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Another code for solicitors dealing with children disputes could be a bad thing

I wrote here last week explaining why we don’t need another code of conduct for solicitors dealing with children disputes (we already have one). Remarkably, despite my post there are still some who are not convinced, and who continue to call for a new code. Yes, I know that it is difficult to understand that some people disagree with me, but clearly I need to explain in more detail.

Seriously, I’m sure that most of those who make these calls are well meaning, but what bothers me is the implied idea that any further code must by definition be a good thing. But you can’t solve everything just by making more rules. It needs to be understood that ‘more is not necessarily better’. In fact, more can actually be a bad thing.

For a start, another code would impose a further burden on family law solicitors, who are already have enough law, rules, guidance and codes to weigh them down. Yes, I realise that few lay people are going to be concerned about how much solicitors are required to know, but every new thing further impinges upon their freedom of action. I’ve often thought that I’m glad I stopped practising ten years ago, as there now so many sets of rules, guidance and codes that I would be afraid to advise a client upon a particular course of action, for fear that I might be in breach of the latest edict setting out the ‘correct’ way to proceed.

And any new code will obviously be more complicated than what we have now, dealing with specific situations that its proponents believe are required to be covered (more of which in a moment), rather than generalisations. But surely, a more complicated code is less likely to be remembered and complied with than a simple code. The beauty of the Resolution Code is its simplicity. It essentially comprises seven short and easy to remember sentences (excluding the Guides to Good Practice). And most of it is common sense anyway (again, more of which in a moment). In the realm of children disputes, if one just follows the first two points of the Code (‘Reduce or manage any conflict and confrontation; for example, by not using inflammatory language’, and ‘Support and encourage families to put the best interests of any children first’) then you are not going to go far wrong. You can simply apply those general principles to whatever situation you are faced with.

Which brings me to my next point. A more complicated code is, by definition, going to be more rigid. It will prescribe what to do in a given situation. But you simply cannot cover all possible situations that a family lawyer will face, and very often the situation is not as ‘black and white’ as any code maker may envisage. In fact, a rigid code may even point towards the wrong outcome.

And that brings me to my last point. A rigid code encourages solicitors to disregard the one thing that they require above all else: common sense (yes, I accept that some family law solicitors may be lacking in this commodity, but I’m sure the vast majority are not.) Common sense is what is really required to guide family law solicitors, just as it is anyone else. Yes, use a basic code as an outline, but apply common sense to it. Don’t let yourself be blindly guided by a code, just because you have been told that you must follow it.

Let us finish by briefly looking at some practical examples. After she read my last post, that well-known and very highly regarded family lawyer to whom I referred, and who suggests a further code may be required, sent me the following tweet (I have expanded the abbreviations, for the sake of clarity):

“Agree that respecting/enforcing existing codes vital. But clear that more needed. Are we, for example, under a duty to follow instructions if they are obviously in conflict with the child’s best interests? What should be our role getting clients to sign a parenting pledge? What about litigants in person?”

OK, I think I can deal with those three examples very quickly, using what we have already: follow the ‘put the best interests of the child first’ point in the Resolution Code, and apply common sense. Sorted.

The post Another code for solicitors dealing with children disputes could be a bad thing appeared first on Stowe Family Law.


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Author: John Bolch

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The 7-Day Love Challenge

Get a week’s worth of simple, science-based steps you can take to help foster a deeper connection between you and your partner. Learn a bit more about each other and discover new ways to strengthen your bond.


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A week in family law: Another difficult decision, surrogacy reform, and the demise of a Bill

It has been another relatively quiet news week in the world of family law. Here are my picks for the top three news stories that I came across:

I will begin with another reminder of the sad and extremely difficult decisions that regularly face the judges of the Court of Protection. As he said in the opening paragraph of his judgment in the case A Clinical Commissioning Group v P, Mr Justice MacDonald was “concerned with a decision of the utmost gravity”, namely whether the court should consent to the withdrawal of medical treatment for a patient, that would result in her death. The patient, who is in her late 40s, suffered severe brain damage after taking a heroin overdose five years ago, and medical experts diagnosed her as being in either a vegetative or a minimally conscious state. She was being provided with clinically assisted nutrition and hydration. The NHS Clinical Commissioning Group applied to the court for its consent to the withdrawal of the treatment, a course to which the patient’s family agreed. After hearing the evidence, Mr Justice MacDonald was satisfied that it was in the patient’s best interests to consent on her behalf to the withdrawal of the treatment, a step that he acknowledged would result in her death, and that this accorded with her clearly expressed views before she took the overdose. He concluded: “In all the circumstances, I am satisfied that the sanctity of [the patient’s] life should now give way to what I am satisfied was her settled view on the decision before the court prior to the fateful day of her overdose in April 2014.” You can read the full report of the judgment here.

Perhaps the biggest news story of the week was the publication yesterday of the Law Commission’s consultation paper on the reform of surrogacy laws. “The laws around surrogacy are outdated and should be improved to better support the child, surrogates and intended parents” say the Commission, which is proposing to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth. This would replace the current system where the intended parents must make an application to the court after the child has been born, and do not become legal parents until the court grants them a parental order. Sir Nicholas Green, Chair of the Law Commission said: “More and more people are turning to surrogacy to have a child and start their family. We therefore need to make sure that the process is meeting the needs of all those involved. However, the laws around surrogacy are outdated and no longer fit for purpose. We think our proposals will create a system that works for the surrogates, the parents and, most importantly, the child.” For more information, see this post here yesterday by Bethan Carr, an expert surrogacy lawyer at Stowe Family Law.

And finally, not really news, and certainly not unexpected, but I have just learnt that Baroness Deech’s Divorce (Financial Provision) Bill has apparently stopped its progress through Parliament. The Bill essentially contained three provisions: that pre- or post-nuptial written agreements between the spouses should be treated by the courts as binding, that ‘matrimonial property’ (essentially, all property acquired after the parties were married, save for gifts and inheritances) should be divided equally, and that the duration of spousal maintenance orders should usually be limited to five years. The Bill is/was due to have its second reading in the House of Commons, but no date has been announced for that. Of course, being a Private Members’ Bill, it was always unlikely to be passed, especially as the Government expressed reservations about it at its second reading in the House of Lords in May last year. If the Bill has indeed been ‘scuppered’, at least until the next time that the Baroness seeks to revive it (she has been pressing for it since at least 2014), then there will be many who will not lament its passing. I wrote here last November about the major concerns that eminent family lawyers have expressed about the provisions of the Bill.

Have a good weekend.

The post A week in family law: Another difficult decision, surrogacy reform, and the demise of a Bill appeared first on Stowe Family Law.


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Author: John Bolch

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Stowe guests: How play therapy can help children and teenagers of divorce and separation

For children and teenagers going through a divorce or separation, expressing their emotions can be difficult. To start, they do not communicate as well as adults by talking and do not understand how to verbalise the emotions that come from a family breakdown.

Instead, they often use play to express themselves. This is a non-threatening approach where they are not asked to talk but instead just play. However, through play, a lot of what they are feeling, and thinking is projected.

So, for this instalment of Stowe guests, we asked Penn Wall from Penn Wall Play Therapy to join us on the blog to explain how Play Therapy can help children and teenagers going through a divorce or separation.

“Play is an essential part of every child’s development emotionally, socially and spiritually; it helps to develop the child’s personality and character. It is necessary for children to reach their full potential and can result in long-term positive health effect both physically and mentally.

What is play therapy?

Play therapy empowers children and teenagers to cope with problems in their lives and to increase their self-esteem and confidence. It improves their emotional wellbeing and may be used to help and support a mild to a moderate, emotional or psychological problem that is preventing them from functioning normally. Play therapy is called special time for the younger children and chill out time for teenagers.

What will my child do in play therapy?

There are many activities for children and teenagers to do in play therapy. Sand tray, art, clay and role play are generally the most popular. There are musical instruments, art & crafts, dolls, puppets, dressing up clothes and props, as well as a selection of objects that they use in the sand tray. The child/teenager chooses what they want to do and at their own pace.

I am getting a divorce and worried about my children, how can play therapy help? 

If your children are showing signs of anger, frustration, sadness or depression, it might be that they are struggling to deal with the enormity of the situation that they find themselves in and over which they have no control.

Children and teenagers often feel that a situation is their fault, or their mother’s or their father’s fault. Their upset and frustration can result in emotional outbursts, becoming withdrawn, being physically/verbally aggressive and acting in a way that parents may not have seen before.

This behaviour is completely normal, but it naturally causes great concern. This is where play therapy can help.

By creating a safe permissive space, children and teenagers can process things that are going on in their lives through play. Play therapy is about reflecting feelings back to the child/teenager in such a manner that they gain insight into their behaviour. It is about acknowledging that you are listening and have heard what they are expressing. This does not necessarily need to be verbal.

It is giving the child the empowerment to make choices and institute change. During symbolic play and through using metaphors the child/teenager is able to express their emotions. This enables them to release their emotions in a way that they discover their inner self and strength. This is a pathway to believe in themselves.

What are the benefits of play therapy?

Play therapy really works as a way to handle a divorce or separation, by enabling children and teenagers to express, process and deal with their emotions.

I recently worked with a young boy who was struggling to deal with the changes brought about by divorce and this was impacting on his school, home life and relationships.

We worked together in weekly sessions and as his Mum noted, “He changed into a confident and happier little boy. For me, the biggest impact was he was able to communicate how he was feeling, something that he found really frustrating before.”

To find out more.

To find out more about how play therapy can help children and teenagers going through a divorce or separation you can visit my website: Penn Wall Play Therapy or email: penn@pennwallplaytherapy.co.uk

The post Stowe guests: How play therapy can help children and teenagers of divorce and separation appeared first on Stowe Family Law.


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Author: Stowe Family Law

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Father’s application for return of child to Germany dismissed

The rationale behind the Hague Convention on Child Abduction is that the child should usually be returned to their ‘home’ country, where decisions as to their welfare should be decided. It is therefore comparatively rare that a return is not ordered. Accordingly, ‘non-return’ cases are more likely to be noteworthy.

The latest such case that I have come across is CA v KA, a decision of Mr Justice Mostyn in the High Court. The case turned on the issue of acquiescence, i.e. whether the ‘non-abducting’ parent had consented to, or acquiesced in, the retention of the child in the ‘foreign’ country.

The relevant facts of the case were that the parents were married and lived in Germany, along with their daughter, who was born on the 5th of July 2016. On the 3rd of August 2018 the mother brought the child to this country, for the purposes of a holiday. They were booked to return to Germany on the 30th of August 2018, but they did not return. The father then made an application under the Convention for the summary return of the child to Germany.

The crucial moment in the case came on the 22nd of October, when the parents spoke for about two and a half hours on the telephone. During the course of that conversation, Mr Justice Mostyn found, they reached a substantive agreement, which provided that the child would remain in the primary care of her mother and would have frequent contact with her father.

On the following day the father wrote an email to the German authorities requesting the withdrawal of his Hague Convention application, and stating that “my wife and I were able to find a very good and mutually agreed solution which is in our daughter’s best interests and which we will regularise.”

On the next day the mother sent a draft parenting agreement to the father, which was prepared by her and which stated that the matters were agreed on the 22nd of October, including that the child would reside in the United Kingdom with her mother.

Notwithstanding all of the above, the father proceeded with his Hague application (presumably, he withdrew his request to withdraw the application, the judgment of Mr Justice Mostyn does not explain). However, Mr Justice Mostyn found that the email and draft agreement clearly showed that the father had consented to, or acquiesced in, the retention of the child in this country by the mother.

As he went on to explain, proof of acquiescence does not establish an absolute defence to the application. However, it opens the door to the court exercising its discretion to refuse to order the return of the child. Here, whilst Mr Justice Mostyn was quite clear that it should be the German courts that make decisions regarding the child’s welfare, he did not believe that it would be in her interests for her to be uprooted and to be exposed to the risk of ‘ping pong’, returning her to Germany now, in circumstances where the mother must have a strongly arguable case in the German court to be granted permission to relocate with her to this country.

Accordingly, he declined to exercise his discretion to order a return of the child to Germany, and the father’s application was dismissed.

An interesting case, although I have to say rather an odd one, in that the father decided to proceed with his application after clearly indicating his wish for it to be withdrawn. Once his email to the German authorities came to light (and he produced it himself on the morning of the hearing), then his application was surely doomed.

You can read the full judgment here. (Mr Justice Mostyn also has some important things to say about the limited nature of Hague applications, and the need for the parents to pursue substantive relief (as to what is ultimately in the child’s best interests in terms of residence and contact with the non-residential parent) in the courts of the ‘home’ country – see paragraphs 5 to 9 of the judgment.)

The post Father’s application for return of child to Germany dismissed appeared first on Stowe Family Law.


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Author: John Bolch

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Another step forward in surrogacy reform

This morning, Thursday 6 June, the Law Commission released their consultation paper on surrogacy reform, and their thoughts, proposals and recommendations make up a 498 page report

At the time of writing, I haven’t read the report cover to cover yet despite getting a sneak preview a couple of days ago, however, by way of a summary the Law Commission has covered every aspect of this complex area in law, and I have broadly summarised their proposals as follows:

A new pathway to legal parenthood

This is designed to create the possibility of the intended parents being recognised as the legal parents of a child born through surrogacy from the time of birth. It focuses on the intentions of those involved and won’t require the intended parents to make an application to the Court. There will be safeguards in place, for example, if the surrogate objects to the agreement following the birth but it is designed to ensure there is more legal certainty for all those entering into surrogacy arrangements in the UK.

A continuation of the existing parental order process

The parental order route will remain in circumstances where the new pathway doesn’t apply, and this will largely cover international arrangements. This will remain similar to current Court process, but the Law Commission is proposing some changes to the existing criteria and processes to achieve further clarity for intended parents and to make the process easier overall.

Greater regulation is proposed for surrogacy arrangements

This suggests that surrogacy organisations could be regulated and could then oversee the arrangements which fall inside the new pathway.

A national surrogacy register

A national surrogacy register is suggested which will record the details of the surrogate, the intended parents and any egg/sperm donor involved in the arrangement. This will be accessible to surrogate children, with non-identifying information being available at the age of 16 and identifying information at the age of 18.

Payments

The report identifies the difficulties and contrasting views of those already consulted in relation to surrogacy payment. As a result, they have not yet been able to make any provisional proposals on this. However, they have commented on the different categories of payments which they propose that a surrogate may be able to receive and seek views on whether these payments should be allowed.

These categories of payments are:

  •    Compensation for pain, inconvenience, medical complications or death of the surrogate
  •    Loss of earnings from being a surrogate
  •    Essential costs of a pregnancy
  •    Additional costs of a pregnancy
  •    Costs associated with a surrogate pregnancy
  •    Gifts
  •    Compensation for loss of welfare entitlement

Nationality/passports

It proposes streamlining and shortening the process to obtain a passport/a visa in international surrogacy cases.

Next steps

Within the report, 118 questions are asked of the public in respect of their proposals, and a formal consultation period will now begin. This culminates on 27 September 2019 and so if you would like your view, now is the time to act.

Here at Stowe Family Law, the surrogacy team will certainly be putting forward their views and comments, and if you have any questions about the report or any of the wider legal issues please do not hesitate to get in touch with me at bethan.carr@stowefamilylaw.co.uk

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Author: Bethan Carr