Qualified Legal Representatives

February 26, 2024

The law recognises that victims of domestic abuse could be retraumatised if they were to be cross-examined by their abusers who are representing themselves. The law now provides for the court to appoint a lawyer to do so instead: a “Qualified Legal Representative” (QLR).

Royal Courts of Justice in London

The (alleged) abuser must of course also have a fair hearing, whether in the proceedings about an order preventing them from continuing or repeating the abuse or in financial or children proceedings. To deal with this conundrum, the court will now order for a QLR to conduct the cross-examination of the other party instead in cases where (alleged) abusers are “Litigants in Person”, that means representing themselves. QLRs are paid by the government (although not generously) and are family solicitors or barristers. They are there solely to cross-examine the other party and will not represent the (alleged) abuser otherwise. The court may ask them to provide a written summary of the case for the court hearing, but after they have done their cross-examination they leave and the (alleged) abusers will then continue to represent themselves.

Cross-examination is still tough or any witness, let alone a victim of domestic abuse, in particular if the case is about the abuse. However, the QLR is specially trained to (cross-)examine vulnerably witnesses and the victim is not asked direct questions from the abuser. That must take some strain out of that otherwise unpleasant experience.

For the (alleged) abuser, while not getting their own lawyer to represent them, they are being helped by an advocate with what is probably the most difficult task of a final hearing, namely cross-examination. That should also help them to an extend to summarise their case for the court.

Lesbian Couple’s Children in a Gulf State Subject to English Court

February 23, 2024

A recent case (S (Children: Parentage and Jurisdiction) [2023] EWCA Civ 897) shows two interesting points, which are of far wider significance on lesbian paternity and international family law.

Two women had been civil partners in England and one of them gave birth to (it seems) four children. When the relationship broke down, the gestational mother moved to a Gulf State, they dissolved their civil partnership and both married other women. First the non-birth mother saw the children regularly, but the gestational mother then seems to have stopped that. The oldest child was in boarding school in England.

Two questions were decided by the Court of Appeal:

  1. Were both women legal parents of the children?
  2. Could the English Court decide on issues child arrangements?

While the oldest child had been born before a law change, the younger children were born after the Human Fertilisation and Embryology Act 2008 s. 42 came into force, which provides:

(1) If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership with another woman or a marriage with another woman, then […] the other party to the civil partnership or marriage is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).

Persian Gulf State - Scene in Dubai as Illustration

The appeal court decided that consent did not have to be a “deliberate exercise of choice”, but rather the presence or absence of consent may be inferred from the circumstances. Consent does not have to be “in writing or oral or unarticulated” and while “acquiescence …is not the same thing as consent”, “but the court will be careful to distinguish acquiescence from consent that has not been expressly stated.”

“The big picture here was that these were parties to a civil partnership who wanted children and created a family”; the court had accepted that the non-birth mother wanted children and “The judge’s conclusion that [the non-birth mother] merely acquiesced sits uneasily in the context of a relationship between cohabiting civil partners.”

This is significant as it gives more certainty to same-sex families and their children. The norm in cohabiting married couples or civil partners must be that if one of the women has a child, the other one is a legal parent of the child.

The second issue was whether the English Court could decide on the issues about the children. In this case the Gulf State in which (at least) the younger children lived did not recognise same-sex relationships and did not recognise parental rights of non-birth mothers. So they would not decide on any application by the non-birth mother for time with the children. The basic rule is that the courts where the children live have the power to make such decisions. This is also the basis in the 1996 Hague Convention. However, if no country has jurisdiction under those rules, the English court also have the power to make decisions in connection with continuing divorce and civil partnership dissolution proceedings in England. The question was whether this applied in the case where the civil partnership dissolution had been concluded more than 5 years earlier.

The court followed another recent case (Re T (Children) (Jurisdiction: Matrimonial Proceedings) [2023] EWCA Civ 285) and found that the English courts can continue to decide on child arrangements until they are 18 if the divorce or civil partnership dissolution as in England and Wales. This allows the English courts to look at child arrangements where the divorce or civil partnership dissolution was in England provided the country where the children live (broadly) is not a member of the 1996 Hague Convention. In cases where this could happen, that may be a good reason to have the divorce in England rather than elsewhere.

The practical effect for this non-birth mother is not entirely clear from the report. I suppose with the oldest son in boarding school in England the birth mother continues to travel to England and does not want to fall foul of a court order so will comply with an order made in England.

Lesbians are Divorcing more than Gay Men

February 19, 2024
Gay & Lesbian Divorce Rates

Women who get married to other women divorce at almost twice the rate gay men do. Overall, 14.4% of same-sex marriages and civil partnerships in England and Wales have ended in divorce. For men the rate is 11%, for women 18%.

For same-sex marriage, which has only been around since 2014, the rates are even starker: 5% of male but 10% of female same-sex marriages have ended in divorce. For civil partnership the rates are 16% and 29% respectively. More male than female couples entered into civil partnerships until the end of 2020 (37,990 and 30,933), although more women got married (18,180 male and 23,578 female couples). It is striking therefore that so many more female couples have already ended their marriage or civil partnership than male couples.

This is not a sudden spike. Even looking at the figures until 2015 (for the first 10 years of formalisation of same-sex relationships) or just at the figures until the end of 2013 before equal marriage was possible, for each male couple formally ending their relationship there were between 1.63 and 1.76 female couples doing so. The government has published a statistic showing the civil partnership dissolutions each year in relation to 1,000 civil partner couples and there are similar differences in the male/female ratios.

This cannot be a coincidence as the figures show the same trend over the years. There must be a reason in the way and culture gay couples arrange their relationships and lesbian couples do. Are gay couples more open to an open relationship so that sexual relations outside the relationship are allowed and are not a reason to end it? Does this tell us something about women’s attitude to relationships altogether? It would be amazing for academics to research this in detail.

Unfortunately, the statistics do not allow us to compare same-sex with opposite-sex relationships because same-sex civil partnership and now marriage has only been around for a short period of time. We cannot assume that all same-sex couples have been together for decades when they formalised their relationship, nor can we assume that they have not. With marriages there is also the issue that people may have married abroad and divorce here, certainly for countries from where there is immigration into the UK. The main ones are in Eastern Europe and India and China. For same-sex couples there is likely to be less of a one-way movement because the main countries of immigration do not have same-sex marriage or registered partnership.

It is also interesting to see that after an initial backlog of civil partnership formations in 2006 (14,943) the figures dropped to around 6,000 a year until equal marriage came in at the end of 2014 and are now around 1,000 a year or less. At the same time there are around 7,000 same-sex weddings a year in England and Wales. Obviously, the figures dropped during the pandemic when people could not get married during lockdown. This shows that civil partnership was not what lesbians and gay men really wanted, but just a token “marriage light” the government offered as a consolation price to the LGBT+ community in 2004. Since 2019 opposite-sex couples can register civil partnerships and although the numbers are low compared to marriages, they far outnumber same-sex couples (for 2021 5,692 to 1,039).

The marriage and civil partnership figures are taken to the end of 2020 and the divorce and civil partnership dissolution figures to the end of 2021. This is because one cannot divorce or dissolve a civil partnership in the first year. This ignores a small number of nullity decrees (13 overall).

The figures come from the marriage, civil partnership, divorce and civil partnership dissolution statistics freely available on the Office for National Statistics website. They ignore relationships which have ended by one partner dying, which have been dissolved elsewhere in the UK or abroad and couples who got married or partnered elsewhere and divorced or dissolved their civil partnership in England and Wales. We also do not yet have the number of conversions of civil partnerships to marriages for 2021, although this will be marginal because there were only 238 overall in 2020 (146 male and 92 female couples).

AI is no use for legal research

February 16, 2024

I tried out AI to do legal research and here is the result.

I was looking at child maintenance the other day and the way the Child Maintenance Service (CMS) calculates child maintenance in specific cases. That is set out in Schedule 1 to the Child Support Act 1991. So far so good.

This has been amended several times and the government helpfully has the amended latest version on its legislation website. However, there is a paragraph that provides that some people do not have to pay child maintenance at all:

5 The rate payable is nil if the non-resident parent—
(a) is of a prescribed description; or
(b) has a gross weekly income of below £7.

How do I find out what “prescribed description” means? This is set out in secondary legislation, also called statutory instruments or SIs. They are also online on the government legislation website, but they are not cross-referenced in the act which they define further, nor are they updated. So an SI may have been amended by another SI, but the older SI will appear on the government website in its original wording. So unless I get a learned book on the topic (and even then finding this is not straightforward), I would have to traipse through dozens of SIs to find the definition. I did find the answer (by chance) in regulation 45 of the Child Support Maintenance Calculation Regulations 2012 SI 2012 No. 2677: prisoners, children and some students and residents in care homes etc.

I wondered whether AI could get there quicker. Since all this information is publicly online and it is just a question of reading all of it, cross-referencing it and finding the most recent version if there is more than one, it does not really take intelligence to find it, just the ability to read a lot of information fast and put it in date order.

I started with bing.com AI. I asked:

Hi. I’m looking for the statutory instrument which sets out the “prescribed purposes” for paragraph 5 of schedule 1 of the child support act 1991.

It told me:

I’m sorry, but I couldn’t find the specific statutory instrument that sets out the “prescribed purposes” for paragraph 5 of schedule 1 of the Child Support Act 1991. The information available on the legislation’s website1 does not provide the exact details you’re looking for. You may want to consult a legal expert or a law library for more specific information.

Elon Musk 
U.S. AIR FORCE ACADEMY, Colo. --  Tesla Inc. Chief Executive Officer Elon Musk speaks with Lt. Gen. Richard Clark, Superintendent of the U.S. Air Force Academy, during the Ira C. Eaker Distinguished Speaker Presentation in the Academy's Arnold Hall on April 7, 2022 in Colorado Springs, Colo. (U.S. Air Force photo by Trevor Cokley)

Polite but wrong. I tried Gemini from Google next:

Unfortunately, there isn’t a single statutory instrument that directly defines the “prescribed purposes” for paragraph 5 of Schedule 1 of the Child Support Act 1991. Here’s why:

    1. No specific instrument: Paragraph 5 itself doesn’t mention any specific statutory instrument for prescribed purposes. Instead, it references regulations made by the Secretary of State. This means the definition of “prescribed purposes” depends on the specific regulations in force at the time.
    2. Dynamic regulations: Child support regulations are regularly updated and amended. Past regulations might not be valid now, making it difficult to pinpoint a single instrument.
    3. Multiple regulations: Several different sets of regulations could contain relevant definitions depending on the specific scenario you’re interested in.

Right, yes, if the SI was mentioned in the Act, I would not have asked! So I thought: “Third time lucky.” and tried ChatGPT (free version):

The statutory instrument you’re referring to is likely “The Child Support (Information, Evidence and Disclosure) Regulations 1992 (SI 1992/1812)” which sets out the prescribed purposes for paragraph 5 of Schedule 1 of the Child Support Act 1991.

And which paragraph in that SI do I need to look at?

You’ll want to look at paragraph 3 of Schedule 1 of “The Child Support (Information, Evidence and Disclosure) Regulations 1992 (SI 1992/1812)” for the prescribed purposes related to paragraph 5 of Schedule 1 of the Child Support Act 1991.

Not only did ChatGPT randomly pluck out an SI (admittedly relating to child support), but it also referred to a paragraph of a Schedule which didn’t even exist. It simply made it up.

So when Elon Musk said that we would all be out of a job in a few years’ time because AI can do it, I am not getting concerned. (Despite having 10 surviving children, Musk also doesn’t seem to have cared for a child, older person or anyone else in his life or he would know that AI is hardly going to be able to do that job.)

Andrea Woelke has joined Josiah-Lake Gardiner as a Consultant

January 1, 2024
Andrea Woelke
Andrea Woelke is a consultant at Josiah-Lake Gardiner Solicitors

After extended parental leave Andrea Woelke has now joined Central London boutique law firm Josiah-Lake Gardiner as a consultant. The firm is led by partners David Josiah-Lake and Rebecca Gardiner.

Rebecca has more than 30 years’ experience in family law and has a number of reported cases to her credit. David, who has been a family lawyer since 1992, set up the firm in 2004 (then Josiah-Lake Solicitors) before going into partnership with Rebecca in 2008. He writes extensively on family law issues and recently managed to achieve a settlement for a client in a case involving complex tax issues as a result of business and property assets held both onshore and offshore.

They are supported by solicitor George Davies who trained with a specialist North London firm gaining experience with high-net worth divorces and complex children cases; trainee solicitor Ruth Mabhula and paralegal Ayush Gurung. Ayush is a native Nepali speaker.

Will Harry and Meghan have custody of their own children?

August 22, 2018

Duke and Duchess of SussexA story has made the rounds this silly season that the Queen has custody of her minor grandchildren (and by implication her great-grandchildren) instead of their parents. This appears to be total nonsense.

This all seems to rely on a blog post by an American royal journalist Marlene Koenig who in turn relies on an article in the Times from 1993 by Michael L. Nash (which I could not find). The story relies on a number of points:

  1. A court case from 1717: Case concerning the King’s Prerogative in respect to the Education and Marriage of the Royal Family. Hilary Term, 4., Geo. I. 1717
  2. This was a law that was passed by judges in 1717.
  3. A contention that this was re-enacted in 1772
  4. The fact that Prince Charles and Princess Diana’s divorce settlement did not deal with custody of their children.
  5. An extrapolation from grandchildren to great-grandchildren (which even Marlene Koenig denies to have made).

Let’s take these points in turn. Before doing so, I must state that I am a family lawyer, not a constitutional lawyer, so if I get any constitutional points wrong, please do let me know.

1717 Case

This is a case on whether the King has a royal prerogative in the area of custody of his grandchildren. The question to the court was:

‘Whether the education, and the care of the persons of his majesty’s grandchildren, now in England, and of prince Frederick, eldest son of his royal highness the prince of Wales, when his majesty shall think fit to cause him to come into England, and the ordering the place of their abode, and appointing their governors, governesses and other instructors, attendants and servants, and the care and approbation of their marriages, when grown up, do belong of right to his majesty, as king of this realm or not.’

This was before fathers and mothers had equal power over their children etc. A royal prerogative exists where there is no statute or other legal provision, i.e. a legal vacuum. The government contested it could use the royal prerogative to invoke Article 50 of the Treaty of the European Union to give notice to leave the EU, but the courts held that because Parliament had legislated in this area, it needed parliamentary approval: no gap in law – no royal prerogative (R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references [2017] UKSC 5). So if Parliament has legislated in the area of child custody since (and it has) and did not exempt the royal family, this trumps any royal prerogative the sovereign may have had in 1717.

Enactment

No law was passed by judges. Judges do not pass laws, they interpret them. Parliament passes laws and did not do so on this point in 1717.

Royal Marriages Act 1772

The case report of the 1717 case refers to a preamble to the Royal Marriages Act 1772, which stated “that ‘the kings of this realm have ever been intrusted with the care and approbation’ of such marriages.” So nothing was enacted about the custody of minors. The point made here is simply that the act stated that the King had those powers anyway. However, now that parliament has legislated, these powers are no longer a royal prerogative and indeed the Royal Marriages Act 1772 was repealed by the Succession to the Crown Act 2013. This does not revive the royal prerogative. Instead this shows that once parliament legislates in an area, there is no longer a royal prerogative, even when it comes to the royal family.

Charles’ and Diana’s Divorce Settlement

By 1991 the Children Act 1989 (which does not exempt any royal prerogative) had come into force and there concepts of “custody” no longer exist in English family law. Married parents have parental responsibility and retain that even when they divorce. There has been no need for any apportionment of custody or other parental rights in a divorce settlement since then and indeed you cannot include it in the main financial settlement. Separate court proceedings are necessary if parents do not agree and the law now actively discourages parents from litigating. So the fact that Charles’ and Diana’s divorce settlement did not award custody to one of them is neither here nor there.

Great-Grandchildren

Even Marlene Koenig does not contend that the royal prerogative extends to great-grandchildren, so even if it still existed, as for Harry and Meghan’s children it is a non-story.

So here we are in the silly season of summer and media outlets are copying from a 2013 blog post to create a story which seems to have no foundation in law at all.

Court order to allow one parent to apply for foreign passport

June 14, 2018

One parent can apply for a British passport for a child, but in many other countries both parents have to make the application. Often that includes personally coming to the appointment. For foreign parents living in the UK this can be a serious problem. I have had many such enquiries. Recently a mother contacted me (details anonymised):

My daughter is 6 years old and I am from Spain. The father has not been involved in her life for 5 years and I do not know where he is. The Spanish embassy says he needs to come to make the application for the passport or I need a court order. Can you help?

Spanish passport

Here is what you can do:

  1. Check if you can get a British passport instead without the other parent’s involvement. Your child may in fact be British already. Many people do not realise that. If the other parent is British, your child is probably also British. Even if you are both foreign, your child may be British or can be British depending on your immigration status. It is worth getting advice from a specialist immigration solicitor. This could be worthwhile, not only if you want to travel soon but also for your child’s ability to stay in the UK post Brexit or in their own right once they are an adult.
  2. The problem is that the English courts do not have a specific order in statute law that provides for this because it is not an issue for British nationals. However, specific issue orders can be made. Another problem is that the English courts have no power to direct a foreign state what to do. So the Spanish consulate may ignore an order by an English court telling it to issue a passport. Therefore, it is vital for the consulate to confirm what exactly the order should say, preferably providing a wording. Since this is unlikely to be the first time the consulate in London has come across this, they should really know what wording they have accepted in the past. If not, they should think about it and have a pre-printed wording to hand to parents. If they are unresponsive or just direct the parent to a solicitor, we can suggest a draft or alternative drafts for them to approve.
  3. As with any court proceedings, the party against whom you make an application has a right to be heard. Therefore, you must send a copy of your application to the court to the other parent. If, as in this case, you do not know where the father is because he has not been around for several years, the court will still expect you to try to find him. The court would only allow you to go on with the application without the other parent knowing about it if you have done everything that is reasonable to try to find the other parent without success and can show the court.
  4. It may be possible that you can make an application in your home country to the court for an order in relation to this issue. This may be straightforward and cheap and may even bind the consulate to act. The jurisdictional issue is perhaps a bit uncertain here: Generally in the EU the courts of the country where the child is habitually resident have the power to make decisions about the child. However, if one regards this as a decision about the sovereign powers of the state to issue passports, it may be that the courts of the home country have powers to deal with the issue. It is worth checking this with a lawyer in your home country.

Rückzug nach Deutschland mit Kindern

February 5, 2018

Eine deutsche Mutter, die in England mit Kindern und deren Vater lebt, kann nicht so einfach nach Deutschland zurück ziehen.

Ich habe in den letzten Monaten in verschiedenen Foren Posts von deutschen Müttern gelesen, meist die wegen des Brexit, mit ihren Kindern nach Deutschland zurück ziehen wollen und wo der meist englische Vater hier in England bleibt. Das ist nicht so einfach, wie es vielleicht aussieht.

Parental Responsibility

Wenn der Vater „parental responsibility“ hat, brauchen Sie die Genehmigung des Vaters, oder eine Genehmigung vom Gericht. „Parental responsibility“ haben Väter, die:

  • mit der Mutter verheiratet sind oder waren, auch wenn sie erst nach der Geburt des betreffenden Kindes geheiratet haben;
  • seit 1.12.2003 auf der englischen Geburtsurkunde eingetragen sind;
  • mit der Mutter ein „parental responsibility agreement“ unterzeichnet und beim Gericht registriert haben;
  • für die ein Gericht die „parental responsibility“ angeordnet hat oder
  • die durch ausländisches Recht einen ähnlichen elterlichen Status haben (z.B. wenn Sie früher in Deutschland gelebt haben und da eine Sorgerechtserklärung vor einem Notar abgegeben haben – das gilt für alle EU Staaten und andere, für die das Haager Kinderschutzübereinkommen von 1993 gilt).

Hat der Vater „parental responsibility“, brauchen Sie seine Zustimmung. Dafür gibt es kein Formular und die kann auch mündlich erfolgen. Allerdings, kann es dann natürlich sehr schwer sein, dies später nachzuweisen. Wenn der Vater nicht zustimmt, muss das Gericht in England (oder Wales) dies genehmigen, sonst ist eine Umzug eine Kindesentführung. In solchen Fällen kann das Gericht in Deutschland auf Antrag des Vaters die Kinder nach England zurückschicken. Selbst, wenn das deutsche Gericht dies nicht tut, kann das englische Gericht nach EU-Recht eine Rückführung dann immer noch anordnen. Ob sich dieser Punkt nach dem Brexit ändert und wenn ja, dann ab 30.3.19 oder erst am Ende einer Übergangsperiode, kann noch nicht gesagt werden.

Was, wenn der Vater zustimmt?

Ich habe viele Fälle erlebt, in denen der Vater mal zustimmt, aber es nie so richtig sicher ist, ob das auch dabei bleibt. Hierzu müssen Sie beachten, dass eine Zustimmung, auch wenn sie schriftlich oder über Anwälte erfolgt, jederzeit (auch mündlich) widerrufen werden kann, und zwar, zumindest theoretisch, bis zu dem Zeitpunkt an dem die Kinder dann in Deutschland ihren gewöhnlichen Aufenthaltsort haben. Dies geschieht ja nicht gleich am Tag des Umzuges sondern irgendwann während der darauffolgenden Monate. Ob der gewöhnliche Aufenthaltsort dann in Deutschland ist, ist immer eine Frage der Sachlage. Das heißt, auch wenn Sie den Umzugswagen gebucht, Wohnung und Arbeit gekündigt und eine neue Stelle und Mietwohnung in Deutschland haben, kann noch ein paar Tage vor der Abreise, oder sogar nach der Ankunft in Deutschland der Vater sagen, dass er sich das anders überlegt hat.

Von der Seite des Vaters aus, will er natürlich weiterhin Kontakt zu den Kindern haben. Das kann auch Skype, Besuche, Ferien in England (oder auch am Mittelmeer) usw. beinhalten.

Damit beide Eltern abgesichert sind, empfehle ich in fast allen Fällen, dass sie sich anwaltlich beraten lassen und die Einigung dem Gericht vorlegen, sodass das Gericht dann eine Verfügung erlassen kann. Zumindest solange das Vereinigte Königreich noch in der EU ist, hat die Verfügung aus England in München den selben Status wie eine Verfügung aus Düsseldorf. Das sichert den Vater ab. Die Mutter hat dann eine Erlaubnis des Gerichtes, dass sie mit den Kindern nach Deutschland ziehen darf und die kann der Papa nicht einfach so widerrufen. Zwar könnte er einen Antrag vor Gericht stellen, dass die Erlaubnis zurückgezogen werden soll, aber dazu braucht er Gründe.

Zulange sollten Sie allerdings dann mit dem Umzug nicht warten. Wenn sich die Umstände tatsächlich ändern, kann das Gericht sich die Situation auch noch mal anders überlegen, wie in dem Fall Re AR (A Child: Relocation) [2010] EWHC 1346.

Die Situation ist also nicht einfach und eine Beratung von einem Solicitor, der oder die sich auf internationales Familienrecht spezialisiert, ist unbedingt notwendig.

Was ich ausgeführt habe gilt natürlich auch für deutsche Väter, die mit den Kindern nach Deutschland ziehen wollen, und wo die Mutter hier in England bleibt. Für gleichgeschlechtliche Paare ist es etwas komplizierter herauszufinden, ob der andere überhaupt rechtlich Elternteil ist, und dann ob es „parental responsibility“ hat. Dazu mehr hier.

Die Ausführungen gelten zu England und Wales. Schottisches und Nordirisches Recht sind gegebenenfalls anders. Sie müssen sich örtlich beraten lassen.

Equal time between Parents

January 17, 2018

I frequently get asked how children should share their time between their parents. More parents agree or demand from the other that they have equal time. I have seen numerous variations of how that is done in practice, for example:

  1. One week with each parent.
  2. 3 days with each parent in turn, or 4 days with each parent in turn.
  3. Week days in turn with each parent.
  4. Complicated schedules where over a two or three week period weekdays and weekends are evened out but there are frequent changes.

Any solution you agree must work for the children and must be practical depending on your work schedules. So alternate weekends make little sense to a parent who has to work every third weekend for example.

None of the above solutions seems satisfactory to me. A week with each parent means a child has to take all of their belongings and school kit with them each week and does not see the other parent for a long time. This may work where parents are still close and live close by and a child can nip over to the other house to get some stuff they may have forgotten, but could be a strain in other cases. All other suggestions seem very disruptive with children not knowing whether they are coming or going.

What seems to work for a lot of families, however, (assuming both parents work regular office hours or something close to that) is this system:

  • Alternate weekends from Friday to either Sunday night or Monday to school/nursery. If this is to Monday that would be 3 nights in 14.
  • The same weekdays with each parent in one chunk, i.e. Mondays and Tuesday with one and Wednesdays and Thursdays with the other parent. This means 2 nights a week or 4 nights a fortnight. Together with the weekends those are 7 nights a fortnight and exactly equal.
  • Equal division of holidays.

The advantages of this system are:

  • Weekends are alternating so parents can actually make plans and go away with the children overnight if they want, say to visit family or go to the seaside etc. Or they could just have a lie-in/pyjama morning lounging around of course.
  • Most children have some after-school activities (sports or music lessons etc) and with this system the same activity will be with the same parent, e.g. “mum will always take me to football training on Tuesdays”. This also applies to the school timetable.
  • Children seem to be able to remember which parent they have been with each weekend, so alternating weekends are a system they can follow. They also seem to be able to remember days of the week and so this system is something they can follow without having to consult a calendar or having an adult tell them. They can make plans, such as inviting a friend around to play (or for revision) Thursday next week without having to think where that would be or who they would need to ask.
  • There are only two handovers each week and they can, if necessary be through the school or nursery so parents do not have to meet, which can help if this has been a problem in the past.
  • A child will spend at most 2 nights plus a weekend (5 nights) with one parent, so is not away from the other for longer than that.

So it’s a system that’s easy to follow for children and allows whole weekends with each parent.

Even in cases where there is no insistence on equal division, this system can work in a modified form, i.e.

  • Alternate weekends from Friday to Sunday night with each parent
  • Thursday night with one parent, the rest with the other.

This means that each alternate weekend the child is with the other parent from Thursday to Sunday night. This system could later move to the one I described above in a way that seems very natural for the child.

Other Parent Messing About on Child Contact

September 16, 2017

I have had several callers yesterday with essentially the same issue: the other parent is not agreeing to or not sticking to a clear schedule for time they spend with the child. In those cases I can either act for the parent, take detailed instructions and then correspond, all of which costs you money; or I can give generic advice. So I thought I would set out the basic generic advice here for everyone to read. Let’s take an anonymised example of a heterosexual couple where a young child, still a baby, lives with the mother. The same advice applies to same-sex couples, co-parents etc. The father will not agree to clear times, or although they have been agreed, does not turn up, or turns up at other times. He says that if the mother will not let him have contact on his terms, he will go to court. In any event, he will not pay maintenance if she won’t let him have his time with the child and he is entitled to 50/50 anyway.

Now, I only ever hear one side of the story, so there may be a lot more to it. However, there is a suspicion here that the father is using the contact and child maintenance as a way to exert power and coercive control, which is a form of abuse. It is often very difficult to prove that later in court because the abuser may come across as perfectly reasonable and claims that he is the one who has always made reasonable requests that have been unreasonably denied. Constant changing and arguing can also be grinding and stressful (and that may well be the intent). To avoid the stress and be able to have a case later in court if the matter comes to court, I advise the following:

  1. Communicate in writing (letter or email, but not texts, messenger etc.) about the proposals. Be clear and concise about what you suggest and why. Do not go into the history and make no reproaches; be practical and constructive. Suggest a contact regime that works for you, your child and that you think works for the father. Say that if it does not work for him, he tell you why it does not and can make alternative suggestions. Ask him to respond by email only. If he rings or texts etc. tell him you would prefer not to discuss this and that instead he should respond by email. This way, you can later if necessary show that you made reasonable suggestions early on.
  2. If you find it difficult to see if your proposals would work for him, ask a friend who is a parent of a child of similar age. Don’t be stingy when making your proposals, but do not be over-accommodating (e.g. there is no need to suggest that the father can use your home for contact if he is perfectly able to take the child to his home instead – this may be different if he lives 200 miles away).
  3. Consider any alternative proposals that he suggests and be prepared to accept them if they work; but give reasons if they do not work.
  4. Keep a diary (cheap paper diary, or an electronic document) which you update with all agreed contact and what times the father turns up, returns the child etc. You can also include any other issues, communication, telephone calls etc. in that diary. Just use bullet points and do not write whole pages of narrative. Such a record will give you the ability to show later on whether or not the father stuck to the agreement. I have often seen parents who claim they did, but could then be shown up. A paper version may look better with judges as a contemporaneous note, but if an electronic version works best for you, use that. Make sure you update it in real time and not a month later when you can hardly remember what happened. I would also use a document or diary which you do not use for anything else so that you can show a print out or copy to the other parent or the court.
  5. Ignore threats, in particular of “50/50 access” when that is practically fanciful (e.g. the father is not sticking to contact because in addition to his full-time job he is doing overtime).
  6. Be prepared to adjust the regime as the child gets older and their circumstances and needs change or if either of your circumstances and needs change (e.g. you stop breastfeeding regularly; the child starts swimming lessons etc.).
  7. If maintenance is not regularly paid by standing order at the rate it should be paid, write to ask for copies of his P60 and recent pay slips within 14 days. If you get them, use the online calculator to work out how much maintenance he should be paying. If it is not forthcoming, send a reminder with a clear deadline (say 7 days, taking account of any holidays etc.) and if that is not forthcoming make an application to the Child Maintenance Service. If you are able to calculate the rate and agree, insist it is paid by standing order each month the day after his salary comes in. If not, apply to the CMS.

These points should help in most cases. If you have any other ideas, tweet me.