, both overnight contact between the children and their father and substantive holiday contact.

Bruce Tregoning | Family and Children

June 22, 2017
Should matrimonial assets always be shared between the parties on an equal basis?

Should matrimonial assets always be shared between the parties on an equal basis?

What about when the case involves a ‘short marriage’?

The Court of Appeal has recently handed down judgment in the case of Sharp v Sharp [2017] EWCA Civ 408. The lead judgment is by Lord Justice McFarlane who describes the issue to be grappled with as follows:

‘In White v White [2001] 1 AC 596 (‘White’) the House of Lords established what has become a principle that the matrimonial assets of a divorcing couple should normally be shared between them on an equal basis. The present appeal requires this court to consider whether that is inevitably the case where the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and where one of them has been paid very substantial bonuses during their time together. Although the possibility of a relaxation of the sharing principle in such circumstances has been described in earlier cases, this is the first occasion that the point has arisen directly for determination at Court of Appeal level since White and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618 (‘Miller’).’ (see paragraph 1)

The wife was a trader and the husband worked in IT. They initially both had basic salaries of around £100,000pa, but the wife received annual bonuses of around £10 million pounds during the marriage. The marriage lasted for around 6 years, including 18 months of pre-marital cohabitation.

McFarlane LJ considers in depth the relevant legal cases, which is outside the scope of this news article.

McFarlane LJ was clear at paragraph 75 that:
‘Nothing that is said in this judgment is intended in any manner to unsettle the clear understanding that has been reached post-White on the approach that is to be taken to the vast majority of cases. The focus of the present appeal, which is very narrow, is upon whether there is a fringe of cases that may lie outside the equal sharing principle.’

However, the court held that in a case such as this:

‘…fairness may require a reduction from a full 50% share or the exclusion of some property from the 50% calculation.’ (see paragraph 97)

The court limited the husband’s total share to £2 million from a total pot found to be £6.9 million at first instance, but excluded the wife’s liquid capital from being part of the matrimonial assets for equal sharing. The husband received one half of the capital value of the two properties (his share was £1.3 million) and was provided with an additional award amounting to £700,000 to reflect a combination of the following 3 factors:
‘(a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he is to retain; and (c) some share in the assets held by the wife’ (see paragraph 114)

In the writer’s opinion, this case is likely to add to, rather than settle, the on-going discussion about the applicability of cases such as White and Miller to the division of matrimonial assets between the parties in ‘short marriage’ cases.

If you have a case that you would like help with then please use our easy to use ‘enquiry form’ which can be found here.

Further reading:

White v White [2001] 1 AC 596
(http://www.bailii.org/uk/cases/UKHL/2000/54.html)

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618
(http://www.bailii.org/uk/cases/UKHL/2006/24.html)

Sharp v Sharp [2017] EWCA Civ 408 (http://www.bailii.org/ew/cases/EWCA/Civ/2017/408.html)

Daniel Miller has been a practising family barrister since 2005.

He practises in all areas of family law, with a focus on financial remedy cases. He has had extensive exposure to financial remedy cases at all levels, which frequently involve disputed company assets, international issues, and trusts. He accepts work both under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.

Make an Enquiry

Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

Enquire
June 12, 2015

Bruce Tregoning successfully persuades Judge to accept continuation of Court proceedings brought by a father contrary to child’s best interests

Bruce Tregoning acted in a difficult case where he successfully persuaded the Judge to accept that the continuation of proceedings was contrary to the child’s best interests despite a CAFCASS Officer’s report that recommended an assessment by a child and adolescent psychiatrist was required. The Court also found the continuation of proceedings was contrary to the child’s best interests in circumstances where the Father was contesting matters but had failed to attend Court at the final hearing despite being given notice and the Final Hearing being delayed.

Bruce Tregoning | Family and Children

May 19, 2015

Timothy Bergin assists father achieve Parental Responsibility

Case was listed for a fact-finding in respect of cross allegations of domestic violence Timothy Bergin acted for a father. The mother was opposed to parental responsibility and direct contact. On basis of limited admissions made by father, the Court were content not to proceed with fact finding hearing The Court  Ordered parental responsibility to the father and direct contact once father had engaged onto the Living Without Violence Programme.

Timothy BerginFamily and Children

May 14, 2015

Christopher Rice obtains family law act injunction and occupation order

Family law act injunction and occupation order. Issued by client in person with support from Worth Domestic Violence project – client not eligible for public funding.  Husband was unpleasant controlling man. Two children, one with significant needs. Anticipated fully contested case. A compromise was reached which allowed the wife to return to the family matrimonial home allowing the husband some time to vacate.

Christopher Rice | Family and Children

February 28, 2015

Anita Mehta writes the article: Schedule 1 to The Children Act 1989: Not Just for Wags

Family Law barrister Anita Mehta, a member of Barrister For Me, recently had an article published in Family Law Week arguing that Schedule 1 to the Children Act 1989 applications should not be regarded solely as the domain of footballers’ girlfriends or the extremely wealthy but as an influential tool for meeting children’s needs in a wide variety of cases.

Click here to read the article.

Anita Mehta | Family and Children