Update on Covid-19 and Compliance with Child Arrangement Orders

It is understandable that parents have been extremely concerned about adhering to Court Orders during these unprecedented times, and of course, when they will next be able to see their children.

The Government Guidelines are rapidly changing, and new rules are put in place to ensure the safety of each person, and to attempt to relieve the strain from the NHS.

Each family’s circumstances will differ. The Guidance below is general and has been released as a guideline for separated families to consider when making the necessary decisions about contact arrangements.

 

  1. Parental Responsibility lies with the Mother, and the Father (who is named on the birth certificate, or married to the Mother, or has a Parental Responsibility Order in their favour) of the child. It does not lie with the Courts. It is down to the parents to make the decisions in the best interests of the child. If you believe your child, yourself, or someone in your household is at risk, then you should isolate in line with the Government’s Guidelines.
  2. You must continue to act in line with the Governments ‘Stay at Home Rules’, put in place on 23 March 2020. Under these rules, it is no longer permitted for a “a person, and this includes a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work”.
  3. Contained in the Stay at Home Rules, is guidance relating to child contact arrangements stating that “where parents do not live in the same household, children under 18 can be moved between their parent’s homes”. The guidelines do provide an exception to the ‘Stay at Home Rules’, however it is important to note that this is not mandatory. The Government have stated that you should make a sensible assessment of all the circumstances, and whether this is in the best interests of the child and immediate family around the child during contact. For example, if someone in the household is at high risk, contact should be suspended at this time.
  4. Separated parents should communicate with one another, and if possible, come to an agreement as to a practical solution. It is understandable that parents who have limited contact with their children will be frustrated, however it must be considered first and foremost, the best way to maintain the child’s safety. Even if one parent believes contact is safe, the other parent may completely disagree and feel genuinely worried about the situation.
  5. If a Child Arrangement Order is in place, and parents wish to suggest alternative contact arrangements or vary the Order, they are free to so do. To avoid disputes, parents should write this agreement down, by way of email, text message or paper.
  6. If one parent wishes to vary the Court Order due to sufficient and reasonable concerns, that parent may exercise their Parental Responsibility to vary such Order to ensure the protection of their child, to one they consider to be safe.
  7. Should this be raised at any Court hearing, the view of the Court would be to consider whether the parent acted reasonably and sensibly in light of the official advice, along with any evidence relating to the child or the family.
  8. As noted in our previous blog, parents who are unable to see their children during this time should be offered alternative contact to maintain the relationship, as well as being offered remote contact, whether through Skype, FaceTime, WhatsApp or any other video connection. If this is not possible, the parent should be offered contact via telephone.

The overall note is to ensure you act within the best interests of your child to ensure their safety.

 

Still have questions? Please do not hesitate to contact the Family Team on 01942 206060.

 

 

The dangers of DIY leases

Gemma. March blog photo

The dangers of DIY leases

It may be tempting for both landlords and tenants of commercial properties to try and save money on legal costs by dealing with the matter between themselves. There are a number of downfalls that a landlord / tenant may fall foul of. Commercial property Solicitor, Gemma Eastham, looks at the pitfalls.

SDLT liability – tenants

Whether SDLT will be payable will generally by determined by whether a premium is being paid for the grant or assignment of the lease, the value of the annual rent per annum and the length of the lease.

Where no SDLT is payable, a tenant may still be required to notify HMRC (submit a return to HMRC).

Failure to submit a return and pay the duty (if any) within 14 days of the effective date of the transaction will lead to a fixed penalty of £100 and interest being charged on any SDLT and if the date of submission is more than 3 months after the filing date, the fixed penalty will increase to £200.

When do you need to register a lease at H.M Land Registry?

Leases granted for a period of more than seven years and certain other types of leases need to be registered at HM Land Registry.

It is worth pointing out that any easements contained in a lease, such as rights to access the demised premises through common areas or the use shared facilities, i.e car parks, will not take effect at law unless they are registered, even where the lease itself does not require registration.  For a tenant, it is therefore important to ensure that any registration requirements are adhered to.

Unwritten tenancies

Unwritten tenancies are dangerous for both parties to a commercial tenancy because there is no clear record of the terms that have been agreed.

A landlord, for example, will have no right to forfeit the tenancy in the event of a breach of the terms of the agreement because an express forfeiture clause is required for this.

With a business tenancy it is important to ascertain whether the agreement is within the security of tenure provisions contained in the Landlord and Tenant Act 1954 (the right for the tenant to renew the tenancy at the end of the term).  If there is no express clause excluding these provisions in the agreement and the Landlord and Tenant Act 1954 has not been ‘contracted out’, the tenancy will be deemed to be within the Act.

This means that the tenant will generally be entitled to request a new lease from the landlord at the end of the contractual term of the existing lease. The landlord would only be able to bring the tenancy to an end by serving notice on the tenant in the prescribed form, which requires the landlord to give the tenant not less than 6 months’ notice.

This may affect any provisions which have been agreed between the landlord and tenant.

For example, a landlord and tenant may have verbally agreed that either party can bring a lease to an end by giving one month’s notice to the other party. Legally, the landlord would not be able to rely on this provision and would need to follow the above statutory procedure (6 months’ notice).

The full extent of this topic could be covered in something far longer than a blog, but these are some key areas that both landlords and tenants should consider before proceeding. Seeking appropriate legal advice at the outset could potentially save a landlord and/or tenant money in the long run. Legal advice is always recommended.

For further information, please contact our Commercial team at MBH Solicitors:

http://www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD.

 

 

Children Matters and the Courts – What Orders Can I Apply For?

An application is often made to the Courts when there are disputes between parties in respect of children matters. It is often the case that other forms of dispute resolution, including solicitor’s negotiations and Mediation, is unsuitable or unsuccessful, given the height of emotions when dealing with sensitive matters. Mediation however, is a requirement before applying to the Courts.

Contained within Section 8 of the Children Act 1989, there are 3 orders which can be applied in the Family Courts. These are:

  • Child Arrangement Order
  • Prohibited Steps Order
  • Specific Issue Order

The mother of the child/ren can apply for any of these orders, and the father of the child/ren may do the same, providing he is named on the birth certificate. Should this not be the case, or the applicant is another family member, they should firstly apply for leave (permission) of the court to make the application.

 

Child Arrangement Order

A Child Arrangement Order is an order which formalises contact arrangements between the parties. Such order will state exactly what time the child/ren should spend with each party, as well as any indirect contact. There are orders which will provide which party member the child/ren is to live with. An order provided by the Courts is an enforceable order, meaning if this is breached, the matter can be returned to Court for Enforcement proceedings. This is often required when parents are unable to agree on contact arrangements.

 

Prohibited Steps Order

A Prohibited Steps Order is an order from the Court which forbids a party from doing something which relates to the child/ren. For example, a Prohibited Steps order can be placed on a party who intends to move with the child/ren, to another part of the country, without prior consent of the Mother/Father. In essence, a Prohibited Steps Order places a restriction on a parent’s parental responsibility of the child/ren.

 

Specific Issue Order

A Specific Issue Order is an order which can arise following the dispute over a particular issue. This could be, for example, in relation to the child/ren’s schooling, medical treatment, surname, and so on.

In all cases brought to the Family Court, a supervisor from CAFCASS (Children and Family Advisory and Support Services) will be involved, even prior to the initial hearing. The role of CAFCASS is to consider all aspects of the case and provide recommendations to the Court as to what they believe to be a reasonable outcome.

Whilst making any decisions, the Court will have regard to Section 1 of the Children Act 1989, and the Welfare Checklist. The Courts paramount concern is the safety and well-being of the child/ren.

 

Have you had troubles with your former partner, or family member in relation to children matters? Please contact us for a free 30 minute appointment with Gillian Lavelle, or Megan Brookfield on 01942 206060.

 

Childrens matters and court orders - blog

Civil Partnerships for opposite sex couples!

On 31st December 2019 , legislation allowed allows heterosexual (‘straight’) couples to enter into a civil partnership rather than marriage if they so wish. Until now, civil partnership has only been open to same sex couples.  As a result of the landmark case, this injustice was deemed by the Supreme Court last year to be discriminatory and it was always hoped that this ruling from the highest Court in England and Wales would persuade the Government to amend the Civil Partnerships Act (2004) to open it up to heterosexual couples. This has now happened.

What is the difference between living together (cohabiting), civil partnership and marriage? In the simplest of terms, the last two provide a legal formality around a relationship; a civil partnership is a legal contract entered into by both parties which carries all of the same benefits and obligations as marriage without the religious ceremony element.  Consequently, it is being viewed by some as a more ‘modern’, ‘business-like’ recognition of a relationship whilst marriage is deemed more traditional, steeped in culture and religion. From a legal perspective, there is no obvious difference between the two but there are significant benefits and obligations to having your relationship status legally recognised.

On the other hand, cohabitation has been the only alternative for heterosexual couples who have not necessarily wanted a religious endorsement of their relationship through marriage. The downside of course is that cohabiting couples do not necessarily benefit from the advantages of a legally recognised relationship whether this is during the happy times of living together, if they separate or indeed when one partner dies.  Some couples therefore enter into cohabitation agreements which is a contract drafted by solicitors that can regulate what should happen if they separate.  However, this does not protect them if one partner dies unexpectedly.

What are the issues that may drive couples to think about moving from cohabitation to civil partnership? A recent article https://wigan.qlocal.co.uk/wigan/news_list/First_opposite_sex_civil_partnerships_to_take_place_on_New_Year%27s_Eve-55042478.htm reported that a heterosexual couple from Wigan might be the first in the Borough to take advantage of the new civil partnership legislation. Having been together for many years, they have amassed significant joint assets and want to make sure that each is taken care of if their relationship is brought to an end one way or another.  For many, what happens to money, possessions and pensions following the death of one cohabiting partner is a real concern as the surviving cohabitee won’t necessarily ‘be the beneficiary of the estate’ unlike if they were married. Other issues which can be affected by the status of your relationship include: entitlement to occupy rented housing, caring for children, tax allowances and welfare benefits.

If you are thinking about entering into a civil partnership and need advice on any aspect including procedure, benefits and obligations, please contact us.

We offer 30 minutes free initial advice appointments and also offer payment plans. 

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

Family courts ‘running up a down escalator’ due to increase in cases

In recent years, particularly since 2016 onwards, the family Courts in England and Wales have seen a sudden surge in private law childcare matters. Sir Andrew McFarlane (The President of the Family Division of the High Court) compared the process of the overloaded Family courts to “running up a down escalator”.

Recent reports tell us that the result of such an increased demand in applications means that the Courts are becoming strained and overburdened as their time is being stretched to its maximum in order to hear more cases. This is leading to some lengthy delays which can be very frustrating for those involved in proceedings.

After a recent review of the Family Court system, it was found that in most cases it would be more beneficial for families to avoid an application to the Court altogether and settle issues outside of Court. Reports suggest that in the region of 25-33% of family law cases do not involve safeguarding issues, such as domestic abuse, and applications can simply be as a result of a dispute between the parents. Further, the outcome of a case may not necessarily be the most desirable for the parties involved and a better more flexible agreement could have been formed through other dispute resolution methods, such as mediation. This is because only a limited amount of the Court’s time can be afforded to any one case. The advantage of out of Court resolutions such as mediation is that any arrangements can be more flexible and will often offer a better solution while avoiding any resentment that can occur from Court proceedings. The Court will always say that they seek to focus attention on the parents to be able to work together in the interests of their children and that an application to the Court should always be a last resort.

For more information regarding mediation or the Court process in relation to children matters, do not hesitate to contact our experienced family team at McCarthy Bennett Holland who will be pleased to assist.

We offer 30 minutes free initial advice appointments and also offer payment plans. 

Please contact our Head of the Family Department, Gillian Lavelle if you wish to discuss any of the above further.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

 

I’ve been ordered to attend a Separated Parents Information Programme – What Does This Mean?

A Separated Parents Information Programme (commonly known as a SPIP) is a course which parents can be ordered to attend as part of family Court proceedings regarding their children.

When this is ordered by a Court, it is free to attend and usually lasts in the region of about 4 hours. In some areas courses can even be attended at the weekends so this can be arranged around work commitments. Both parents will be ordered to attend the course. However, you do not have to attend the same session as the other parent, meaning you are free to fully engage with the course material separately.

The purpose of the course is not to tell anyone about how to be a parent but is intended help parents understand how to put their children first, even when they are separating and in dispute with the other parent. The course intends to provide guidance to parents as how to manage any dispute and difficulties when they arise so decisions can be made by parents jointly and in the best interests of the children.

Recent guidance and research tells us that when parents are not able to manage conflict this can lead to parental alienation for a child. This can make a child feel unloved by one parent, mean that they have limited contact or make them feel like they have to choose between their parents. This can lead to issues for the child as they grow older with personal relationships, mental health and their education.

The purpose of the SPIP is to provide helpful guidance to parents to prevent the children from being at any risk of any such harm following the breakdown of their parents’ relationship and to allow parents to minimise conflict, co-parent and to ensure that their children retain their own voice to express their wishes and feelings in the two separate households.

For more information regarding the SPIP please visit https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/separated-parents-information-programme/ or contact our experienced family team at McCarthy Bennett Holland who will be pleased to assist.

We offer 30 minutes free initial advice appointments and also offer payment plans. 

Please do not hesitate to contact our family solicitors Gillian Lavelle or Kim Busby if you wish to discuss any of the above further.

www.wigansolicitors.com Tel: 01942 206060 Address: 26 Bridgeman Terrace, Wigan WN1 1TD Twitter: @MBHSolicitors

 

DIVORCE ‘BLAME’ TO COME TO AN END?

At the moment to obtain a Divorce, the Petitioner (person issuing the divorce) has to prove that there has been an irretrievable breakdown of the marriage evidenced upon the ‘fact’ of adultery, behaviour, 2 years separation with consent, 2 years desertion or 5 years separation with no consent. This has meant that anyone wanting to divorce their spouse sooner than 2 years has had to ‘blame’ the other party for the breakdown of the marriage.

There have been calls for a number of years from many sources, including Resolution, to end the stigma of blaming each other (adultery / behaviour) to enable a Divorce to be obtained now rather than later instead of waiting the required 2 years. Therefore, the news that the Government is willing to end the ‘blame game’ is welcomed by our family law practitioners with open arms.

This introduction of a “no fault” system is huge. It represents the biggest change in divorce law in 50 years.

Irretrievable breakdown of a marriage will be remain as the sole ground for divorce. However, the requirement to provide evidence of a ‘fact’ in support of this will be replaced with a requirement to provide a more simple statement of irretrievable breakdown thus removing the concept of blame.

Further, we understand that the government is proposing to remove the ability of one spouse to ‘contest or defend’ a divorce in court and there are even plans to look at both parties providing notice jointly of their intention to divorce.

This will of course assist the parties to negotiate without the need for blaming each other and hopefully ensure that related children and financial issues following the parties’ separation can be less confrontational and stressful.

Read here what Resolution has had to say about the news: http://www.resolution.org.uk/news-list.asp?page_id=228&page=1&n_id=394

Gillian & Kim are both members of Resolution and will always try to help couples deal with the consequences of relationship breakdown with as little acrimony as possible.

We also offer initial FREE 30 minute appointments, payment plans and where possible ‘pay at the end schemes’.

Contact us today on 01942 206060 to arrange an appointment.