Category: Family Law

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How often do paternity tests show infidelity?

While some families begin with parents getting married and planning to have children, some occur unexpectedly between unmarried couples. In some cases, it may not be clear who the father is. This could be at question even when parents are married. When paternity is at issue, parents can take certain steps to not only get an answer but also options when the results are in.

How often do paternity tests show infidelity? It is been told that roughly 10 percent of all assumed biological children are actually the result of infidelity. Although this statement has survived decades, the fact of the matter is that this assertion is actually a myth. In fact, many of the men questioning paternity are not the ones who believe infidelity took place. It is often the man’s new partner suggesting the testing to help them avoid child support obligations.

Current data suggests that 3 out of every four men questioning paternity are the biological father. Despite these figures, men are often convinced that their child may not be theirs. The reason for this is the prevalence of non-paternity over the decades and even centuries. Although men may still stress their concerns that a child may not be theirs, the reality is that more times than not, a DNA test will prove that the child is theirs.

Whether you are seeking to establish paternity to collect child support, initiate a relationship with a child or to prove that your are not the father, it is important to understand how the process works and how it can benefit you. It can be a complex and emotional process, making it essential to take steps to protect your rights.


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

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Family Mediation Day 2: What about the children?

Family breakdown is never easy and often it is extremely stressful and painful for everyone involved, parents and children. Everyone needs help and guidance, from friends, counsellors, therapists and lawyers.

Mediation can help enormously, providing a real viable alternative to court proceedings which can often exasperate the inevitable consequences of family breakdown: fear, anger, betrayal, worry and anxiety about the future but most of all anxiety about how the children will cope.

Court proceedings and endless correspondence between solicitors can do nothing to help with those very common and very understandable emotions. Mediation can.

Mediation is ideally and uniquely equipped to be able to help parents focus on the needs of their children and to involve the children.

Specially trained Mediators can see the children in confidence and speak to them about how they feel, what they would like their parents to do and how they see the future.  Those views can then be fed back to the parents if the children agree.

In this way, the parents can make informed decisions about the future knowing and taking into account what their children have said.

This is in addition to all the other benefits of family mediation:

  • It is quicker
  • It is cheaper

As part of Family Mediation Week, and the initiative of the Family Mediators Association (FMA), there is a wealth of very helpful material available including:

Meet our mediators

Here at Stowe Family Law we strongly support the use of mediation when managing a relationship breakdown, and are pleased to have the following mediators in our team:

National Family Mediation Week 21- 25th January 2019, Click here to find out everything you need to know about Family Mediation and how it can help.

Graham Coy

22 January 2019

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Author: Graham Coy

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Stowe tips: What is a special guardianship order?

Hannah Ross, Solicitor from the Stowe office in Leeds joins us on the blog today to look at special guardianship orders? What are they? Why would you need one? And, how do you get one?

Special guardianship orders were introduced in 2005 and are governed by the Children Act 1989. They are often described as a mix of a child arrangement order and an order for adoption.

Why should I choose a special guardianship order?

A special guardianship order application is suitable in circumstances whereby the child has been living with you for a period of time or they have been placed into your care by way of care proceedings.

The order remains in place until the child has reached the age of 18 and although you share parental responsibility with the parents, you are able to make almost all decisions about the child without the parent’s approval.

If the child was already subject to local authority involvement prior to the application for a special guardianship order being made then you may be entitled to additional support from them, this can include a special guardian allowance.

A child arrangements order is very similar, however parental responsibility is shared with the parents and therefore decisions regarding the child will require their agreement. In addition to this, there would be no additional support provided to you by the local authority.

How do I start the process?

Before taking steps towards making an application to Court for a special guardianship order the Local Authority must be given three months’ notice of the intention to apply.

This gives the Local Authority the time to undertake a thorough and detailed assessment of the applicants which goes into detail about the housing arrangements, financial circumstances and the ability to care for the child. If the special guardianship assessment is negative, then the prospects of successfully obtaining a special guardianship order are significantly reduced.

If successful, a special guardianship order application is made to the local Family Court, this can be done within existing proceedings or as its own standalone application. There is often a requirement for the court to grant permission for the application to be made

Who can apply for a special guardianship order?

The law sets out clearly who is entitled to apply for a special guardianship order and they are as follows:

  • Any guardian of the child
  • Any individual who is named in a child arrangement order as a person who the child is to live with
  • A local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application
  • A relative with whom the child has lived for a period of at least one year immediately preceding the application

What will the court consider?

The court, as always will take into consideration what is in the best interests of the child using a welfare checklist which is prevalent in the decision-making process and considers the following:

  • The ascertainable wishes and feelings of the child concerned
  • The child’s physical, emotional and educational needs
  • The likely effect on the child if circumstances changed as a result of the court’s decision
  • The child’s age, sex, background and any other characteristics which will be relevant to the court’s decision
  • Any harm the child has suffered or maybe at risk of suffering
  • The capability of the child’s parents (or any other person the courts find relevant) at meeting the child’s needs
  • The powers available to the court in the given proceedings

A special guardianship order is a useful tool in ensuring that a child is given a permanent and secure home without losing the crucial link to their birth parents.

The law around special guardianship orders, however, can be complex and difficult to navigate and legal advice is strongly advised.

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Author: Hannah Ross

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The limits of the court’s power

I’ve quite often written here about the consequences of failing to comply with the wishes of the court. I’ve also quite often written about how judges get things right, unlike so many parties to family proceedings. However, judges do not always get things right (in my defence, I have never suggested that they do), and a recent case is a prime example of this.

Whilst it may not be a family law case, Hughes Jarvis Ltd v Searle & Another is I think certainly of interest to anyone involved in family court proceedings. It concerns the common situation in which the court adjourns a case before a witness has completed giving their evidence. In such a situation the witness is often given a warning by the judge not to discuss their evidence with anyone else during the adjournment. The reason for this warning was explained by Lord Justice Patten, who gave the leading judgment in Hughes Jarvis:

“The purpose of the warning is to protect the witness from any attempt by a third party to influence their evidence and also to ensure that, so far as possible, the evidence which the witness gives is his or her own best recollection unassisted by any other person. Compliance with the warning both protects the witness and the effectiveness of the trial process.”

Obviously, this can apply equally to a witness giving evidence in a family case.

So what went wrong in the Hughes Jarvis case?

The witness, Mr Jarvis, was giving his evidence on the first day of the hearing, when the case was adjourned for the day. The judge gave him the warning, but it came to light the next day that Mr Jarvis had sent a number of emails to his solicitors and his counsel. His counsel told the court that she had not read the emails and had simply replied by email saying that he must not communicate with her whilst under cross-examination. However, it later transpired that he had also spoken overnight to a third party, as a result of which he changed his evidence.

The judge responded by stopping the hearing. She remanded Mr Jarvis in custody overnight and the next morning committed him to prison for 14 days (suspended for three months) for contempt. The case (which was a claim by Mr Jarvis’s company) was struck out. Mr Jarvis appealed, to the Court of Appeal.

The Court of Appeal allowed the appeal.

Lord Justice Patten said that when a witness failed to comply with such a warning from a judge, it was necessary for the judge to make an assessment of the damage which that had caused. Here, the emails had not been responded to, and there was therefore no damage caused by them, as the judge recognised. As to the contact with the third party, the change of evidence did not mean that the evidence was untrue, or that none of Mr Jarvis’s evidence could be relied upon. If anything it had helped the defendant (the other party).

As to the committal, Lord Justice Patten said that the judge had no jurisdiction to deal with the alleged contempt, except as a breach of an order of the County Court. Here, no such order had been made.

And as to the striking out of the claim, Lord Justice Patten found that this was an unjustified overreaction. He said that the situation faced by the judge, whilst undesirable, was in fact manageable had the judge allowed herself and the parties time to investigate the facts and to make a more informed assessment of the damage which the conversation with the third party had caused.

Giving a judgment concurring with Lord Justice Patten, Lord Justice Leggatt said that the judge’s response to what Mr Jarvis had done “could well serve as a case study in how not to deal with such a situation”, and described the judge’s action in remanding Mr Jarvis in custody overnight as “a misuse of judicial power”.

The committal order was set aside and the claim was reinstated, to be heard by a different judge.

You can read the full Court of Appeal judgment here.

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Author: John Bolch

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New Domestic Abuse Bill published

“Throughout my political career I have worked to bring about an end to domestic abuse. Our new Domestic Abuse Bill will help survivors and stamp out this life-shattering crime.”

So tweeted Prime Minister Theresa May, announcing the new Domestic Abuse Bill. Well, it’s a nice idea, but of course nothing will bring an end to domestic abuse – such a suggestion, as with ‘stamping out this crime’, is nothing more than another politician’s unachievable promise. Hopefully, however, the new Bill will, if passed, at least reduce the incidence of domestic abuse, and it should certainly provide some help for survivors of abuse.

The draft Bill includes the following provisions:

  1. The first statutory government definition of domestic abuse. As drafted, this states that behaviour by a person (“A”) towards another person (“B”) is “domestic abuse” if A and B are each aged 16 or over and are personally connected, and the behaviour is abusive. OK, so what is “abusive”? This is defined in two parts, relating to ‘behaviour’ and ‘economic abuse. Behaviour is “abusive” if it consists of any of the following—

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse (see below); or

(e) psychological, emotional or other abuse.

“Economic abuse” means any behaviour that has a substantial adverse effect on B’s ability to acquire, use or maintain money or other property, or obtain goods or services.

  1. To establish a ‘Domestic Abuse Commissioner’, “to drive the response to domestic abuse issues”.
  2. To introduce new Domestic Abuse Protection Notices and Domestic Abuse Protection Orders. A Notice, which may be given by a senior police officer, prohibits the person to whom it is given from being abusive towards a person aged 16 or over to whom they are personally connected. A person breaching the Notice may be arrested and taken before a magistrates’ court. An Order prevents a person from being abusive towards a person aged 16 or over to whom they is personally connected by prohibiting them from doing things described in the order, or requiring them to do things described in the order. It may be made on application to a court, or by the court of its own motion. The court may impose any requirement it considers necessary to protect the victim, including requiring the abuser to submit to electronic tagging. Obviously, breach of the Order is an offence.
  3. Lastly, and this is the ‘headline’ provision, the Bill prohibits the cross-examination of alleged victims by their alleged abusers in the family courts. Now, I’ve not made a study of the new provisions, but at first glance they seem similar to the provisions that were previously included in the Prisons and Courts Bill, which was dropped in the run-up to the last general election. In particular, it includes a provision to the effect that if the court decides there is no satisfactory alternative, it may appoint a legal representative to cross-examine the alleged victim, the fees of whom may be paid by the state.

OK, so a fairly substantial package, which led Justice Secretary David Gauke to comment:

“Domestic abuse destroys lives and warrants some of the strongest measures at our disposal to deter offenders and protect victims.

“That is why we are barring abusers from cross-examining their victims in the family courts – a practice which can cause immense distress and amount to a continuation of abuse – and giving courts greater powers, including new protection orders, to tackle this hideous crime.

“By pursuing every option available, to better support victims and bring more offenders to justice, we are driving the change necessary to ensure families never have to endure the pain of domestic abuse in silence.”

The above is a very quick glance at a hot-off-the-press Bill, which obviously requires detailed scrutiny. However, I think many will be pleased with what they see. In particular, family lawyers will I’m sure welcome the long-awaited prohibition on the cross-examination of alleged victims by their alleged abusers. I’m not sure what the new definition of abuse adds to the existing (non-statutory) definition, and we will just have to see how useful a Domestic Abuse Commissioner will be. Otherwise, adding extra options for punishing abusers and also (not so far as I can see mentioned in the draft Bill), the added emphasis on rehabilitating offenders are definitely welcome developments.

You can read the full text of the Bill here (see Annex D). The draft Bill will now be subject to pre-legislative scrutiny by a joint committee of both Houses of Parliament.

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Author: John Bolch

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Overhaul for domestic abuse laws announced

The pledge to overhaul domestic abuse laws was almost two years ago and the public consultation closed eight months ago. Today, 21 January, we are finally seeing the content of a draft bill that is being hailed as a ‘once in a generation’ opportunity* to combat the impact of abuse by campaigners.

Sushma Kotecha, Managing Partner at the Stowe Family Law office in Nottingham shares her response:

“This is long overdue legislation that needs  urgent implementation to protect victims of domestic abuse both direct and indirect.

Often vulnerable children are caught up in the crossfire between their parents and their suffering is overlooked.

The physical, emotional and psychological impact of domestic abuse upon victims is profound and can have a devastating long-term impact on them.

Those assisting victims of domestic abuse, like us at Stowe Family Law and most importantly, the victims will welcome the proposed changes by the draft bill, which once implemented will protect and support the rights of victims and abolish the opportunity for perpetrators to extend their abuse.”

Here at Stowe Family Law, our domestic abuse solicitors can advise you of your legal options. Injunction proceedings can be issued swiftly, depending on the circumstances of your case, to provide you with the protection of the court. In cases where the victim of abuse is financially dependent on the abusing party, we can advise people of the law and their rights.

*Sourced from the BBC website.

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Author: Sushma Kotecha

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Family Mediation Week: What are the benefits of mediation?

Welcome to Family Mediation Week.

Over the next 5 days, we will be publishing information about what family mediation is able to offer based around the theme “The storm before the calm”.

Mediation is a voluntary process, during the course of which a totally impartial and specially trained mediator or mediators, help separating or divorcing couples to resolve issues with regard to their children, their finances and their property.

Research undertaken by the Family Mediation Counsel has shown that where couples do decide to take part in mediation, 70% of those cases result in a whole or partial agreement.

The benefits of mediation

  • It avoids the conflict between parents, which is all to frequent a feature of court proceedings
  • It is quicker
  • It is cheaper
  • It encourages those taking part in mediation to make their own informed decisions as to what is best for them, their children and their families

Meet the mediators

Here at Stowe Family Law we strongly support the use of mediation when managing a relationship breakdown, and are pleased to have the following mediators in our team:

National Family Mediation Week 21- 25th January 2019, Click here to find out everything you need to know about Family Mediation and how it can help.

Graham Coy, 21 January 2019

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Author: Graham Coy

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The dangers of dealing with complex matters without a lawyer

These days the public are regularly being told “you don’t need a lawyer for that”. Just a couple of weeks ago I wrote here about a former police officer, Philip Kedge, who has set up a website linking the public with McKenzie friends and who claims that ‘family law does not need lawyers’. And it is not just those who seek a slice of the legal business pie who say such things. Last week the Ministry of Justice rolled out its online probate service, announcing that most people will no longer need to instruct a solicitor to deal with their probate matter.

Mr Kedge claims that things have changed. He says on his website that the “myth that ‘Family Law Needs Lawyers’ is now being exposed as more and more Litigants in Person empower themselves to take their own cases forward.” He says that: “The genie is finally out of the bottle and it isn’t going back in anytime soon.”

Similarly, the Ministry of Justice suggest that their new online systems, which of course include online divorce, are changing the legal landscape, doing away with the need for lawyers.

But has anything really changed? I don’t think that it has. It was always the case that the public could deal with simple legal matters without lawyers. And many people have always done so. Litigants in person are not a new phenomenon – I dealt with them throughout my career, which began in the early eighties, long before legal aid was abolished for most private law family matters.

When people choose to instruct a lawyer to deal with a simple matter they are essentially just paying someone else to do the work for them. That work may not be complicated, but it may be time-consuming, particularly for the lay person, who will obviously usually take far longer to deal with the matter than a lawyer – and everyone knows that time is money, particularly for those with busy lives.

The problem, of course, is that not all legal matters are simple, and matters that may seem simple to the lay person can be anything but.

Let us look for a moment at that probate example.

Yes, probate can be quite straightforward (albeit often time-consuming – I did a bit of it myself in the past, and it can be surprising just how many matters need to be dealt with even when administering a ‘simple’ estate), but it can also be very complicated, involved difficult legal concepts. The intestacy rules, for example, aren’t always straightforward (and they are likely to crop up regularly, as many people do not have a will). And even interpreting a will can throw up horrendous complications, especially if, as so often these days, the will is homemade. And how many non-lawyers have even heard of the probate-related rules of abatement, hotchpot or commorientes? (Google them if you want to know more.) Don’t be fooled by anyone into thinking that probate is always simple.

Dealing with complex legal matters without a lawyer is downright dangerous, and those who suggest it is not are guilty of doing the public a disservice. Remember, we may be dealing with a lot of money. With the probate example, it could relate to a large estate and even to a large Inheritance Tax bill. In the area of family law, we may be dealing with a substantial divorce settlement. Or we may be dealing with something far more important than money, such as the welfare of a child. In these cases the legal fees incurred by instructing a lawyer will usually pale into insignificance when compared to the value or importance of the matter being dealt with.

So yes, by all means deal with that straightforward matter without a lawyer, just as you always could. But just make sure that it really is straightforward. Might it not be worth the small investment in a modicum of legal advice to make sure it is? It could just save you an awful lot in the long run.

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Author: John Bolch

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A week in family law: Child maintenance changes, Cafcass figures, and more

It’s been a strangely quiet week for family law news. Perhaps there has been some other big news story happening, I don’t know. Still, I did come up with the following:

The NSPCC has said that the law must recognise children as victims of domestic abuse between parents. They point out that Department for Education figures for 2017/18 show domestic abuse was a factor in 246,720 child protection assessments across England – more than half of all child protection assessments, where factors were identified, during that period. The government are yet to publish the outcomes of last year’s consultation on domestic abuse, but their proposed new definition of domestic abuse only refers to the effects of abuse on those aged 16 and over, leaving younger children unrecognised by the justice system. The charity says that legal recognition would give children greater protection through domestic abuse protection orders, help professionals take action to protect children at risk, and help authorities ensure there are specific support services for children and young people.

Almudena Lara, Head of Policy at the NSPCC, said:

“It is quite astonishing that the government is dragging its feet when deciding whether to recognise young people as victims when almost a quarter of a million children that we know of are living with domestic abuse in England alone. As well as the day-to-day distress that living with domestic abuse creates, it can cause long-term problems into adulthood that can only be addressed through targeted services that understand the complex trauma children living with domestic abuse experience. For this to be done effectively we need government to open their eyes to the harm domestic abuse has on children and give them victim status in the upcoming White Paper to ensure they receive the services they need.”

All of which appears very sensible.

A consultation has been launched by the Department for Work and Pensions seeking views on changes to the powers that the Child Maintenance Service (‘CMS’) use to calculate child maintenance and enforce payments. The proposals in the consultation seek to strengthen the current, 2012, child maintenance scheme. The CMS has a range of powers to obtain information necessary to ensure child maintenance liabilities can be accurately calculated and, where necessary, enforced. The consultation seeks views on changes to two particular aspects of these powers: qualifying a CMS inspector’s ability to enter private property and widening of the current list of organisations with a legal obligation to provide information following a request by the CMS. The consultation period ends on the 11th of February. I haven’t really given these changes much thought, but in general anything that makes it more likely that children will benefit from child maintenance must surely be a good thing.

The tide really does seem to have turned at last when it comes to the number of care order applications being made. The latest figures for care applications and private law demand, for December 2018, have been published by Cafcass. In that month the service received a total of 975 new care applications, the first time the number has dipped below the 1000 mark in more than three years. The figure is 4.6% (47 applications) lower than December 2017. As to private law demand, the picture is not so good: Cafcass received a total of 3,105 new cases during December 2018. This is 13.1% (360 cases) higher than December 2017, and the second highest December figure on record.

And finally, The Guardian has reported that a mother involved in long-running care proceedings concerning her teenaged son has been spared jail for accepting an invitation to attend a parents’ evening at his school. I’ve not seen a report of this judgment (you can find one of Mr Justice Hayden’s previous judgments in relation to the case here), but apparently the court’s order that the mother should not contact the boy included an exemption to the effect that she could “attend parents’ evening at the request of the school”, and the mother claimed that this included the “generic invite” that she had received. The local authority applied to have her committed to prison for breaching the order, but Mr Justice Hayden declined to make a committal order, saying that the invite had been sent in error. He did, however, order that the clause that allowed the mother to accept invitations from the school be removed.

Have a good weekend.

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Author: John Bolch