Family Law FAQ
Q: “Do I need a solicitor?”
A: There is no obligation placed upon parties to legal proceedings to have legal representation. Any form of legal advice is expensive and the provision of advice in family law proceedings is no different. We developed our fixed fee initial interview system for our prospective clients to take legal advice knowing in advance their total cost for the meeting.
In some instances, whether because of the nature of the proceedings or in view of the costs that might be incurred, our role is to provide background advice to a client who deals with the proceedings “in person”. We can discuss whether this would be appropriate to your case.
We do suggest that it is always worthwhile considering an initial fixed fee meeting with us at a early stage. Many of our first meetings are of a “what if” nature. We would like to think that the advice we give on these occasions may be some of the most useful and cost effective advice that the practice provides to our clients.
Q: “How long will it take?”
A: We recognise that most, if not all of our clients will have faced a tough time before they come and see us and are anxious as to how long it will take to resolve the issues that have arisen.
The reality of the position is that for most cases, the days when they might take years to conclude are long gone. Generally, negotiations take place and lead to agreement; duration is governed by the speed of those negotiations. In practice, we advise that unless agreement is clearly achievable within a few months, that proceedings are appropriate because the court timetable then falls into place. So, for example, in financial proceedings upon divorce, the first court appointment is listed three months after the issue of proceedings with the court. If agreement is not achieved before that appointment and/or terms are not agreed at court on the appointment then a further appointment would be listed by the court for around three months later and so on.
Q: “How much will it cost?”
A: We understand that this will be a central concern for our clients.
Our initial first free interview provides our clients with the assurance of knowing they can access some initial advice and we can assess eligibility for Public Funding or otherwise discuss our private client terms. It is essential on any first appointment that you bring full proof of your income. Our commitment to you is that upon receiving your instructions to act for you, we will provide you, in writing, with the very best estimate as to the cost that you might incur and that we will continue to do so throughout the time we act for you.
Q: “My husband/wife tells me that his/her solicitor says that a 50%/50% share of our family assets is now automatic”
A: The brief answer to this is “no!”.
Where terms as to the division of the family assets cannot be agreed upon divorce then the court will eventually have to make a decision. Accordingly, our advice to our clients as to what might be an appropriate division of the assets is governed by the likely outcome if a judge had to make a decision in a final contested hearing. In practice, such final hearings are rare because of the cost and uncertainty as to the outcome.
A judge making a decision is guided by statute law and by previous decisions made by other judges. An equal division of the assets may well be thought to be appropriate but there are cases where such a division would be unfair and inappropriate. A number of factors come into play and our daily involvement with such cases enables us to provide analysis of your circumstances and guidance as to what may be appropriate for you.
Q: “Can I stop paying maintenance?”
A: Even where there is agreement that maintenance may be reduced or no longer paid, if this is not recognised by variation of the relevant court order or otherwise documented in correspondence, preferably between solicitors, then arrears will accrue under the Order and may be enforced subsequently. Enforcement measures might include an Attachment of Earnings Order against the payer’s salary, the claiming of monies in their bank account or even an application for a sale of a property.
Q: “She will not allow me access to the children this weekend”
A: It is inevitable that friction will sometimes occur in the children’s arrangements where there are separated or divorced parents. Sometimes the arrangements can break down even when they have been in place for a lengthy period. This can happen where there is a change of circumstances, for example, one parent forming a new relationship or where there is a change of address.
There is no immediate answer to these problems. Generally, we would suggest that you see us for an initial fixed fee interview. It may be that we will suggest that mediation might be appropriate. Court orders are a blunt instrument and generally research shows that children’s arrangements achieved by consent work better in the long term than court imposed orders. However, there is now an emphasis on court based mediation which can prove very effective where one parent is initially reluctant to take a proactive stance in working out the arrangements in the best interests of the children.
Q: “Will my wife get half my pension ?”
A: Not necessarily. It is not automatic. A pension is regarded as an asset of a marriage. It is looked at alongside all of the other assets that are available for distribution. There are several factors which determine whether a pension share may be appropriate. These can include:- the age of the parties, the duration of the marriage, the actual value of the pension and whether the other part has a pension of their own.
We will help evaluate the factors in your case and advise if a pension share is something which we believe a Judge looking at your circumstances would do.
Q: “How long will it take ?”
A: Obviously, the time frame for each person is different but generally for divorce proceedings with no financial or children issues, they should conclude in 6 – 8 months. Where there are financial issues then our first aim would be to negotiate a settlement. If successful negotiations take place then the time frame would be similar.
It is where parties cannot agree and Court proceedings are issued then the time for completing matters is extended. The Court process however sets a timetable for both parties to follow, and there is always ongoing negotiations alongside that process. If a matter was fully contested we would still expect it to complete the Court process in twelve months.
Q: “Can I make my husband leave the family home as soon as I start divorce proceedings ?”
A: Not necessarily. We can ask a husband or wife to vacate voluntarily but if they will not you will have to await the resolution of your financial settlement. (This is assuming there are no domestic violence issues. If there were we would discuss application for an Occupation Order).
Q: “How do I know what maintenance I should pay ?”
A: Generally, it is preferable to try to agree payment of maintenance for children on a voluntary basis. This should generally be in accordance with CSA guidelines as it is they who have jurisdiction in respect of maintenance for children (save in some limited circumstances). We would assist you in applying the CSA’s assessment guidelines to your particular circumstances.
Q: “Can we make an application for contact to our grandchildren ?”
A: Yes, this is possible. Leave of the Court is required before the application is allowed to proceed. The Court will want to know why the contact is being denied, the historical relationship you have had with your grandchildren and the effect any Contact Order with you may have upon any other contact that they may be having with their non-resident parent. The welfare of the children is the most important factor for the Court to consider.
Q: “What does Parental Responsibility mean ?”
A: Parental Responsibility is our rights, duties, powers and responsibilities and authority which by law the parent of a child has in relation to that child. Essentially Parental Responsibility is concerned with bringing up a child, caring for them and making decisions about their lives. Parental Responsibility can extend to determining issues such as religion, education, the child’s name and consenting or refusing medical treatment.
A number of people may share Parental Responsibility at any one time and ideally should consult one another where possible on major decisions in regards to their child’s upbringing.
A: The mother of a child has Parental Responsibility for the child instantly when it is born and that cannot be removed unless the child is placed for adoption. If the father is married to the mother at the time of the child’s birth or subsequently marries the mother of the child, they will also require Parental Responsibility.
If the father is unmarried to the mother at the time of the child’s birth then if the child was born after 1st December 2003 and the father jointly registered the child’s birth with the mother and his name appears on the Birth Certificate, then he acquires Parental Responsibility in this way. However, this could be taken away from him by a Court Order in the future.
People who are non-parents can obtain Parental Responsibility by obtaining a Residence Order or a Special Guardianship Order so that they can make decisions about a child’s upbringing in the same way as the parent.
If the Local Authority are involved with your child or may be do not believe you are acting appropriately as a parent, then they may apply to the Court for a Care Order which would result in them sharing Parental Responsibility with a parent.
A: If you are an un-married father and do not have Parental Responsibility in the ways outlined above, then Parental Responsibility can be obtained by you entering into an agreement with the mother which is signed and witnessed by a Court Official and then registered in a central office in London.
Alternatively if the mother is not agreeable to you sharing Parental Responsibility then you would need to make an application to the Court who would consider your relationship and commitment to the child and your motivation for making the application and would decide whether or not to grant an Order.
If you are a non-parent then Parental Responsibility can be acquired through a Residence Order which would confirm that a child should live with you or a Special Guardianship Order. Special Guardianship Orders are often used at the conclusion of Care Proceedings issued by Local Authorities where children are placed with extended family members as opposed to going into a foster placement. Parental Responsibility is given to the family member through the Special Guardianship Order but this is at a higher level than the parent so that if they cannot agree with the parent on a particular issue to do with the child’s upbringing in the future, they can exercise their Parental Responsibility to the exclusion of that parent.
A Special Guardianship Order can also provide financial support and ongoing support and assistance from the Local Authority should it be required.
Q: “My partner is harassing me, what can I do ?”
A: There are two possible solutions to such difficulties. The first option, which you are duty bound to explore, is whether the police can protect you under the Protection from Harassment Act. As such if you have suffered a violent incident or you have been subject to behaviour that amounts to the harassment of you, then you should contact the police and insist that they take a formal complaint from you. In the event that the police are unwilling to take any action on your behalf, then you may be entitled to a Family Law Induction.
Clearly, the greatest protection you will receive is via the police should they pursue a complaint on your behalf. If the person is arrested then the police have the power to request the Court to remand that person into custody or alternative impose bail conditions upon them which would prevent that person from contacting you or coming near to your home.
In the event the police are unwilling to take any action on your behalf then you may be able to make an application to the Court for an induction. If there has been recent violence used, then this application may be able to be made on an emergency basis and without notice being given to the person who is harassing you.
Should the police take action on your behalf, it may be at the first instance they will warn the person in regard to their behaviour. If that person subsequently causes you further harassment it is essential that you re-contact the police and make a further complaint and insist that criminal charges are brought against them. Should a person be brought before the Court for an offence of harassment, then the Court has the power to make an Order restraining them from contacting you, your home or anywhere else they deem appropriate for a fixed period. These offences are viewed very seriously and such a person breach a Restraining Order then this often results in a period of imprisonment.
The Local Authority can only intervene in the care of the upbringing of a child with the agreement of the parent or with an order of the Court (Emergency Protection Order/Care Order).
Within s.17 of Children’s Act 1989 the Local Authority are under a duty to promote the upbringing of children in need by their families and where appropriate provide family support services to children in need and their families provided this does not interfere with safeguarding the welfare of the child. As such the Local Authority are under a duty to explore providing services and potential alternative carers prior to making an application to the Court.
Parental Responsibility
We also discussed the very important issue of parental responsibility. I advised you that Parental Responsibility is all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to that child and their property. In essence, parental responsibility is concerned with bringing up a child, caring for them and making decisions about them. It does not affect the relationship between parent and child for any other purpose. Parental Responsibility extends to determining a child’s religion, education, name, appointment of a guardian and consenting to or refusing medical treatment etc. I advised you that the mother of a child has parental responsibility for that child instantly once it is born and that can never be removed unless the child is freed for adoption, however, the mother may share Parental Responsibility with the father, and in certain circumstances the Local Authority or a person with whom the child lives. I advised you that as father of a child there are a number of ways to obtain Parental Responsibility:
By marrying the child’s mother
By entering into a Parental Responsibility Agreement under s.4(1)b Children Act 1989
By obtaining a Residence Order in your favour
By obtaining a Parental Responsibility Order from the Court.
As from 1 December 2003 a father who jointly registered the child’s birth with the child’s mother will automatically acquire Parental Responsibility. However, Parental
The Local Authority do not obtain/share parental responsibility with you other than by Order of the Court (Emergency Protection Order/Care Order).
Assessment process
Where a child is referred to a Local Authority who may be in need, the Local Authority should decide within one working day whether to undertake an initial assessment. If an initial assessment is to be carried out this should be done within 7 days of the initial referral and should consider the child’s developmental needs, the parents’ capacity to respond appropriately to those needs and the family and environmental factors.
The Local Authority will then need to decide whether:-
The child is a “child in need” and
There is reasonable cause to suspect that the child is suffering or is likely to suffer harm.
If the above cannot be satisfied completely but from enquiries the child is assessed as being “in need” then the Local Authority must evaluate what services are needed and prepare a plan with the child and family.
A child is “in need” if
a) He is unlikely to achieve or maintain or have the opportunity of maintaining a reasonable standard of health or development without the provision for him of services by a Local Authority.
b) his health of development is likely to be significantly impaired of further impaired without the provision of such services.
c) he is disabled.
If both criteria are satisfied then the Local Authority within 48 hours should decide what action should be taken to safeguard the child. This can include involving the police, who can authorise a Police Protection Order and also issuing proceedings for an Emergency Protection Order. A Core Assessment has to be undertaken by the Local Authority, which should be concluded within 35 days of the initial assessment. If at the conclusion of this assessment Emergency or Legal action is to be taken by the Local Authority, then an application will be made to the Court. If the welfare of the child would not be jeopardised, the Local Authority are required to send a “letter before proceedings” to the parents which will normally invite you to a meeting to discuss Local Authority concerns and attempt to agree a plan, in an attempt to avoid the need for proceedings before the Court.
In most cases the initial assessment identifies the child as one in need only and a child is normally placed on the Child Protection Register following a Child Protection Conference under a specific category e.g. physical and emotional neglect. This category must be reviewed regularly and you will be invited to the meetings where reviews take place. Child Protection Conferences are for everyone involved with a child to look at the child’s welfare. Parents, health workers, GPs, school staff etc will be invited to the meetings to provide relevant information. You are entitled to receive minutes (written notes) of these meetings and should always request them for your own information purposes. You are allowed to have a solicitor present during the meeting however we cannot take an active role on your behalf.
If, with your agreement, a child is placed in alternative care whilst your parenting is looked at, there sometimes is a tendency for the Local Authority to let matters to drift and the Local Authority can often prioritise more urgent cases of child protection over yours. It is essential that you regularly keep in contact with the allocated Social Worker and that assistance is obtained to achieve the goals set for you to have your child returned home.
Contact
The Local Authority have a duty to promote contact between a child and their parents if they are in their care. If you believe you are having insufficient contact with your child then legal advice should be sought.
Police Protection Order
The Police may take a child into police protection if a constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm. This can be for a period of up to 72 hours. The Police may remove a child from your care and place with extended family or in a Local Authority emergency placement.
Emergency Protection Order (EPO)
The Local Authority can apply to the Court for an EPO if there is reasonable cause to believe that a child is likely to suffer significant harm if he is not removed from where he is or if does not remain where he is being accommodated. An EPO can also be sought if the Local Authority is trying to make enquiries about a child and urgent access is required to the child and that access is being unreasonably denied. An EPO can be granted for up to 8 days and it grants the Local Authority parental responsibility. At the end of the EPO the Local Authority must consider whether they will issue an application for a Care Order.
Q: The Local Authority have applied to the Court for a Care Order for my children, what will happen ?
A: The Grounds
Section 31 of the Children’s Act
I advised you that a Court can only make a Care Order or Supervision Order if it is satisfied that:
the child is suffering or is likely to suffer significant harm
AND
that harm or likelihood of harm is attributable to either
the care given or likely to be given to the child if the Order is not made, that care
not being what it would be reasonable to expect a parent to give OR
the child being beyond parental control.
Both grounds must be satisfied in order for the Court to make an order and before doing so they must consider a number of issues contained in statute. This list is called the Welfare Checklist and includes the child’s physical emotional and educational needs and how capable each party is of meeting those needs, the effect that any change will have on the child, whether the child is at risk of suffering harm and the ascertainable wishes and feelings of the child concerned. Harm can be emotional, physical or general neglect.
Following the implementation of the Human Rights Act, Article 8 of the European Convention for Human Rights states that everyone has a right to Family Life, however, in every case the Courts paramount consideration is the welfare of the child. In addition to the welfare Checklist and the paramountcy principle outlined above the Court before making any order will also consider whether an order is in fact necessary, this is known as the “no order” principle and is important as the Court cannot make an order unless they are satisfied that making such an order would be better for the child than making no order at all.
Effect of Care Orders
If a care order is granted then the Local Authority, by virtue of that order obtain Parental Responsibility for the children, which they then share with you as a parent of the child. You do not lose your Parental Responsibility but the Local Authority have the power to decide to what extent you can exercise it which basically means they can override any decisions you make concerning the interests of the child. Most importantly they can decide where the child should live and how often they should have contact with you and other family members.
The Local Authority should do this only if they are satisfied that it is necessary to safeguard or promote the child’s welfare. There are certain restrictions on the Local Authority and you will be advised should one of those grounds arise. If you are at all concerned that the Local Authority may be acting outside the scope of their powers please contact this office straight away.
Care Orders discharge all other Private Law Orders. Orders are made within the care proceedings for contact between the parent and the children. It is for the Local Authority to convince the Court that it is not in the child’s interest for the parent to have contact with the child and the Court will look both at the end of the proceedings and during the proceedings at the amount of contact that is being permitted by the Local Authority. If the Court is not satisfied at the provisions for contact then it may if it so wishes refuse to make Orders sought by the Local Authority. Conditions may be attached to contact and only the Local Authority or the child’s representative can apply to prohibit contact.
If an Order is in place (interim/full) the Local Authority must have LAC (Looked After Child) reviews every 6 months to review how the child’s welfare is progressing. You should attend all of these meetings as it is your opportunity to voice any concerns you have. Such reviews can also look at issues of contact, returns back home.
The child
Your child will be separately represented in these proceedings both by a specialist Social Worker known as a Guardian and by their own solicitor. The Guardian is independent of social services and will speak to the child directly to ascertain their views, it is also likely that they will wish to speak to you and other people with whom the child has regular contact. The purpose of a Guardian is to safeguard the best interests of the children and advise the Court on what is best for the child. As the Guardian is not a solicitor, they will instruct a solicitor to represent the child’s interests and convey the Guardian’s views to the Court.
Proceedings
You will have been served with a set of papers and probably given a long statement from the Social Worker. It is important that we consider this statement very carefully together with any letters that you receive from Social Services and any minutes of meetings which you have attended in the past. If you have any further documentation which you have not yet provided me with then I would be obliged if you would bring these to your next appointment so that I can take copies and we can consider their content and the effect of its contents.
At the start of the proceedings the Court can make an Interim Care Order lasting sometimes up to two months. After that the Court considers the application every 28 days. Unless there has been a change in circumstances it is unlikely that the Court will be willing or able to hear a contested hearing at each review. If however, problems arise during an adjournment period either because of the way which you consider the children are being treated whilst in care or because there are problems about contact then you should notify me immediately because you then have the right to notify the Court that we wish to be heard at the next interim hearing and the Court are then unable to renew the Interim Order without hearing what we have to say first.
The Court
If your case is heard in the Family Proceedings Court then it will be heard by three family magistrates who are specially trained to consider this type of application. If your case is unusually difficult or complex it may be transferred to the County Court so that it can be heard by a Judge. Any other parent, the Local Authority and the children will all be independently legally represented. Often there is a conflict of interest between parents which means each solicitor cannot act for both parents e.g. if it is alleged that there is a history of domestic violence or drink or drug abuse or sexual abuse. The Court will ask for help from experts such as psychiatrists and/or psychologists depending upon the facts of the case. In any event the Local Authority will in most cases have to undertake a full assessment of your parenting abilities known as the Lilac Book assessment during the course of this case if they have not already done so.
You will be advised about this assessment by the solicitor dealing with your case as the case progresses. From time to time there will be directions hearings where all parties will discuss what progress has been made and what further information or progress is needed before the case can be concluded. It is likely that at one of these hearings the Court will order that you file and serve a statement and it is most important that you co-operate with me in order that I can prepare this statement for you. To maximise the chances of having the child returned to your care you must co-operate with me, the Court and Social Services at all times. From time to time the Court will appoint experts and it is equally important that you co-operate with them especially in keeping appointments since they are usually busy people and if you fail to keep their appointments it is likely that they will not be able to make a further appointment to see you.
Duration of a Care Order
If a Care Order is made at the end of these proceedings it will stay in force until the child reaches 18 or earlier if one of the following happens:-
1 A successful application is made for discharge of the Care Order.
2 A successful application for a Special Guardianship Order, Residence Order is made, sometimes this is brought successfully by grandparents or other family members.
3 An adoption Order is made.
Supervision Order
A supervision Order is slightly different from a Care Order although the same procedure is followed. It differs from a Care Order in that the Local Authority do not gain parental responsibility for the child. Instead the supervising officer has a duty to advise, assist and befriend the supervised child and take such steps that are reasonably necessary to give effect to the Order. If there is a lack of co-operation the supervisor can return the matter to Court. If however they consider that their continued involvement is not necessary then that officer can apply to the Court for a variation or discharge of the Order. Supervision Orders initially last for one year but the supervisor can apply to the Court to have it extended for a period of up to three years beginning with the date upon which the Order was first made if they feel this is necessary. If at the end of that time the Local Authority still think that a supervision Order is still necessary they have to apply to the Court again and confirm that the grounds on which the Order was made are still in existence.
Whilst the Local Authority do not have Parental Responsibility under a Supervision Order the supervisor may specify that the child lives at particular place for a particular period of time and/or presents themselves to specified persons at specified times and places and participates in specified activities. The child can only be made to comply with such a direction for a total of 90 days. The supervisor cannot force the child to have any medical or psychiatric treatment and such directions can only be given by the Court. The consent of all persons with Parental Responsibility is required before such an Order can be made.
Psychiatric and medical examination
As stated above the Court may wish either you or the child to submit to medical examination. No-one can force you to do this. If however you do not do so it is open to the Court to decide that you are hiding something. In relation to a child who has sufficient understanding they may if they so choose, refuse to co-operate with medical examinations. If the issue arises I will discuss this with you further.
