Category: Family Law

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The potential impact of the Sally Challen case

We wait in anticipation of the outcome of the Court of Appeal decision tomorrow to see if Sally Challen’s conviction is reduced from murder to manslaughter.

In 2010 Sally was sentenced for life with a minimum of 22 years (which was later, on appeal, reduced to 18 years) following hitting her husband, Richard Challen, 20 times over the head with a hammer, which led to his death.

Sally is pleading diminished responsibility on the basis of his controlling and coercive behaviour; a behaviour that became more widely known when the legal system recognised that abuse does not need to be physical it can be psychological too.

In 2015 Section 76 of the Serious Crime Act 2015 created a new offence of controlling and coercive behaviour in an intimate or family relationship. Prior to this, the closest offence was harassment which was difficult to prove in an intimate relationship.

The statute provides that an office is committed by A if:

  • A repeatedly or continuously engages in behaviour towards another person, B, that is controlling or coercive;
  • At the time of the behaviour, A and B are personally connected;
  • The behaviour has a serious effect on B;
  • A knows or ought to know that the behaviour will have a serious effect on B.

Examples given by the children of the parents, in this case, include isolating their mother from her friends and family, controlling who she socialises with, controlling her money, restricting her movement and creating a culture of fear and dependency. This behaviour continued for over 40 years before Sally finally struck her husband.

There has been a lot of domestic abuse awareness on the television in recent weeks and a common question asked is why would you not just leave?

This way of thinking is so frustrating. If it was really that simple to leave then an individual would just leave. I have read the reports that Sally did try to leave and even start divorce proceedings on a number of occasions, but she felt she could not be without Richard and this was most likely part of his controlling behaviour, Sally did not feel like she could live without him, so kept returning, until one day it all got too much.

I have worked with victims of domestic violence for over 10 years, firstly through charity work and in my professional capacity and they often tell me that the emotional/psychological abuse is often more painful than the physical abuse.

This case has the potential to be a landmark case as it will be the first time the court will hear controlling and coercive behaviour being used as a defence in a murder trial. If Sally is successful, I believe not only will we see a rise in such defences being raised, but a greater understanding by the court of the seriousness of psychological abuse.

My view is that the court must accept the impact of this psychological abuse and if Sally can prove this it will be a most welcomed result.

 

 

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Author: Sarah Jane Lenihan

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England v Germany: A clash between two countries’ legal systems

As will be well known to regular readers of this blog, family courts in England and Wales deal with financial claims on divorce rather differently to the courts in many other countries. The fundamental basis of the rules that govern such claims here is quite different to that in most other jurisdictions. This, of course, means that in certain circumstances our courts may be considered to be more generous than the courts in other countries, hence the phenomenon of ‘forum shopping’, whereby a spouse may seek to have the divorce dealt with in the country where they believe they will get the best outcome.

As one can imagine, these differences can sometimes lead to a clash between two countries’ legal systems.

This was the situation in the recent case Re MF, heard by Mr Justice Mostyn in the High Court in December.

The background to the case needs to be explained. Unfortunately, the judgment is quite brief, and I have had to make a few assumptions about certain details – I hope I am correct. The case concerned an English husband and a German wife. They cohabited in Germany from 1999, and were married in 2003. They lived all their married life in Germany, in a house owned by the wife. They had two children, born in 2003 and 2005. They marriage broke down in 2011, when the husband left the matrimonial home. He returned to England the following year. The wife and children continue to reside in the former matrimonial home.

The particular feature of the case is that the matrimonial home was the only asset of the parties, and it actually decreased in value over the course of the marriage (the judgment doesn’t explain why this was so). Accordingly, there were no ‘matrimonial assets’, i.e. assets accrued during the course of the marriage.

Under German law any capital provision made to a spouse on divorce can only come out of matrimonial assets. Accordingly, as there were no such assets, when the parties were divorced in Germany it was agreed that the husband would not make any claim for capital provision in the German courts.

However, the husband subsequently made an application in the English court “for financial relief following a foreign divorce in circumstances where the powers of this court would be wider than directing a division of the marital aquest [i.e. the matrimonial assets] and could extend to awarding a lump sum to the husband to meet his needs”, as explained by Mr Justice Mostyn. The husband’s particular need was to have the debts that he had incurred since the divorce in rehousing himself met by the wife.

The wife indicated to the English court that she opposed the husband’s application, on the basis that the matter had been dealt with by the German court. Other than that, the wife did not take any further part in the English proceedings, and the English court awarded the husband a lump sum of £20,000. However, as the only source of payment of that debt would be further borrowing on the matrimonial home, the judge decided that it was reasonable and fair for enforcement of that the lump sum to be deferred until completion of full-time tertiary education by the youngest surviving child of the family. In order to compensate the husband for being kept out of his money, he awarded interest on the outstanding sum at 2% per annum.

The decision was appealed (this is what Mr Justice Mostyn’s judgment was about), but the appeal was dismissed.

So we have a situation where a divorce had been dealt with, and apparently finalised, by the courts of a country whose courts one would expect to be fully ‘respected’, and yet the courts of another country make a different, and apparently conflicting, decision. I’m not sure that I feel that this outcome is the right one, even if, as Mr Justice Mostyn found, it is legally correct.

You can read the full judgment here (note that the first four paragraphs relate to the issue of whether or not the appeal should be heard in public).

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Author: John Bolch

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Goodbye Child Support Agency, you will not be missed

Sometimes it’s hard to say goodbye, and sometimes it’s not so hard…

Last week the Department for Work and Pensions (‘DWP’) published the latest summary of quarterly statistics on the progress of the Child Support Agency (‘CSA’) child support schemes, to December 2018. The summary was very brief, but one of the statistics was quite significant.

But first a short explanation, for the benefit of those sensible enough (or lucky enough) to have had nothing to do with the CSA.

The CSA was established in 1993 to administer the then new child support scheme, which was effectively to replace the role of the courts in determining the amount of, and enforcing the payment of, child maintenance. There have actually been three child support schemes. That first, 1993, scheme was replaced by the 2003 scheme, which in turn was replaced by the present 2012 scheme. The 2012 scheme is administered by the Child Maintenance Service (‘CMS’), which replaced the CSA. Since then, CSA cases have been run down, as cases have been closed and new cases dealt with by the CMS.

OK, so what was significant about the statistics? Well the summary informed us that before the end of December the on-going liability (i.e. requirement to pay child maintenance) was ended on all CSA cases. So the CSA is no longer required to collect on-going child support maintenance. Sadly, this does not quite mean the end of the CSA, as it still has arrears to collect on its cases, more of which in a moment, but we are at last approaching the end of its sorry story.

So why will the CSA not be missed? Well, where to start? Perhaps with its delays in making and enforcing maintenance assessments? Or maybe its errors in making assessments? Or the interminable issues with its IT system? Well, yes, all of those, which caused endless misery, frustration and hardship for those dealing with the agency, or affected by its hopeless endeavours.

But the big issue was those arrears, which were of utterly staggering proportions. As the DWP itself noted back in December 2017:

“Significant policy, operational and IT issues beset the 1993 and 2003 schemes [i.e. the schemes administered by the CSA] which contributed to the build-up of considerable arrears of unpaid maintenance – currently £3.7bn of this debt is outstanding. Of this, a minimum of £2.5bn is owed to parents (approximately 970,000 cases) and £1.2bn is classed as owed to government (approximately 320,000 cases) … The published CSA Client Fund Accounts for 2015/16 make clear that £3.1bn of CSA debt is deemed uncollectable.”

Just let that sink in. Three point seven billion pounds worth of debt. Of which three point one billion is uncollectable. Remember, we are talking about the maintenance of children. How many children have suffered as a result of financial hardships caused by the ineffectiveness of the CSA? No, I will not shed a tear when the CSA is finally consigned to the scrapheap of history.

The big question, of course, is whether the CMS is any better. Or, more to the point, whether the current, 2012, incarnation of the child support scheme is an improvement over its forebears.

Well, it’s pretty much impossible to make a direct comparison. And that is exactly how the government wanted it to be. When it came up with the 2012 scheme the government very cleverly shifted much of the responsibility for dealing with the issue of child maintenance from the state on to parents. Parents are now encouraged to deal with it themselves, with the threat of having to pay significant fees for the privilege of something that was previously free: having the state deal with it for you.

This means that the workload of the CMS is a fraction of what the CSA used to deal with. Which obviously means that complaints about the CMS will be fewer, and the amount of arrears accrued under its administration will be less. In other words, the government specifically designed the current scheme to reduce the huge number of complaints about the child support service, which had embarrassed so many previous governments.

Whether the new scheme and the CMS is actually an improvement is a moot point. Certainly, it is far from perfect. For example, the fees have caused hardship, parents caring for children have preferred to settle for less rather than use the service, and there have still been significant arrears, although nothing like on the previous scale.

So I am not exactly happy about the current system. But that will not make me hanker after the old one.

You can read the full statistics summary here.

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Author: John Bolch

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Parliamentary research briefings: a useful resource

These days the first point of call for basic legal knowledge for most people is, of course, the internet. The problem, though, is finding information that is accurate, and that you can therefore trust.

There is plenty of legal advice available on the internet, but comparatively few places where you can find detailed expositions of the law, similar to what you would find in a legal textbook. One such place is parliamentary research briefings.

The research briefings are produced by the House of Commons Library, the House of Lords Library and the Parliamentary Office of Science and Technology, and are primarily intended to get MPs and members of the Lords up to speed with topics with which they are not familiar (although reading or listening to parliamentary debates one sometimes wonders how many MPs actually read them!).

The briefings cover a huge range of subjects, including family law, and related matters.

As the briefings are not written solely for lawyers they are particularly useful for the general public. They are authoritative, clear, concise and fully referenced, including having many links to primary and other sources.

Here are a few examples that readers may find useful:

“No-fault divorce”, published last October, which “considers the current basis for divorce, arguments for and against the introduction of “no-fault” divorce, and the Government’s consultation paper, Reform of the legal requirements for divorce”. You can find a link to this briefing here.

Children: residence and contact court orders and related matters for parents, grandparents and others, published in November 2017, which “looks at child arrangements orders for residence and contact under the Children Act 1989.” Note that it still uses the old, and perhaps less confusing terminology ‘residence’! You can find a link to this briefing here.

Children: Enforcement of child arrangements orders relating to contact, published in June 2014, which “outlines the powers of enforcement available to the courts when a parent does not comply with a child arrangements order regulating contact.” You can find a link to this briefing here.

Financial provision when a relationship ends, published just last month, which “deals with the law in England and Wales and relates to the division of a couple’s property and income when their marriage or civil partnership breaks down.” You can find a link to this briefing here.

Child maintenance: income in the CMS formula (including why gross income is used, and annual reviews), published last December, which “sets out how the Child Maintenance Service (CMS) uses, collects and reviews the income of the non-resident parent under the 2012 statutory child maintenance scheme.” You can find a link to this briefing here.

“Common law marriage” and cohabitation, published in June last year, which “provides general information about how the law applies to cohabitants, the number of cohabiting couples, and about the Law Commission’s proposals for reform.” You can find a link to this briefing here.

And that is just a very small sample. All currently available research briefings are accessible from this page.

I suppose I should urge a note of caution for non-lawyers using the briefings. They may be very useful and informative, but they do not make you an expert. In particular, there is a huge difference between knowing the law and being able to apply it to a given set of circumstances. And trying to apply just a limited amount of law, as you will find in a briefing, can be especially dangerous. In short, there is no substitute for proper legal advice from a trained lawyer.

And on that note there is one other briefing that I would like to mention, that is definitely of direct use to non-lawyers. If you want to find legal help and advice, the House of Commons Library has produced a paper Legal help: where to go and how to pay, published in June last year, which “provides information about sources of legal help and advice, and how to pay for it”. You can find a link to this briefing here.

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Author: John Bolch

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Are you making your divorce harder than it has to be?

Moving forward with the decision to divorce is not easy. It can involve complex feelings, the threat of losing some of your property and the possibility of seeing your kids less. As a result, it may lead some Texas readers to act out of emotions and stress. This can lead to decisions that are not actually in your best interests.

If you are facing divorce, it is smart to learn about ways you can protect your interests during this process. One way is to keep your emotions in check and keep your eyes on a strong post-divorce future. When you allow your feelings to dictate how you are acting, you may say things you will regret, agree to terms that do not suit your needs and make your divorce more difficult that it has to be. 

How do your actions affect your divorce?

The things you say and do during your divorce may make sense in the moment, but they can have repercussions that can impact you for years to come. The process of ending your marriage and extricating your life from your spouse’s life is not easy, but there are a few signs that may indicate you may be adding more complications by allowing anger, stress and sadness to lead your decision making. Some of these signs include:

  • You want to fight for it all. Fighting for everything in a divorce leads to stress and costly litigation. It is much more practical to fight for a reasonable, sustainable final order.
  • You do not consider that kids need both parents. Fighting for an inequitable parenting plan or lopsided custody order will ultimately only bring harm to your children.
  • You are not honest with your kids about the other parent. Being dishonest with your children can disrupt an important relationship and cause difficulty in the future.

These are just a few of the ways that you may be adding complications to an already difficult process. When you keep your focus on what is best long term, you will be able to make choices that will benefit you and your children for years to come.

The need for experienced guidance

You do not have to walk through the divorce process alone. You will find it beneficial to seek experienced legal guidance to help you make smart decisions and pursue a final order that will work for years to come. A complete evaluation of your case can help you understand your options and how to move forward to a strong post-divorce future.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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A week in family law: A serious case, more divorce centre delays and Brexit worries

And another strangely quiet one for family law news or new cases. Still, one must be grateful for small mercies.

There were, however, some serious stories. For example, a Local Government and Social Care Ombudsman investigation has found that a toddler was left with life-long injuries, after East Riding of Yorkshire Council missed opportunities to protect him from his mother’s violent partner. The case was brought to the Ombudsman by the boy’s father and grandmother, after a council investigation, which concluded the council had acted appropriately, took 76 weeks too long to complete. The Ombudsman’s investigation found the council missed opportunities to protect the toddler from harm, and when concerns were raised it did not have a plan to check on the children’s welfare or whereabouts. Remarkably, the council also disregarded a Court Order in respect of the mother and the toddler’s older sibling’s contact arrangements. Local Government and Social Care Ombudsman Michael King commented: “This sad case highlights the need for councils to follow the basic principles of child protection when dealing with welfare concerns. While the council did not cause the boy’s injuries, his family have been left not knowing whether they could have been prevented had social workers acted appropriately. Throughout the process the council has denied any responsibility for checking on the children’s whereabouts or welfare, and instead sought to blame others … I am pleased the council has now accepted the findings of my report and hope that by referring the case to a Serious Case Review Panel lessons can be learned to prevent an event like this happening again.”

Another story with serious consequences, although one that was entirely predictable: figures obtained by the Law Society Gazette from HM Courts and Tribunals Service (‘HMCTS’) have revealed that delays at the country’s biggest regional divorce centre at Bury St Edmunds reached unprecedented levels in 2018 (this is not the first time that delays have been reported at the centre – see this post that I wrote here last June). The figures, obtained in response to a freedom of information request, showed that it took 373 days on average from the issue of a divorce petition to decree absolute in 2018, a 9% increase from 2017. They also showed that the eight-day wait for issuing a petition has more than doubled in a year, while the average time from issuing of a petition to decree nisi has increased by 17%, to an average of 195 days. HMCTS told the Gazette that since the figures were recorded staff numbers at the centre had been increased, as a result of which performance has improved. HMCTS also pointed out that the new ‘online divorce service is speeding up the application process significantly’, although surely the delays caused by the centre only begin when a valid petition is received?

And finally, another worrying story: the UK’s four children’s commissioners (for England, Scotland, Wales and Northern Ireland) have warned that children’s safety could be put at risk if the UK leaves the EU without proper plans for child protection. In a letter to the Rt. Hon Stephen Barclay MP, the Secretary of State for Exiting the European Union, the commissioners sought assurances on some of the immediate issues facing children arising from Brexit, including child abuse, exploitation, abduction and how family law matters are dealt with if a child has one parent from the EU. You can read the full letter here. According to a report on the BBC, a UK government spokesperson has said: “Protecting citizens, including children, is the first responsibility of government. The UK has proposed a comprehensive agreement on internal security that would ensure ongoing co-operation in this area, so that both the UK and the EU can continue to tackle fast-evolving threats. This includes taking any action required to keep our children safe from harm. This commitment remains, whether we leave with a deal or without one.” I’m not entirely certain that that answers the question.

Have a good weekend.

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Author: John Bolch

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Helping you amend a child custody arrangement

Parents parting ways can be viewed at as a traumatic situation. Although it may be good for the parents to no longer be in a relationship, their divorce or separation can be a trying time for the children involved. A child has been accustomed to their life with both parents, making it difficult to acclimate to a life much different than this. This makes custody matters both an emotional and vital time for everyone involved, as what is in the best interest of the child may not be what one or both parents want.

At our law firm, we understand that it can take time to establish a workable custody arrangement. Even when both parents are happy with an arrangement, this does not mean that they will be happy with it until their children reach the age of majority.

In addition to establishing an initial order, our law firm is often tasked with amending these orders. As children age, their needs change. It may be more beneficial to live with one parent instead of going from one house to the other during the school week.

Additionally, circumstances could change significantly, resulting in the need to relocate. Relocation could cause major issues when it comes to custody orders. However, our law firm understands how best to present these matters, and we do our best to help our clients achieve a favorable result. For our clients seeking to relocate with a child, we help them illustrate not only the needs and benefits of this move, but also highlight how relocation with this parent is in the best interest of the child.

To learn more, please visit our law firm’s child custody website. No two families are alike, making it imperative that all child custody matter be treated individually. Each matter has its own unique circumstances, and by focusing on that, our law firm tries to help our clients reach their goals.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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The parents left behind: What parental alienation does to a family

Parental alienation, for want of a better description, is a hot topic right now. In fact, it is a term, that as a specialist child and family lawyer, I hear more and more in cases where parents are experiencing difficulties in making arrangements for their children.  

A somewhat controversial concept, parental alienation is often misunderstood and lawyers, social services, CAFCASS and the courts have been trying to deal with it for years in cases where the parents are locked in legal proceedings over contact for their children.

So what is parental alienation?

Parental alienation is often confused with estrangement but they are not the same thing.

Estrangement can occur if a parent is abusive or has behaviour that damages or strains the relationship with the child. Parental alienation is when one parent deliberately manipulates a child to unfairly reject the other parent with the motivation to destroy the parental bond.

Parental alienation syndrome refers to a variety of symptoms displayed by a child when rejecting a parent, and the effects are far-reaching.

Deliberately influencing a child to reject the other parent is very emotionally damaging and often leads the child to fear the alienated parent and avoid seeing them, despite them previously having a loving relationship prior to separation or divorce.

Signs of parental alienation

An attempt to alienate a child from a parent is carried out for many reasons; I have seen it take place as an attempt to punish the other parent or at times, it is a  personality disorder affecting the alienating parent that stops them from handling stress rationally.

Whatever the reason, alienation works slowly and takes place over some time. Here are some warning signs I have noticed with clients over the years:

  • Belittling, criticising and making derogatory comments about the targeted parent in front of, or in ear-shot of the child.
  • Cancelling or interfering with visits or blocking all contact.
  • Keeping important information about the child including medical, educational and social activities away from the targeted parent.
  • Making important decisions about the child without consultation.
  • Interference and /or blocking contact via telephone, text, email, FaceTime etc with the targeted parent.
  • Rejection of the targeted parent’s gifts, cards, holidays and offers of help.
  • Defying the authority of the targeted parent and encouragement of the child to do the same.  

Through this, and many other forms of alienation,  the child is programmed to believe that the alienated parent is worthless and does not care about them. The result – a child is convinced that they would be happier without them in their lives.

So, what can be done?

Emotionally, parental alienation is a complex form of trauma and I would advise seeking out professional help for both yourself and the children if possible.

From a legal perspective, seeking professional advice early on is so important so that you have support to understand the complex legal system. And the courts can help.

If parental alienation does exist properly in a particular case then the court can order that the alienated child spend time (has contact) with the alienated parent and can even increase the time with that parent.  

The court can also impose conditions in relation to the time the child spends with the other parent and can impose penal notices if the order is not complied with by the alienating parent such that he/she may be fined, ordered to undertake unpaid work in the community or, in the most serious of cases, can be sent to prison.  

In the very worst cases where parental alienation continues, despite the court’s attempts to preserve the relationship between the child and the alienated parent, the court can order a change of residence so that the child lives with the alienated parent.

Whatever your situation, do not lose sight of what is important: your children and their well-being. And remember that the family courts are there to protect the best interests of all children.

Need help?

If you are concerned about parental alienation please do get in touch with me . I have practised family law for over 35 years specialising in all aspects of divorce and children disputes including residence, contact, prohibited steps orders, specific issue orders and parental alienation.

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Author: Mark Christie

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Is the child arrangements terminology awkward and confusing?

When I began practising as a family lawyer in the dim and distant days of the early eighties, the two main types of private law children orders went by the names ‘custody’ and ‘access’. These terms had been used since time immemorial (or so it seemed) and, indeed, were so ingrained in the public consciousness that they are still commonly used today.

In 1989, however, the powers that be decided it was time for a change. What had worked for so long was no longer appropriate for modern sensibilities. Accordingly ‘custody’ and ‘access’ were replaced with ‘residence’ and ‘contact’, the rationale behind the change being that ‘custody’ and ‘access’ were too ‘emotive’, causing unnecessary antagonism between parents.

But, as with all consumables, in the modern world nothing lasts for long. In 2014 our lords and masters decided that ‘residence’ and ‘contact’ were also obsolete, for pretty similar reasons to the 1989 change, and had to be replaced (well, not entirely, as I will explain in a moment). In a Monty Python “And now for something completely different” moment the government came up with the child arrangements order, which we were told means an order regulating arrangements relating to any of the following:

(a) With whom a child is to live, spend time or otherwise have contact, and

(b) When a child is to live, spend time or otherwise have contact with any person.

Hmm. There is a slight problem here. Whilst the words ‘residence’ and ‘contact’ may have gone the way of the dodo, the concepts behind the words remain. After all, a child may still reside with one parent, and have contact with the other. Thus ‘residence’ became ‘live with’, and ‘contact’ became ‘spends time with’.

But wait a minute, doesn’t the word ‘contact’ still appear in the new terminology? Well, yes it does. So maybe ‘contact’ was not such an awful word after all? Does this mean that we can interchange ‘contact’ and ‘spends time with’? Are the two exactly the same? I honestly don’t know. (I note that the relevant standard family order refers to a ‘Live with order’ and a ‘Contact order’.)

I confess I was never very impressed by the new terminology. It did seem to me to be very awkward, and didn’t seem to achieve an awful lot, being little more than a quibble over semantics, driven by a desire not to upset anyone. Still, I put my lack of enthusiasm to one side, and moved on. Until recently.

Reading law reports relating to child arrangements applications I have been increasingly struck again by how awkward the terminology is. Instead of the judge referring simply to a ‘’residence order’ or a ‘contact order’ they now have to refer to a ‘live(s) with order’ or, worse still, a ‘spends time with order’. This terminology is not just ungainly, it can also be hard to follow, particularly, I suspect, for litigants in person.

But it is not just the awkwardness of the terminology. It can also be quite confusing. Take, for example, this extract from the judgment in the recent appeal RC (A Child), referring to the orders being appealed against:

“ii)       Paragraph 18

lives with order: the child shall live with both parties …

iii)        Paragraph 19

spends time with order: the parties must make sure that the child spends time with the respondent father within a regular fortnightly cycle for at least six nights, into blocks of three nights …”

Erm, doesn’t paragraph 18 contradict paragraph 19 (or vice versa)? Surely, if the child is to ‘live with’ both parents, then, to use the old terminology, they reside with both parents, i.e. there is a joint residence order. Why, then, is there a need for a ‘spends time with’ or ‘contact’ order as well? Surely, a parent has residence or contact, not both? Of course, as a family lawyer I understand what is happening here, but do parents involved in child arrangements proceedings, particularly those who are not represented, understand? I’m sure that many are left confused as to exactly what the court has ordered.

OK, perhaps I should leave it there. I am of course a family law dinosaur (and perhaps soon to be a dodo). Maybe those younger and less stuck in their ways have no problem with the terminology.

I would also like to point out that the above should not be interpreted as a call for yet another change in terminology – that is the last thing we need.

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Author: John Bolch

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Sturm v. Moyer

(California Court of Appeal) – In a case where a creditor sought to collect a judgment, held that California’s Uniform Voidable Transactions Act may apply to a fraudulent agreement between spouses to prevent collection of the debt. The debtor’s premarital agreement here said that each spouse’s earnings and other property acquired during marriage would not become community property.


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