Family Law Articles & Advice

It is not uncommon for one parent to allege that the other parent has a drug or alcohol issue when a couple split up. Why? There can be a whole variety of reasons and in this blog we look at allegations of drug or alcohol abuse and testing for substance abuse in children court proceedings. We are Cheshire Children Solicitors If you need help with sorting out child custody and contact or are concerned about substance abuse allegations in children court proceedings and need advice on a child arrangements order then contact Holmes Chapel based Evolve Family Law, contact us online. Substance abuse allegations in children proceedings There are many reasons why substance abuse allegations can be made after a separation or divorce. Sometimes the drug or alcohol consumption is mentioned in passing as ‘no big deal’ with an acknowledgement that the parent is great with the kids. In other families there is a genuine concern for the children as the alcohol or drug consumption has gone beyond recreational use and was the reason behind the relationship breakdown. Worryingly, sometimes allegations are made that are untrue as a means to stop contact or the alcohol or drug use is blown out of all proportion to the reality as a justification to stop the children seeing the other parent.   If you are worried about your children because of a parent’s substance abuse or if you are facing accusations of drug or alcohol abuse it is vital that you get early legal advice from children law solicitors so that you know what your best options are.   What is parental substance misuse? Parental substance misuse is, for clear reasons, taken very seriously and if you are unsure what the court considers as substance misuse, read one of our recent blogs what is parental substance misuse.   The issue of drug and alcohol testing in divorce and children cases has hit the headlines with reports in the Daily Mail that James Stunt allegedly provided false samples for drug testing during his divorce from Petra Ecclestone.    If one parent uses drugs or alcohol it can have an impact on their ability to look after their children or impact on how much time they should spend with the children. Many parents, despite the trauma of a split, are able to sort out child care and contact arrangements with the help of a Cheshire children law solicitor, mediator or therapist, working around the alcohol or drug issues.   If a mum of teenage boys knows her boys want to see their dad she can minimise the risks posed by her ex and his alcohol issues by insisting that the children aren’t driven in a car by their father and that a relative stays in dad’s house when the boys stay over. In a different scenario, with a toddler, the risks and issues associated with substance misuse may be very different.   Where drug or alcohol abuse is denied or parents can’t reach agreement on the impact, if any, the drug / alcohol use should have on the child care arrangements the parents may have to ask the court to decide how much time the children should spend with each parent and under what conditions.   Children court applications and alcohol and drug testing A parent can ask the court to order that drug or alcohol testing is undertaken by the other parent before contact with a child takes place.  The parent who is alleged to have a drug or alcohol issue can refuse to be tested and the court can’t force him or her to undergo a test. Obviously questions may be asked about the reason for the refusal and sometimes inferences can be drawn.   The court is normally robust in looking behind the reasons why testing is being sought. Background information is needed, for example if a parent alleges that the alcohol misuse by the other parent is longstanding but before the split up both parents shared the care of the children. The question could be raised about why the alcohol or drug use is now a welfare concern for the children. If only occasional drug use is alleged a court may want to question if the usage impacts on the children before ordering tests, for example if a parent has always limited recreational drug usage to times that the children aren’t being looked after by them.   Court approach to drug and alcohol testing The court in children law proceedings is focused on looking at what is in the best interests of a child and therefore the court is only concerned with allegations of drug or alcohol use if they impact on the parent’s ability to look after or spend time with the children.   If there are serious concerns about a child’s welfare, either before or after drug or alcohol testing, the court can ask CAFCASS or Social Services to prepare a report. The court can also order expert reports such as psychological assessments or can make referrals for parents to attend parenting courses. There are lots of reasons why these referrals are made; sometimes to help family dynamics where there is a parent with an alcohol or drug issues or, in other extremes, where false allegations of drug usage have been made and the family need help with parental alienation issues.   How are drug tests undertaken in children court cases? If a court orders testing and a parent agrees to the testing then it can take a variety of forms: hair, blood, urine. If you read the Daily Mail article you might think it is easy for parents to falsify reports but if a test is arranged privately through Cheshire children law solicitors or the court then samples are obtained in the presence of a medical professional and after formal identification of the person providing the sample. [related_posts] What to do next? If any parent finds that they are in a dilemma about whether their children should see their other parent as a result of concerns about drug or alcohol use then the important thing is to speak to a Cheshire children law solicitor to discuss the issues and explore the options for contact to take place in a safe environment.   If you are a parent facing a battle to see your children because of allegations of alcohol or drug use it is equally important to get legal advice from a children law solicitor. That is because the longer you don’t see the children for then the tougher it can become to get to see them again and resolve the family dynamics that led to the substance abuse allegations.   Whether you are a parent worried about your ex’s drug use or a parent desperate to see the children the important thing to remember is that the court and professionals approach is to do what is in the children’s best interests, and that can include contact if it is best for a child to maintain a relationship with both parents in a safe environment.

Often people appoint a friend or family member as an executor in their will to manage their estate, sell assets and pay the debts and tax and to distribute legacies to beneficiaries. It feels like an honour to be asked to fulfil the role of executor (assuming you are asked as it is not that uncommon for people to only find out that they are one of the executors of a friends or loved one’s estate after the deceased has passed away!) but executors can quickly realise how onerous the ‘’honour’’ is. Sometimes, because executors have been personally appointed by the deceased to act as the executor, they feel that they have to ‘’go it alone’’, not realising just how time consuming a task acting as an executor can be or how difficult it is to resist pressure from friends and family to sort out the estate quickly. For executors who feel under pressure or all at sea with what to do with the paperwork, the admin and form filling and handling of queries and demands from beneficiaries, there is help is at hand in the form of instructing a professional specialist solicitor to deal with the estate. Acting with the executors the solicitor will guide everyone through what can be a very upsetting and daunting process. The benefits of an executor getting professional legal help in sorting out an estate is highlighted by the recently reported case of Glyne Harris. He has hit the headlines as he has been ordered to pay about £341,000 in inheritance tax as a result of his personal and legal obligations as the personal representative of Helena McDonald’s estate. How on earth could this liability have been made against Mr Harris? A good question and one I am sure Mr Harris wishes he had asked earlier. Mr Harris paid the majority of the deceased’s estate to a beneficiary on the understanding that the beneficiary would be responsible for payment of the inheritance tax from his legacy. The beneficiary disappeared leaving HMRC pursuing Mr Harris for the £341,000 and with nothing in the estate to pay the tax man. The Court has ruled that Mr Harris is responsible for the inheritance tax bill. That is because a personal representative of a person who dies without a will or the executor of a will is personally liable for paying any income , capital gains tax or inheritance tax due, even if they haven’t received a penny from the estate. What are the top tips if you find that you are asked to be an executor of a friend’s or loved one’s will? If you are asked to be an executor of a will it is a voluntary role. You can decline the honour. It is important to ask who the other executor/s will be. If the other executor is a named professional in a law firm you may feel far more relaxed about your appointment. On the other hand if the other proposed executor is a family member that you know that you will struggle to work with it may be best to tactfully decline the appointment If you are appointed as an executor without first being asked to act , or if your circumstances have changed after the will was drawn up or for any other reason you can decline to act as executor and renounce the role If you want to act as an executor you have the option of appointing a solicitor to handle everything and administer the estate. The solicitor’s fees are met out of the estate. The appointment of a solicitor not only reduces your executor workload but also means that if a mistake is made ( such as paying out the estate to the beneficiaries before the tax is paid ) you can potentially pursue a claim against the solicitor under his insurance If you are the executor of a will it should ideally have been drawn up professionally. Why? If the will isn’t drawn up by a specialist solicitor it can be ambiguous .That in turn can lead to more complexities and time in sorting out the estate and ultimately to more legal expense in resolving the mistakes in the will As well as being personally liable for paying the tax man the executor is also liable to make sure all debts are paid and that the right beneficiaries are given the correct legacy. This can be a minefield if the will is ambiguous or there are a large number of beneficiaries or someone makes a claim against the estate alleging that the deceased didn’t make reasonable financial provision for them in the will. If the executor appoints a solicitor to handle the estate those worries are taken away from the executor. [related_posts] What next? Well firstly don’t panic. The case of Mr Harris is very rare. What isn’t so unusual is the stress that executors find themselves under trying to do a good turn and handle an estate without the time or legal know how. Solicitors can be very user friendly and the cost of a solicitor taking the worry and stress of sorting out the estate administration and paperwork following a friend or loved one’s death can be the best option, you are still the executor but have a professional to share the burden with you. For legal help with executors, wills or probate please contact us.

Parental substance misuse is an extremely serious issue and it is not uncommon for one parent to allege that the other parent has a drug or alcohol issue when a couple splits up. Why? Well sometimes the parental substance misuse, be it drugs or alcohol, is mentioned in passing as ‘no big deal’ with an acknowledgement that the parent is great with the kids. In other families, there is a genuine concern for the children as the parental substance misuse has gone beyond recreational use and was the reason behind the relationship breakdown. Finally, sometimes allegations are made that are untrue as a means to stop contact or the alcohol or drug use is blown out of all proportion to the reality as a justification to stop the children seeing the other parent. The issue of drug and alcohol testing in divorce and children cases has hit the headlines with reports in the Daily Mail that James Stunt allegedly provided false samples for drug testing during his divorce from Petra Ecclestone in an attempt to disprove accusations of parental substance misuse. If one parent uses drugs or alcohol it can have an impact on their ability to look after their children or impact on how much time they should spend with the children. Many parents, despite the trauma of a split, are able to sort out child care and contact arrangements with the help of a solicitor, mediator or therapist, working around the parental substance misuse. As an example of parental substance misuse, if a mum of teenage boys knows her boys want to see their dad, she can minimise the risks posed by her ex and his alcohol issues by insisting that the children aren’t driven in a car by their father and that a relative stays in Dad’s house when the boys stay over. In a different scenario with a toddler, the risks and issues may be very different. Where drug or alcohol abuse is denied or parents can't reach agreement on the impact, if any, the drug / alcohol use should have on the child care arrangements the parents may have to ask the Court to decide how much time the children should spend with each parent and under what conditions. [related_posts] Many parents are wary about raising parental substance abuse allegations in Court proceedings or alternatively parents are worried that allegations of alcohol or drug usage will automatically be believed and will result in them losing all contact with their child. That is why it is important to get early professional advice on your options. As an example the Court may question why a parent allowed lots of unsupervised contact if there are very serious allegations of parental substance abuse or why, in a different scenario, a parent hasn’t seen their child for months, making the parent child relationship harder to repair. Sometimes it pays to take things slow and at other times it is vital that a parent pushes for contact notwithstanding the allegations of parental substance misuse. For legal help with children law and child care arrangements where there are allegations of drug or alcohol misuse please contact us.  

We were delighted to support a business breakfast recently with the special guest speaker Economist, Jim O’Neill, Lord O’Neill of Gatley.  The event was attended by over 100 guests from the business community, and raised nearly £10,000 for MedEquip4Kids. Once breakfast and coffee were served, MedEquip4Kids chairman Brian White welcomed Lord O’Neill and gave a brief introduction to his many impressive achievements. After graduating from Sheffield University, Lord O’Neill studied for a PhD at Surrey and went on to become a renowned economist, working for various banks including 15 years at Goldman Sachs Division of Asset Management. He is especially well known for developing the acronym BRIC (Brazil, Russia, India and China), a group of countries considered to be at a similar stage of newly advanced economic development. In 2011 he was named by Bloomberg Markets magazine as one of the 50 most influential financial professionals worldwide. When Lord O’Neill left Goldman Sachs he had a desire to do something different, though he wasn’t sure at first what that would be. Then he was asked by David Cameron to lead a review into the problem of antimicrobial resistance. His wife, who is a scientist, commented that it was the first time she’d be able to understand and be interested in what he was doing! Lord O’Neill has subsequently co-written a book called Superbugs: An Arms Race Against Bacteria. After the talk the floor was opened up for the audience to ask questions. Perhaps unsurprisingly in the circumstances, the first topic to be raised was Brexit.  Lord O’Neill’s view as a remainer was that there were likely to be negative consequences of Britain leaving the EU, but it perhaps wasn’t the most important issue facing the UK economy at the current time. In fact it was possible that increased productivity could eventually make up for any negative impact of Brexit. But in order to achieve that productivity, it was crucial to tackle geographical and intergenerational inequality – factors he believed were responsible for the referendum result, especially in places like Sunderland where people had felt for decades that they were being left behind compared to other parts of the UK. This led on to the subject of the Northern Powerhouse, an initiative which Lord O’Neill has championed and remains heavily involved in. In his opinion the six key factors in regenerating the northern economies are: devolution (in particular healthcare – he mentioned that in areas of North Manchester the life expectancy for men is just 59 years old), transport, education, skills, businesses moving out of London to prevent young people in the north having to relocate for jobs, and backing from private sector and council leaders. Finally Lord O’Neill was asked about the best emerging markets for UK exports, and he emphasised the importance of China. Although its growth has slowed recently, it still creates an equivalent of the South African economy every month. One important area is Chinese consumers: Apple now sells more iPhones to Chinese customers than it does to US ones. Other key emerging markets he noted were Vietnam and Laos. At the end of the breakfast Lord O’Neill, who is an enthusiastic supporter of Manchester United, drew out the winning envelope from the prize draw. The lucky winner was our very own Becky who went away with a Paul Pogba shirt! [related_posts]

Good news for grandparents – children law reform proposed – to give grandparents a right to apply to Court to see their grandchild. As a children lawyer I smile when I see a grandparent out with a grandchild. Why? I’m often asked for advice on grandparents ‘rights’ and it is therefore great to see children enjoying time with grandparents. Sadly grandparent contact can stop if: There is a family fallout with a son or daughter-in-law; Parents separate and the parent who is looking after the children thinks that a grandparent took sides during the divorce or wants to exert control; The death of a child and the remarriage of a son or daughter in law; Family moving away or going to live abroad. All too often when families split up grandparents can be forgotten, despite providing support such as: Continuity and stability in a grandchild’s changing post-divorce world; Childcare if both parents have to go back to work after a marriage breakdown; Family historian; A fun relative and role model. The current grandparent and child law Under current children law, grandparents don’t have an automatic right to apply to Court to see their grandchildren. Grandparents have to undergo a two stage process: Ask the Court for permission to be able to apply for a Court Child Arrangements Order. If they get permission then apply for an order setting out the time a grandchild should spend with their grandparents. The Order can provide for regular contact or just cover a one off special holiday or the grandchild being able to come to an 80th birthday party or golden wedding celebration. When a grandparent asks for Court permission to apply for a Child Arrangements Order the Court considers: The connection with the child (how close are the grandparents to the grandchild); The nature of the application for contact; Whether the application might be potentially harmful to the child's well-being in any way. Although it is usual for a Court to give permission for a grandparent to apply for a Child Arrangements Order the two stage Court process can be off putting to a grandparent desperate to see their grandchild. Once permission to apply for the Court order is granted the Court then has to decide whether contact is in the child’s best interests. [related_posts] The proposed grandparent reform According to press reports the proposed change to the children law is to do away with the need for grandparents and other close family to have to ask the Court for permission to apply for a Court order to see their grandchild. https://www.dailymail.co.uk/news/article-5697961/Grandparents-right-grandchildren-parents-split-new-law.html If the law is changed then grandparents will be treated in exactly the same way as a parent asking for a Court order to see their child. The reform has long been advocated by people’s campaigner and grandmother, Esther Rantzen. If the law is reformed it will make it easier for grandparents to see their grandchildren and grandparents will have the same ‘’rights’’ as parents to apply to stay in touch with their loved ones. For help with any aspect of children law please contact us  

Surrogacy reform is on the cards with Law Commission review on surrogacy There is nothing quite like welcoming a new baby into the world. As a children lawyer I have been privileged to help parents secure Parental Orders after they have had a child through a surrogacy agreement. I therefore know just how stressful the months leading up to the birth of the child are as well as the worry of how quickly a parent can secure a Court order. For many parents they couldn’t relax and enjoy their baby until all the legalities were sorted out. Surrogacy laws were first introduced about 30 years ago. Society and the medical options available to couples have changed over the years. Many parents, medics and legal professionals have concluded that the current surrogacy legislation, once thought to be ground breaking, is no longer ‘’ fit for purpose’’ and doesn’t meet the needs of the surrogate, the parents and, most importantly, the baby. Under current English law a surrogate mother is the legal mother of the child even if she has no genetic link to the baby. A Parental Order, in favour of the parents, can only be applied for after the baby has been born and various conditions have to be met, namely: The application must be made within six months of the child’s birth; The surrogate mother must fully consent to the Parental Order and must understand that she will be giving up parental rights; No payment should have been made to the surrogate mother save for necessary reasonable expenses. The Court can give retrospective approval to payments over and above reasonable expenses; There must be a genetic connection between the child and at least one applicant for the Parental Order; At the time of the application and the making of the order the child’s home must be with the person applying for the order; Either or both applicants must be domiciled in the UK There is a concern amongst professionals that current UK surrogacy laws and conditions encourages the use of international surrogates where, in some countries, there is less regulation and protection for all participants. [related_posts] The Law Commission reforms will consider changes to the law relating to: the legal parentage of the baby; the regulation of surrogacy including payments; the rights of the child to obtain information about their origin and the surrogacy arrangement; the rights of the surrogate, parents and child and how best to avoid exploitation in the surrogacy process. The Commission says that a report on proposed changes in the law will be available within a year. There will then need to be an impetus to get any recommended changes in current surrogacy laws into new legislation so that all involved in surrogacy arrangements feel that the law is working to protect them and the child. For help on any aspect of children law please contact us

Is it a gift or a loan? Helping your children on the property ladder. In an age where a lot of young people and divorcees recovering from the financial split from their spouse can’t get on the property ladder without help from the ‘’bank of mum and dad’’ a reported case in the Daily Mail highlights the importance of recording agreement over property. The reasons behind why Mr and Mrs Joy gave their daughter £90,000 are complex but in essence the Joy family dispute was simple: was the £90,000 payment a loan, as claimed by Mr and Mrs Joy, or a gift, as asserted by their daughter, Lucy. https://www.dailymail.co.uk/news/article-5669857/Bitter-rift-bank-mum-dad-Couple-lose-90-000-loaning-daughter.html After a Court battle a judge has recently ruled that the money was a gift and is not repayable by the couple’s daughter, Lucy. This is despite Mr and Mrs Joy reportedly re-mortgaging their family home to raise the £90,000 for their daughter on the basis of an alleged verbal agreement that Lucy would then transfer an inherited property into Mrs Joy’s name. The key factor in the Court decision was that there was no written agreement or contract between parents and child. As a family solicitor I am often told by clients that they don’t need a written agreement or document between their family members. The Joy case is a salutary reminder of the importance of writing things down. That is not just because family can fall out but also to protect family members from: The donor’s estate being liable for extra inheritance tax as the HMRC might not view a payment to a family member as a ‘’gift’’ without formal evidence; The person receiving the money facing a financial claim on divorce and therefore needing to establish that money received from family was a gift to them as an individual or a repayable loan; The person receiving the money facing bankruptcy or a Court judgement – without a written document a third party or a Court may not accept that the money was a loan and not a gift. [related_posts] There are many different ways in which family property agreements can be recorded, such as: Cohabitation agreement between cohabiting couples; Declarations of trust between joint owners; Loan – not secured on the property ; Mortgage – secured against the property ; Prenup agreements between an engaged couple; Postnup agreements – suitable for a married couple who acquire property after marriage, for example, inherited from a parent; Record of gift of property or deposit to purchase a property. Whatever the type of document and however the paperwork is drawn up, the important thing is that there is a written agreement. By spending the time recording the property agreement a lot of time and money can be avoided when it comes time for the loan to be repaid, the property sold or the estate sorted out. The English philosopher, John Locke, said ‘’where there is no property there is no injustice’’. I say ‘’ where there is a written agreement on property there’s normally no injustice’’. For help with family agreements and estate planning please contact us

Recently there has been a lot of discussion on whether male infant circumcision should be banned unless the procedure is carried out on medical grounds. Why the debate? It flows from the media discussions and press coverage on the banned female genital mutilation and the news that the Icelandic government is proposing legislation to outlaw male circumcision for anything other than non-medical reasons. Now anti-circumcision advocates are asking the British Medical Association to add support to their call for a change in UK law to stop male circumcision unless it is carried out on medical grounds. Male infant circumcision is an important passage for those of the Jewish or Islamic faiths but according to a recent You-Gov poll 62 per cent of people in Britain support a new law banning infant circumcision. Under current UK law and BMA guidelines both parents must give informed consent for what is termed non-therapeutic or ritual circumcision. If parents can't agree on whether or not their child should be circumcised a doctor should not carry out the procedure without a family law Court order. In some situations children are old enough to express their views and, if so, their wishes must be taken into account. When parents are separated or divorced it is sometimes impossible to reach a consensus view on what is best for their child. The Court application for circumcision So, what happens if parents can't reach agreement on whether their child is circumcised or not? The Court procedure is exactly the same for a situation where parents can't agree on whether their child should have any other type of operation or if parents can't agree on the school their child should attend or the religion their child should practise. Either parent can apply to the family Court for what is known as a ‘’specific issue order’’ for a judge to decide on whether the child should be circumcised, undergo any other medical procedure or determine the choice of school or religion. [related_posts] How does a judge decide what is best for a child? The judge has to consider what is in the child’s best interests. In a case called Re S a judge decided that it was the mother’s need to portray herself as a religious person that was behind her desire to have her 8 year old son circumcised , against the father’s wishes, and the Court application was refused. The rationale behind the refusal was that it is the child’s best interests and needs that are paramount, not the parent’s needs. Each Court decision will turn on the individual family circumstances and, in many situations, a judge is likely to rule in favour of circumcision after taking into account a range of welfare factors. If there is a change in the law regarding male circumcision or there is a ground swell of public opinion away from male circumcision for non-medical reasons judges may be less ready to determine that the procedure is in the best interests of an infant child. For help with any aspect of children law please contact us