Follow link below to watch the new dbs family law advert

http://www.youtube.com/dbslawltd

Government makes concessions on definition of domestic violence

The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) returned for report stage in the House of Lords on Monday. The government has made concessions in relation to the evidence needed to prove domestic violence, following an amendment proposed by former Attorney General, Baroness  Scotland, founder of the Eliminate Domestic Violence Global Fund.

The present proposals, if they had gone ahead, would have restricted legal aid to victims of domestic violence who are able to provide evidence such as a non-molestation order, a criminal conviction against the perpetrator or an active child protection plan within the preceding twelve months. This would have severely restricted the right of victims to obtain access to justice, given that many victims are afraid to report incidents of domestic violence, and many suffer harassment or intimidation which falls short of being actual physical abuse. Evidence such as records of a police call out, using the services of a women’s refuge, or medical records, would not have been sufficient under the proposals, and the concessions    are to be welcomed, to assist victims to obtain legal protection and to escape from abusive relationships.

The government has now accepted the broad definition of domestic violence used by the Association of Chief Police Officers, which covers psychological and emotional abuse, as well as physical abuse. Financial abuse, for example by controlling a partner’s finances, will also be regarded as domestic violence.

This widening of the scope of the definition of domestic violence should ensure that victims suffering from abuse from partners will continue to have access to legal aid for themselves and for their children. This will give them the courage to break free from the cycle of abuse that they are suffering from, giving them the confidence to make a fresh start in their lives.

Review of Adoption Process

A recent review of the adoption process has shown that on average it can take over two and a half years before a child is placed into the care of adoptive parents. It has been proposed that performance tables containing details of the performance of each local authority, assessed by reference to various key indicators, should be published. The aim of this is encourage discussion and debate and ultimately to reduce the delays that are currently being experienced within the adoption system.

Follow link to read full story http://www.bbc.co.uk/news/education-15492467

Treatment of lottery winnings in recent matrimonial case

Lottery win share awarded to ex-husband by court. A hotel porter has won £85,000 of his ex-wife’s £500,000 National Lottery prize in the High Court because she had used some of it to buy a family home. Read full story here (via www.bbc.co.uk) 

http://www.bbc.co.uk/news/uk-15331543

Proposals for Reform of Child Maintenance Scheme

 The government has made proposals for a new child maintenance scheme, its aim being to reform the present scheme which is felt to be complex and over-bureaucratic.  

The government has proposed a charge of either £100 or £50 for those on benefits only, if they require the help of the state to obtain child maintenance. Initially parents viewed the Child Support Agency as the default option in relation to child maintenance following a separation. However the government by introducing these charges reinforces its view that it wishes for parents to try to agree between themselves what child maintenance should be given.

The government has introduced a gateway to the scheme to ensure that parents are first supported to take responsibility and make family based arrangements before they resort to the statutory maintenance system. The introduction of charges is intended to encourage families to make choices which are in the best interests of their children. The choices by parents can be made at various points to avoid the application of fees.

It is at the mandatory gateway stage parents will receive full support and advice so that they can come to their own arrangements for the child maintenance which is to be received. If the parents wish to bypass the gateway stage then the charge will be applied. The charge for those not on benefits will be £100 upfront whilst those on benefits would pay £20 paid upfront and the remaining £30 in instalments with the further instalments only becoming payable if maintenance is in payment.

The charges would be placed on both parents, to ensure fairness. As a result a collection surcharge on the non-resident parent will be introduced as a contribution towards the cost of the service. The surcharge will be applied as a percentage of the maintenance which is due to be paid. Although the level of the collection surcharge is still being considered, it is proposed that it will be between 15% to 20% on non-resident parents and between &% to 12% on parents with care. If however the parents choose to make a mutually agreed family based arrangement then they will pay no charges.

This overall is a scheme designed for the parents to co-operate especially whilst undergoing separation. The guiding principle is that parents will achieve what is best for them as the child maintenance payment will be agreed mutually by both parents.

COLLABORATIVE LAW

WHAT IS IT?

Collaborative Law is an innovative way of resolving family disputes without having to go through the court litigation process. It enables people to reach solutions together, by encouraging them to enter into open and honest discussions with each other, with their respective lawyers at their side, the aim being to ease the pain of relationship breakdown. One of the main objectives of the collaborative process is to give the parties the chance to work towards building a new future following the breakdown of their relationship, with as little acrimony as possible. It encourages them to discuss their issues, at a series of face to face meetings, rather than embarking on the alternative route of court based litigation. It is different to the process of mediation, as each party receives advice from their own lawyer, as opposed to discussing their issues with an impartial third party, who is unable to give specific legal advice to each of them.

HOW DOES IT WORK?

In the collaborative process, people are empowered to work through the issues of their children and their finances, at four way meetings, attended by themselves and their respective lawyers. The number of meetings that are needed depends on the circumstances and complexity of each individual case. A factor that may be relevant in deciding how many meetings are needed will be whether there needs to be an input from independent financial consultants, if the financial issues are complex. This input could be in the form of a report from the financial expert or it could be by his/her attendance at one of the face to face meetings. Another factor that may have a bearing on the number of meetings needed to resolve the issues, will be whether a family consultant, such as a counsellor, psychotherapist or other expert to provide family support, is needed to work with one of the parties or even with the family as a whole, to provide support throughout the process. There may be complex pension issues which require the involvement of a pension actuary to advise on valuation or the various options available, in terms of solutions concerning the pensions of the husband or wife.

WHAT ARE THE REQUIREMENTS?

The collaborative process can only work if the following requirements can be met:

both parties are open and transparent about their finances and the issues concerning their children;

there is a commitment by both parties and their respective lawyers to use their best endeavours to make it work;

they are willing to sign an agreement with their respective lawyers that if a solution is not reached, they will not be able to use the same lawyers to go through the court litigation route, they will each have to instruct a different lawyer;

both of them instruct lawyers who are skilled and trained in dealing with matters in this collaborative way;

WHAT ARE THE BENEFITS?

The parties will receive advice and assistance from their own lawyer throughout the whole process;

 They retain control of the timetable, and don’t have the court controlling this;

 The issues to be decided are set by them, resulting in discussions being focused on matters that are

 most important to them;

 Contact with the former partner is maintained, and this enables them to find the best outcome for the whole family, with the advantage that each of them understands where the other is coming from, in the proposals being put forward;

If children are involved, it will enable the parties to come to much better arrangements for co-parenting of them in the future.

If you require more information, contact the Head of Family Law at DBS Law, Farhat Akbar, who is a Resolution trained collaborative lawyer. 

Parenting Information Programmes – by Guest Blogger Katarzyna Michalik

A Parenting Information Programme (PIP) is a national CAFCASS programme increasing the awareness of the effects on children of parents’ behaviour during separation and divorce proceedings. The main aim of the programme is to help parents, following the breakdown of their relationship, to understand what effect the whole process has on their children and how to behave and act in a more constructive and effective way as a family to reduce the conflict. During this difficult period of divorce or separation, parents are frightened about the change this will have on their family life. It can be very hard for them to focus clearly on matters beyond their own fears. They may be full of emotions which they cannot control and they are not always able to see the effect this has on their children. The pain of the ongoing situation also makes it impossible for them to put aside their differences and think about what is best for their children. A Parenting Information Programme aims to make parents more aware of the distress and upheaval they may be causing to their children, very often even without realising it. Parenting Information Programmes provide practical ways of devising good parental agreements which enable both parents to make better decisions about what is in the best interests of their children.

The whole programme involves two two-hour sessions with a mixture of exercises and group discussions, which are led by trained contact facilitators. All classes have been designed by relationship counsellors at Relate to help parents reduce conflict and learn to communicate more effectively. During sessions, parents are provided with information where they are able to consider where they are in their own ‘separation journey’. They will see a powerful video made by young people which dramatises the effect of parental conflict on children. This raises key issues for discussion and parents will go on to consider the needs of children in separating families and identify problems specific to their own situation. Time is spent looking at ways of improving communication with children and former partners. Finally parents consider the emotional aspects of separation and loss. They consider how they can move forward and identify their sources of support, including family mediation.

There is no charge for those who attend the Separated Parents’ Information Programme. Attendance on the programme will normally be directed by the court after having decided that this course will benefit the parents, because of the advice and support parents will receive. The courts are increasingly making court orders in children’s proceedings directing parents to attend such programmes, because of the perceived benefit to families.

The Role of CAFCASS in Court Proceedings – by guest blogger Katarzyna Michalik

CAFCASS, (Children and Family Court Advisory and Support Service) is a non-departmental public organisation, its role being to safeguard the welfare of children who are involved in family court procedings. CAFCASS reporters are appointed from the organisation, by the court, to look into cases in court proceedings, where issues arise concerning children and their family. The CAFCASS reporter appointed then has the task of investigating all the circumstances, which includes carrying out safeguarding checks with other organisations such as the police, schools and social services. The reporter then provides expert independent advice to the court in a report, with its recommendations on what it considers to be in the children’s best interests. Cafcass is independent of the courts, social services, education and health authorities and other similar agencies.

 The most usual court proceedings in which CAFCASS reporters become involved are separation and divorce proceedings or children’s proceedings where parents cannot agree on arrangements for their children themselves. As we know divorce or separation is often very upsetting and stressful for everyone, especially the children. Their family which is for them the whole world crumbles and parents may often be preoccupied with their own needs rather than focusing on what is in the best interests of their children. They may well argue and think about their own problems which makes it difficult to make good and reasonable agreements about their children.

 Other proceedings where a CAFCASS reporter may be involved are adoption applications, which involve cases where parental responsibility for a child is transferred permanently from one family to another. The role of the Cafcass reporter depends on whether or not the birth parents agree to the adoption. If the parents are in agreement, the Cafcass reporter’s role is that of a reporting officer, and he or she will ensure that the parents understand what adoption involves. The reporting officer will also make sure the parents are willing to agree to their child’s adoption freely and without any conditions. If the birth parents do not agree, the Cafcass reporter takes on the role of the children’s Guardian. The role of the children’s Guardian is to look after the child’s interests and report to the court on recommendations for the future care of the child. To do this, the children’s Guardian will consider all the papers about the adoption and will make enquiries including visiting the child, the parents, Local Authority and those who wish to adopt the child. The children’s Guardian will then write a report for the court.

 

 There is also the situation when children are subject to an application for care or supervision proceedings by social services. Children are only taken into care when it is believed that they are suffering or are likely to suffer significant harm from the way they are being looked after by their parents. Sometimes this is because their parents just aren’t doing a good enough job of looking after them and sometimes it may be because the parents have done something to harm their children. ‘Care proceedings’ is the term given to the legal process by which social services ask the court to make a decision whether or not a young person should go into care. If a care order is made, It means a court has decided that the social services department of the local authority, acting through its social workers, must make sure the children involved are safe and properly looked after. The court does this by giving social services a share of ‘parental responsibility’ for the children. This means social services, through its social workers, are requested to provide evidence to the court about the children and their family, so that the court is able to decide who the children are to live with and other important aspects of their day to day life, such as whether or not they should maintain contact with their biological parents if they are not to live with them.

 As we can see, the work of CAFCASS is very important and helpful. CAFCASS reporters have to look deeply into all the circumstances in situations where the parents do not wish to are simply not capable of focusing on what is best for their children. It is important to cooperate with CAFCASS and to realise that children, their welfare and their best interests should be the paramount consideration. We have to do the best we can to provide as good a childhood as we can for our children.

Update on Mediation

 Under government changes, most separating couples will be expected to try mediation before going to the courts. It means that parties to family proceedings have to first check whether mediation might be an alternative method by which they can resolve their dispute by attending a mediation information and assessment meeting. If they have not done this the court is likely on first hearing to adjourn the case pending attendance at such a meeting, due to non-compliance with the Pre-Action Protocol.

 

The initial session with a mediator will be made compulsory for parties in a family dispute intending to issue financial or children proceedings. Where either party or the mediator feels that mediation will not be suitable, the case will continue towards the court process. The new rules specify some exceptions to the requirement to attend mediation, such as cases involving domestic violence or child protection issues which will still bypass mediation and go straight to court.

 

The government hopes that these changes will save money and provide a more amicable solution where children are involved. Mediation is much cheaper than court proceedings and the costs per party can drop by several thousand pounds if mediation manages to resolve the issues.

 

Solicitors will have to hand a list of recommended mediators and they have to advise clients about the requirement to attend the initial compulsory mediation unless one of the exceptions applies to their case.

 

The new rules should make the whole procedure of resolving family disputes easier and faster than the court process. Hopefully, the government will save money, people will save time and money and what is more important, they will not fight with one another if have this alternative option of resolving their problems in a constructive and less hostile way.

 

However, it should not be assumed that mediation will be the solution to all family cases, and clearly where there is a risk to one of the parties, because of domestic violence, or where there are child protection issues involved, it will not be an appropriate way of dealing with the dispute.   

Parental agreements – the new idea in Poland – by guest blogger Katarzyna Michalik

On 13 June 2009, the amendments to the Polish Family Code came into force. The new version states, inter alia, about the necessity of parental agreement by the divorcing parents, if they both want to maintain parental authority. In accordance with Article 58 of the amended Act, adjusting on parental authority over the joint child the court takes into account the agreement of the spouses on how to exercise parental authority and maintaining contact with the child after divorce consistent with the best interests of the child. The court may grant parental care to one of the parents, limiting the power of another. It may also leave custody to both parents, but to do so parents must submit a plan on child care – “parental agreement”.

Parental agreements are very common practice in other states while in Poland it is still a very new option. The plan has to be prepared jointly by the parents. Their arrangements are respected by the court who takes the final decision on the agreement. Parental child-care plan is an agreeably adopted settlement of child needs and the future, determined primarily the child’s residence, the rules of meetings, principles of education in health and education.

Areas that must be taken into account:

• health care – visits to the doctors and dentists, care during illness;
• education – school choice, help with homework, parents-teacher meeting and participation in other school events;
• holidays, Christmas and Easter, a birthday – gifts, a reception, tours;
• sport and leisure activities;
• communication between parents – providing information, an overview of existing arrangements and changes, if it proves necessary;
• contacts with other family members (grandparents, uncles, aunties, cousins);
• discipline, education, extra sport classes – the rules and boundaries, to respect the principles of the other parent;
• responsibility for safety and child development – sexual education, providing information on drugs, contraceptives;
• exceptional situations – contacting the other parent
• financial issues – who and how much will provide maintenance;

In my view, even if the parental agreement is a new option under Polish law it is a very good one. Parents can jointly decide about their children, they can divide their custody among them and what is most important the child will keep contact with both parents.

 The best way to make a good parental agreement is through mediation.  A professional mediator will help parents to focus on the most important issues about which spouses can forget during the long divorce process.