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The latest publication includes the following commentary about Allard Bailey Family Law:

‘The ‘attentive and responsive team’ at Allard Bailey Family Law ‘undertakes a high volume of HNW work – which is testament to its expertise’.  The team of ‘very experienced female solicitors who combine expertise with kindness’ is co-led by Sabrina Bailey and Louise Allard.  It is regularly instructed on high-value financial cases with an international element and with complex tax, trusts and business assets as well as on difficult children cases.  It has been expanding at partner level with the promotions of Louise Poulton and Jennifer Granby to the partnership and the addition of Siobhan Lomasney from Fletcher Day.’

The Legal 500 2023

Testimonials included in the edition, which were obtained through independant research:

‘Louise Allard is a stellar individual, her work is at a high level and she is hugely proactive and effective on behalf of her clients. She is fantastic to work with, very collaborative and insightful with great knowledge of the law as well as how to strategise effectively’.

‘Louise Poulton is one to watch, her command of her cases is impressive, she is diligent, hugely supportive and caring in respect of her clients and very easy to work with. Her grasp of the nuances in a particular case are excellent and instinctive. The way she prepares cases makes it very easy to come in as counsel and do a great job. She is fantastic to work with’.

‘I have mainly worked with Jennifer Granby. Jennifer is pragmatic and sensible, whilst also being approachable and client-friendly. Very easy to work with and has a very good grasp of the issues and of the best way in which to present her clients’ arguments’.

As a specialist firm with offices in London and Hertford, we focus on all areas of family law and the preservation of private wealth.  

If you would like to speak to a family solicitor about adoption, child arrangements, dissolution, divorce, domestic abuse, financial settlements, nuptial agreements, separation, surrogacy or any other area of family law, please call 020 7993 2936 to book a consultation or complete a Contact Request.  Alternatively, you can start your matter online using our Free Family Law Portal.

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Are Gender Recognition Laws being reviewed in England and Wales?

Following an independent consultation, the UK Government announced in 2020 that it did not intend to amend the criteria for applying for a Gender Recognition Certificate in England and Wales; but the application process would be changed to be “kinder and more straightforward”.

In response to an online petition, The House of Commons debated the need for further reforms on 21 February 2022. During this debate The Minister of Equalities confirmed that it remains the Government’s view “that the balance struck in the legislation is correct: the system provides proper checks and balances, while supporting people who want to change their legal sex.” However, further recommendations relating to the process and medical assistance are expected.

Further information about the status of consultations in England and Wales can be accessed via the House of Commons Library.

What is a Gender Recognition Certificate?

A Gender Recognition Certificate (GRC) allows people to be legally identified as the gender they identify with and update their birth certificate to reflect a change to either “male” or “female”. In England and Wales, it has been possible to obtain a GRC since the creation of the Gender Recognition Act of 2004.

How do I Obtain a Gender Recognition Certificate?

To obtain a GRC in England and Wales, you must be 18 years or over and meet the criteria of the Gender Recognition Panel, which includes living as the gender you identify with for a significant period and the intention to live exclusively as that gender for the rest of your life. 

There are three recognised routes to apply for a GRC with differing requirements depending on your situation as a transgender person:

1. Standard: The standard requirements include proof of a two-year minimum period living as that gender, as well as two medical reports indicating that you have gender dysphoria, also known as gender incongruence and transsexualism.
2. Alternative: The alternative route is applicable to those who have been living in their new gender for over six years and are married or in a protected civil partnership.
3. Overseas: The overseas route is for individuals who have had their gender recognised in a country outside of the UK and want the same recognition within this nation.

The GRC application process is to be moved online and the fee reduced from £140 to £5. You can learn more here: www.gov.uk/apply-gender-recognition-certificate

Can I Change my Gender if I am Married?

If you are married you will need the consent of your spouse to legally change your gender, regardless of whether you are in a mixed or same-sex marriage.  If your spouse agrees and you both wish to stay married, you would be required to sign a statutory declaration to show that you still recognise your union.

If your spouse does not consent and / or does not wish to remain in the marriage, you will need to end your relationship before you can be given a GRC.  You can do this by applying for an annulment or a divorce. Annulment differs to divorce because the union is deemed invalid and is voided, rather than coming to an end. You can learn more about how to annul a marriage here: www.gov.uk/how-to-annul-marriage. 

For an annulment to be obtained in these circumstances, you will need to show that one spouse has gender dysphoria and intends to live as a different gender to when they entered the marriage. 

Some people who do not have the support of their spouse prefer to divorce before beginning their transition.

Do I need my Partner’s Consent to Transition in a Civil Partnership?

The same rules apply for couples in civil partnerships as for marriage (see above).  If your partner does not consent to changing your gender, you will need to apply for an annulment or dissolution before you can obtain a GRC. 

What if my Spouse or Partner Withdraws Consent Mid-Transition?

If you are already in the process of transitioning, you can apply for an interim GRC whilst the marriage / partnership ends. Once the relationship has legally ended you can receive an official GRC. An interim GRC can be used to achieve an annulment rather than divorce, however, we would have to look at each case specifically.

What are the Legal Considerations in Divorce and Annulment?

Whether your relationship is ended or voided, you will need to legally separate your finances.

There is a common misconception that financial settlements are not required where there is an annulment, but you will still need to agree how to divide joint assets.  It is advisable to seek advice from a solicitor, especially if your assets are completely mingled or one spouse has been the breadwinner and the other has limited earnings capacity.

When you divorce the starting point is to split the marital pot 50/50, although you can agree to vary that distribution so long as, where possible, both people leave the relationship in a position to meet their needs. 

Will my Legal Rights Towards my Children Change if I Change my Gender Identity?

Transitioning does not affect your status, nor your rights and responsibilities, as your child’s mother or father. Although you may change your name and how you reference your relationship, it is not currently possible to change your child’s birth certificate to reflect your new gender identify.  

If you are separating, you will need to agree ongoing care arrangements for your child and make financial provisions.  How parents behave during a divorce or separation will have an impact on the happiness, health and wellbeing of their children.  We recommend that all separating parents read our five practical steps to ensure your child’s needs come first: www.allardbailey.com/child-focussed-separation/

It is important to recognise that both the transition and separation trigger periods of change for the child and all children will be affected differently, so they may require some distinct support. FamilyEquality.org has compiled resources for transgender parents and their children that can be accessed here: www.familyequality.org/resources/resources-for-people-with-a-transgender-parent

Legal Advice

If you find yourself in need of assistance to divorce or annul your relationship, agree your financial separation or make arrangements for children that put their needs first, please get in touch.  Our specialist knowledge and proven results with complex family dynamics can help you to navigate through this time of change.

If you would like to speak confidentially to one of our family solicitors you can call 020 7993 2936 to schedule an appointment or make a Contact Request here.

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What does the Mediator do?

The mediator’s primary role is to ensure all participants are able to voice their feelings and opinions, whilst avoiding arguments and keeping the momentum in negotiations.  The mediator is impartial and will not take sides or give an opinion on any matters discussed between you.  However, they will explain legal principles and help you to identify and explore different options, so that you can make informed decisions. 

What are the benefits of Mediation?

Mediation has many benefits, not least that it is usually cheaper and quicker than other methods of reaching settlement.  You may be able to resolve differences with only a few sessions of mediation, whereas court hearings can take months or even years.  Because you reach your own agreements, you have the discretion to decide where you are willing to compromise, rather than having decisions thrust upon you.  This enables you each to demonstrate a level of respect for each other and hopefully remain amicable after the process.   Mediation should be a safe space to discuss differences.  Discussions are without prejudice and confidential between the parties and the mediator.  

A mediator does not have the authority to make decisions on your behalf, you can choose to create a binding agreement at the end of the mediation.  If you cannot reach agreement and the matter is taken to court, the content of the mediation will remain confidential, and the court will not be made aware of any of the details.

When is Mediation not appropriate?

Mediation is suitable for most types of family law dispute. The courts want you to reach your own agreement if you can, so participation in a Family Mediation Information and Assessment Meeting (MIAM) is now a requirement before making certain applications to the Family Court.  There are circumstances in which mediation is not appropriate, such as where there has been coercive control or domestic violence in the relationship. In which case the MIAM will show that mediation is not a viable option for resolving your issues and it is necessary to involve the courts.  

The key to a successful mediation is the mindset of the participants and your ability to make appropriate compromises in order to reach an understanding that is agreeable to you both.

Child Inclusive Mediation

Child Inclusive Mediation is an alternative means of resolving children matters, which can help you lay the foundations for a strong co-parenting relationship moving forward.  Child inclusive mediators are specially trained to work with children and can assist by being a neutral party that can ascertain the child’s voice.

The practice is best suited to secondary school aged children, who are mature enough to know their own minds and have their own reasonable opinions about the situation. You can read more about child inclusive mediation here.

Mediation Funding

The Government is running a family mediation voucher scheme to help people with the cost of mediating disputes involving children. This is a time-limited scheme intended to support recovery in the family court and encourage more people to consider mediation, where appropriate. At the time of publishing, over 4,400 vouchers had been issued with 77% of cases resulting in a resolution. You can find more information about the scheme here.

**Update 16th January 2023: the Government extended the scheme until March 2023, so we recommend acting soon.**

Legal Advice

You are able to take independent legal advice at any stage of mediation and it is possible for a solicitor to attend mediation with you if you wish.  We are able to help you prepare a legal proposal to present at mediation, review the legalities and fairness of proposals made to you and coach you through the process. To book a consultation with one of our team of divorce lawyers and children lawyers you can call us on 020 7993 2936 or make a Contact Request here. 

Alternatively, you can Get Started Online to receive a Free Confidential Report outlining your position.

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A recent 2021 report from Nuffield on ‘Children’s Experience of Private Law Proceedings’ found that children felt largely unheard in proceedings and that their wishes, feelings and voices were often lost in the process. The report flagged that that the impact on children can last them into their adulthood.

The findings indicated that children want to engage more with the process and be involved in the decision making that affects every aspect of their day to day lives.  This echoes what we hear from many of our clients and their children.

We explore how Child Inclusive Mediation can give older children a voice, how it can be used to resolve children matters outside of court and how it can benefit families who are already in proceedings.

What is Child Inclusive Mediation?

Child inclusive mediation can also be known as direct child consultation or child led mediation, and it is where a mediator meets directly with the child. Child inclusive mediators are specially trained to work with children and can assist by being a neutral party that can ascertain the child’s voice.

The specialist trained mediator will speak with the child independently, they may speak to the child with each of the parents individually and with both parents present. Both parents can be reassured that the mediator is not biased and that the child’s views are genuine and not parent led.

Who is child inclusive mediation suitable for?

The Voice of The Child Report 2015, commissioned by the Ministry of Justice, recommended that children aged 10 or over should have the opportunity to meet with the mediator.

The practice is best suited to secondary school aged children, that are mature enough to know their own minds and have their own reasonable opinions about the situation.

Both parents need to be willing to engage, and consent to the child engaging with the mediator.

What type of issues can be brought to child inclusive mediation?

The most common issues brought to this type of mediation are disputes around which parent a child may live with, how much time the child will spend with each parent, where a child will go to school. However, child inclusive mediation can help parents reach agreement over any issues relating to their children.

Who is child inclusive mediation NOT suitable for?

Child inclusive mediation is not suitable for children under the age of 10. It may cause significant stress for younger children to be put in that situation, but in certain exceptional circumstances it may be considered only with the agreement of both parents and the mediator. 

Cases where there are significant safeguarding concerns, such as matters with domestic abuse and child welfare concerns, will not be suitable for child inclusive mediation.

When can child inclusive mediation be used?

Child inclusive mediation is incredibly flexible and can be used alongside other resolution methods.

Where parents are already in mediation and the mediator does not offer child led mediation, it is possible to engage a separate mediator and return once the child’s wishes have been gained.

Where parties are negotiating though solicitors and child arrangements are at an impasse, rather than engaging in lengthy and often expensive trial by correspondence, it can be helpful to gain insight into an older child’s views, which can help unlock the outstanding issues and move the family along.

When parents are engaged in court proceedings and it is not possible to obtain a CAFCASS Section 7 report, it may be possible to engage with child led mediation to bridge that gap. This would be far quicker than waiting on a CAFCASS section 7 report, which at present can take between 12-16 weeks. Child inclusive mediation can be a part of court proceedings with the agreement of both parents and the directions of a Judge. While the child’s view in the process is persuasive, it is worth noting that it is only one of the 7 points on the welfare check list that the court takes into consideration when making a determination in the best interests of a child.  

Are there any other benefits?

When parents separate it triggers a period of significant change and adjustment for children, which is often beyond their control, and this can be highly stressful and upsetting for them.  A key benefit is that the child can feel empowered and that they have some influence of the changing situations around them.

Child inclusive mediation is a child focused method of resolution that allows the child’s voice to be heard in a process where it would often be lost. The use of child inclusive mediation can help focus parents and create the foundations for a strong co-parenting relationship that can last for a child’s minority years.

Legal Advice

At Allard Bailey Family Law, we encourage parents to keep their children’s needs front and centre of every matter.  We are experts at helping parents to resolve issues about their children. If you find yourself in need of assistance to divorce or separate in a way that makes your child’s needs the focus, please get in touch.  Our specialist knowledge and proven results with child arrangements can help you to navigate through this difficult time.

If you would like to speak confidentially to our team of family solicitors you can call 020 7993 2936 to schedule an appointment or make a Contact Request here.

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We know this is not easy but it is really worth taking the time to think about these issues.

1. Choose the Right Time to Talk to Children

In our experience, the right time to speak to a child about separation is when both parents are certain that is what they want and what they are intending to do.

Ideally, both parents would be able to sit down together with a child and allow time for lots of questions and reassurance. It is essential that children have the time to understand that whilst their parents are opting to go separate directions, they are not to blame and are still loved by both.

The conversation should always be age appropriate, a teenager may need a little more information than a 5-year-old, but neither need to be involved in the nitty-gritty of the separation.  It is a conversation that will need to be revisited as the child grows and their understanding changes.

2. Make a Conscious Decision to Respect the Other Parent

Making a conscious decision to continue respecting and promoting a good relationship with the other parent can have a really positive affect on a child. This can include something as small as continuing to refer to the other parent as ‘Mummy’ or ‘Daddy’. It is important not to speak negatively about the other parent in front of, or within earshot of, the child as it could make them feel that they need to take sides.

3. Establish a Consistent Contact Plan

Establishing a regular contact pattern from the outset with both parents will ensure your child feels safe and secure in the knowledge that they are not losing a parent. Using a wall calendar which marks the dates that the child is with each parent can give your child a strong sense of where they are supposed to be without having to ask all the time.

If the contact plan involves school drop offs and collections, it can be confusing for children if they are unsure who is collecting them. It can also be helpful to have a weekly schedule in the child’s planner or book bag, so they always know which parent they are expecting at the school gates. Young children may find it helpful to know how many sleeps until they see their other parent. 

It is also important to remember that contact does not have to be in person, so time spent together could be supplemented with indirect contact such as regular phone calls and video calls.

4. Support Your Child’s Emotional Needs

There are lots of books and worksheets available to help a child come to terms with their new situation. ‘Two Homes’ by Claire Masurel, is a much acclaimed picture book tackling divorce and can help open the conversation with your child about the changes that are occurring around them and their feelings.

It is important to recognise that the separation is a period of change that reaches beyond the child’s relationship with each parent and that it will affect all children differently, so they may require some distinct support. Parents may want to notify schools or nurseries to the changes at home so that caregivers can keep an eye on the child’s wellbeing and give appropriate support – especially if their feelings are expressed through behaviour rather than words. Lots of schools have strong pastoral care and counsellors that can provide additional support.

Bear in mind that new care arrangements may affect how often children see extended family members and friends, who they might usually turn to for emotional support. It may be appropriate for you to arrange for a child to have regular contact with a neutral family member or friend who they can open up to. If there is no-one in the child’s life who can provide this support, you might consider whether a counsellor could help. There is a list of services available to support young people on the NHS website.

5. Protect Children from Adult Matters

It is important that you do not involve children in adult matters as it can be very damaging and worrying for them. As a consequence of the pandemic, lots of services are offering remote or over the phone appointments, which means children can easily overhear what should be private conversations.  Parents should also be mindful of children overhearing things when they are talking to their family and friends. 

Parents should allocate a safe space to store solicitors’ letters, divorce papers and court orders to ensure that they are not accessible to children as reading them could cause real worry and harm to the child. Lots of information is now sent digitally and care should be taken to ensure there is a safe folder on laptops and other devices that children have access to.

Legal Advice

At Allard Bailey Family Law, we encourage parents to keep their children’s needs front and centre of every matter. We are experts at helping parents to resolve issues about their children. If you find yourself in need of assistance to divorce or separate in a way that makes your child’s needs the focus, please get in touch.  Our specialist knowledge and proven results with child arrangements can help you to navigate through this difficult time.

If you would like to speak confidentially to our team of family solicitors you can call 020 7993 2936 to schedule an appointment or make a Contact Request here.

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Supporting LGBT+ Parents by Challenging Opinions

Despite the progress that has been made for the LGBT+ community in recent years, it is a sad fact that many people still view same-sex parenting with suspicion.   We know the stigma surrounding LGBT+ families is unfounded, so we produced a video with Stephen Fry’s educational platform Pindex to challenge negative opinions with facts and common sense.

“We need to challenge the misconception that somehow being raised by same-sex parents is second best. Research clearly shows that children of same-sex couples are often happier and healthier, even when social and economic advantages were taken into account.  What matters for a child’s outcome is a loving and supporting home life.” Louise Allard, Managing Partner 

READ MORE  /  WATCH VIDEO

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Louise Allard, Joint Managing Partner of Allard Bailey:

“Despite the progress that has been made for the LGBT community in recent years, many people still view same-sex parenting with suspicion.  Sadly, children face bullying because of their same-sex parents and their parents often face stigma. We believe this stigma is unjustified and hope our video is a contribution to ending this.  It is intended to promote social inclusion, encouraging all children and those who influence them to accept differences in our society with toleration.”

The video has been released free on Stephen Fry’s YouTube Channel, Pindex, as an aid for schools that are introducing LGBT inclusive relationship education for the first time.

The government’s new relationships and sex education curriculum came into effect from September, requiring LGBT-inclusive lessons in secondary schools.  It stopped short of making LGBT+ inclusion lessons compulsory for primary schools. Instead, they are only “strongly encouraged” when teaching about families to include families with same sex parents.

Louise Allard said:

“We need to challenge the misconception that somehow being raised by same-sex parents is second best. The research clearly shows that children of same-sex couples are often happier and healthier, even when social and economic advantages were taken into account. Of course, nobody is suggesting one kind of gender combination is better than another, just that what matters for a child’s outcome at school is a loving and supporting home life.

It is disappointing that the government didn’t make teaching about LGBT+ families mandatory in primary schools as so many primary schools now have students with same-sex parents.  We hope those schools will choose to educate their population.”

It is hoped that many primary schools will still use the ‘No Outsiders’ programme developed by Andrew Moffat, the deputy headmaster of Parkfield Community School in Birmingham, which focuses on educating primary school children about the characteristics protected by the Equality Act, which includes sexual orientation.

The number of same-sex couple families in the UK increased from 152,000 in 2015 to 232,000 in 2018, a rise of 53.2 per cent.

Research suggests that an estimated two-thirds of children with same-sex parents experience some form of stigma due to their parents’ sexual orientation.**

Click to watch video on YouTube

*https://www.theguardian.com/australia-news/2017/oct/23/children-raised-by-same-sex-parents-do-as-well-as-their-peers-study-shows

** https://theconversation.com/kids-from-same-sex-families-fare-as-well-as-peers-or-better-28803%20

For further information contact Evette Pottinger.

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Two of the most common reasons for challenging a Will are for want of mental capacity and/or undue influence, so we will discuss specific steps you can take to protect your estate from challenges of this nature.

Challenges for Undue Influence
Your Will is a record of your wishes as to how you want your estate to be distributed after your death and who you would like to be responsible for making it happen. It is for you to make those choices and no one else.  If anyone else makes or influences these decisions, your Will cannot be valid.  Family members who are not aware of, do not like or do not understand a person’s relationship, have been known to challenge a Will because they believe there was undue influence from their partner.

The most obvious example of undue influence is when someone forces you to leave assets in a specified manner for fear of repercussions.  These may include, threats of abuse, being disowned or neglected, being told you will not be looked after properly and so on.

Undue Influence is not always that obvious, it also includes actions causing you to have untrue beliefs about a person or group of people.  Misguided family members may wrongly believe that that they are justified in making such allegations if they believe your partner has turned you against them, your culture or faith.

There are some simple steps you can take minimise the chances of challenges of this nature being successful:

1. Instruct an independent practitioner to advise on your Will. A good practitioner will always ask to see you on your own to ensure you can speak openly without reprisal and will be able to confirm that this was the case.  They will also have discussions with you to ensure that any changes to your Will are rational and properly considered and that you fully understand the implications.
2. Make your wishes known. If it is feasible, a discussion with family members about your wishes is encouraged.  Not only will this show there is no undue influence, it may also prevent disputes or animosity if there is someone who can inform others about your relationship and intentions on your death, so there are no unexpected surprises when your Will is read.
3. Prepare a Statement of Intent. If you foresee issues, it can be wise to provide a more detailed statement of your wishes to accompany your Will, explaining the reasons you wish to distribute your assets in this way and providing any additional instructions for your executors about how to respond to challenges.
4. Write personal letters. Depending on the reasons you foresee issues, you might also choose to write letters to be given to certain people in the event of your death requesting that they respect your wishes, even if they are unable to understand them.

Challenges for Lack of Mental Capacity

When you give instructions and execute your Will, you must know what you are doing and understand the implications of your actions.

In legal terms this broadly means you, will need to:

• Understand that you are making a Will and how a Will works
• Understand what assets and liabilities you have and what you are gifting in your Will
• Appreciate how others will be affected by the contents of your Will and that you will be expected to make provisions for certain people
• Have no disorder that affects your mind thus causing you to dispose of your assets in a manner that you would not otherwise do so

Mental Capacity is a complex consideration as it is possible for you to have capacity for certain matters and not for others, for example if you have periods of lucidity making it difficult to know when it is the right time to take instructions or execute a Will.  Sometimes, the issue of capacity may not be obvious and that can make things difficult.

It is these complexities that often lead to questions being raised after a person dies.  If a serious question of mental capacity is raised, it will be for your partner and any other beneficiaries who want to rely on the Will to prove that you did not lack capacity when you executed your Will.  There are some steps you can take to help them:

1. Instruct an independent practitioner who will follow the Golden Rule. If there are concerns, a good practitioner will follow the ‘Golden Rule’ and instruct an appropriate medical practitioner to assess you and determine whether you are able to execute a Will or not.  The medical practitioner will be encouraged to act as a witness when the Will is signed, but this is not always possible.
2. Ensure everything is recorded. If a dispute is expected it may be a good idea to speak to a medical practitioner anyway and have the discussion recorded in medical logs or reports, which will be useful evidence.  Any records detailing your health at the time the Will is executed will always be helpful, even if mental capacity is not considered to be an issue at that time.
3. Make your wishes known. If you feel comfortable in doing so, you should have open and frank discussions about your wishes and the contents of your Will with beneficiaries, friends and family.
4. Prepare a letter of wishes. You could also write a letter of wishes to explain the rationale behind the contents of a will where mental capacity could be an issue. This helps the court understand the trail of thought and see if it has been influenced by a mental disorder.
5. Review Your Will Regularly. If you review your Will with your practitioner, it will demonstrate that you have not changed your mind during the passage of time.   If you wish to make significant changes to your Will, there should be a detailed discussion as to why those changes are being made and this discussion should be noted in the practitioner’s records.

LEGAL ADVICE

At Allard Bailey Family Law we regularly assist in drafting Wills where there are complex or sensitive wishes and can help you to protect your intended beneficiaries from unwarranted challenges, as well as defending them should disputes occur.

To book a consultation or telephone appointment, please contact Sangeeta Rabadia.

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It seems like a win-win situation and it can be, if you are realistic about your expectations and choose your co-parents wisely.  You should bear in mind that, however well you know each other, co-parenting will change your relationship irreversibly and you need to be able to work together for the next 18+ years to provide the loving and supportive family environment you envisage for your child.

We would always advise that you discuss your hopes and expectations about your involvement with the child in detail and put the key commitments in writing before you conceive.  Not only will this minimise the chance of misunderstandings once your child is here, it is a good test of your compatibility as parents and will help you decide whether you should take the next step together.

Questions you could consider include, but are not limited to:

• Who should have parental responsibility?
• What type of parenting arrangement will you have? Will time be spent together as one big family or separately?
• Do your parenting values match?
• Will the child have one main home or two homes?
• How will you agree on a name? What surname will the child have?
• What level of financial responsibility will you all have?
• What happens if one of you wants to move away?
• What happens if one set of parents separates?
• Do you want to appoint the other parent and/or your partners as guardians in case something happens to you?  You should talk to a solicitor about guardianship appointments.

If you decide to go ahead and have a child, it can be sensible to formalise the arrangement with a more detailed Pre-conception Agreement.

If you have already conceived or have a child, it is both possible and sensible to formalise your shared care and financial arrangements to provide everyone with certainty, especially your child.

If you are in the unfortunate position that your co-parenting relationship is breaking down, you could benefit from the advice of a solicitor with a child-first approach to help you resolve the situation in the best way possible for your child.

LEGAL ADVICE

For further information on any LGBT family law, child law, shared care arrangements or guardianship matters please call 020 7993 2936 to schedule a consultation with a specialist solicitor, or if you prefer you can get started online.

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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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What happens to my estate if I do not update my Will before my divorce is finalised?

If you have a Will naming your spouse as a beneficiary, it will remain valid until your divorce is finalised with a Decree Absolute.  This may only take a few months, but it can also take years.  Should anything happen to you in the interim, your estate will be administered according to your Will.

It is common for spouses to be an executor as well as the main beneficiary of each other’s Wills.  If you do not want them to be in charge of your estate should anything happen to you, you should update your Will as soon as possible.

Does my divorce or dissolution invalidate my existing Will?

No, it does not.  If you do not update your Will after your relationship has legally ended, any gifts to your ex-spouse will fail, but there may be other unwanted consequences.  The assets in your Will originally intended to pass to your ex-spouse may be governed by intestacy rules, which could conflict with how you would have wished them to be distributed.

If your ex-spouse was the named executor of your estate, this may mean that you are left without an executor and left to the law to decide who will be responsible for your assets.

What happens if I do not have a Will?

In UK, if you do not have a Will your spouse or civil partner is one of your (or possibly your sole) legal heirs and would remain so until your relationship has legally ended.  Even if you have separated with a court order, they will remain an heir until your relationship has legally ended

What does this mean for my Beneficiaries?

In all these situations, your ex-partner could benefit from your estate and it would fall to your intended beneficiaries to challenge this at a time when they should be allowed to grieve.

We would therefore strongly recommend that you review your Will as soon as it is clear your relationship is ending.

Legal Advice

You can update your Will as often as you want or need to reflect your wishes.  To protect your Will from challenges you should always use a professional Will writer to do this. For an initial discussion about your situation, please call 020 7993 2936.

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Depending on the couple’s circumstances, the child’s other intended parent may find herself in a more complicated limbo in terms of legal status.  We consider some of the possibilities below.

Married and Civil-Partnered Couples

If you are married or in a civil partnership and conceived a child after 6 April 2009 through artificial insemination at a UK registered clinic, the non-birth mother will become the second legal parent.  This is quite straight forward and means that even if you are not biologically related to the child you will be a legal parent and assume parental responsibility. To avoid any future confusion, you should make sure that you both sign the child’s birth certificate.

If the child was conceived through sexual intercourse or through artificial insemination that did not take place at a UK registered clinic, the biological father will become the child’s second legal parent.  In this situation, you can still become the child’s legal parent and the preferred route is usually through adoption.  When you adopt the child the parental rights of the father, who was not intended to be a parent, will be immediately extinguished and transferred to you.

Unmarried Couples

If you are not married or in a civil partnership, you will not gain any automatic rights or responsibilities for your partner’s birth child, but it is still possible for your role to be recognised in law.

Adoption is usually the preferred route.  If you are unable to adopt the child, you can still obtain legal parental responsibility by entering into a parental agreement with the other people who have parental responsibility.  This is relatively simple but does require all parties with parental responsibility to give consent.

You could also apply for a child arrangements order, but you need to have been living with the child for a period of three years or have the consent of everyone who already has parental responsibility before you can apply.  If you do not have consent, but meet certain other criteria, you can ask the Court for permission to apply.

Do we both need to have Parental Responsibility?

Although it is not a requirement, it is advisable for both of the child’s intended mothers to gain parental responsibility.  Parental Responsibility is legally defined as “all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property.”  It includes the responsibility of providing for and protecting the child.

Only the mother with parental responsibility will have the legal right to make important decisions in the child’s life, including agreeing medical treatment and choosing their school.  This might not seem like a big issue as you can still make joint decisions, but it can create day-to-day issues.  For example, if the mother without parental responsibility needs to take the child to hospital, she will not be able to authorise treatment.

You should also be aware that if something happens to the mother with parental responsibility, a child will not automatically stay with her spouse or partner.  It will fall to the authorities to decide on an appropriate caregiver and this can leave children vulnerable at a time when they most need certainty in their lives.  There can also be difficulties with your child’s inheritance as your parental role will not be recognised by the Courts.  Our blog on The Importance of Wills in Safeguarding Your Child’s Future explains more about the steps you can take to ensure your child is protected in the period before you both have parental responsibility.

LEGAL ADVICE

If you would like legal advice on the most suitable way of gaining parental responsibility for a child, or creating a pre-conception agreement with a known sperm donor, please call contact us on 020 7993 2936 to request a consultation with one of our team.

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What is surrogacy?
Surrogacy is an arrangement in which a woman becomes pregnant and gives birth to a child for another person, or couple, who will become the legal parent(s) of the child.  There are two main types of surrogacy available to gay couples in UK:

• “Traditional Surrogacy”when the surrogate’s own eggs are used with the sperm of one of the commissioning / intended Dads.
• “Gestational Surrogacy”when donor eggs are used and the surrogate is unrelated to the child.

Surrogacy is becoming popular amongst gay couples as it enables one father to be biologically related to the child.

Will we be our child’s legal parents?
In UK, it is only possible for one of you to be recognised as a legal parent on birth.  This is because a child can only have two legal parents at one time and the birth mother will initially be recognised as one of those parents, even if she is acting as a surrogate with donor eggs.

If you are biologically related to the child your name can be put on the birth certificate as the child’s other parent, assuming your surrogate is not married or in a civil partnership.  If your surrogate has a legally recognised spouse, that spouse will initially be child’s other legal parent, even if they do not have a genetic link to the child.  In this situation the biological father will need to apply for a Parental Order to extinguish the legal status of the spouse and transfer it to himself.

Where does this leave the intended father without a biological connection?
The child’s other intended father will usually make an application for a Parental Order in conjunction with the biological father.  This will extinguish the status of the surrogate birth mother leaving the intended fathers as the two people with parental responsibility.  The application must be made within 6 months of the child being born but cannot be made less than 6 weeks after the birth.  If a Parental Order is granted, then parental responsibility will be transferred to the intended parents and a new birth certificate can be issued with both father’s names on it. It is advisable to make the application as soon as possible as your child, who would usually be in your custody from birth, will be in a legal limbo until you have parental responsibility.

What is Parental Responsibility?
Parental Responsibility is legally defined as “all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property.”  It includes the responsibility of providing for and protecting the child.

Only people with Parental Responsibility can legally make important decisions in their child’s life, such as which school the child attends and authorising medical treatment.

Do we both need to have Parental Responsibility?
Although it might not seem like a big issue as you can still make joint decisions, it is advisable for both of the child’s intended parents to gain parental responsibility or you may encounter day-to-day issues.  For example, if the father without parental responsibility needs to take the child to hospital on his own, he will not be able to authorise emergency treatment.

If something happens to the father with parental responsibility and the parental responsibility of the surrogate mother has not been extinguished, she will be legally responsible for the child.  This can leave the child vulnerable at a time when they most need certainty in their life.

If you do not have valid Wills, there can also be issues with inheritance as your parental role will not be recognised by the Courts and the surrogate mother could become a Trustee of the child’s inheritance by default. Our blog on The Importance of Wills in Safeguarding Your Child’s Future explains more.

What if our child is born abroad?
Due to restrictive regulations, including the prevention of advertising and commercial gain in surrogacy in UK, it is common to use a surrogate based overseas.  Popular countries include USA and Canada where commercial surrogacy is legal and parental responsibility can be transferred at birth.  In this situation you may need to gain parental responsibility in both the country of birth and in UK, so it is advisable to seek legal advice in both jurisdictions before any attempt to conceive.

As UK law stands, unless you obtain a Parental Order in UK, the surrogate and her legal partner (if relevant) will still be recognised as your child’s parents in UK, regardless of your status in the birth country.

LEGAL ADVICE
If you would like legal advice on any stage of the surrogacy process including gaining parental responsibility for your child or surrogacy disputes, you can contact Louise Allard or Sabrina Bailey on 020 7993 2936 or make an enquiry through our online system.

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We tackle some of the common myths about Adoption in this country and share some lesser known facts that might help you to start your life-changing adoption journey.

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 consider speaking 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 local and regional 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.

Legal Advice

If you are considering Adoption and would like more information on the legal aspects of the process, please contact Louise Allard or Sabrina Bailey or call 020 7993 2936 to arrange a no-obligation consultation.

(Note, this blog was first published in October 2019 and was updated in October 2022.)

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What does this mean for you?

You must have consent from anyone else who has parental responsibility for the child (usually both parents) before taking them outside of England and Wales. This usually means that the child’s other parent will need to provide a letter of consent, which contains their contact details so that its authenticity can be checked.

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. In which case, you will need to take a sealed copy of any relevant Court Orders and we recommend that you check with your Solicitor if you need to do anything else, such as having the documents verified.

If you do not have the same surname as your child, you may be asked to prove your relationship to them. 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.

What else should you do?

It is a good idea to contact the airline you are travelling with, as well as the embassy for the country you are travelling to, to see if they have any other requirements.

Some countries, such as USA and South Africa, have very strict requirements and although you may have the documents you need to leave the UK, you may not have everything you need to gain entry on arrival.

You can find the contact details for all foreign embassies and High Commissions in UK here.

Legal Advice

Further information about International Child Abduction can be found here. If you think your child may be taken overseas without your consent, it is important to act quickly.

If you would like to speak confidentially to our team of family lawyers you can call 020 7993 2936 to schedule a no-obligation consultation or make a Contact Request here. 

Alternatively, you can Get Started Online to receive a Free Confidential Report outlining your position.

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It is important to note that the normal criteria for applying for a Parental Order still applies, with the added caveat that the intended parent must have a genetic link to the child. Therefore, this change only assists single parents who use their own eggs or sperm.

It is still a welcome development.

People have been campaigning for years for a variation to UK surrogacy law as it was seen to be discriminatory to single parents. The change was finally approved in December 2018 and came into force on 3 January 2019.

Legal Advice

If you would like to speak confidentially to our team of specialist surrogacy lawyers you can call 020 7993 2936 to schedule an appointment or make a Contact Request here.

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At Allard Bailey, we recognise that adoption and surrogacy are not just legal processes but deeply personal journeys, often following exhaustive conception attempts, or failed IVF. Our specialist solicitors can sensitively guide and advise you on the right legal framework to achieve the rights to protect you and your child. We appreciate that more than ever, in the run up to Christmas and New Year thoughts inevitably turn to family life and plans and hopes for the future.

In the words of Lady Justice King (as was) there are “serious legal and practical difficulties which can arise where men or women, desperate for a child of their own, enter into informal surrogacy arrangements, often in the absence of any counselling or any specialist legal advice.”

If you or anyone you know are considering adoption or surrogacy or you are an intended parent it is critical to get early advice, and here are some reasons why:

• To apply for an adoption order or a parental order: Both orders have “transformative effect” including extinguishing a surrogate parent’s rights.

• To be aware of the timeframe: The law requires an application for a parental order in a surrogacy arrangement to be made within 6 months of a child’s birth and UK domicile. We can guide you on some of the permitted extensions under the case law.

• If you are single: At the time of writing this blog, it was not possible for a single person to obtain a parental order in UK, but the law changed on 3rd January 2019 and it is now possible.  You can read more here.

Legal Advice

If you would like to speak confidentially to our team of surrogacy lawyers and adoption lawyers, you can call 020 7993 2936 to schedule a no-obligation consultation or make a Contact Request here. 

Alternatively, you can Get Started Online to receive a Free Confidential Report outlining your position.