Involvement of a Parent

Section 11 of the Children and Families Act 2014 has come in to force today introducing a rebuttable presumption that the involvement of both parents in a child’s life will further the child’s welfare.

The introduction of this section confirms that ‘involvement’ can be either direct or indirect and does not therefore provide an unequivocal right for the child to spend an equal division of time with both parents.

In reality the introduction of this section of the act is unlikely to impact upon proceedings before the court as in considering what is in the child’s best interests the Court must continue to have regard to the Section 1 criteria.  This provides that the Court shall have regard to:-

(a)                The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);

(b)              Their physical, emotional and educational needs;

(c)                The likely effect on the child of any change in their circumstances;

(d)               Their age, sex, background and any characteristics of theirs which the court considers relevant;

(e)               Any harm which the child has suffered or is at risk of suffering;

(f)                 How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;

(g)                The range of powers available to the court in the proceedings in question.

There will also be other changes coming in to effect from 3^rd November 2014 to hopefully assist more parents and separated couples in accessing mediation.  From the 3^rd November if one party qualifies for Legal Aid to assist with mediation then a non-qualifying party will be entitled to attend the MIAM (Mediation Information and Assessment Meeting) at no cost to them as well as the first mediation session.  There after, any non-qualifying party will have to pay for their costs associated with the ongoing mediation. 

If you wish to discuss any issues relating to the care of your child or family matters generally please contact our team of experts.  Contact details can be found at www.gamlinslaw.co.uk.  Alternatively please email me on sian.williams@gamlins.co.uk

Changes to the Law on Domestic Abuse?

Theresa May, Home Secretary, has announced that there will be a consultation on Strengthening the Law on Domestic Abuse.  This could result in a new offence being created which will provide protection for victims from coercive and controlling behaviour in intimate relationships.

 

At present the Government categorises domestic abuse as "any incident or pattern of incidents of controlling behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality".

 

Despite the Government using this definition of domestic abuse there is currently no single criminal offence of 'domestic abuse' to protect victims.  However, there are crimes such as assault, battery and harassment that do offer some protection.

 

The Consultation is looking at whether there should be a specific offence "outlining that coercive and controlling behaviour in an intimate relationship is criminal". 

 

If a new criminal offence is passed victims must be provided with support in accessing the criminal justice system.  Further, there will need to be training to front line police officers in approaching these matters in a way that does not intimidate the victims further.

 

This is a public consultation and you can have your say by visiting www.gov.uk.  The consultation closes on 15th October 2014.

Children to be heard in Court

In a recent speech Simon Hughes MP indicated that the Government will be moving to a regime whereby young people involved in public law (care proceedings) and private law (child arrangements) proceedings will have access to the Judge.

“Children and young people of 10 and over will therefore be given the chance to make clear their views in person or if preferred in another way”.

Mr Hughes also went further to suggest that the Government would work with mediation services to ensure that children have appropriate access to mediators in cases which affect them.

There is already provision in place for children to be represented in proceedings by a children’s Guardian, however the circumstances in which Guardian’s are appointed are limited.  If appointed by the Court the Guardian will represent the rights and interests of a child during a case.   The Guardian will, during the proceedings, prepare a report for the Court to advise on how best to safeguard the child’s interests which may not always correspond with the direct wishes of the child.

This planned move will give greater weight to the wishes of children in deciding where they should live and how often they should see each parent.

For older children whose parents are currently embroiled in difficult private law proceedings it may be seen as a welcomed opportunity for them to express their views and to have their wishes taken in to account. 

If you wish to discuss any issues relating to the care of your child please contact our team of experts.  Contact details can be found at www.gamlinslaw.co.uk. 

Is this the end of the Tenancy Agreement?

The Welsh Government issued a Consultation Document on Renting Homes in Wales this week which proposes to make rental agreements easier for both landlords and tenants.

If this comes in to force it will be the end of the ‘Tenancy Agreement’.  Going forward there will be two types of contract:-

1.        A ‘secure contract’ which will replace the secure tenancy agreements currently used by Local Authorities; and

2.       A ‘standard contract’ which will replace the current assured shorthold tenancy agreement.

Other than a change of name how will this affect you?

·         Contracts will consist of fundamental terms which cannot be removed from the contract.  This is in order to provide protection for both the landlord and tenants.

·         When the new Act is passed it is thought that it will provide that a written statement of occupation must be provided to the contract holder (currently known as ‘the tenant’) within two weeks of the effective date.  For each day the written statement is late the contract holder will not have to pay a day’s rent, up to a maximum of two months’ rent.

The current provision as to rent deposits will remain.  If a deposit is taken the landlord must lodge it with one of the Government Schemes within 30 days of receiving it and prescribed information must also be provided to the tenant/contract holder within 30 days of receipt of the deposit monies.

A failure to lodge the monies can result in a Court ordering the landlord to may three times the deposit monies to the tenant/contract holder and could delay a landlord from gaining possession of the property.

So are there any further changes planned?

Yes, there is currently a Bill before the Welsh Assembly for the implementation of Landlord Accreditation in Wales.  The scheme, which does already exist on a voluntary basis, recognises good landlords.  The scheme works by providing an accreditation to the landlord acknowledging their professional dealings.

To become accredited you must attend a development course which currently costs £75, if you book on line and £90 if you apply in writing.  The accreditation will last for five years however, each year you must carry out continued professional development activities, it being recommended that you obtain 12 points per year to continue with your accreditation. 

If the Bill is passed it will become mandatory for landlords to have the accreditation before renting a property out or alternatively, if an agent is used to rent the property it will be necessary to ensure that the managing agent has the necessary accreditation. 

So whilst there are no immediate changes it certainly appears that they are in the pipeline for the next 12 to 18 months.

Watch this space for updates later in the year on whether the changes will be brought in to effect.

Social services are not above the law

It has recently been reported that Anglesey County Council have come under fire from the Courts due to Social Services acting unlawfully and refusing to return a 9 year old child to the care of his mother.

Judge Gareth Jones, the Family Judge for North Wales, said that ‘Social services are not above the law and they, like everybody else, is subject to it’.

In this case the Mother voluntarily consented to the child being placed in foster care whilst she received medical treatment.  Upon her treatment ending it is reported that the Mother withdrew her consent to the continued placement of the child however, social services refused to return the child.

Once a parent withdraws their consent to a voluntary placement that child should either be returned to the care of their parent or the Local Authority should commence legal proceedings for an interim Care Order for the continued placement of the child.  In this case the Local Authority did not commence legal proceedings and by unlawfully withholding the child from the Mothers care breached both of their Human Rights.

I would anticipate that this case will serve as a wake up call for all Local Authorities and remind them that they must act within the law. 

Gamlins Law have offices throughout North Wales.  Visit our website at www.gamlinslaw.co.uk for contact details.  Or alternatively please email me on sian.williams@gamlins.co.uk

Changes to Divorce?

It has been reported that Sir James Munby, the Family Division President, has suggested that there may be a change to how divorces are administered in the future with no fault divorces being dealt with by a Registrar.

The suggestion by Sir James Munby is that it would only affect divorces by consent in which there were no claims over money and children were not involved.  The question that this raises is whether or not the system would be open to abuse, especially of vulnerable adults.

Divorce rates have increased dramatically over the years.  In 1950 there were just over 38,000 divorces in England and Wales whilst in 2010 this had increased to almost 120,000.  In making the process of divorce simpler are you taking away from the sanctity of marriage?

I think that there is a role for the Courts to play in divorce and in the other arrangements that follow on from the separation of a couple.  I agree that where ever possible parties should try to reach agreement in relation to financial and children matters however, the presence of the Court can impress upon the parties the seriousness of their decision and also bring formality to such matters as financial arrangements.

There are no clear plans to bring these changes in to effect in the immediate future and only time will tell as to whether these proposals will ever make their way in to our legislation. 

Gamlins Law have offices throughout North Wales.  Visit our website at www.gamlinslaw.co.uk for contact details or alternatively please email me on sian.williams@gamlins.co.uk

Note – All views expressed in this article are of the personal view of Sian Williams and are not necessarily shared by Gamlins Law.

Behind the Headlines

The case of P (A Child: Assessment of Kinship Carers) [2014] EWFC B73 has recently been reported however, headlines regarding this case have been somewhat misleading.

This was a case relating to Care Proceedings of a three year old child.  During the course of the Care Proceedings the Mother submitted that her Father, the child’s Maternal Grandfather, should be assessed as a possible carer for the child.

An initial viability assessment of the Maternal Grandfather was conducted by the Local Authority and provided a positive indication.  Accordingly, the Local Authority proceeded with a full kinship assessment of the Maternal Grandfather.

The full kinship assessment of the Maternal grandfather was negative due to concerns relating to; domestic violence which had been witnessed by the Mother whilst she was growing up, alcohol consumption, drug misuse, anxiety and depression, smoking as well as concerns as to the stability of the Maternal Grandfather’s relationships.

The headlines have focused on the Court having rejected a placement with the Maternal Grandfather as he could not give up smoking however, as you can see there were a number of  other factors considered by the Court in reaching its decision. 

So what do the Court consider when determining issues regarding Care Proceedings and Placement Proceedings of a child?

When considering whether to make a Care Order the Court will have regard to the principles contained within Section 31 of the Children Act 1989.  The Court must be satisfied that:-

(i)                 The child concerned is suffering, or is likely to suffer, significant harm; and

(ii)               The harm, or likelihood of harm, is attributable to the care given to the child not being what it would be reasonable to expect a parent to give to that child or the child being beyond parental control.

In determining the issue of who should raise a child the paramount consideration will be the child’s welfare.

If the Court determines that a child cannot be rehabilitated to the care of a parent the Court must then consider the options available to the child. 

Guidelines provided in the case of Re B-S (Children) [2103] EWCA Civ 114 state that a Placement Order, where a child is placed for adoption, should only be made ‘where nothing else will do’.

In relation to this case, the Mother wished for the Maternal Grandfather to be considered as a carer for the child.  The criteria for considering a family member or indeed whether someone is suitable as a foster carer is closely regulated and Standard 13 of the Fostering Services National Minimum Standards sets out what should be considered.  This case particularly drew on sections 13.5, 13.6 and 13.7 which provide:

13.5)   Checks are carried out in line with regulation 26 and prospective foster carers understand why identity checks, relationship status and health checks, personal references and enquiries are undertaken about them and why enhanced CRB checks are made on them and adult members of their household.

13.6)   Prospective foster carers are considered in terms of their capacity to look after children in a safe and responsible way that meets the child’s development needs.

13.7)   The written report on the person’s suitability to be approved as a foster carer sets out clearly all the information that the fostering panel and decision maker needs in order to make an objective approval decision. The reports are accurate, up-to-date and include evidence based information that distinguishes between fact, opinion and third party information. The reports are prepared, signed and dated by the social worker who assessed the prospective foster carer and countersigned and dated by the fostering team manager or a team manager of another of the provider’s fostering teams.

 

This was a case where based on the evidence provided a decision was made to place the child for Adoption.  So as you can see, you should always look behind the headlines as to what the Courts actually considered in making their decision.

 

Prepared by Sian Williams.

 

If you wish to discuss any issues relating to the care of your child please contact our team of experts.  Contact details can be found at www.gamlinslaw.co.uk.  Alternatively please email me on sian.williams@gamlins.co.uk  

LEGAL AID: HOW IT AFFECTS YOU

As many of you will be aware April 2013 heralded a new regime to Family Law Cases as a result of changes to the Legal Aid System.

The implications for Family Court users has been vast and has seen the number of parties represented in Court Proceedings drop considerably.  The Law Society Gazette recently reported that Cafcass figures show that before the Legal Aid cuts in April 2013 that 22% of all cases involved both parties being represented at Court.  By December 2013 this had reduced dramatically to just 4%.

So where does this leave you?

At present, to qualify for Legal Aid/Public Funding you have to satisfy a number of criteria.  This includes a financial assessment of your means, a merits test, and you must also be  able to satisfy the Legal Aid Agency that there has been either domestic violence or child abuse perpetrated by the other party.

This last part of the test is not simple to satisfy and you have to provide documentary evidence to demonstrate either or both of these elements.  The criteria for these are  quite extensive, however Gamlins Law are happy to discuss with you whether you are able to qualify for assistance with funding from the Legal Aid Agency. 

Most recently the criteria has been extended to include evidence, by way of letter, from a Health Professional confirming that they referred you to a domestic violence support service within the last 24 months. 

In my experience those in abusive relationships do not always report the crime or seek assistance or support from a domestic violence support service.  They  can then find it  very difficult to face the perpetrator at Court in contact cases or in matrimonial proceedings concerning financial arrangements and the Government need to take steps to address this.

I suppose the question to ask is whether the changes are here for the foreseeable future.  I feel that for the time being they are here to stay however, challenges to the Legal Aid Agency are slowly starting to come to the forefront.   The recent case of JG v The Lord Chancellor and Other [2014] EWCA Civ 656 has provided significant headway on the issue of expert fees in Family Law cases.  In this case the Court of Appeal decided that the Legal Aid Agency’s refusal to meet the costs for an experts report ordered for a child in family proceedings was unlawful.  This does not mean that experts will always be funded by any party with a Legal Aid certificate and the Court will have to decide on the fact specific grounds of each case whether an expert is justified in that instance.  Essentially, this confirms the position that it is the Court who determines whether an expert report is required and for the Court to determine how that report is to be funded. 

There is also the case of Q v Q [2014] EWFC 7 in which a father was seeking contact to his children when a review of his certificate led to it being withdrawn.  In this case the father had convictions for sexual offences and an assessment of the father conducted during the proceedings determined that there should be no contact between the father and the children.  As a result of the father’s funding certificate being revoked The President adjourned the case and invited the Legal Aid Agency, Ministry of Justice and the Secretary of State to make submissions on the issue of funding.  This challenge to the removal of funding for the father raises issues as to whether there has been a breach of the father’s Human Rights as he has not had the benefit of representation when the mother has and also whether there may be any disadvantage to the child as a result of this.

Whilst this is a step in the right direction there is still a mountain to climb. 

Gamlins Law have offices throughout North Wales.  Visit our website at www.gamlinslaw.co.uk for contact details.  Or alternatively please email me on sian.williams@gamlins.co.uk

Note – All views expressed in this article are of the personal view of Sian Williams and are not necessarily shared by Gamlins Law.