Children Law

The Child Maintenance Service, the government organisation tasked with assessing and administering the statutory child support regime, frequently gets bad press for its bureaucracy and the intricacy of its rules and regulations surrounding the payment and enforcement of child support. A recent Court decision has hit the headlines because the Court of Appeal has said that a father’s sole source of income can't be classed as earnings upon which to calculate how much child support should be paid. The first two child support tribunals took the approach that if someone lives off an income then it can be viewed as ‘’income’’ but on an appeal by the father and by the Secretary of State for Work and Pensions the Court of Appeal disagreed. You may question when income isn’t ‘’income’’ but the Court of Appeal decided that income for child support purposes should be considered in light of rulings on what is classed as income for tax purposes. In this family, the father derived his entire income from professional gambling, namely bets on the horses and cards. Under income tax rules and regulations earnings from gambling are not treated as self-employed taxable income even if they are a person’s only source of financial support. The Court ruled that the definition of earnings to assess liability for child support is the same as assessing eligibility for welfare benefits or liability to pay income tax. The Court ruling may make logical sense to the Department of Work and Pensions but where does it leave the parent who requires child support for their children when the other parent is earning a living from gambling or another non-taxed source? Critics have long argued that assessing child support using a statutory rigid scheme leads to these types of anomalies and that these situations were avoided when the Court had the power to order child maintenance based on what a judge thought was the right amount to meet the child’s needs. With any process there are always winners and losers and for some the Child Maintenance Service has simplified the child support process and made the collection of child support more straightforward, taking the worry out of relying on an ex-partner for child maintenance. For others, particularly where their former partner or spouse is self-employed or lives a lifestyle that doesn’t seem consistent with their taxable income the child support regime and government agency has made life more complicated than relying on the old Court system for assessing child support. [related_posts] You may think that there are very few professional gamblers so the Court of Appeal decision won't affect many children. However the rules do apply to other scenarios such as the investor living off capital gains rather than dividend income or the more common situation of a self-employed person’s reported income not appearing to reflect the reality of their daily expenditure. As a children lawyer this case emphasises the importance of getting expert legal advice when parents separate and to not sort out financial matters on a piecemeal basis. Often a husband or wife will want to agree on a split of the proceeds of sale of their house so that they can each rehouse themselves leaving issues such as spousal maintenance or child support to be agreed later on. That can lead one parent as the financial winner and the other as the financial loser if, as a result of the child support rules and regulations, the child support payments are assessed at a lot lower figure than was anticipated when committing to the new house. As frustrating as it is to wait and sort out all financial matters together the gamble of dealing with child support in isolation just isn’t worth it. For joined up advice on children law and child support please call me on +44 (0) 1477 464020 or email me at louise@evolvefamilylaw.co.uk

Pilot faces a £600,000 payment and a freezing order after losing his Court battle over the enforcement of a family Court order. Whenever a divorcing couple end up in Court with a family judge making the decision on how their assets should be divided or how much spousal maintenance and child support should be paid there is always a risk that either the husband or wife or both of them may be very unhappy with the outcome of the Court proceedings and their Court Order. The dissatisfaction with a family Court judgement and financial order can lead to appeals against the decision or to orders being deliberately flouted in the hope that an ex-husband or wife won't want to launch further Court proceedings to enforce the original financial Court order. Sometimes financial Court proceedings can take on a life of their own. The media has recently highlighted the case of Richard Wilmot and his ex-wife Viki Maughan who have been engaged in a 16 year battle over payment of child support, with paternity of the youngest child being in dispute despite DNA testing. The Court has ruled that just shy of £600,000 should be paid to the ex-wife, consisting of child support arrears and legal costs. Importantly the Court has also made a freezing order freezing property, money in bank accounts as well as pension and insurance monies. The Court decision to freeze assets shows just how far family judges are prepared to go to make sure that Court orders are complied with. A read of the Court judgement emphasises just how exasperated the judge was by the ‘’utter folly’’ of the ex-husband’s actions resulting in him being ordered to pay nearly £600,000 when the child support arrears only amounted to about £115,000 with the rest of the monies being legal costs and the costs of specialists employed by the ex-wife to trace and recover the money. The case highlights the financial and emotional costs of engaging in a long drawn out Court battle but, perhaps more importantly, shows the long arm of the law, in this case over a 16 year period to enforce the payment of child support . [related_posts] In my view this unhappy Court saga reveals why it is so vital to try and reach an out of Court financial settlement that both an ex-husband and ex-wife can live with to avoid enforcement Court litigation and costs. That isn’t always possible. If a financial Court order has to be made by a judge it is important to take legal advice on appeal options and, if necessary, enforcement options to avoid the costs of the Court proceedings getting out of hand and ultimately, as in the case of Mr Wilmot, dwarfing the amount in dispute between husband and wife. If you need help with the terms of a financial settlement or a Court order please contact us.

The question of whether a mother’s decision to relocate from Australia to England with her two young children amounted to child abduction has been the subject of a Supreme Court ruling called Re C. The Court decision is of interest as it highlights the fact that often the decision to move from one country to another with children isn’t straightforward and therefore it isn’t easy to say what amounts to ‘’child abduction’’ and when ‘’habitual residence’’ changes from the country of origin to the country of relocation. In re C, two parents were living in Australia with their two children, the marriage ran into trouble and the father agreed that the British mother and the children (who had Australian citizenship) could take a trip to the UK for 8 weeks. The father then agreed, by email, that the trip could be extended to up to a year. During the year the mother decided that she wanted to remain in the UK with the two children. This decision resulted in the father applying under the Hague Convention for the children’s return to Australia. The legal question was whether the children remained ‘’habitually resident’’ in Australia as, on the father’s case, their stay in England was only temporary. If the Court ruled that the children remained ‘’habitually resident’’ in Australia the Hague Convention rules would be applied and the children would go back to Australia .The long term decision as to which parent the children should live with and in what country would then be decided by the Australian family Court. The Australian Court would have the option to rule that the children should stay in Australia with their mother or father or grant an application by the mother to return to the UK with the children. The mother resisted the father’s High Court application that the children should be returned to Australia arguing that the children were now habitually resident in the UK so the UK Court couldn’t apply the Hague Convention rules and summarily return the children to Australia for the Australian family Court to decide on the children’s future. The High Court agreed with the mother, the father appealed and the Court of Appeal agreed with the father ordering the children’s return to Australia. There was a further appeal to the Supreme Court. The Court held that the father’s application under the Hague Convention failed because the children had become ‘’habitually resident’’ in the UK and therefore the English Court could decide where the children’s future lay. Not all of the Supreme Court judges agreed with the leading judgment and a reading of the Court case and the various judge’s views shows just how finely balanced and complicated the decision was. The decision on whether the children were habitually resident in Australia or England all came down to when the mother formed her intention to remain in the UK with the children. Was it a case of a mother who was struggling to decide what to do and where to live with her two young children or a case of planned child removal by tactically getting the husband to agree to a one year stay in England? Why does the case matter? If the children had retained their habitual residence in Australia then under the Hague Convention the UK Court would have had to return the children to Australia using a quick summary procedure and without looking at the merits of either parent’s case namely that the children would be better off being brought up in Australia or the UK. Once back in Australia the mother might have found it harder to argue that the children should return to the UK with her. However as the Court has ruled that the Hague Convention doesn’t apply the UK Court can now carefully decide what is in the children’s best interests: to live in England with their mother or return to Australia with their father and the sort of contact time they should spend with the parent who isn’t going to be caring for them on a day to day basis. What does this case mean for a parent travelling with children to the UK? For the parent who has come over to the UK with their children it shows the depth of analysis of the legal concept of ‘’habitual residence’’ and the pouring over of detail and, in the case or Re C, the review of correspondence to try to determine when the children lost their habitual residence in Australia. Despite the Re C ruling many parents should be wary of the risks of arguing that their children have become habitually resident in England and thus the Convention doesn’t apply. That is because if the UK Court rules against them on the legal definition of habitual residence or on the facts of their case they start on ‘’the back foot’’ if they have to return to the country they departed from for that country to rule on their children’s long term future. The dilemma remains – do you apply for permission to take a child to live abroad in the country in which the child lives and risk Court failure or risk travelling abroad and the Court ruling that the child’s habitual residence remains the country of origin thus forcing a Hague Convention return and a more challenging Court application in the country of origin. What does this case mean for a parent agreeing to their children going abroad with one parent for an extended period? It may mean that if the parent receives legal advice they will be less likely to agree to a child going abroad for an extended holiday as if their child is at risk of losing habitual residence the Hague Convention won't apply thus making it a lot harder to recover children from abroad. The dissenting Supreme Court judge’s views show just how difficult it is to define the concept of ‘’habitual residence’’ and how easy it is to fall foul of child abduction laws and conventions. As a child abduction lawyer the case of Re C shows just how finely balanced Court decisions can be and the importance of parents taking legal advice before they take their children abroad or agree to an extended trip abroad so that they make informed decisions. For advice on any aspect of children or child abduction law please contact us. [related_posts]

TV has been responsible for a number of myths surrounding children law and child custody. We unravel some of the most common myths. I watched the BBC’s new Silent Witness last night. Whilst I marveled at what the team of forensic pathologists and scientists could do with a tiny piece of evidence I despaired at the TV family Court room scenes depicting a barrister representing a father in a ‘’custody’’ battle. No doubt those with physics degrees will question some of the science screen writing and the speed in which DNA results are obtained and the villain captured. However as a family lawyer I focused on the accuracy of the family Court room scenes. One of the victims, a barrister, was arguing for ‘’joint custody’’ for his client as he ‘‘deserved’’ it. The screen writing made me sit up as it has been many years since the legal concept of ‘’custody’’ has been abolished. Child custody orders stopped being made in the late 1980s and were replaced with what were called ‘’residence’’ and ‘’contact’’ orders. Family law doesn’t stand still and to move with the times children law was changed again to introduce ‘’children arrangement’’ orders. Does it really matter what orders are called on TV entertainment programmes? I think it does. So often parents and other relatives get their ideas about what will happen if they split up from their partner from the TV screen. I often see parents whose first concern is rightly their children and whose priority is to get ‘’custody’’. My job as their solicitor is to dispel the TV and internet myths and explain that in 2018 there is no such thing as a family Court order awarding ‘‘custody’’ to one parent and that nowadays it is unusual to have to go to Court to sort out the living arrangements for children. Most of us trust the BBC and some of us believe what we read on the internet. So it can sometimes be hard to explain why I, as a specialist children lawyer, don’t want to start unnecessary and expensive Court proceedings. Don’t get me wrong, there are times when I urge immediate Court action, for example when there are concerns about child abduction or if one parent is refusing to agree to the other parent spending a reasonable amount of time with their child. If Court proceedings do have to be started then the family Court judge will decide what the living arrangements for the child or children should be based on what he or she perceives the child’s best interests are. The judge has to consider a ‘’welfare checklist’ when coming to his or her decision. That checklist includes factors such as the child’s wishes, the child’s needs and the parent’s capabilities as a parent. The one factor that the family Court ignores is what the parent ‘’deserves’’. Yes, parents have rights but judges’ base their Court decisions on what the child ‘’deserves ‘’ and needs rather than making Court decisions focused on what the parent needs. Judges start from the premise that children need or deserve to have a relationship with both of their parents and so what the parent deserves and the child needs can be one and the same thing, depending on individual family circumstances. [related_posts] The other common myth in children law is that if the family Court makes a ‘’joint custody’’ or nowadays a child arrangements order the child or children will spend exactly the same amount of time with each parent, splitting their time between the two households. That isn’t true either. Although most parents have the same legal rights over their child (called ‘’parental responsibility’’) the Court can make a child arrangements order that results in a child spending more or even most of their time with one parent. That isn’t always the case as decisions are based on individual children’s needs and family circumstances , such as the practicality of the child’s daily commute to school from both parent’s homes. Will I watch Silent Witness again next week? Of course, as I love being impressed by the scientific know how and how each plot is neatly resolved in a two hour slot. I suspect those with science degrees may struggle to watch the plot but ignorance is bliss until it comes to the TV family Court scenes. For advice about any aspect of children law please contact us.

As a specialist children lawyer I find that one of the common reasons for contact breaking down is the ‘’third party’’. It is a hot topic of discussion as it is difficult to raise and agree on how and when to introduce children to a new partner following a separation or a divorce. When there are children involved the new partner doesn’t have to be the cause of the divorce or even to have done anything ‘’wrong’’ for contact and family relationships to become problematic when a new relationship starts. I am often asked for advice from parents who have been split up many months or years but they or their ex-partner are now struggling with the concept of someone else having a step-parent type role in their child’s life. Family dynamics and emotions can get more fraught when the new partner comes with their own child or children so there isn’t just a new adult relationship for the child to adjust to but a new part time sibling as well. I either advise parents who are opposed to the introduction of a new partner or parents who are in a new relationship but feel blackmailed by threats that they won't be able to continue see their child if they let the child meet their new partner. In my experience listening to what isn’t being said aloud and the timing of any introductions are often the keys to sorting out what is a communication problem. The introduction of a new partner normally doesn’t generate a concern that the adult poses a risk to the child but does create a fear of change and trepidation about entering into unchartered parenting territory. When I am helping resolve parenting arrangements on separation I mention the hot topics and the ‘‘what ifs’’, such as introducing new partners. Many parents can’t, at that stage in their separation or divorce, contemplate introducing someone new into their child’s life. However as their solicitor I probably won't hear from them unless a problem crops up such as a dispute over the choice of the child’s school or if there is a new partner on the scene that they or the other parent has issues with. Early advice on tricky children topics can often avoid future Court proceedings. When a couple are splitting up and agreeing on parenting arrangements it is a good idea to draw up some ground rules on future communication, such as coordination on gift buying and addressing the principle of talking about new partners. Unless there is a clear channel of communication things can quickly go wrong at a later date. I can't count the number of times that an upset parent has sought legal advice after a child has told their mum or dad that they had a fantastic time at the weekend with the ex’s new partner and that he or she is going to be their new third parent. Equally common are the occasions that a parent finds out about the ex’s new relationship from pictures of their child and the new partner posted on social media. Many parents assume that after a separation or divorce they are free to do their own thing with their child when the child is with them. That is legally correct and it is up to a parent to decide if their child meets up with a grandparent, aunt or a new friend during their parenting time. In much the same way parents can make decisions about a child’s diet or bedtime during contact visits. Most parents would accept that it makes sense for there to be consistency between households over parenting routines. However, parents are often a bit reluctant to talk to their ex about a new relationship. Ideally parents will discuss introductions to new partners and agree on how things should develop at the pace of the child, involving the ex as he or she needs the respect and the communication to be able to co-parent. Sadly some parents can't agree on whether a child should meet a new partner, perhaps because: they think it is too soon after the separation or; there has already been a series of short term partners and there is a concern about stability or; they haven’t come to terms with the separation or; they have genuine worries from what they have heard from their child. If parents can't reach an agreement about the timing of introductions or if contact is stopped as a result of a new partner being introduced then a Court application can be made. A Court application is very much a last resort. That is why I try to introduce the parenting hot topics such as the future introduction of a new partner to children or the equally emotionally fraught issue of school choice early so parents are able to think about how they can communicate with one another and reach an agreement. For advice on any aspect of children law please contact us. [related_posts]

Esther Rantzen is fortunate enough to have a brood of grandchildren and in August 2017 she welcomed the birth of twin granddaughters. Writing in the Daily Mail she has highlighted the plight of grandparents who are estranged from their grandchildren https://www.dailymail.co.uk/femail/article-4838198/Loving-grannies-frozen-daughters-law.html. As a children's lawyer, I regularly help both parents and grandparents and so hear both sides of the story, from either the parent or grandparent perspective depending on who is instructing me.  No one story is the same but whether the story is told by a parent or grandparent it is always heart rendering to think that, for whatever reason good or bad, that a child is not able to develop a relationship with his or her grandparent. I always feel for estranged grandparents during the long summer school holiday when you see lots of grandparents out and about with their grandchildren or together on family holidays. In many cases lack of contact is down to grandparents being cut out of lives after a divorce. Often, prior to the divorce, the grandparents were providing a lot of the childcare and so it is all the harder for them and the grandchild to come to terms with the estrangement. [related_posts] Many situations of grandparent alienation occur after a parental separation and cases of estrangement could be reduced if families were able to communicate better in the aftermath of a divorce. That is really hard to do so as often the inclination is to take sides on behalf of a son or daughter or grandparents are wrongly thought to do so by their in-law by the grandparent offering their son or daughter an ear to listen to or temporary accommodation in the spare room. Family mediation can be a good option to help both parents and extended family communicate. If mediation doesn't work then Court proceedings can be started by grandparents and although, as reported in the article by Esther Rantzen, grandparents don't have automatic rights Courts look at what is in a child's best interests and so normally consider, unless there is a good reason to the contrary, that children should have a relationship with their extended family. For advice on any aspect of children law please contact us.

Mr Justice Keehan sitting in the High Court of Justice Family Division delivered his judgment in the case of B v C [2016] EWHC 1586 (Fam) on 18 March 2016. This case concerned an application by a mother (“B”) to relocate with her child (“A”) out of the jurisdiction to Israel and a competing application by the father (“C”) for a Child Arrangements Order regularising his contact with A. The father collected A after nursery every Thursday and returned A to nursery on Monday mornings. The father sought a child arrangements order confirming the time he spent with A. The mother sought to relocate to Israel where her father was terminally ill to help her mother care for him and also her fiancé wished to return to Israel. In the alternative, she sought to reduce the father's contact. The father sought to remain in England and did not wish his contact with A to be reduced. There was ongoing considerable hostility between the parents who since separation had been engaged in continuous court proceedings with orders made at significant financial cost to them both. The Judge was satisfied that it would be in A’s welfare best interests to grant the mother’s application to relocate with A to live in Israel. The Judge found that both parents loved A and were capable of looking after him. Both parents were connected to Israel and had family there. The mother’s relocation out of the jurisdiction would relieve her of the stress and pressures of the consistently hostile relationship with the father as he would remain in the jurisdiction. The amount of contact between the father and A would be reduced but he would have quality contact during the holidays. Please see the attached judgement of Mr Justice Keehan. B v C [2016] EWHC 1586 (Fam) To discuss this case, please email Louise Halford louise@evolvefamilylaw.co.uk        

In this blog, children and child abduction solicitor, Louise Halford, looks at what habitual residence means and why it is important in children law proceedings, and in applications for child arrangement orders and disputes over parental child abduction. For expert child abduction and children law advice call our team of specialist divorce lawyers or complete our online enquiry form. Why is your child’s habitual residence important? For international families the legal concept of habitual residence in children law is important. If your child is classed as habitually resident in England, then the court in England and Wales will have the jurisdiction to decide where your child should live, who they should have contact with and whether they can live overseas. A child’s habitual residence can be complicated because a child can be habitually resident in the UK even though the child is not a British citizen and nor are their parents. If your family is in the UK on a work visa or family visa or dependant visa, your child may be habitually resident in England. If you are planning to leave the UK with your child it is best to speak to a children law solicitor to see if your child may be habitually resident in the UK and to understand the steps you need to take to legally take your child out of the UK. If your child is habitually resident, and you don’t follow the correct steps and procedures before leaving the UK with your child, then you could be committing a child abduction offence. The English court could order that your child is returned to England so the English court can decide on where your child should live. What does habitual residence mean? Put simply, habitual residence means where you normally live. A child can be habitually resident in a country even though the child’s parents don’t live in that country. Habitual residence does not have anything to do with your nationality as you don’t need to be a British citizen or have indefinite leave to remain to be habitually resident in the UK. It is a question of fact. When assessing if a child is habitually resident in England, a child abduction solicitor or children court will look at how integrated the child is. For example, does the child go to school in the UK? Is the child enrolled at sports or other leisure groups in the UK? [related_posts] What happens if my child is habitually resident in England? If your child is habitually resident in England then the English court has jurisdiction to decide where your child should live if there is a dispute with the other parent. Under English law you can't take a child to live overseas without the agreement of the other parent and the consent of anyone else who has parental responsibility for the child. If you can't get written permission you can apply to court for a relocation order. If you leave the UK without a relocation order or written consent then you could be accused of parental child abduction and your child could be made the subject of a return order. The law may seem bizarre to some parents, especially when you are intending to return to a home country or a country where you have strong family or other ties. However, children law solicitors recommend that you get legal advice on the meaning of habitual residence and how the legal concept may affect you and your family and the children law order solutions available to you so you can go ahead with your plans to leave the UK with your child. For expert child abduction and children law advice call our team of specialist divorce lawyers or complete our online enquiry form.