Many applications for court orders concerning children begin in the Family Magistrates Court.  This is somewhat alarming because we immediately associate magistrates with crime, but It’s important to distinguish between the courts – just because they are chaired by magistrates, a Family Magistrates court is most certainly not a criminal court.

 

How is the Family Court different from the ordinary magistrate’s court?

Magistrates are members of the public who volunteer to help their community.  They are not legally qualified.   Any magistrate sitting in the Family Court has received special training to understand and hear cases concerning family issues, and my experience is that they listen carefully and thoughtfully.  Their aim is to determine what is in the best interests of the child.  Family magistrates are not concerned with guilt and innocence, and they are not there to punish.

The family court is usually less formal: there are no wigs or robes, people involved sit rather than stand, magistrates speak directly to parents, and often people are not represented by a lawyer.

 

Unlike the criminal court, family proceedings are private.

Only the parties and their legal representatives may enter the court.

There is no public right to sit in court and listen to family cases. Reporting restrictions and confidentiality requirements are in place to protect children.

 

What cases do Family Magistrates hear?

Magistrates’ courts hear two types of family cases: public and private.

In private law cases, magistrates determine what is in the best interests of the child when parents are separating and cannot agree on arrangements.

In public law cases, magistrates determine what is in the best interests of a child where there is a risk of harm and social services are involved with a family.

Magistrates do not hear cases about financial settlements when partners or parents separate or divorce.

Magistrates also do not hear cases about child maintenance. These cases are dealt with by the Child Maintenance Service.

These more legally complex family cases are heard by the higher family courts and are chaired by district judges or circuit judges.  

 

Any questions do get in touch with our family team on 01206 577676 or visit our website for more information. 

 

 

 

The Court Welfare Service has launched a new course and set of resources for parents to help them think about how to prioritise their children’s needs while they are separating. Planning Together for Children combines e-learning, group work and online support for parents involved in private law family court proceedings. It replaces the Separated Parents Information Programme (SPIP).

When parents separate, the risk to a deterioration in their child’s emotional wellbeing and mental health increases significantly if the separation involves a high level of conflict. This can be exacerbated by the anxiety and uncertainty caused by lengthy family court proceedings.  Planning Together for Children encourages parents to consider how they can communicate and work together to agree parenting arrangements without the need for more court hearings and to understand how disagreements and arguments can worry their children and affect their wellbeing and development.   It was designed with input from children and families.

The new programme aims to reduce the time families spend in family court proceedings and to lower the number of families returning to court.

Planning Together for Children is for families in private law family court proceedings and can either be ordered by a court or referred by a Cafcass Family Court Adviser at any stage of proceedings

Unlike the SPIP, which was a one-off four-hour course, there are three stages to Planning Together for Children:

• a set of self-directed e-learning modules that focus on topics such as what happens if parents go to court, understanding and managing emotion, and looking at things from a child’s point of view;
• a group workshop where parents will be encouraged to discuss, think about and extend their learning from the e-learning modules, covering topics such as understanding the impact of conflict on children and communicating in positive ways with each other; and
• a supplementary online parenting plan – to help parents to make agreements about important parts of their co-parenting relationship and the arrangements for their children, where this is safe for the children and adults. Parents will be encouraged to share an understandable version of the plan with their child/ren.

The online parenting plan is available without the need for a referral on the Cafcass website and its worth a look.  The interactive plan allows separating parents to agree arrangements for their children online and then to consider how they will discuss them with their children.

To find out more about how we can help, please visit our website or call our office on 01206 577676.

Did you know that domestic abuse can include ‘economic abuse’?

I read recently that one in six women in the UK has experienced economic abuse by a current or former partner.    So what actually is economic abuse?   The Domestic Abuse Act 2021 gives us the answer, because s.1 defines it as a form of domestic abuse:

Behaviour is “abusive” if it is any of the following—

• physical or sexual abuse;

• violent or threatening behaviour;

• controlling or coercive behaviour;

• economic abuse

• psychological, emotional or other abuse;

and it does not matter whether the behaviour consists of a single incident, such as a forged signature,  or a course of conduct such as consistently denying you access to your own money, providing it is behaviour that has a substantial adverse effect on your ability to—

• acquire, use or maintain money or other property, or

• obtain goods or services.

This can be interpreted fairly widely and could include:

Dictating, tracking, or making you justify all expenditure;

Forcing you to ask for money;

Taking away from you your own money, be it savings or salary;

Controlling or denying you access to money;

Blocking your access to financial resources, benefits, and even information;

Refusing to contribute to household expenses;

Insisting accounts, funds and property are not in your name………….

………but the debts are – ie coercing you into debt or building debt in your name without your knowledge.

Help is at hand.   Surviving Economic Abuse (SEA) is the only UK charity dedicated to raising awareness of and transforming responses to economic abuse. 

If you are a victim, have a look at this:  https://survivingeconomicabuse.org/

Drug testing can screen for the use of illegal drugs, as well as the misuse of prescription medications, over-the-counter medicines, and legal substances including alcohol and tobacco.

There are various methods we use to test for drugs.  Hair strand drug tests identify drugs or their break-down substances in a sample of hair and is a non-invasive, painless and reliable procedure..

Once a drug is consumed, it enters the bloodstream and travels throughout the body.  Scientists can analyse hair samples to detect these trace amounts of drugs and their metabolites, which are substances produced by the body when a drug is taken and can be used to show drug use.    A laboratory analysis can then provide an interpretation of the levels of drugs detected.

During hair strand drug testing, scissors are used to remove a small sample of hair.   While drug use and misuse may not actually appear in the hair until 7 to 10 days after drug exposure, once it enters the hair it remains for weeks, months, or even years.   

How long drugs remain detectable in hair is called the ‘window of detection’. The length of the detection window varies based on a number of factors, including the amount and frequency of drug use or misuse and the rate at which the drug is metabolized in the body. Some drugs continue to enter new hair growth for months after a person’s last drug exposure.

The window of detection also varies based on the amount of hair tested. Although longer samples of hair can be tested for drug exposure over a longer period of time, a standard sample of hair from the scalp is 1.5 inches and provides information about approximately 90 days of past drug exposure.   So roughly, 1cm = 1 month.   A hair sample taken from a different part of the body where hair grows more slowly may have a detection window of up to 12 months.

The cost of the testing can vary so shop around.

In family proceedings, the basic rule is that the Court can make costs orders as it thinks fair in all the circumstances. 

However, in relation to costs in proceedings for a financial order, they are subject to the general rule that the Court will not make an order requiring one party to pay the costs of another party.

Of course there are always exceptions.

The Court can make an order requiring one party to pay the legal costs of the other where it considers it appropriate to do so if the other party’s conduct before or during the proceedings has been less than helpful.

In considering whether to make a costs order the Court will consider:

 (a)    any failure by a party to comply with the court rules or any court order;

 (b)   rejection of any reasonable open offer to settle;

 (c)   wasted time/costs ie whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

 (d)    litigation behaviour – ie the manner in which a party has pursued or responded to the application or a particular allegation or issue;

 (e)    general bad behaviour ie any other aspect of a party’s conduct in relation to proceedings which the court considers relevant; and

 (f)     the financial effect on the parties of any costs order.

Add to this that once there has been full and mutual financial disclosure, if you do not openly negotiate reasonably, then you risk having to pay the other party’s costs.  This applies whether the case is big or small.   If you run up costs unnecessarily, then you risk having a costs order made against you.

Along with the house, the pension pot is one of the largest financial assets in the family.  You & your spouse might have a mix of his, hers, theirs, and yours but all need to be correctly valued and assessed within the context of an emotional and economic family breakdown.  You must begin by assessing what you actually have in the pot and when you might be able to access that pot.   Providers can be slow in producing the required valuation  but you’ll need this to make a start.  And you must read the small print – so if you don’t fancy doing it yourself, ask a lawyer who will!  Once you understand the asset, you then need to consider how it could be shared upon divorce.

Offsetting

Pension offsetting is where one person keeps their pension in exchange for giving up another asset, such as the family home.

Pros: This approach is relatively straightforward and allows the parties to have a clean financial break from each other upon divorce.

Cons:  This is more straightforward with a private pension than with an occupational pension.   The party who forfeits the other’s pension may lose out.  After all, a pension is generally designed to produce an income rather than be a savings account.

Pension sharing order

With pension sharing, a percentage of one person’s pension is transferred to the other.

Pros: Both parties end up with a separate pension.

Cons: It’s relatively complex initially. You may need financial advice (which comes at a cost) to improve your chances of getting a fair split, especially if its an occupational pension under scrutiny.

Pension attachment order

One person pays an income or lump sum to the other when they start taking their pension.

Pros: Like pension sharing, it can result in a fairer split of the pension.

Cons: An attachment order essentially a form of maintenance paid to the former spouse, so it doesn’t allow for a clean break. The pension-holder retains control over the choice of investments and when the payments to their ex-partner are made.  These do not seem to be very popular yet in the right circumstances, they could be very reassuring as there is less risk of default.

As ever, your solicitor is here to help – just ring us on 01206 577676 or send an email to [email protected] and book an appointment.