Hylton-Potts – Free Legal Advice, Divorce Lawyer, Beneft Fraud & Motoring Offences

Pre-nuptial agreement or pre-civ Agreements

They work
The Supreme Court of Appeal has decided that a pre-nuptial agreement will be a very strong factor in a divorce settlement, if it is carefully drafted with proper safeguards, to avoid the stress and expense of a fully contested financial divorce battle.

(Radmacher case)

We can draft an agreement for you £240 inc VAT including all advice. Some solicitors charge £5000 – why pay more?

Custody of Pets

View our 8 step guide to winning custody of your beloved pets here

If you wish to go ahead please contact Rodney by phone on 020 7381 8111 or email law@rhplaw.co.uk

Child Support with both parents in UK

This is dealt with by a government agency not the court although it can intervene with “topping up” if the family is wealthy.

The CSA uses information from both parents to decide if someone has to pay child maintenance and to work out the amount of maintenance that should be paid. They may also use information from other sources, including the non-resident parent’s employer or HM Revenue & Customs (HMRC).

The CSA work out child maintenance by applying one of four rates to the non-resident parent’s income. Income is earnings, money from an occupational or personal pension, and tax credits. They use the amount of income left after things like income tax, National Insurance and any money paid into a pension scheme have been taken off.

The child maintenance calculator will provide you with a rough guide to how much child maintenance you may be asked to pay or might expect to receive based on the rules for the current scheme.

Click here to calculate your child maintenance payments

CSA – www.csa.gov.uk – phone 0845 713 4000

The maximum income on which the CSA payments are calculated is £2,000 per week.

It is calculated on the basis of net weekly income;

15% for 1 child
20% for 2 children
25% for 3 children or more

Net income is net of tax, NI and Pension contributions.

Roughly speaking this come to a maximum of;

£ 300/week for 1 child

£ 400/week for 2 children

£500/week for 3 children

There are deductions from this if a paying parent has other children in his/her care.

There are also deductions where the child being supported spends more than 51 nights a year with the paying parent.

When the maximum figure is reached, the court has jurisdiction in respect of top-up maintenance for higher earners.

High earner is defined as anyone earning more than £2000 net per week (£104,000 p.a.)

For further advice on Child Support and the legal world it lives in, call 0207 381 8111 for free and impartial advice off our well informed legal team.

Shared Residence Orders

For some time, Shared Residence Orders (SRO) were rare, as it was considered they would only work in situations of close co-operation between the parents.

This has changed and now they are being granted in situations of bitter conflict.

An SRO has been granted to a man who was not the natural father even though the children only spend alternate weekends with him (which is the usual regime).

Judges are using these orders to send a strong message to both parents, that they are equal in the eyes of the law, and that overriding concern is the best interest of the children.

Parental responsibility.(PR)

What is it? Does the father need it? If so, how does he get it.

Unmarried Fathers can acquire parental responsibility in any of the following ways:

(a) By jointly registering the child’s birth with the mother (for births registered after 1 December 2003) you will automatically gain parental responsibility (i.e. there will be no separate official document stating that you have PR).

It is the date of registration, not the date of birth which is important in determining whether the father has parental responsibility.

(b) By re-registering the birth for pre December 2003 registrations to add the father’s details you will automatically gain parental responsibility.

You would either need the mother to attend with you or provide a formal declaration of agreement that your name is to be added to the birth record.

NB: the birth can only be re-registered if the father’s name was omitted from the original registration. If it is already there, you cannot re-register, and therefore you cannot gain parental responsibility by this means.

(c) By subsequently marrying the mother of the child you automatically gain PR.

(d) By obtaining a residence order from the court (PR is a ‘by-product’ of the residence order) you will automatically acquire parental responsibility, although in this form PR will terminate when the resident order ends (usually age 16).

(e) A birth parent can sign a parental responsibility agreement on form C(PRA1) according to the Children Act 1989. This document itself will signify that you have parental responsibility for the child).

(f) A step-parent’s PR agreement can be made by consent with all those already having PR for the child on form C(PRA2) according to the Children & Adoption Act 2002.

(g) By obtaining a parental responsibility order from the court.

(h) By obtaining an adoption order from the court.

Only with (d), (e), (f), (g) and (h) will you obtain a document that explicitly states that the father has parental responsibility for the child. With the other means of obtaining parental responsibility there will be no separate documentation confirming parental responsibility, the documentation of the status acquired (marriage, child’s birth
certificate, etc.) being themselves evidence of parental responsibility.

Consult the experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

CHILD ABDUCTION

A rising number of international marriages and a global mobility of the workforce within the EU and beyond has led to a sharp rise in international child abduction cases.

Many countries are within the Hague Convention the principles of that Convention are not accepted in much of the Islamic world, where the result may clash with religion-based law.

Also many Asian and African Countries are not parties.

If therefore a child is abducted into one of those non-Convention countries proceedings have to be taken in the Court of that country to get the child back.

If a child is taken to a Convention country different rules apply. The underlying principle is that the Courts of the country where the child was last habitually resident is the proper place for proceedings.

There the parents’ claim is brought in the UK and notified to the Child Abduction Unit to the country where the child is, to show cause why there should not be an automatic return to the UK. The Child Abduction Unit has a questionnaire on its website.

Specialist Lawyers should be consulted without delay.

We can get you an injunction and all ports alerts the same day.

Rodney Hylton-Potts has 25 years experience in this field. Consult the Experts 24 hour helpline and e-mail service.

We are experts in child abduction – incredibly fast service, total focus, reasonable fees, great success rates.

020 7381 8111
(+44) (0) 207-381-8111

law@rhplaw.co.uk

Divorce after sale service

On a lighter note, once a year we have a get together/supper for all the clients we have got divorced that year.

We have had many hilarious evenings, but also found that there is a lot of support for each other, and sometimes a new romance!

The ladies often have new, glamorous, blonde hairstyles, and their own Mercedes parked outside. Sometimes the ex husbands have nicked themselves shaving, have a grubby collar and perhaps drink a little too much!

By and large when taken out of the divorce fighting arena, they are all, invariably, very nice people, and good parents and relieved and supported to see that other people also went through the mill.

It puts things in perspective.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Hit Him hard while guilt is high

A philandering husband goes off with his secretary. He then regrets it, feels guilty, but the wife will not take him back.

Hit him hard while the guilt is high.

Do not get mad, ladies, get even. Hit him in the pocket and get him to agree an excellent settlement while guilt runs high. It will not last for ever.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Conduct in Divorce

Generally the Judge does not give a hoots who divorces whom or on what grounds. He does not care who slept with who, got drunk, or behaved unreasonably.
He does not care if a man puts work before his family, leading to a divorce breakdown. He does not care if the wife has ten lovers. You may care. The judge does not: Passionately.

None of this is relevant to the division of family assets, so he does not want to know, unless the conduct is “gross and obvious”. These are the more serious cases such as:

• Child Abuse
• Adultery in the matrimonial bed
• Serious violence involving breaking bones

Then the Judge will take conduct into account and punish the guilty party.

Raising the issue of conduct in a battle over money is an important one and can have huge cost implications.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Bitterness in Divorce

Wives may get what appear to husbands to get too much money in a divorce battle, but sometimes the one thing that infuriates them is that their (often older) husband can still “pull” and attract younger women, whereas they have to settle often for a new partner who is older than they are, and probably divorced and down at heel himself.

Some ladies turn to “toy boys”.

This basic fact on the real world causes much bitterness.

Consult the experts as to how this impacts on tactics.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Expat/Non-UK Divorces

We can advise you on obtaining or dealing with a UK divorce, if you are living abroad.
Also if you have been served with papers from an overseas jurisdiction, including the United States.
The language of the documents can be confusing, and sometimes not even in English, we can help you through the minefield quickly and cheaply.

Fixed fees generally apply. £290 inc VAT if someone is divorcing you in an overseas jurisdiction.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Have a Second Bite in London

If you have been divorced abroad and received a poor settlement, e.g. in the Middle East, Nigeria, or another jurisdiction dominated by men, consider filing a financial claim in London.

The Supreme Court has ruled that it is lawful to top up awards made abroad, so if you were disappointed with your first bite at the cherry contact the experts.

For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

How to get value for money from your advisers

Solicitors are trained, expensive professionals. They are not emotional props, or your friends.

“If you want a friend, buy a dog”.

Take Domestic Violence

The husband hits the wife. She phones her solicitor and spends 30 minutes recounting her tales of woe. This phone call will costs her £200 + VAT or more, and on top of that she still has the bruises and the humiliation. Instead she should:

1. As soon as she is able after the attack, get photographs taken by a relative or friend and have 5 colour prints made, which should be signed and dated on the back by the friend, or downloaded and emailed to herself and her lawyer.
2. Immediately write a dispassionate account of the incident and what led up to it, in chronological order.
3. Visit her Doctor to ask him to examine her and made a note of her injuries and her account of what happened. Explain to the doctor he or she could be asked to provide a medical report later for use by her legal team.
4. Telephone the police to ask then to note her complaint and possibly to proceed further. Note the crime reference number.
5. Then telephone her solicitor to brief him about what happened.

She now has the evidence in the bag to proceed to obtain a Court Injunction, so that if the husband repeats his conduct, she can apply to commit him to prison for contempt of court. This usually does the trick.

Keeping a chronology

Keep a diary of all events and incidents you think could be relevant on a chronology.
Make notes especially of acts of violence or those relating to money or the children.
The fact that you write up your diary promptly of itself makes it more likely that the Judge will believe what you write

We can provide you with a template for a chronology both in Word and Excel free of charge.

Come to the experts. For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or emaillaw@rhplaw.co.uk.

Fathers can win residence orders

Recent decisions show that the courts are increasingly prepared to transfer residence to the father where mothers repeatedly block contact arrangements.

High-profile protests by pressure groups such as Fathers 4 Justice have fostered the perception that fathers face unfair treatment from the courts, when it comes to recognition of their role in their children’s lives. Fathers face considerable difficulties when it comes to enforcing orders for contact with their children, in the face of mothers who are determined to obstruct those orders.

However, the family courts are becoming increasingly unwilling to tolerate such behaviour and there are provisions available to enforce contact orders (including community service penalties).

A number of reported decisions show that the courts are also willing to take the ultimate step to ensure children do not lose their relationship with their fathers, and will transfer residence between parents where absolutely necessary.

These decisions may compel obstructive mothers to encourage the relationship between father and child and, perhaps, to recognise that their behaviour can ultimately result in their ‘losing’ their child.

We advise on leave/permission to remove children from the jurisdiction.

Transferring residence

On 4 January 2010, in the Family Division of the High Court, His Honour Judge Bellamy ordered that a child (S), aged 11, who had always lived with his mother, should now live with his father.

The parents separated in September 1997 and their son, S, was born in March 1998. The father made his first contact application in June 1999, and more than ten years of litigation followed.

S had not had any contact with his father since February 2006, almost four years before the final hearing before HHJ Bellamy, and there had been a failed contact order providing for S to spend time with his half-siblings in July 2009.

Assessing wishes and feelings

The judge found that S had become completely alienated from his father, and had no wish to see his him, let alone go and live with him.

However, expert evidence was provided to the court by a consultant adult psychiatrist who said that “the child’s expressed wishes and feelings are irrational and should form no part in the court’s decision making”.

The judge said that it would be wrong for a court to ignore a child’s true wishes and feelings, as this would be contrary to existing case law as well as both the welfare checklist and the United Nations Conventions of the Rights of Child. However, he went on to say that S’s expressed wishes and feelings needed to be assessed in the light of his age and understanding, and that, when considering the weight which should be attached to them, the impact of alienation and the fact that S’s expressed wishes and feelings might not be his true wishes and feelings should be taken into account.

The judge found that the mother had opposed and undermined contact between S and his father, but the judgment makes clear that she had been a good mother in most other respects.

HHJ Bellamy had an extremely difficult task in balancing all the competing factors, and, following a detailed analysis, concluded that “traumatic though it may be in the short term, it is in the best interests of S’s long-term welfare for him now to live with his father”.

Shared residence

There has been an increasing trend for fathers to seek orders for shared residence rather than contact, and such orders are increasingly becoming the norm in the Principal Registry of the Family Division in London, regardless of whether a child’s time is shared equally between parents.

Shared residence orders are now commonly made in cases where the court takes the view that the label of shared residence is a useful tool to reinforce to both parents that they have equal rights, responsibilities and duties in relation to their children and are of equal status.

A gap in the Children and Adoption Act 2006 is that the enforcement provisions are not available to the court to order against an obstructive mother where a shared residence order has been made; the new enforcement provisions are only available to enforce contact orders.

To ensure the child has a continuing relationship with both parents, in the context of a shared residence order, the court must fall back on the established enforcement methods, including the ultimate step of transferring residence where one parent is persistently obstructing the child’s relationship with the other parent – as in the case of Re S.

So fathers- never never never give up on your children- contact the expert
- For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or emaillaw@rhplaw.co.uk.

Mother’s tactics

Well-educated mothers are often the worst at legal war over their children after separation.

These mothers have no idea how much damage they inflict on their children with protracted custody battles and personal attacks on the father.

Children are routinely used as the battlefield and ammunition for mothers to hammer out their own personal disputes.

Half divorcing couples have at least one child aged under 16. Up to 20,000 parents go to court each year to resolve their child contact disputes each year.

The family courts have witnessed some particularly protracted cases lasting for many years, with contact orders repeatedly broken, often by embittered mothers seeking to punish their former partner.

Often the mother, who finds herself caring for the children, is able to use her power over them to deny the father contact.

More rights for fathers are needed, with many men far more closely involved in the day-to-day care of their children. The greater role of fathers is not recognized by the courts when a couple splits up.

There is nothing worse, for most children, than for their parents to denigrate each other. If a child’s mother makes it clear to the child that his or her father is worthless, the child’s sense of self-worth can be irredeemably damaged. Mothers simply do not realise the damage they do to their children by the battles they wage over them, or perhaps they do not care.

What is needed is a presumption of “shared residence” for the children when a couple separate, where the young people live with either parent for half the time.

Rich ex-wives are sent packing by divorce judges

Senior judges are taking a tough line with former wives of millionaires who return to court seeking to reopen divorce settlements.

Judges have become concerned that the decisions of High Court, have led to London being the divorce capital of the world.

Judges have thrown out attempts by former wives to challenge the terms of their divorce awards. In the latest, the former wife of the Conservative Party grandee Sir Paul Judge failed to amend a £6.6 million divorce settlement that she received nearly ten years ago.

In another case, a wife who was awarded £7.5 million unsuccessfully tried to challenge the settlement after she claimed that the judge had wrongly calculated the division of the couple’s assets. One senior appeal judge said that neither “is ever going to experience any financial want or need”.

In another case involving a Russian couple, the same judge lamented the amount of judicial time devoted to “wasteful” litigation between super-rich couples who wanted to get divorced in London but had only a “slender connection” with the capital.

The Court of Appeal upheld a divorce that had been granted in Moscow to the Russian Oligarch Ilya Golubovich, in spite of his wife’s desire to be divorced in London.

Involved in making or defending a financial claim in a divorce case?

Consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Judges rule divorcing wives can no longer turn detective on spouse’s finances

DIY detective work by divorcing couples to expose a spouse’s hidden assets was declared unlawful in a landmark ruling, ending decades of traditional tactics in marriage disputes.

Litigants will no longer be able secretly to seize papers or documents that they find lying around or access e-mails after the Court of Appeal held that this could breach a person’s rights of confidence and might also be a crime.

A wife had won the right to use 20,000 documents removed from the husband’s computer, but the Court of Appeal disagreed and ordered the return of the material.

If the wife was allowed to keep the documents, it “would give her access to material which was confidential to Mr Imerman and had been unlawfully taken from him’.

The judges said that there was “no real doubt” that Mr Imerman’s rights of confidence had been breached and ordered that files of documents and all copies being held by the wife’s solicitors be handed over to the husband’s solicitors.

Husband won an injunction restraining the wife or her lawyers, for the time being, “from using any of the information they have obtained through reading the files”.

The wife is prohibited from saying what her husband claims he is worth, compared with what is in the public domain.

We at Hylton-Potts have a strategy for overcoming this difficulty, legally and effectively, and are particularly good at unearthing undisclosed assets.

If you want advice on a matrimonial money battle, or disclosure of documents, contact the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Collaborative Law

This process is designed to resolve disputes without going to court. Here at Hylton-Potts we are experts in the techniques, and offer them as a service to our clients.

We are better than Collaborative Law Solicitors

The emphasis is very much on helping clients find a solution for the best of the family as a whole and that will work for them in future.

If the collaborative approach interests you contact Hylton-Potts the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Keeping a Chronology of Important Dates

In any dispute, a good tactic is to prepare and keep up-to-date chronology of important dates, events and cross-reference in the documents.

We can e-mail you a template free of charge, in word or excel.

Later a Judge might say “How do I know this is accurate?”. You reply that on legal advice you recorded the event on your computer, in the spreadsheet, that very same day.

This works.

For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Can I get a divorce, or dissolve my civil partnership in the UK?

English procedure can be summarized as follows.

A person has jurisdiction to apply for a divorce in England and Wales in any of the following circumstances;

1. Both parties are habitually resident in England and Wales at the time the divorce proceedings are started.
2. Both parties were last habitually resident in England and Wales and one of the parties still resides there at the time the divorce proceedings are started.
3. The respondent is habitually resident in England and Wales at the time the divorce proceedings are started.
4. The petitioner has been habitually resident in England and Wales for the 12 months before the divorce proceedings are started.
5. The petitioner is domiciled in England and Wales and has been habitually resident there for six months before the divorce proceedings are started.
6. Both of the parties are domiciled in England and Wales at the time the divorce proceedings are started.
7. The petitioner or the respondent are domiciled in England and Wales at the time the divorce proceedings are started, and no other court of a “contracting state” to the European Convention known as Brussels II (see Brussels II) has jurisdiction.

If a person is able to satisfy one of the above categories, then there will be jurisdiction in England and Wales for that person to start divorce proceedings.

If you are in doubt about whether you can get divorced or other civil partnership dissolution in the UK, consult the experts -
For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Pet Custody – The Law

If a couple, (husband or wife or civil partners,) break up, the matrimonial Judge has a wide discretion to divide assets and make orders. This could include ownership of a pet, and with whom that pet should live, and visitation rights.

If children are involved, often their wishes will tip the scales, and an order could be made for example giving the absent parent visitation rights to the pet when seeing the children.

If the couple, however are not married the Judge’s powers are much reduced and could be limited just declaring ownership. Obviously if a pet is bought jointly it cannot be sawn in half.

The moral of the tale

In all cases, especially where there is no marriage or civil partnership, an agreement to who would have the pet, and on what terms, on separation is vital to avoid an expensive battle.

Love, ownership, pride and a way of punishing the other party can result in heartbreaking decisions affecting children.

We at Hylton Potts are experts and can draft you a separation agreement for a fixed fee of £200 plus VAT.

How more and more divorcing couples are going to war over their pets – Click to Read

Contact the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Setting aside a financial settlement

If one party to a financial settlement, including a court order, lied or misled the court it can be
set aside, and we can help. Consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Contempt of Court – HOW TO GET EVEN IF YOUR OPPONENT LIES

Anyone who has lost, or even won, a matrimonial or litigation case because the opponent has lied, carries a sense of grievance. The police do not want to know. The judge goes on to the next case, but you know your opponent lied and want to prove it.

We can help you get even legally and cost effectively.

Proceedings for contempt of court is the answer.

Proceedings for contempt of court may be brought against a person if he make a false statement in a document verified by a statement of truth, or gives dishonest oral evidence

Contempt proceedings can only be dealt with in the High Court. Proceedings that are being dealt with in the Principal Registry or a county court must therefore be transferred, but this can be done quickly and cheaply.

To be successful in contempt of court proceedings, the dishonest statement must be obvious. It must be proved to the criminal standard of proof, beyond reasonable doubt, and the victim has to move quickly.

If the witness is found to be in contempt of court, he could face up to two years imprisonment or an unlimited fine.

This is a really useful weapon.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Prenuptial agreements

Q&A

What is a prenuptial agreement?

A contract made between a couple before marriage (although post-nups can also be made at a later stage) which says who will get what if they split up.

Are they only for the rich?

No, because even an asset like a flat, may be worth protecting.

What do they cost?

In London a family solicitor would charge £5,000 to £7,000 for a standard pre-nup, although with complex assets the fee could be much higher. Do not be ripped off. We at Hylton-Potts charge £200 + VAT and Yes, they are just as good and effective. We achieve this highly competitive fee by working with you on the document as a team. For example, you do not need a lawyer to list your assets.

Are they now legally binding?

They will be followed if they have been freely entered into, with full disclosure of assets and the couple had separate legal advice.

Decisive weight” will be given to the agreement, and couples can now decide in the best of times what the outcome would be in the worst of times.

Whilst a judge will depart from the agreement to the extent necessary to cater for the needs of the children, the parties will be held to the agreement once the children’s needs are catered for.

Courts will not follow a contract that is not flexible enough to provide for a spouse who looks after children.

This could be translated into a situation where a spouse, typically the wife, keeps the use of a house until the children leave college, but not have a meal ticket for life.

What will lawyers want to know?

Details of all the assets and how children would be financially provided for. Lawyers suggest that they are signed no less than 21 days before the day of the wedding or it could be argued that they were drawn up under pressure.

What about civil partnerships?

Pre-nups and Post-nups apply to them also.

Post-nups

These are signed on a change of circumstances such as the birth of a child, or on a party receiving an inheritance. The same fixed fee applies as above- £240 inc VAT.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Legal Aid

We specialise in helping people who cannot get Legal Aid, or where none is available.

Legal aid solicitors are usually free. They are often dedicated and compassionate, but quite clueless and inexperienced, and just sit there, adding no value.

Whether you come to us or not, what you probably need somebody who is a specialist, and very streetwise.

It is like the difference between a Harley Street specialist and the local crowded GP’s surgery. The prisons are full of people on legal aid.

Also increasingly Legal Aid has been withdrawn from key areas, and our fixed fee, no nonsense, no bullshit approach may appeal to you.

We are better and cheaper than Solicitors.

If you think we might be the Lawyers for you please contact us – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

All our services apply to civil partnerships as to heterosexual couples.

As far back as 1988 Rodney Hylton-Potts was congratulated by a High Court judge, with the speed with which he conducted litigation – click here to view.

We advise on leave/permission to remove children from the jurisdiction.

Applications to remove a child from the jurisdiction

Often the mother’s application will succeed provided there are reasonable and well thought through proposals.

With expert legal help, however, a Judge will often impose vital conditions such as:

1. Arrangements for contact.
2. A “mirror” order for contact in the foreign country.
3. School enrolment.
4. Funding for education.
5. Cessation of the mother’s periodical payments.
6. Travel costs.

The case of Re AR (A Child: Relocation) 2010, gives hope to fathers emphasising the right of the child when growing up to have a meaningful participation by both parents in his upbringing.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

LEAVE TO REMOVE A CHILD FROM THE JURISDICTION

The family courts are beginning to adopt a more child-centric approach

It used to be widely believed that the primary carer, usually the mother, who sought leave to remove her children permanently from the jurisdiction would succeed providing her plans were coherent and sensible.

Payne v Payne [2001] EWCA Civ 166 is still classed as the leading authority on relocation cases. It involved the Court of Appeal reviewing a long line of authority going back more than 30 years to the case of Poel v Poel [1970]

Before Payne, the guiding principle was based upon a presumption in favour of granting a reasonable and properly thought out application. Payne considered this presumption and established a new procedure for relocation cases.

The father in the case was British and the mother was a New Zealand citizen. She applied for leave to remove their four-year-old daughter to New Zealand. At first instance, Judge Langan allowed her application on the basis that the relocation would make her happier, which in turn would be in the child’s best interests.

The father unsuccessfully appealed to the Court of Appeal, and the judgment of Dame Elizabeth Butler-Sloss sets out what was the accepted approach to relocation applications: “There is no presumption in favour of the applicant, but reasonable proposals made by the applicant parent, the refusal of which would have adverse consequences upon the stability of the new family and therefore an adverse effect upon the welfare of the child, continued to be a factor of great weight.”

New approach

While the judgment of Butler-Sloss is most quoted, Thorpe LJ made it clear that he was keen to guard against the risk of creating a presumption that an applicant’s proposals are compatible with the child’s welfare and suggested the court adopt the following approach as a prelude to conclusion.
First, is the mother’s application genuine in the sense that it is “not motivated by some selfish desire to exclude the father from the child’s life”? If so, is the mother’s application realistic, that is, “founded on practical proposals” which have been “well researched and investigated”? Thorpe LJ said that, if neither of these hurdles are passed, “refusal will inevitably follow”.

But if the above is satisfied then, second, the court should carefully appraise the father’s opposition and question whether it is “motivated by genuine concern for the future of the child’s welfare” or whether it is “driven by some ulterior motive”.

Third, the court should look at the extent of the detriment to the father if the application is granted and offset this against the extension of the child’s relationships with the maternal family and homeland. The court should question “the impact on the mother, either as a single parent or as a new wife, of a refusal of her realistic proposal”. The outcome of the second and third questions must then be brought into “an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate”.

While suggesting this discipline, Thorpe LJ stressed that he did not wish to diminish the importance that the Court of Appeal has consistently attached to giving “great weight” to “the emotional and psychological well being of the primary carer” when evaluating the welfare of the child.

In the Court of Appeal case of Re G (Children) (Removal from Jurisdiction), the mother successfully appealed against a dismissal of her application to permanently remove her children to Argentina, her place of origin. Thorpe LJ held that the first instance decision had distinctly failed to give a proper assessment of the emotional impact a refusal would have on the mother as the primary carer. He greatly emphasised the notion of transference of unhappiness from the primary carer to the child in the event of a refusal to relocate.

Although the mother was granted permission to return to her homeland, the Court of Appeal laid down a number of consequential issues to be agreed between the parties before the mother relocated. These included arrangements for contact, investigation into the means of how a contact order could be mirrored in Argentina, the children’s enrolment into schools, funding for education, cessation of the mother’s periodical payments and the costs of travel.

These cases are difficult and painful for all concerned but travel between countries is an important part of everyday life and some would say that unrestricted movement from country to country is fundamental to our concept of freedom and an essential human right.

Further afield

What of the approach in other jurisdictions? The approach of the English courts is not so different from that of the Australian and US courts. In some Scandinavian countries, notably Sweden, it is difficult to obtain the court’s permission to relocate, but such countries are much more likely to stress the importance of both parents in a child’s life. Notably these countries tend to favour shared residence arrangements and have far greater parity of maternity and paternity rights, including leave following the birth of a child.

In New Zealand, the courts have declined to follow the guidance in Payne by drawing attention to the child’s welfare as the paramount principle in relocation cases and refusing to place too great an emphasis on the psychological and emotional well being of the primary carer.

Essential reading for those lawyers and parents involved in opposing a leave to remove application is the Reunite research published in July 2009 and available on the group’s website. The research focuses on the difficulties in enforcing contact orders abroad by mirror orders, funding contact, the loss of the wider familial relationship for the child and the long-term effect of the loss on establishing important relationships. The research recognises that losing the continuity and familiarity of relationships causes grief for children (which is akin to bereavement) and that such loss may cause profound and adverse personality changes in the long term.

In conclusion the research itself calls for further research into the outcome and affect of relocation on children and an amendment to the welfare checklist in the Children Act 1989 to avoid the vagueness of the ‘welfare test’ in line with the Australian system which considers the benefit to a child of a meaningful relationship with both parents and the practical difficulty and expense of spending time with each following relocation.

Momentum for change

Perhaps unsurprisingly there is now considerable momentum for a change of law in this area. In Re D (Children) . Lord Justice Wall acknowledged the criticisms of Payne and stated: “There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by permanent breach of the relationship which children have with the left behind parent.”

In March 2010 there was a meeting of family judges from all over the world in Washington DC and a Declaration on International Family Relocation was made. Part of this states: “The best interests of a child should be the paramount consideration. Therefore, determination should be made without any presumptions for or against relocation.”

Mostyn J referred to the declaration in the recent case of Re AR (A Child: Relocation). Here, a French mother sought leave to permanently remove a five-year-old child to Troyes in the Champagne area of north east France. The English father applied for shared residence. The child had only French nationality. The father had parental responsibility by virtue of being named on the child’s birth certificate.

Mostyn J granted the father shared residence and refused to allow the mother leave to remove. In calling for a review of Payne, Mostyn J went further and said: “If one were to draw up a hierarchy of human rights protected by the convention, I would have thought that very near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing.

“Although this is (strangely) not explicitly spelt out in the text it must be implicit in the notion of the right to a family life. Recognition of the existence of this very obvious and critically important right is sometimes, so it seems to me, lost in the relocation cases.”

A recent case to be considered at the time when Payne is being criticised is Re J v S (Leave to Remove). Here, a Japanese mother sought permission to return to Japan with the two boys aged eight and ten. The Swedish father sought to extend the length of the weekend contact available to him. The parties had lived in London for more than 20 years and following divorce the mother lived in London with the children and the father had alternate weekend contact. The children alternated their holidays between Japan and Sweden. The mother spoke Japanese to the children and her mother stayed for six to eight months every year.

Eleanor King J granted the mother permission to relocate to Japan. However, it could be said that the case is extremely fact-specific given that the mother suffered a gastro-intestinal illness with vomiting, depression and anxiety. King J accepted expert medical evidence that if the mother were refused permission to return to Japan she would suffer extreme ill health requiring long-term medical and psychological support and this would be harmful to the children’s welfare.

It was held that the welfare of the children was paramount and taking into account the questions in Payne she decided that the mother’s application was genuine and realistic. While she accepted that the father’s opposition was also genuine, it appears that the detrimental effect on the mother’s medical condition was a decisive factor in the balancing exercise such that Eleanor King J accepted the effect of refusing the mother’s application would have been so harmful to the mother that it meant it was in the children’s best interests to grant permission.
Relocation cases are accepted as difficult and painful for all concerned and, despite recent criticism, the principles established in Payne still live on and it remains the leading relocation authority. However, recently reported cases along with the Reunite research and the Declaration on International Family Relocation demonstrates there isnow considerable drive for change in this area of law.

We submit that an emphasis on the wishes and feelings of the relocating parent, even with practical proposals, may now no longer be the deciding factor in relocation cases.

The presumption that the applicant’s realistic and genuine proposals are compatible with the child’s welfare is being increasingly questioned and we submit that we are moving to a time when leave to remove may no longer be carer’s prerogative.

If you wish to apply to remove the child from the jurisdiction or to oppose such an application consult the experts.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

Christmas contact

Here are some of the factors and common topics that arise.

1. Telling the children. If this is the first year that the parents are separated, how will the separation be explained to the children before contact issues are resolved?

2. How old are the children? Toddlers compared to teenagers are going to need different lengths and frequencies of contact that need to be considered. When the children get older should there be trigger points for reviewing the contact schedule over Christmas? e.g. after a year.

3. How would the children like contact to be over Christmas? The parents need to decide the final contact arrangements, but it is important when the children are old enough to find out their views. The children can also be part of the mediation process if both parents consent to this. Everything said to the mediator will remain confidential apart from what the children want to be passed back to the parents. The welfare and wishes of the children is of central concern to the judge.

4. Other relatives. What are the grandparents’ and other relatives views for contact who may want to see their grandchildren over the Christmas period?

5. Travelling abroad. If one parent is to travel abroad, ensure that the other parent will have a telephone number or contact details so that they can have telephone or even Skype contact on Christmas day.

6. Alternate Christmas contact. A lot of families now like to spend Christmas abroad. The other parent’s consent is needed.

7. Keeping the other parent informed. The Christmas period has a lot of festive events, religious ceremonies and activities. Try to agree how far in advance parents should communicate with each other, so that if there is a clash of events a compromise can be reached.

8. Breaking the Christmas period into slots of days. Sometimes one parent has the children for contact on Christmas Eve and Boxing Day while the other parent has contact Christmas Day and other days. Or one parent has contact over Christmas and the other parent then has contact over New Year. This then rotates yearly.

9. Having Christmas together. Sometimes the resident parent agrees that the non-resident parent can spend Christmas Day at the resident parent’s house, so that both parents have contact with their children on Christmas Day when the presents are opened.

10. Morning and evening contact on Christmas Day. One parent has contact with the children in the morning of Christmas Day and the other parent has contact in the afternoon.

11. Shared Christmas contact. If there is a shared residence order in place and contact cannot be divided 50/50 over the festive period, it is explored whether there are other points in the year, where more contact can be granted so that there is a balance of contact between both of them.

12. Good communication between parents. Is this best done by email, phone or face to face where there is an acceptance by both parents that over this busy period flexibility is needed? Good communication can also work if the parents agree to arrange a neutral point for contact handovers, agree an agenda of items in advance, looking to the future rather than to the past, and agreeing to a time limit for discussions so that everything talked about is focused.

13. Keeping the other parent informed. If there is important information that the other parent needs to know – for example new dietary needs or their general routine – write this down and keep the other parent informed so that the child’s transition is not disrupted between parents.

14. Business partnership. If communication is strained and difficult can you liaise with your former partner as you would with a work colleague? And if things do become heated find a way to calm down before continuing discussions?

15. Passport and travel. Discussions centre on giving consent for passport applications, and, if the children are travelling abroad, on consent being given for how long they agree to them being outside of the jurisdiction. If there are child abduction or relocation concerns seek legal advice immediately.

Make sure that you have spare batteries to hand for Fig it (a robot that can dance and tell jokes).

16 Court If the matter of Christmas contact goes to court, the hearing date may be listed sometimes after several weeks by which time Christmas may have come and gone, or, if the plan was to go abroad, travel will be a lot more expensive, so plan in good time.

If you have a contact problem at Chistmas or any time, consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.

OUT WITH THE OLD

Family Procedure Rules

Came into effect on 6 April 2011

Some familiar phrases will be consigned to history, with the most notable changes being:

• ‘Ancillary relief’ becomes ‘financial order’;
• Divorce proceedings become ‘matrimonial proceedings’
• A petition will simply become an ‘application’

Costs

The presumption that each party pay their own costs is excluded from applications for maintenance pending suit/interim periodical payments.

This should therefore mean that the losing party in such applications will be facing the risk of cost order. Applications to vary maintenance pending suit/interim periodical payments orders are not included within this exception.

Mediation.

Apart from certain exceptions, such as applications for enforcement in Children Act proceedings, or applications for avoidance of disposition orders within financial proceedings, there must be compliance with the pre-action protocol prior to instigating proceedings, which require the applicant to arrange mediation.

If the applicant then makes an application to the court, they should at the same time file a completed family mediation information and assessment form, confirming the attendance at a mediation information and assessment meeting, or giving the reasons for not attending.

There are circumstances in which an applicant is not expected to attend a mediation information and assessment meeting.

Those include domestic abuse; the dispute concerns financial issues and one party is bankrupt; the whereabouts of the other party is unknown to the applicant; the application is being made without notice to the other party; the prospective application is urgent (which includes a risk to the life, liberty or physical safety of the applicant, or any delay in attending mediation could cause significant harm to a child, risk of miscarriage of justice or unreasonable hardship to the applicant); or that no mediators are available to conduct an initial meeting within 15 working days, subject to certain provisos.

These rules will have a big impact on divorce and children practice.

To learn more consult the experts – For more information or a free legal opinion telephone 020-7381-8111 (24 hour service) or email law@rhplaw.co.uk.