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Can I enforce my English Financial Order for maintenance abroad?

This is very likely. England and Wales has reciprocal arrangements with countries around the world to enforce financial orders which are required to meet a person’s needs, such as child and spousal maintenance.

Can I enforce my English Financial Order for assets abroad?

The situation regarding assets which have been divided in the interests of fairness, such as property and pensions, is more complex. Enforcement depends on the order and where it is going to be enforced. If you are divorcing in this country, but have property abroad, it is advisable to gain legal advice before any agreements are made.

Can I enforce my foreign Financial Order in England?

This is usually possible if the divorce is recognised in this country, but it will depend on the arrangements that are in place between the English government and the country in which the order was made.

Legal Advice

For further advice, arrange a confidential meeting by calling +44 (0)20 7993 2936 or click here to complete a contact form.

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Although procedures are in place at English airports and ports to protect children from international child abduction, the ease with which we now travel around the world means that it can happen.

It is important that anybody affected by child abduction takes the earliest possible advice from a specialist solicitor.

I believe my child is going to be taken to live overseas without my consent, what can I do?

It is important to act quickly to obtain a Prohibitive Steps Order to prevent the child’s removal and/or contact the police if you believe they are to leave imminently.

My child has been taken overseas without my consent, what can I do?

If you have Parental Responsibility and your child has been taken from England and Wales, there are legal steps you can take to recover them. To increase the chances of the child being successfully returned home, it may help to start legal proceedings in both countries. In this situation it is important to take early legal advice.

We live in more than one country, will this affect the case to have my child returned?

 It is not uncommon for international families to have homes in more than one country if, for example, one parent has a job that requires them to spend time in different places. In these cases, it can be more difficult to establish where the child’s usual home is, but you should still be able to make the case that the child has a strong degree of integration into the social and family environment in the original country.

Is child abduction the same as kidnapping?

Child abduction is the legal term used to describe the unlawful removal of a child from their country of residence by someone connected to the child. It is distinct from kidnapping, which is abduction by a stranger, and should be dealt with by the police.

Legal Advice

For further advice, arrange a confidential meeting with one of our international child custody lawyers. Call us on +44 (0)20 7993 2936 or click here to complete a contact form.

 

 

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This is the law of the country and Brexit has not changed anything.

Practically speaking, anyone attempting to leave the country with a child needs to be able to prove that they are legally entitled to do so, or that they have the correct consent, regardless of where they are travelling. Anyone who has travelled abroad alone with a child or has a different family name is likely to have experienced this first-hand.

However, this system is not infallible and does not protect against the possibility of a child being taken overseas legally then not returned.

IF YOU SUSPECT SOMEONE IS PLANNING TO ABDUCT A CHILD
If you believe your child is at risk of being abducted internationally you should inform the police and seek immediate advice from a family solicitor who can help you to obtain a Prohibited Steps order to prevent their removal from the UK. Such orders are enforceable by the police and carry legal consequences if breached. In some cases, the Court will order that the child’s passport is revoked or prevent one from being issued.

To protect yourself and your child, it may be advisable to put a formal Child Arrangements Order in place so that parental responsibilities, living and contact arrangements are clearly defined and can be enforced if necessary. If you are having difficulty agreeing arrangements for your child, a family solicitor will be able to assist you with negotiations and help you to make an effective application to the Family Court if necessary.

Additionally, if you are concerned that a child is going on too many trips abroad, you can request that the Court imposes restrictions to keep the child in the UK for longer periods of time. It is advisable to seek legal advice to ensure there are suitable grounds for concern, before making an application to Court.

Reunite, an international organisation providing advice on child abduction situations, has produced a guide with detailed information on how to prevent child abduction and the signs to look out for, which you can read here.

IF A CHILD HAS BEEN ABDUCTED
There are no words for how worrying this situation will be, but there are laws and international agreements in place to help you secure the safe return of your child.

In the EU
The UK and all members of the EU are signatories to the Hague Convention, which was specifically created to protect children from wrongful removal across international borders. This convention sets out a procedure which is followed in cases of parental abduction, acknowledging custody rights and rights of access granted in signatory countries, to enable the child’s prompt return to their country of residence.

If you live in England or Wales and your child has been taken to or kept in a country that has signed the Hague Convention against your wishes, you can make an application for their return by contacting the International Child Abduction and Contact Unit.

Outside of the EU
85 countries have signed the Hague Convention so it is possible that it will still apply. In which case you will be able to make an application for your child’s return as outlined above. A list of Hague Convention members can be found here.

If your child has been taken to a country that is not part of the Hague Convention, you should contact the police immediately as they will be able to liaise with Interpol to establish the child’s whereabouts. Communication with the guardian who has taken the child will be key, as well as starting legal proceedings in that country to request the child’s return.

A family solicitor will be able to help with the international proceedings so that you can find the quickest and most efficient way of securing your child’s return. The Foreign and Commonwealth Office and the International Child Abduction and Contact Unit will also be able to provide advice.

Will the pandemic make it harder for a child to be returned?
Over the last year there have been attempts by parents to remove children to locations that are thought to have less risk from COVID. In one of the first reported cases in May 2020, a mother who took her child from the father in London to Greece was ordered to return the child after the Court found that Coronavirus is not justification for removing a child without consent.

Although the Courts are not operating at full capacity, urgent cases are still being heard and child abduction cases will be prioritised to ensure that children can be returned promptly. Even where travel restrictions have been imposed due to Coronavirus, the Courts have ordered the immediate return of children who have been abducted.

LEGAL ADVICE
If you need to instruct a family solicitor to assist with child arrangements or international relocation, you can arrange a consultation with one of our specialist family team by calling 020 7993 2936.

If you require urgent advice in relation to parental child abduction, Louise Allard (+44 (0)7505 343411) or Sabrina Bailey (+44 (0)7507 343443) can be contacted directly.

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In this blog we will first look at how jurisdiction is affected and then discuss the recognition and enforcement of orders, including child maintenance.

JURISDICTION
Which country will have the power to make decisions about my family?
Both EU law and the Hague Convention state that matters regarding children should be heard in the country in which the child is ‘habitually resident’. Habitual

Residence is a legal concept which is decided on each child’s circumstances. It generally reflects the country where the child usually lives, but there are exceptions so it is advisable to check with a family solicitor if there is any doubt about how it will apply to your child.

You should be aware that Habitual Residence can change over time and a key difference between EU law and the Hague Convention is that the Hague Convention enables jurisdiction to change if a child’s habitual residence has changed during proceedings. Whereas EU law assigns a jurisdiction for the duration of proceedings.

This is a notable difference for parents who regularly move between countries and wish for proceedings to take place in a particular country. However, it is unlikely to be a major issue as there is additional guidance that can prevent a change of jurisdiction if there are corresponding matters being considered in another signatory country.

Proceedings which began before 2021 continue to be governed by EU law so a change to a child’s habitual residence should not affect the forum in which ongoing matters are heard.

RECOGNITION AND ENFORCEMENT OF CHILD ARRANGEMENTS ORDERS

What do you do if you have a court order from the UK and you want to enforce it in an EU country?

If your proceedings began before 1st January 2021, it should be reassuring to know that Court Orders will be treated as if they were made under EU law, regardless of when they are issued. This means they will be automatically recognised by the country in which enforcement is being sought and enforced swiftly.

The Hague Convention will apply to all proceedings that start after 1st January 2021. Broadly speaking, orders made in a country that has signed up to the Hague Convention can be enforced by any other country that is also a signatory. This means that if an order is made in UK it should still be enforceable in all EU countries and vice versa.

However, it is likely that the enforcement of orders could take longer because orders made in countries under the Hague Convention do not have the same ‘automatic’ recognition as granted between EU member states. If you want to enforce an order in another country, you will first need to register the order in that country or obtain a ‘declaration of enforceability’. If this relates to contact it could cause delays in you being able to see your child, so it is advisable to speak to a family solicitor as soon as possible.

There are also some small differences relating to circumstances in which orders may not be recognised, so it is advisable to seek specific legal advice from a solicitor who is aware of the relevant international laws.

CHILD MAINTENANCE
Your child maintenance decision is still recognised in the EU if it was decided before 1st January or if your case was opened before then. If you have a decision you would like to be enforced, you can contact your nearest Maintenance Enforcement Business Centre who will be able to enforce this. There are two in England and one in Wales which you can look at following this link. If you are in Scotland you can contact the court where the maintenance decision was made or apply for a new order from the local sheriff court.

Although the process is straight forward, it might be useful to speak to a solicitor first if the enforcement of your order is urgent and you need advice.

LEGAL ADVICE
If there are any international considerations in your child arrangements, it is important to seek legal advice from a specialist family solicitor as soon as possible. A solicitor with international experience will be able to guide and support you in taking the correct steps both in the UK and abroad.

With the country in lockdown and many children still home from school, we understand that it can be difficult to speak about matters that you might not want them to overhear. You can email us to arrange a call at a convenient time or follow this link to start your matter online.

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Just like their parents, caregivers and supporters, children come in all shapes and sizes, with their own set of challenges to face.  

One thing they all have in common is that they thrive on love. 

At Allard Bailey Family Law, we thrive on helping families to form, grow and adapt to life's challenges.  From traditional to blended families and same-sex headed families, we advise married parents, cohabiting parents, single-parents and co-parents sharing custody of their children.

We advise all members of the family and caregivers acting in the best interests of children, helping them to find practical solutions so that children can be raised in a loving and supportive environment, often against the odds and in difficult circumstances.  

Examples of Recent Cases

  • Advising on a complex international adoption and obtaining an Adoption Order for a single parent.
  • Representing a mother who lived in Spain and had to issue proceedings in this jurisdiction in order for her son to be provided for.
  • Representing a temporary foster carer who wanted to be joined as a party to care proceedings so that she could challenge the Local Authorities recommendation.
  • Gaining an order allowing a mother to relocate to New Zealand with her children.
  • Successfully challenging false allegations made against a father in Children Act Proceedings, which had led to him having no contact with his child, and securing a shared care arrangement.
  • Obtaining a Parental Order for the parents of a child born to a surrogate mother in USA.

Guiding Parents on their Journey

We work with Mums and Dads at all stages of the parenting journey, finding sensible solutions to even the most sensitive issues.

Adoption

When you adopt a child, you become their legal parent, assuming all parental rights and responsibilities for them.  You will transform the child's life and they will transform yours.  

Adoption is a rewarding, but challenging journey that people start for many different reasons. For UK adoption you will receive support from the local authority but many people still require legal advice.  Learn more about UK and International Adoption here.

Surrogacy

Surrogacy is becoming more common in UK, but there are strict rules that must be followed so it is advisable to seek guidance from a Surrogacy Solicitor before making any arrangements in this country or overseas.  Learn more here.

Co-Parenting

Co-parenting refers to the situation when two people or two couples work together to raise a child usually in one of two circumstances:

1.  Where parents were once romantically involved, but are able to move forward amicably and work together to put the needs of the child first.  This can be a delicate relationship and both the parents and child may benefit from agreeing a detailed Shared Care Agreement.

2. As a route to parenthood for parents who have never been romantically involved.  If you are considering this arrangement, we would always recommend that you enter into a Pre-Conception Agreement to ensure you are on the same page before a child is conceived.  Learn more here.

We advise parents at all stages of the co-parenting relationship, when things are going well and when there are disagreements that need to be handled with sensitivity.

Parallel Parenting

When parents separate there is often a lot of emotion, which makes it difficult to make joint decisions about children.

Parallel parenting  limits the parents' interactions, whilst enabling children to maintain a relationship with both.

Over time, many parents transition to a co-parenting relationship where there is more collaboration, but for others co-parenting will never be an option.

We assist many parents who need to limit or prevent direct contact between themselves and their child's other parent on a short or long-term basis. 

We can help you find workable solutions to all types of dispute and create robust Shared Care Agreements (sometimes known as Parenting Plans) which are in the best interests of your child.


For an initial discussion about your situation, please call us on 020 7993 2936 or complete a Contact Form.
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Do I need consent from my child’s other parent before taking them to live overseas temporarily?

English law states that everyone with Parental Responsibility for a child needs to give consent for that child to be taken overseas for any length of time.  However, if your child lives with you and that is recorded in a Child Arrangements Order, you can usually take them overseas for up to 28 days without permission.  If you require consent, but this has not been given, you can apply to the court for permission.

Can I move overseas with my child if I do not have their other parent’s consent?

If the child’s other parent has Parental Responsibility, they usually need to give consent for that child to live overseas.  If they do not agree, you can apply to the court for permission to relocate.  It can take a number of months, or even years for the court to make a final decision, so it is vital that legal advice is sought at an early stage.

What documents do I need to take my child overseas?

We recommend that the child’s other parent provide a letter of consent, which contains their contact details so that its authenticity can be checked. If you have a Child Arrangements Order that states your child lives with you then you can take your child overseas for up to 28 without permission. It is a good idea to take a sealed copy of the relevant Court Order when you travel.  We recommend that you check with your Solicitor if you need to do anything else, such as having documents verified. If you do not have the same surname as your child, you may be asked to prove your relationship to them if you travel. In which case, we advise taking extra documentation such as a copy of their birth certificate, adoption certificate or your parental order, as well as any relevant divorce or marriage certificates.

Legal Advice

For further advice, arrange a confidential meeting with one of our international child custody lawyers. Call us on +44 (0)20 7993 2936 or click here to complete a contact form.

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Child Arrangements Order

Courts can make a Child Arrangements Order to set out where a child should live and who they spend time with. This replaces the previous custody, residence, contact and access orders.

Parental Responsibility

Parental Responsibility is the term used to describe the rights and responsibilities that parents have in relation to their children. A mother will always have parental responsibility. A father will automatically have parental responsibility if the parents are married when the child is born or if they are both named on the birth certificate (after 1st December 2003). Parental Responsibility can also be acquired if the parents sign an agreement or it is granted by the Court.

Specific Issue Order

Parties can apply to the Court to decide on a specific issue, for example what school a child should attend or whether they should have certain medical treatment.

Prohibited Steps Order

It is also possible to apply to the Court for an Order preventing a parent from carrying out a particular act or course of action, for example removing a child from the jurisdiction without consent.

Legal Advice

For further advice on any child law and child custody matters, please contact Louise Allard or Sabrina Bailey through the online enquiry form or telephone 020 7993 2936.

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Where does that leave people who want to reach a swift conclusion?

It is not surprising that our clients are increasingly looking for alternative methods to resolve issues that are already before the court or about to commence.  Whether the dispute relates to financial matters, property or arrangements concerning children, arbitration is an option that we are increasingly suggesting.

What is family arbitration all about?

Arbitration is a formal process that involves an impartial adjudicator who resolves the dispute in a private tribunal.  It is a process that can be used to resolve single issues as well as fully contested matters.

How does it work?

Arbitration is a voluntary process and both parties must agree to use arbitration to settle the issue(s) between them.

You can choose which arbitrator you wish to use based on their areas of expertise.  If you are unable to agree, there is a process available which will enable an arbitrator to be appointed for you.

During arbitration you present your case to the arbitrator who will make a decision that is final and legally binding.  A solicitor can advise about the process of arbitration and whether your dispute is suitable.

Is Arbitration suitable for child related issues?

Yes, providing there are no safeguarding issues. Since July 2016, arbitration has been available for children issues such as:

  • where a child should live;
  • contact arrangements;
  • educational or religious issues;
  • disagreements over a child’s routine or non life threatening treatment;
  • disagreement over a holiday abroad;
  • relocation within England and Wales and some international relocation (depending on the destination country in question)

There are some issues that cannot be determined by an arbitrator such as:

  • child abduction;
  • where the disagreement relates to an application to return a child to England and Wales from another country;
  • where there is a dispute over the administration of or management of life changing or life threatening treatment;
  • where a party lacks mental capacity or is a minor.

What about financial disputes?

Yes, these too can be resolved through arbitration with the added benefit of being completely confidential.  The process can be used whether you are/were married or living together.

What are the benefits of arbitration?

Arbitration is well suited to the ‘new norm’ of remote hearings via Zoom or Skype.  Many arbitrators will be experienced solicitors or barristers who are all currently using remote platforms to attend hearings and represent their clients.  Arbitration offers a wealth of benefits including:

  1. You choose the arbitrator
  2. Your arbitrator will hear the case from start to finish, ensuring consistency, which is often not possible in the court system
  3. You will not have to attend a congested court, where time is at a premium, and you will not be competing with other cases on your arbitration day. You can be assured that you will have the arbitrator’s whole attention
  4. It is private and the award (for financial issues) or determination (children issues) is never published, therefore confidentiality is guaranteed
  5. The decision of the arbitrator is binding (just like a court order) which gives both parties certainty
  6. The process is flexible and the parties can effectively decide upon the speed at which their case progresses
  7. You can choose where the arbitration will be heard. This can be at the arbitrator’s office or at a solicitor’s office. It offers a more relaxed experience for all parties
  8. In the long term, an early decision to arbitrate will enable both parties to avoid protracted and expensive court-based litigation
  9. If you both decide that an issue can be decided purely on paper, an arbitrator can consider the issue in hand and provide the award or determination in writing without seeing either of you in person
  10. You will receive the written award or determination from the arbitrator within 28 days, but often sooner. It is not uncommon to wait several weeks or sometimes months for a court to hand down judgment if it is not given on the day of the hearing itself.

It is also worth noting that you can apply to the court for an order to be made in the same or similar terms to the adjudicator’s award or determination, although this is not necessary.

What are the disadvantages?

As with all processes, what is considered an advantage by one person, may be a disadvantage to another.  A key point to note is that because the decision is binding, there are limited grounds to appeal an award or determination if you are unhappy.

What about the costs of the process?

Arbitration is usually less costly than court litigation, but this does depend on certain variables such as the fees of the arbitrator, or arbitrators, and whether you represent yourself or attend with legal counsel.

It is normal to share the fees of the arbitrator equally, although the arbitrator does have some discretion to order one party to pay more if their conduct during the process has been extremely unreasonable.

Is it for you?

In uncertain times, it is well worth exploring the benefits that arbitration has to offer, particularly when a court-based approach can be littered with delay.  Delay can increase legal costs and personal anxiety, which is unhealthy for anyone coping with family breakdown or trauma.

Legal Advice

We have highlighted arbitration as an effective alternative for those who would otherwise go to Court, but there are other Alternative Dispute Resolution (ADR) options available.  If you wish to explore whether arbitration, or another method of ADR, may be helpful in your case please get in touch with us at Allard Bailey Family Law.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form on this page.

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The safety and wellbeing of their children is of paramount importance to most parents, whatever their age.  However, few parents will realise that having an appropriate and valid Will is an essential tool in securing an underage child’s future.

Without a Will, your child may be set on a path that you would not want or have even envisaged.

By making a Will, you can be sure that your child or children are protected as best as possible.  This blog sets out some of the key facts all parents should consider.

Guardianship: Who Will Look After Your Child?
When both parents pass-away whilst a child is still underage, there is no one with parental responsibility who can take over the role of a parent.

Parental responsibility is a term used to describe the legal rights and responsibilities of a parent, which include housing, protecting and maintaining their child.  All mothers and most fathers gain parental responsibility when a child is born.  In some situations, such as adoption, parental responsibility will later be transferred to other responsible adults.

If there is no-one with parental responsibility to take care of a child, it will fall on the authorities to choose an appropriate caretaker. You may be surprised to hear that family members are not necessarily the people who end up caring for a child and, although they will try, it is not always possible for the authorities to house siblings together.

By making a valid Will, you can name those that you most trust to take care of your child as legal Guardians in the event of your untimely death. Furthermore, you can specify your wishes in terms of their upbringing to ensure they are cared for in the way you intended. c

Nominating guardians can be particularly important in complicated family situations where parents are separated and it may not be appropriate for the other parent to assume care of a child.

It is of course important to discuss your wishes with your preferred Guardians to ensure that they are both willing and able to fulfill this important role.

Your Child’s Inheritance
If you do not have a valid Will in place, the distribution of your assets will be governed by intestacy laws, which may be contrary to your intentions.  A valid Will ensures that your assets are distributed in accordance with your wishes.

If you are married or in a civil partnership, the majority of your estate would usually be inherited by your legal partner (this is the case if there are children from the relationship).

If you do not have a legally recognised spouse, your estate would usually be divided equally between your children.  However, English law does not allow for assets to be directly inherited by children until they reach the age of 18.  A ‘trust’ is therefore imposed when assets are left to minors in your Will.  You appoint executors or trustees who are responsible for looking after those assets until each child reaches a nominated age. In the absence of a Will, the law decides who becomes responsible, and again, it may not be the person whom you would personally entrust with such a responsibility.

If you are in the process of separation, you should be aware that your former spouse remains one of your heirs until your relationship has legally ended and could inherit your estate instead of your children.  Click here for further information on the importance of updating your will as soon as you decide to separate.

Even after you are divorced, if your ex-partner has parental responsibility, they could be appointed to look after your assets on behalf of the children. Some people will be comfortable with this, others will not.

Wills are not only for those with significant assets, they are a key tool in ensuring your children and their inheritance are protected.  It is advisable to use a solicitor to draft or at least check your Will to ensure that it will have the effect that you want.  Mistakes can mean that your wishes are not followed.

Legal Advice

For further information on preparing or contesting a Will please contact Sangeeta Rabadia or call 020 7993 2936 to schedule a virtual appointment.

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Parents with care are bearing the hidden costs of children being home all day. Such as additional utilities, food, entertainment activities and supplies for home schooling. Some have needed to reduce work hours or stop work completely during this period to provide round the clock care for the children. The financial impact means many parents with care are more reliant on child maintenance payments than before.

What if the paying parent’s income has reduced?
While the legal obligation for child maintenance is solely income based, it is advisable to consider the needs of the children as well as the situation of the resident parent before making changes. This is a difficult time for many children who are adjusting to staying at home. An unnecessary change in finance can prove detrimental to their wellbeing, so it is important to remain as child focused as possible. Because of this, some parents will choose to keep up payments.

If you pay child maintenance but cannot keep up payments whilst meeting your own basic needs, we recommend that you have an initial conversation with your former partner.  If you understand each other’s situation you may find a compromise such as reducing payments for a short period, or deferring payments while waiting for any applicable government finance schemes to come through.

It is important to note that if you are paying child maintenance through the Child Maintenance Service (CMS) they will only consider a formal adjustment if your salary has changed by at least 25%.

How long should any adjustments continue?
Whilst lockdown feels long, please remember that it is only a temporary measure and many income reductions will also be temporary. Any changes to child maintenance should reflect this.

Where safe to do so, we encourage parents to communicate and resolve financial issues together so that animosity is not created and does not continue when lockdown lifts. In all cases, changes should be recorded in writing so that evidence can be provided if either of you raises issues with the variation at a later date.

What if the paying parent has lost their job?
In this situation child maintenance payments could stop. Parents with capital may choose to continue supporting their children, others will be unable to do so.  In some circumstances, the non-resident parent may be able to provide valuable practical help instead. This could mean increasing their time with the children so the resident parent can continue working, or assisting with home schooling older children. Other practical assistance like providing a food shop, home school supplies or entertainment activities may contribute towards meeting the children’s overall needs during this difficult time.

What if our arrangement is more complicated?
Child maintenance is not always straight forward. In addition to family-based arrangements, there are more complicated arrangements through the Court or CMS.

Below we answer two specific questions about child maintenance payments.  The answers will provide some guidance on steps that you can take to remedy your own situation or when to seek help from a legal professional.

Question 1: My ex-partner has been furloughed and says child maintenance will stop

My ex-partner pays child maintenance through the Child Maintenance Service (CMS). His company has furloughed him and he sent me a message saying that child maintenance will stop immediately. I didn’t receive the payment for this month. When he has missed payments before I spoke to the CMS and they chased him, but I can’t get through to speak to them about this on the phone.

Answer: Many employees have been furloughed using the government Coronavirus Job Retention Scheme. Under the scheme the government pays 80% of the employee’s wages and the company can optionally chose to pay the remaining 20%.

If the paying parent has been placed on a furlough then it should not trigger any change in their weekly child maintenance liability. This is because the CMS only consider changes of income when they have increased or decreased by 25%.

The CMS is open, but experiencing a shortage in staff as many have been redeployed to work on speeding up Universal Credit claims. A reduced phone service is operating between 9am – 3:30pm Monday to Friday only. To ensure that the service is not overloaded they have notified all users that the service will only take calls in certain circumstances and will not deal with missed payments over the phone. If a payment has been missed or is less than expected, this must be reported through CMS online portal.

The advantage of notifying CMS through the portal is that evidence of non-payment can also be uploaded. This can include any messages from the paying parent stating that maintenance will be unilaterally decreased to nil, and bank statements to show incorrect funds have been received.

Unfortunately, due to delays caused by the global pandemic, CMS estimates it will take 6 – 12 weeks to process enquiries. However, rest assured that when CMS can deal with your case, they will be applying those arrears.

Question 2: I cannot afford to pay my court ordered child maintenance

I pay child maintenance for my two children which was agreed as part of a court order. I’m in a real financial bind with the pressures of the pandemic and I’m worried I could fall into debt. I just can’t afford to make ends meet and keep up payments on the place that I live if I also need to make these really high payments for the children. Can I vary the payments?

Answer: The options to vary child maintenance payments recorded in a Court Order very much depend on when the Order was sealed by the Court and the clauses contained in the drafting. Factors like the date, special clauses and the possibility of enforcement need to be considered.  We will look at each of these in turn.

Date – Any Court Order made in England and Wales between 5th April 1993 and 6th April 2002 (where the receiving parent is not in receipt of income support) must be varied through the Court as they retain jurisdiction.

If an Order was made after 6th April 2002 and has passed its first anniversary, the child maintenance element can be brought to the Child Maintenance Service for an assessment. The matter will only be considered formally transferred once the CMS have received the appropriate fee and full details of all parties. Once this happens the child maintenance clause in your Order becomes null and void.

It is also important to note, that CMS calculates on the previous tax year (2019-20) meaning that child maintenance liability could be increased or decreased when compared to your original Order. A recalculation is possible if the paying parent’s income has changed by 25% since the last tax year or if you are now in receipt of benefits.

If an Order is less than one year old, the child maintenance clause is binding and cannot be transferred to CMS.  Payments must continue until the first anniversary of the Order unless there is agreement of both parties or an application to vary is granted by the Court.

If you need to make a change, we recommend that you first contact the receiving parent to explain the situation. If that is not possible, or the desired progress is not made, a mediator or family solicitor could aid the negotiation process. We strongly recommend that any negotiation achieved should be recorded in writing, ideally in the form of a Consent Order and lodged with the Court.

In matters where negotiation is unsuccessful, it would be appropriate to ask the Court to review the Order, to decide if child maintenance should be varied.

Special Clauses – Some Orders contain special clauses such as contractual agreements and ‘Christmas Orders’.

Contractual arrangements can be stand alone or in addition to a Court Order. Where a parent has signed a contract to make maintenance payments, then varying payments would be breaching the contract. As changes to payments can result in serious repercussions, including being ordered to pay damages, judgement summons and potentially even bankruptcy, it is essential to seek legal advice.

Some orders contain what is known as a ‘Christmas Order’. This means that the child maintenance element of the Order renews annually and is therefore never over 12 months old. This means you cannot transfer the matter to the CMS. Any change to this Order would need to be by agreement of both parties and recorded in a further Consent Order or by application to the Court.

Risk of Enforcement – We strongly recommend taking take legal advice before making unilateral changes to Court Ordered child maintenance payments. This is because Court Orders made in the jurisdiction of England and Wales (while the paying party resides there) could be subject to an Enforcement Order.

A judge hearing such matters has a wide range of enforcement actions available to them including: ordering that any maintenance owed can be taken directly from earnings; placing a change on property or other assets; sending bailiffs to seize belongings; freezing funds in bank accounts.

As the repercussions are so serious and can have long term effects on your financial situation, it is important to take advice from a specialist at the earliest opportunity.

In summary, where there is a Court Order in place for child maintenance it is essential that you obtain the benefit of early advice.

Legal Advice

At Allard Bailey Family Law we can assist in leading any negotiations with your former partner, our extensive experience with both variations and enforcements allows us to provide guidance on what may be acceptable to Court.

To book a virtual consultation or telephone appointment with one of our team, please call 020 7993 2936.

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If I share care of my children can they move between houses during the stay at home campaign?

The short answer is yes.  We have all been asked to stay at home (subject to certain exceptions) but where parents do not live in the same household, children under the age of 18 can be moved between their parents’ homes.  Although this provides an exception to the ‘Stay at Home Rules’, it does not oblige you to move your children between homes.

If I share care of my children, do they have to move between homes?

The decision as to whether children should move between homes during the lockdown period is in the first instance a matter for their parents.  You have to consider the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in either household.  Communication with their other parent is key.

If you and your child’s other parent agree that current arrangements should be temporarily varied, you are free to do that.

If you do not agree, but one parent is concerned that continuing with current arrangements would be against current health advice, and therefore unsafe, then the parent can vary the arrangement to one they feel is safe.  Before making any changes parents should consider the detailed guidance at judiciary.co.uk.

Remember that if a child is unable to have direct contact with a parent during this time, they are likely to worry about that parent.  It is therefore important to maintain or establish indirect contact, such as video calls or phone calls, where possible.

If I lose out on time with my child now can I claim it back when this is over?

This is possible but there is no guarantee.  If you make interim arrangements in relation to contact to ensure that all parties remain safe and comply with Government guidance, you can also voluntarily agree for the parent who has lost time with a child to make this time up when life goes back to ‘normal’.  However, you should bear in mind that there is no certainty as to when this might be and any decisions made now and in the future will have to be the right decision for the child at the time.

What rights do I have if my child’s other parent is behaving unreasonably – not letting me have video calls with my child, listening in or anything else?

There has been clear guidance that where the Coronavirus restrictions mean that the usual arrangement cannot be followed the spirit of the arrangement should be followed.  With this in mind, it will be difficult for a parent to justify failing to facilitate any form of contact between the child and their other parent, such as video and telephone calling.

If parents are unable to agree alternative arrangements, consider whether a family member or trusted friend might act as a mediator between you.  Virtual mediation with a trained mediator can be a useful tool to help parents negotiate and agree how and when contact should take place.  If an agreement cannot be reached by this method, parents may wish to consider instructing a specialist family solicitor to facilitate the discussion and find a solution.

Either parent can make an application to the Court for a Judge to determine the arrangements for contact, but this is a last resort.  The Family Courts are currently under immense pressure with hearings set to be undertaken by video or telephone.  There is therefore likely to be a delay in cases being heard and resolved.

If a parent unilaterally changes the arrangements for contact and this is later questioned by the other parent in the Family Court, the Court is likely to consider whether each parent acted reasonably and sensibly in the light of the official advice and the relevant Stay at Home Rules that were in place at that time.  It is therefore important that neither parent uses the current circumstances as an opportunity to deprive the other parent of contact with their child.

What happens if one member of a household has Coronavirus or is in a vulnerable group, how does that affect child arrangements?

As per Government guidance, if a member of a household has Coronavirus symptoms including a new continuous cough and/or high temperature, they must stay at home for 14 days.  All other household members who remain well must stay at home and not leave the house for 14 days.

Following this Government advice will inevitably lead to some children being unable to have direct contact with one of their parents for a period of time.  It is in the best interests of the child that parents try to be understanding where these circumstances arise.  If the child is physically unable to spend time with their other parent, arrangements should be made to ensure that they remain connected.

Is there a limit on how far children should travel between households and what is the safest way to travel?

There is no limit, but a common-sense approach should be taken.  How far they should travel will in part depend on how they can safely get to their destination.

There is no specific guidance about the safest way to travel, but again common sense is key.  To limit possible exposure to Coronavirus many sources suggest that you walk or drive your own vehicle if you can and avoid public transport if at all possible.

The Foreign and Commonwealth Office issued advice on 17 March against all non-essential travel overseas.  International travel is becoming very limited as air routes close, land borders close and new restrictions are put in place that prevent flights from leaving.

How can I be sure that my child’s other parent’s home is hygienic and safe?

As a first step speak to the other parent so you can explain and agree on what you consider to be a hygienic and safe environment for the child.  You may wish to direct them to any Government guidance.  It might help to ensure that you are both on the same page and that could provide reassurance to both parents that contact is safe.

If I am in the process of a divorce and making arrangements for my children, will this affect it?

Not necessarily as arrangements for children are often made on an interim basis.  In this unprecedented global crisis any new arrangements will almost certainly have to be reviewed once the restrictions are lifted.  If a court order is being made now, it can be noted in the order that arrangements have been agreed to reflect the current health crisis and should not necessarily determine the final arrangements.

Is there financial support for family legal cases available?

Unfortunately funding for family law cases is only available in very limited circumstances.  In uncertain times such as these where many people have lost their jobs, it can be difficult to obtain specialist family law advice.  If you are struggling but cannot obtain financial assistance, you can contact your local Citizens Advice Buraeux who may be able to advise and will also have the details of local organisations that can provide help and assistance.

If you need to instruct a Solicitor to assist you with urgent Child Arrangements issues, Louise Allard or Sabrina Bailey can be contacted directly.

Louise Allard: +44 (0)7507 343411 louise@allardbailey.com
Sabrina Bailey: +44 (0)7507 343443 sabrina@allardbailey.com
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The key message is that “where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should be delivered by making safe alternative arrangements for the child”.

We advise that the same approach is adopted by parents with informal child arrangements.  If a child is unable to have direct contact with a parent during this time, they are likely to worry about that parent, so it is  important to maintain or establish indirect contact where possible.  This could take the form of video or phone calls as well as letters and email, you could also explore apps that enable the other parent to play with the child, do interactive homework or read stories.

The Rt. Hon. Sir Andrew McFarlane’s specific advice follows:

“This short statement is intended to offer advice but, as the circumstances of each child and family will differ, any advice can only be in the most general form.

  1. Parental responsibility for a child who is the subject of a Child Arrangements Order [‘CAO’] made by the Family Court rests with the child’s parents and not with the court.
    The country is in the middle of a Public Health crisis on an unprecedented scale. The expectation must be that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time.
  2. Parents must abide by the ‘Rules on Staying at Home and Away from Others’ issued by the government on 23 March [‘the Stay at Home Rules’]. In addition to these Rules, advice about staying safe and reducing the spread of infection has been issued and updated by Public Health England and Public Health Wales [‘PHE/PHW’].
  3. The Stay at Home Rules have made the general position clear: it is no longer permitted for a person, and this would include a child, to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
  4. Government guidance issued alongside the Stay at Home Rules on 23rd March deals specifically with child contact arrangements. It says:
    “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.”
    This establishes an exception to the mandatory ‘stay at home’ requirement; it does not, however, mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.
  5. More generally, the best way to deal with these difficult times will be for parents to communicate with one another about their worries, and what they think would be a good, practical solution. Many people are very worried about Coronavirus and the health of themselves, their children and their extended family. Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this.
  6. Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
  7. Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.
  8. Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection or, if that is not possible, by telephone.

The full statement can be found here: www.judiciary.uk/announcements

For further advice please read our next blog: Co-parenting During The Coronavirus Crisis: Your Questions Answered

If you require urgent advice from a Solicitor on Child Arrangements, Louise Allard or Sabrina Bailey can be contacted directly.

Louise Allard: +44 (0)7507 343411 louise@allardbailey.com
Sabrina Bailey: +44 (0)7507 343443 sabrina@allardbailey.com
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Click to read: FURTHER ADVICE ON CHILD ARRANGEMENTS DURING THE CORONAVIRUS (COVID-19) CRISIS**

We are in the midst of a global pandemic that is unprecedented.  While a number of areas are being addressed by the government and the news, there is currently no formal guidance on child contact arrangements between separated parents.

This is particularly difficult for parents who have robust court orders setting out precise contact arrangements.  It may feel that the plan has gone out of the window.  You might need the other parent to take on more childcare responsibility whilst you continue as a key worker, or you may be unable to facilitate handovers as you are vulnerable and need to self-isolate.

Whatever the situation, we would encourage you to remain child focused and ensure that the children’s needs are at the forefront of everyone’s minds.  Our advice is to adopt the most sensible approach and keep contact going if it is possible and safe to do so.  With schools and nurseries closed there will be a lot of uncertainty for children of all ages, so it is important to keep as much structure and normality as possible.

What to do if you are self-isolating?

If you are self-isolating because someone in your household is unwell or vulnerable, it is important to maintain some form of contact between the child and the non-resident parent. Sudden changes, such as the removal of a parent during an already difficult time, can be damaging to a child’s mental health.  Children who do not have contact with their other parent for many weeks may worry that the parent is unwell or even that they have passed away.

Consider video or telephone calls during this time to reassure the child.  Indirect contact may require some creativity so explore apps that enable the other parent to play with the child, do interactive homework or read stories to keep that level of connectivity up.  The postal service might be strained over the following weeks so make plans to use email for exchanging photos, updates and e-cards.

Where possible, plan with the other parent to make up time that has been lost during this period at a later date.

Contact Facilitated in Contact Centres

**Update: Contact Centres are now closed.**

As guidance from the government sees the closure of all schools nationwide, there is the presumption that this will also be applied to contact centres. On 13 March 2020, the National Association of Child Contact Centres issued its own guidance to all accredited contact centres that falls in line with NHS public health guidance.  This will not be applicable to independent centres.

Some contact centres are still running, but practising good hygiene by ensuring hand washing facilities and hand gel are available to all service users.  We strongly urge all contact centre users to make direct contact with their centre to confirm their policy and notify them if you or your child are too unwell to attend.

Existing Child Arrangements Orders

Parents with International Child Arrangements Orders will be the most affected.  In this situation, you have no option but to put face to face contact on hold until the Foreign Commonwealth Office advise that travel is safe.  We suggest that you agree to more frequent indirect contact during this time to reassure your child.

For parents with existing Child Arrangements Orders within the UK, these orders remain valid and must be adhered to as much as possible, where it is safe to do so.  The Courts will want to know that contact has only been stopped in legitimate cases where it is unpreventable or the child/parent is unwell.

It would be sensible to refer to your Order, as some do contain protocol for emergency situations or school closures.  All orders allow for agreements to be made between the parents.

Temporary Changes to Child Arrangements

Most parents will need to put a temporary alternative child arrangements plan in place.

Where both parents are working from home or off work during the pandemic, this may involve moving to the summer holiday part of your contact order, with an agreement that you will both be responsible for the child’s home-school learning.

For parents who usually facilitate handover via an elderly relative, it may be wise to line up a number of alternatives to step in.  For those who have contact at Grandparents’ houses, it may be wise to start contacting relatives to arrange an alternative venue or considering contact at the family home.

All arrangements will require a degree of practical flexibility.  We suggest this is best broached through a conversation with your child’s other parent to see if you can reach a solution between you.  If you struggle to have this conversation, then a family member or trusted friend might be able to broker an agreement.

Where the situation is more complicated or you are not making the progress you feel you should, you could benefit from the support of a solicitor.  At Allard Bailey Family Law, our solicitors are skilled and experienced negotiators and can act on your behalf.  You can rest assured that our modern working practices and flexible approach mean we are able to continue working throughout the pandemic to provide legal assistance tailored to your situation.

**On 24 March 2020 the Family Court issued specific advice, you can refer to our latest blog for the most current information.  Click to read: FURTHER ADVICE ON CHILD ARRANGEMENTS DURING THE CORONAVIRUS (COVID-19) CRISIS**

If you need to instruct a Solicitor to assist with urgent Child Arrangements issues, Louise Allard or Sabrina Bailey can be contacted directly.

Louise Allard: +44 (0)7507 343411 louise@allardbailey.com
Sabrina Bailey: +44 (0)7507 343443 sabrina@allardbailey.com

 

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For appointment enquiries call +44 (0)20 7993 2936 or email info@allardbailey.com

If you are not ready to speak to a solicitor, you can use our free family law portal to find out where you stand legally and the steps you could take to move forward when you wish to do so.

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As this week is Children’s Mental Health Week, we highlight how separation and divorce affects children, particularly when one parent encourages resentment and anger towards the other. We also share some practical tips for parents who believe they are experiencing parental alienation.

What is Parental Alienation?

Parental alienation is used to describe the situation when a child develops an unjustified resistance or hostility towards one parent as the result of psychological manipulation by the other parent. It effectively undermines and interferes with the child’s relationship with that parent.

Some parents do this unintentionally by occasionally saying or doing something detrimental, even though they want their child to have a good relationship with the other parent.

In high conflict divorce and separation, one parent may actively attempt to turn the couple’s child or children against the other. In such cases, the use of parental alienation is a clear sign of a parent’s inability to focus on their child’s needs.

It is distinct from situations where a child develops negative feelings towards a parent due to their own experience.

How does it affect children?

When parents separate, a child can feel as if their world has been turned upside down. It is common for children of all ages to experience feelings of loss, rejection, insecurity and fear of the unknown, which can lead to emotional and behavioural problems. Young children may express their vulnerability through sudden clinginess, nightmares, bed wetting and acting out of character. Teenagers may also act out of character, behaving rebelliously or withdrawing into themselves.

Parental alienation adds unnecessary distress and confusion. Studies have shown clear links between parental alienation and anger problems, educational issues, eating disorders and depression.

Research shows that what most children want and need in the middle of a divorce is to maintain healthy and strong relationships with both of their parents. They want to be shielded from their parents’ conflicts, not put in the middle of their power battles.

Is my child experiencing Parental Alienation?

If your child’s behaviour towards you is changing, it is sensible to consider the possibility of parental alienation. You should also be aware that many of the early signs echo the behaviour of a child who is feeling hurt or rejected.

If you are worried that your child’s other parent is turning them against you, we suggest that you first try to be honest with yourself about your relationship. Did you have a positive relationship with your child before your separation? How well have you communicated with them throughout your separation? Have you been consistent and kept your promises? Have they witnessed things during your separation that may have affected their perception of you?

Try to really listen to your child and consider their perspective when they explain their feelings, so that you can assess whether there is genuine cause for concern about anything the other parent is saying or doing.

What can I do?

If you believe that your child is experiencing parental alienation, or if your separation is affecting your relationship with them, we recommend that you act quickly and with empathy for your child.

  1. Open an honest dialogue with your child: Ensure your child knows they can come to you if they have questions about anything they have heard about you, or if there is something that worries them. All children, whether their parents are divorcing or not, need to be able to speak to parents directly.
  2. Remember actions speak louder than words: Act in a way that counters anything negative that is being said about you and avoid saying anything negative about the other parent.
  3. Maintain contact: If you are being prevented from seeing your child or children, act quickly to put legal contact arrangements in place. In the meantime, maintain contact through letters, cards, emails or texts, if appropriate, so that your child knows you still care, but try not to inadvertently harass a child who is feeling vulnerable. They may simply need space. Continue to express love, interest and affection towards your child even if you do not get the response that you would hope for.
  4. Try not to get angry with your child: Remember that your child is processing a lot of emotions and could be being manipulated, so any hurtful comments or behaviours are probably a reflection of this, rather than their true feelings towards you.

Parental alienation is a terrible thing for any child or parent to experience. If you have genuine concerns about active attempts at parental alienation and your former partner is trying to prevent you from having contact with your child or children, you should seek legal advice. Contact Louise Allard or Sabrina Bailey for more information on the steps you can take.

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Research shows that Dads are as important as Mums in their  roles as caregivers, protectors, supporters and as models for social and emotional behaviour. In fact, a child’s relationship with their Dad is one of the most significant and influential they will ever have. This remains the case when parents separate, because the parental role never ends.

So why are there so many headlines about fathers who cannot see their children, is it fair that children are stopped from spending time with their Dads?

The truth is that it is not fair for a child to be prevented from seeing either parent. Children do best when they have contact with both parents and they should have the right to spend time with them (unless contact with their parent is against their best interests). Despite the headlines, the courts always aim to put the needs of the children first and we have seen an increase in separated parents co-parenting effectively, as well as the court endorsing arrangements for children to live with their Dads.

What can Dads do?

The simple answer is to put your children first. Lots of Dads leave the family home to minimise disruption to their family, but this is not always the best option so consider the needs of your family, rather than simply doing what you think is the norm. If your children’s Mum has been the primary care giver it may be appropriate for you to move out, but this is not always the case so it can be a good idea to seek legal advice before you leave.

If you do move out of the family home, remember that your children might not fully understand what is happening and they can feel rejection and even guilt. It will help them, and you, to know when they will next see or hear from you. Remember that any contact is better than no contact so call, text, write or email if you are unable to see your children, or do this in addition to seeing them if you think it will help them.

Try to stay positive but be honest. Divorce and separation is stressful for everyone and particularly hard for parents who have a close bond with their children and can no longer see them every day. Talk to your family and friends about how you are feeling. There are also national forums supporting men and local Dads groups that can  provide advice and support, such as OnlyDads, TheDadsNet and Andy’s Man Club. Gingerbread includes resources and an online forum for all single parents.

Keep an open mind. It can be difficult to adjust to your new life and get a plan in place that works for both parents as well as the children, so try to be open-minded. It is more common for very young children to spend more nights with one parent, but that is not always the case. The most successful arrangements involve compromise and understanding on the part of both parents. Try not to focus solely on what you want, but consider the wishes and needs of the whole family, especially your children, who may surprise you with what they want.

Keep things as amicable as possible with the children’s Mum. Not only will this be better for your children, in both the short and long term, it will help when agreeing more permanent contact arrangements.

How does it work in real life?

No matter how hard you try, things will not always go smoothly in real life.  All you can do is try to be the best parent that you can be.  Ayse shares her story of her parents’ separation because her Dad did just that and she believes that he is a great role model for all Dads.  Her Dad shares his advice to help and give hope to other Dads who find themselves in a similar situation.

As is often the case, Ayse stayed with her Mum in the family home when her parents separated, but it was a very difficult time and she moved in with her Dad 6 months later.

My parents called my sister and me downstairs into the kitchen one morning. They said they were getting a divorce and my Dad would be moving out immediately. Although I knew things weren’t good at home, it’s not something I had even contemplated. At the time it almost felt like a snap decision from my parents, but I know now it had been a long and difficult decision for both of them. Through my shock and emotions, I could instantly see that everything was going to change, including our family dynamic and our routines. Adjusting was going to be incredibly hard.

My Dad moved out that day and I automatically assumed I would always live with my Mum. My friends that had divorced parents all lived with their mums, so it was how I assumed it would be for us. As soon as Dad left, I felt guilty. Why should he have to be alone while we continued living at home together?

Although Dad left the family home to make things as easy as possible for the rest of us, I found it difficult to be there. There was a lot of tension and it was a very emotional time. I was surprised to find that Dad became my rock, giving me the sense of normality, support and calmness that I was craving. It was a difficult decision to make, especially as I didn’t want either parent to think I was picking one over the other, but I decided to move in with my dad.

I think it’s important to put out there that there is no “norm” when it comes to what parent you choose to live with. I decided to move in with my Dad permanently, because at the time it was what I needed. My sister moved in with us later, but she moves back and forward between both addresses and that’s what works for her.

I know it was very difficult for my Dad when he moved out. Although we hadn’t spent lots of time together because he worked long hours and led a busy life, we were used to seeing each other every day. To go from that to seeing us once or twice a week was hard on him and on us.

Having us move in with him can’t have been easy either. He had to adjust his hours at work and would always keep his Saturday evenings free for my sister. He suddenly had a lot more to think about, but it didn’t seem to faze him. We needed him to step up and he did, there was never any doubt that he would. He just needed the chance to do so. We learned to make a new routine together. We started and still do have breakfast together and get the train to work together, we walk our dog Boo together.

I think my dad is amazing. He is an incredibly supportive and sympathetic person. Whether that is support in terms of emotional support (I am grown up, but divorce is hard on everyone!) or supporting us in our studies, he is always there for me and my sister. This is something that I never realised, or perhaps appreciated, until I started living just with him. I know the feeling is mutual when I say that it brought us all closer together.”

Her Dad says:

It was a simple decision to have my children live with me, I left because that is what I thought was best at the time, but I always wanted to live with them. What was frustrating was that for a considerable period of time I physically couldn’t do that and in relation to one of my children I was estranged from them and that was a time of great anxiety for me. It was also a time of shock because whatever the state of one’s marriage, it is extremely upsetting when you suddenly find yourself away from the family and away from your children.

I would say that ending a relationship can be very painful and that pain can manifest itself as anger towards your former partner, but try to separate your own hurt from your children and think about what is best for them. Avoid hating or criticising your former partner in front of your children, not because that would be unjustified, but more because it can cause long term damage and negative feelings and that doesn’t help anyone, especially your children.

If I can give other Dads one piece of advice it is to keep talking to your children however you can. Whatever was happening, I always tried to keep in contact with my children and that gave me strength in what was a really tough time and reassured them that I was still there for them.

Remember that living with mother doesn’t have to be the norm. The truth is when families split up everything changes, and different things will work for different families. It hasn’t been easy but ultimately I have been lucky as I’ve built a deeper adult relationship with my children and we are far closer now than I could ever have imagined.”

LEGAL ADVICE

For advice on any child contact matters, please contact Louise Allard or Sabrina Bailey through the online enquiry form or telephone 020 7993 2936.

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Myth: You have to be a ‘traditional’ family unit to adopt
Anyone over the age of 21 can be considered as an adopter. You can be single, married, in a civil partnership or living with a partner.  The stability and permanency of any relationship you are in is the only concern. The main criteria for all local authorities is simply that you are able to provide a stable and loving home.

Myth: You cannot adopt if you are older than 40
There is no upper age limit, but you will need to have the health and energy to see your children through to an age that they could reasonably become independent.

Myth: You have to adopt through your local authority
You can and should “shop around” for the organisation that you feel most comfortable with. We recommend that you do your research and speak to a number of organisations before making a decision. You will need to be really open about your life, so it helps to have a good relationship with the team that is supporting you. You can find a list of agencies on First4Adoption, which is run by the government, or the charity Adoption UK website.

Myth: The social worker is against you
You will be assigned a social worker to prepare and assess you for the task ahead. The social worker is on your side. They want to find adopters. They will need to speak to you about some very personal matters including your finances, who you are as individuals, what your interests are and your past relationships. Some people view this with suspicion. Be assured that they are not trying to trip you up, they need to know you properly to prepare you properly, so try to embrace this process and be honest. Remember, it is the social worker who will represent you at the Adoption Panel, to do this well they need to know you well.

Myth: You need to be perfect
Nobody expects you to be perfect, very few people are, so be honest. Your skeletons will come out of the closet but, unless you have been convicted of certain serious criminal offences, it is unlikely that they will sabotage you.  The key is to be completely honest.

Fact: You need to be resilient
Adoption is a life-long journey filled with emotion, so resilience is key. One of the things the social worker will be most interested in is how you work through your problems and how you will make your family resilient.

Fact: The Adoption Panel is unlikely to turn you down
It is natural to feel nervous before your Adoption Panel meeting, but if you have got to this stage the chances of getting turned down are low. Remember you have the support of the social worker, they would have told you by now if they did not think you were ready to adopt. If you are turned down, it is not the end of the road as you can appeal, or you could apply again at a later date.

Fact: You will get matched quicker with priority children
The majority of people want to adopt a “healthy baby”, but there are relatively few babies waiting for adoption. Most adopted children will come to their families as toddlers, pre-schoolers or primary children. Older children, those with additional needs, groups of brothers and sisters who need to stay together and children from minority backgrounds are considered to be priority children as they will usually wait longer to find a permanent home. These children have often experienced violence, abuse or neglect and are in great need of a loving and supportive home.

Fact: You are in control
When you are matched with a child, or children, it is important to remember that you do not have to say yes. It is ok to say no. If you have doubts you are having them for a reason, so share them with your social worker. It is not always an easy decision, but in the long run it can be better to wait for another match than to move forward if it does not feel right.

Fact: You will receive ongoing support
Adoption is a challenging journey, arguably more challenging than biological parenthood. Although your love can help a child to heal, it cannot erase the scars of their past. They may struggle and you may struggle, it is completely natural. You will not be expected to go it alone, you will have access to ongoing specialist support.

Fact: You will change more than one life
A charity leader was quoted as saying that adopted children are among the most “complex and vulnerable in society” and that “adoption can have a transformative effect on these children.”  This is because children do better when they feel safe and loved. With adoption, it is not just the children’s lives that are transformed. In exchange for the gifts of love and stability, you receive the life-changing gift of parenthood.

If you are considering Adoption and would like more information on the legal aspects of the process, please contact Louise Allard or Sabrina Bailey.

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Whether your children are educated in the state sector or privately, choice of school is of utmost importance to most parents and carers. We are all aware that providing children with a good education can set them up for a successful and happy future. Schooling choices and decisions carry with them a sense of huge responsibility and researching the options available is essential. It may no longer be a question of choosing the school closest to you, as it frequently used to be. Understandably, there are many factors to consider when making this decision, and if you are separated from your child’s other parent, you and they may not see eye to eye on many things, including where your child should go to school.

So what should you be doing now?

Whether you and your co-parent are on good terms or not, it is imperative that the choice of school is one that benefits your child. If you have differing opinions on where to apply, this may create an issue when the time comes to submitting your child’s school application.

It helps to know as much as possible about the schools that are on offer for your child. We recommend that you look at all the information on the websites and consider the school prospectus for all the schools that are a possibility.

Many schools are now holding or advertising their open days and evenings for the next academic year and what better way to get a feel for a setting than visiting it with your child. Open days allow you the chance to see a school functioning at its best, or worst, and provides an informative way of assessing whether a particular school can offer your child the best all round education. You will get the chance to speak to the leadership team on open days and evenings which will also help to inform your final decision on a school.

When looking at schools there are many factors to consider, including:

  • Are you in the catchment area for the schools that you have identified?
  • What is the admission criteria?
  • Is there an entrance exam?
  • If you are contemplating a private school, how will the fees be met? Is this affordable and desirable?
  • How will your child get to and from school?
  • If using public transport, how much will this cost?
  • Will before and after school care be required?
  • If your child has additional needs, what schools offer the support required?
  • What reports are available on school performance (Ofsted, for example)?
  • What provision is offered for your child’s interests – music, sport, drama etc?
  • Are you looking for a religious establishment? Are there any additional criteria to fulfil or forms to complete in support of such an application?

Answering these questions will help you and your co-parent to identify the school, or a shortlist of schools, that you think will be best for your child.

What if you cannot agree on where your child should be educated?

You may want to consider family mediation to try to resolve the issue. If there is still no agreement then, as a last resort, it is possible for one of you to apply to the court for a Specific Issue order under the Children Act 1989, to determine the point. You could also consider Arbitration as an alternative means of resolving a dispute.

Specific Issue orders enable the court to determine a specific issue that has arisen in relation to an aspect of parental responsibility. Generally speaking, parents will both have parental responsibility for their child and as such all important decisions should be made jointly.

The first concern of the court is the child’s welfare. The court will have to consider what is in your child’s best interests in relation to schooling, taking into account a specific list of criteria including the child’s physical, emotional and educational needs as well as the capability of the parents (or any other person the court finds relevant) at meeting the child’s needs. Your child’s views may also be taken into consideration, depending on their age and understanding.

If you are encountering difficulties in relation to the choice of school, you might like to speak to a solicitor to discuss your options for finding a resolution. It can take some time for applications to be brought before the court and as time is usually of the essence when school applications are to be made, it is important to act quickly if you require assistance.

If you are in dispute with your co-parent about school applications and think you may need legal advice, please contact Louise Allard or Sabrina Bailey to discuss your options.

Please note, this guide has been prepared from the professional and personal experience of solicitors who are also parents and school governors. It is not intended to be a definitive guide to choosing a school.

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Is there anything you can do?

It depends on your circumstances.

If your child is in private school and you are in the process of separating:

If you are married and in the process of divorcing and negotiating a financial settlement, it may be appropriate to have a discussion about how school fees will be met. If an agreement cannot be reached, then the court can make an order to make one party pay or contribute towards private school fees. The court will look at a range of factors when making a decision, including the intentions of both parents, if the child is already attending a private school, the resources of the parties and their ability to pay. If there are any children from a previous relationship, their education may also be relevant.

If you are not married (or if you are already divorced and have reached an financial settlement but there is no order in place for school fees) you can make an application to the court for school fees to be paid for the benefit of a particular child or children. The court will decide each case on the facts. The court has a very broad discretion and must have regard to ”all the circumstances of the case” including the income and financial responsibilities of each parent, the needs of the child and the expectations relating to their education or training.

If you have a court order directing your co-parent to pay school fees but they are refusing:

If there is already a court order directing that school fees should be paid by one parent, then the starting point is that the order should be followed. It is an order of the court and it is not for an individual to decide that the order is no longer in force, even if there has been a change of circumstances. You may be able to take steps to enforce the order.

If there has been a genuine change of circumstances and your ex-partner can no longer meet private school fees, then your ex-partner can apply to the court to vary an existing order. There must be good reason for the variation and your ex-partner will have to provide evidence of any change in circumstances. If your partner is refusing to follow an existing order, or if there is an application to vary an existing order, then we would recommend that you seek advice from a family solicitor.

What if your child is not attending a private school at the moment, but you want them to do so in the future?

If you cannot agree with your partner whether your child(ren) should go to a state or private school, it is open to either parent to ask the court to decide. The court will look at a number of factors including the intentions of both parents and how any other children of the family have been educated.

If the court directs that the child(ren) should attend a private school, it is possible to make an application for the school fees to be paid by one parent. The court may be asked to consider whether it is reasonable that both parents should have to make some sacrifices as a result of decision about private school and whether is appropriate that the cost should be shared in some way.  It is often possible for co-parents to reach an agreement with the help of solicitors to avoid court proceedings.

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If you have day-to-day care of the children it is natural that you find it difficult to switch off from that role and relinquish responsibility for a longer period of time. Many parents experience FOMO – fear of missing out – particularly if the children are going on holiday or experiencing something exciting and new that they are not part of. This can take you by surprise, especially if you are keen for them to go, but it is also natural.

What can you do?

Sometimes it can help to take the rose-tinted glasses off and look at the situation for what it is. Holidays often mean long airport queues and endless hours of ‘are we nearly there yet’!  Parenting is a tough job day-to-day and all the same challenges will be present during the shared time too.

Discuss Safety Concerns

Although it is important to respect your co-parent’s role and understand that their parenting style may be different from yours, it is normal to worry more when the children are going abroad.  These anxieties commonly revolve around plane journeys, pool safety and stranger danger.  The most successful way of co-parenting would be to arrange a conversation, in whatever way you and your former partner communicate best, to discuss these worries and find solutions.

Something as simple as a text message to let you know the children have arrived safely can be incredibly comforting. Discussing practical preparations for the children’s safety, such as increasing swimming lessons before the holiday or using arm bands, as well as having joint chats with the children about talking to strangers can also go a long way to address your concerns.

Take Time Out

Few people will dispute that parenting is the hardest job in the world.  A resident parent is often juggling children, the household and work, which leaves little time for a social life.  It can therefore be helpful to view this time as ‘annual leave’ from parenting.  The time off will give you a chance to slow down, take a break yourself or go out for the evening without having to arrange childcare.  It is essential to give yourself permission to take a break and recharge so you will be ready to give the children 100% when they return home.

Plan Ahead

Keeping busy is a great way to counteract your anxieties about time away from your children, so make the most of your time by planning ahead.  Some parents find it helpful to produce a calendar of their ‘days off’ which they circulate to family and friends so they can organise an adult get together or book their holidays around it.

Have Your Own Adventures

Think about what you would like to do.  It might sound like a cliché, but it is a good chance to try a new hobby and plan some day trips to places that would not interest your children.

If you are stuck for things to do and people to do it with, it is a good time to think about expanding your network. There are a number of lone parent groups, solo travel groups, forums (such as Mumsnet) and charities for lone parents (such as Gingerbread) that organise meet ups, day trips and holidays for other lone parents while the children are away.

Maintain Indirect Contact with the Children

One of the best ways of coping with this short term separation is to agree some indirect contact in advance.  Arranging a planned Facetime, skype or phone call can be reassuring for everyone.  We recommend that any calls are at agreed times so both parents can plan around it and, more importantly, the children do not feel let down hoping for calls that might not happen.  Please remember, it is important that calls are not excessive or intrusive as that could make the non-resident parent feel like their time is being infringed upon or scrutinised.

Depending on the ages of your children they might also be able to email you, or your co-parent might agree to email an update with some pictures.  Another non-invasive way of maintaining contact, would be for the children to send post cards, which can be as good for them as it is for you.

Indirect contact is easier to arrange if it is mutual and respectfully put in place for both parties, all year round.  It is something that you can agree without a solicitor.

If it is difficult to do so, a mutual friend or family member might be able to facilitate a resolution.  You might also consider mediation with a professional Mediator who will help you to reach an outcome.

However, if one parent has broached the subject a few times and not had a successful response, a letter from a solicitor can often help move things along in the right direction.

If a Child Arrangement Order is being made through the court, indirect contact during holidays can be included within the agreement, if it is in the best interests of the child to do so.

Make Your Own Memories

Whether your children are away for two weeks or two days, it can feel like a long time, but they will be back.  You may feel like you missed out on lots of exciting adventures, but you will make your own great memories with them.

For further advice on Child Contact Arrangements, call us on 020 7993 2936 or click here.

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