Cafcass publishes its draft strategic plan – Consultation now open.

Cafcass has published its draft strategic plan for 2013-15, which is now open for consultation.

The document is an outline strategic plan for the two years starting from April 2013. It includes the Service’s role within ongoing family justice reform, including meeting all key performance indicators and steadily improving the quality and timeliness of case analyses prepared for court. The strategy also includes a continuing commitment to “doing more with less”, as demand increases and budgets are reduced, as well as a continuing commitment to health and wellbeing of staff.

In the plan, Cafcass commits to publishing at least four studies a year into the issues affecting children and how children’s cases are handled by it and others.

Stakeholders and other interested parties are encouraged to look at the plan, which can be viewed here. Please send any feedback to zzcafcasscommsteam@flex-r.gsi.gov.uk by 8th March 2013.

 

 The strategic priorities are:

 

• Making further improvements in the quality of our work.
• Implementing our part of the family justice reform programme and actively supporting the
overall reform programme.
• Enhancing our understanding of diversity in casework, given the uniqueness of each child
we have responsibilities towards.
• Becoming even more resilient by handling higher volumes of work whilst making further
savings in our budget.
• Using our influence positively as the voice of the child and the eyes and ears of family courts

 

Can a court hearing be done on the telephone?

Guidelines for telephone hearings in district registries and County courts
Telephone hearings in civil hearings were introduced in 1999 as part of the Civil Justice Reforms following Lord Woolf’s Review of the civil justice system in England and Wales. More recently the availability of telephone hearings has been expanded to cover a wider variety of hearings. To reflect this, the Practice Direction covering telephone hearings has been revised. This is a brief guide on the scheme as it applies in county courts and district registries.
Rules

The procedures for telephone hearings can be found under Practice Direction (PD) 23 of the Civil Procedure Rules (CPR). This Practice Direction supplements Part 23 of the CPR.

All hearings listed as suitable in the practice direction will normally be held by telephone (PD 6.2)
Procedures under the scheme

Hearings to be conducted by telephone unless otherwise ordered.

All allocation hearings, listing hearings, case management hearings and interim applications with a time estimate of no more than one hour.
Any other application, with the consent of all the parties and the agreement of the court, shall also be included.

Hearings excluded.

Where all of the parties are unrepresented
Where more than four parties wish to make representations at the hearing (for this purpose where two or more parties are represented by the same person they are treated as one party).

Applications in respect of hearings not to be conducted by telephone conference

Parties may make applications under the practice direction for a hearing not to be conducted by telephone. If they do:

It must be made at least 7 days before the hearing: and
It may be made by letter.

Such applications will be determined by the court without the need of the parties to attend court for a hearing. The usual application fee will apply.
Arrangements for the conference call

In the case of interim applications the responsibility for the conference call shall be the applicant’s (providing the applicant is represented)

In all other cases responsibility for the conference call shall normally be with the claimant’s representatives. If the claimant is unrepresented the first named defendant who is represented shall be responsible for all arrangements. The court may on occasions direct another party to be responsible for making arrangements if it sees fit to do so.

All other arrangements shall be in accordance with those set out in paragraphs 6.9 and 6.10 of the Practice Direction. (References to the designated legal representative should be read as the applicant’s legal representative (if any), or the legal representative of such other party as the court directs to arrange the telephone hearing).

Documents

The party arranging the conference call must also lodge at the court a case summary and a draft order if the claim is allocated to the multi-track. The same applies in an unallocated case, where the arranging party considers that it should be so allocated and in any other case where the court has so directed.

If any party seeks to rely on any other document, such as expert reports, cost schedules, skeleton arguments or alternative draft orders, then they must be lodged with the court.

All draft orders should be agreed by the parties in whole or part if at all possible.

Any documents required for the hearing or to be relied upon by a party must be lodged with the court by no later than 4.00 p.m. on the last working day before the hearing. All documents must clearly indic ate the time and date of the hearing and marked ‘for urgent attention’.
Listing and timing

In lists where all or a significant number of the hearings are by way of telephone, it will be critical for them to run on time. In order to facilitate the scheme running smoothly, parties must use their best efforts to: -

Give realistic time estimates, as there will be no opportunity to overrun. All time estimates must take into account time for giving judgment, where appropriate and any potential argument as to costs.
Ensure all documentation is properly lodged on time.
Communicate properly with all other parties to ensure that areas of agreement are clearly determined and areas of dispute can be concisely argued.
Ensure that they are ready for the call to be linked up promptly at the listed time.

There may be occasions when the court is not ready for a conference call. In these situations the court will endeavour to provide the parties with an estimate of the delay or an alternative time when the call should be re-connected.
Conference service providers

The telecommunications service provider used to facilitate a telephone hearing under Practice Direction 23 must be an approved service provider as indicated at 6.10 (1) of the Practice Direction. From 1st April 20011 the following providers have demonstrated the capability to facilitate hearings:

British Telecoms Plc 0800 028 4194

LegalConnect 0800 953 0405 | E-mail: support@legalconnect.co.uk

Kidatu 0800 279 4595 | E-mail: info@kidatu.co.uk

Arkadin 0800 279 5596 | E-mail: legalevents@arkadin.co.uk

Recording of hearings

From April 2007, all telephone hearings will be recorded and stored by the approved service providers.

A request for a tran­script­ of a telephone hearing should be made to the court where the hearing has taken place. Form EX107 (tape tran­script­ion request) must be used in all instances. Please see EX107 Info for more information which provides help on completing the EX107 and a full list of court approved tran­script­ion companies and prices.
Complaints about service providers

The service providers on the approved list are subject to a contract with the Department. Under the terms of that contract, providers are obliged to have a robust complaints procedure in place.

Complaints relating to the provision of the telephone hearings in relation to – for example technical problems during the conference, billing, price and access to calls must be directed to the service provider.
If a court or court user wishes to make a complaint about the service provider or their conduct, they must in the first instance contact the relevant court manager and raise this complaint with them in accordance with the procedure set out in the Complaints Leaflet EX343.

 

 

Divorce rate unchanged since the 1960s after ten years of marriage, says new research

This just published by the Marriage Foundation:

 

A new report from the Marriage Foundation think-tank, What is the divorce rate?,  has shattered the common assumption that the divorce rate for all couples is higher than it was in the 1960s.

Looking at the rate of divorce over the last four decades, Harry Benson, Communications Director at The Marriage Foundation, found that the divorce rate for couples after they have been married for ten years or more was the same as it was in the 1970s, 80s, 90s and 2000s.

A couple who married in 2001 have the same chance of getting divorced after ten or more years of marriage as a couple who married in 1971, a consistency Mr Benson describes as “remarkable”.

One in five newlyweds divorce after ten years of marriage, with the likelihood of a marriage ending in divorce further shrinking with each decade. A tiny 2 per cent of weddings end in divorce after thirty years of marriage, with divorce rates after forty years of marriage even rarer: fewer than 0.5 per cent of couples divorce after being married forty years or more.

Details of the new research will be presented by Mr Benson at the launch of National Marriage Week at 6pm in the Macmillan Room at the House of Commons on Thursday February 7.

Mr Benson says: “All the change in divorce rates since the 1960s have occurred during the first ten years of marriage. After ten years of marriage, there’s the same chance a couple who marry in 2013 will keep the vow ‘death do us part’ as there was forty years ago.”

Half of all divorces currently take place during the first decade of marriage. There is hope for newlyweds, however, in that the divorce rate during the first ten years of marriage has fallen in recent years from a peak in 1993, a trend Mr Benson predicts will continue.

He adds: “Changes in divorce rates during the first ten years reflect the care we take in forming our relationship in the first place. Couples who marry today are clearly making better choices, with fewer marriages breaking down in the very early years than in the 1990s and early 2000s.”

Within the first decade of marriage, the highest number of divorces occurs between three and six years of marriage, debunking the myth of the ‘seven year itch’. After peaking between three and six years, the likelihood of a marriage ending in divorce decreases with each year thereafter.

Mr Benson concluded: “A couple who tie the knot on Valentine’s Day this year have a 39 per cent chance of divorcing during their lifetime.

“The so-called silver surfers – couples divorcing in their twilight years after many decades of marriage – is greatly overhyped and not supported by statistical evidence.

“Our research reveals that if a married couple survive the first ten years of marriage, their risk of divorce is the same as it has been in the previous four decades.”

Children and Families Bill Published

Significant reforms to services for vulnerable children and additional support to help parents balance work and family life have been announced.

The Children and Families Bill, published today, includes reforms to adoption, family justice, provisions for children in care, the role of the Children’ Commissioner and an overhaul of Special Educational Needs and plans to introduce childminders agencies.

Family justice clauses in the Bill seek to remove delays and ensure that the children’s best interests are at the heart of decision-making by:

- tackling court delays in care cases, ensuring they focus on the essentials rather than unnecessary evidence or bureaucratic delay;

- sending a clear message to separated parents that courts will take account of the principle that both should be involved in their children’s lives where that is safe and consistent with the child’s welfare;

- introducing new ‘child arrangement orders’ which will focus parents on the child’s needs rather than their own ‘rights’ and making family mediation a requirement in many cases.

The Children and Families Bill is an important step in the reform of the the family justice system and implements commitments made by the Government in response to the Family Justice Review.

Parenting Alone After Separation.

Parenting after separation can be a daunting prospect, whether you are facing parenting entirely on your own, or alternating with the    other parent.  You may be worried about loneliness, financial worries, social isolation, making decisions on your own about your children’s  welfare, what happens if a child is seriously ill,  trying to juggle work, children and running the house on your own, what happens if you’re ill or late home from work,  for example.

The tips below should help ease the path of parenting alone, and provide you with useful “tools” in coping, enjoying parenting and above all, knowing that you are doing the very best you can for your children.

Guidelines for you

· Plan for Christmas / birthdays/holidays – spread the cost by either having a small savings plan (most banks have savings accounts you can open with just £1), or buy a little each month.  Set a limit on the amount you will spend per child on presents and on food, decorations, entertainment etc.  Being organised and planning ahead for holiday periods and weekends helps, the longer periods can be difficult when doing everything by yourself.  Christmas and other religious festivals need to be planned in advance. If you are worried about being on your own over a festive period try and organise to be with friends and family.

· Get yourself financially sorted, work out a budget and know your weaknesses; shop around for better deals on all the utilities (use one of the price comparison websites) and cut back on things you don’t need, instead use the money for a “rainy day” fund for you and the children to have a day out or a short break in the future.   Use charity shops, Ebay and car boot sales to buy clothes, toys and games; watch out for sales and shop months or a year ahead for things like school uniform.

· Avoid taking your children grocery shopping with you, make a list and stick to what is on it. Your finances will be strained and you don’t need the pressure they will bring to bear on you to buy them stuff.  Instead, listen and watch for a special toy or other item they may yearn for and buy it as a surprise gift the next time they come to stay. Plan meals for the week ahead, and use food wisely (a whole chicken can be roasted one night, the left-over meat turned into a risotto the following night, and the carcass made into a stock for soup the day after that).  Consider using the online services most supermarkets provide, you can see exactly what you are spending as you shop, making it easier to stick to a budget, the delivery costs can be as low as £3, which is often less than it would cost in petrol – and you can shop in your pyjamas with a cup of tea!

· A good support network has a variety of people you can turn to when you need to. Different people offer different kinds of support. Some friends are good for doing things with and for distractions; others are good for listening and understanding. Evidence supports the view that informal social support can help people negotiate stressful experiences such as parenting alone.  Knowing that you have a good support network around, whether that’s friends or family (or both) means that you know you have people you can always rely on and trust, whatever the problem.

· Lean on your faith - Parents with a strong faith say that this helps keep them “strong”.  Faith communities offer both emotional and practical support for all the family, and often hold social occasions and shared celebrations to enjoy with others.

· Find a local support group in your area for parents, or join online groups/organisations, like Wikivorce, where you can talk to other parents in similar situations, share coping tips, concerns  and the tough times and celebrate the good times together

· Get organised - if your children are older, make sure they have everything they need for school organised the night before, if your children are younger, organise school stuff when they are asleep.  Set out school uniform the night before, prepare lunchboxes in advance and keep in the fridge overnight. This prevents the pre-school rush and creates a more relaxed environment before school, giving you time to chat with your children and enjoy some time together before school. Keep a homework diary so you can keep track of when homework/projects are due in.

· Prioritise the household chores - sometimes things will have to wait!

· Do the best you can, with what you have at the time.

· Join your local library, not only will you be supporting it, but it cuts out the expense of buying new books for both you and the children. Most libraries often have events for children during the holidays and during the week for parents and toddlers.

· Plan ahead for the school holidays, collect money-off vouchers for local attractions, and remember that you don’t need to spend money to have a great day out – children love a picnic and a day on the beach.  Plan for rainy days, have a stock of art materials, baking ingredients, dressing up clothes (charity shops/car boot sales are great places to source dressing up clothes), cardboard boxes to be turned into spaceships/castles/dens etc.

· Take each day at a time, and try to eat and sleep properly so you can cope as best you can.It can be very hard emotionally, especially at the beginning, trying to get the day-to-day things done for the children when your head is in turmoil;

· Make sometime for yourself; it can be lonely without another adult so try to find time for  adult conversation even if it’s on the phone or in the Wikivorce chat room once the children are in bed.

· Don’t get obsessed about what your children’s other parent is doing, or planning to do.  Concentrate on what you are doing.  It can be unhealthy to continually to worry about the things they are doing.  You cannot control them, or be responsible for their behaviour/relationship with the children; you are only responsible for your own behaviour and relationship, so focus on this instead.

· Do the right thing for your child - Another difficult area when relationships break down concerns the “in-laws.” The only thing to suggest is that you do the right thing for your child. Even if it’s not what you would want to happen. Seeing and being in contact with the in-laws may be an unpleasant or painful experience for you, but they are still a very relevant part of your child’s family, their culture, and their heritage. It is healthy for your child to have a sense of family that includes all relatives.

Guidelines for your children.

It can be a lonely and confusing place for children during this difficult time. Just like bereavement, healing is not linear. So it can take however long it takes!   It is easy to underestimate the complex tensions that accompany divorce-even a fairly amicable one. Your child may be angry and upset because one of his parents has left, but as you’re the only parent around for him to vent his feelings on he is likely to take it out on you. Your child may become sullen and awkward or loud and angry.

It’s very hard for you on top of everything else that you have to cope with.

However, try not to take it personally. Try to understand your child’s feelings of dislocation and try and take a positive view.

Here are some Positive Parent Top Tips that have been drawn from the experience of mums and dads who have had broken relationships.

· Leave photos of the missing parent around, use their name-it helps your child heal. It’s important that your ex is still part of your child’s life. Be ready to talk naturally about the good things that happened. It will help your child move easily through change.

· Encourage your child to keep in contact with the non-resident parent through e-mails or phone calls. Show respect by sending them a birthday card.

· Try to encourage your child to see her mum or dad. Try to encourage the relationship, or at least keep the doors open for better things to come.

· Don’t use your child as a messenger or a spy.

· Discuss with your ex about Christmas, weekends, and who’s going to have who and when. And stick to the arrangement if at all possible. Children need stability in their lives.

· Encourage your child to continue their relationship with their other parent. There will always be long-term issues to work out and face and the quicker that they do that the easier it will become.

· Remember it’s important to keep your promises to your child. He may feel let down by one or both of his parents so only make promises to him that you can keep.

· Keep on reassuring your child that the breakup is nothing to do with her-especially if your child continues to seem anxious about it. It’s important that your child doesn’t blame herself.

· No one is a perfect parent. We all have days when we’re frustrated, angry, depressed, or simply “done.”  Forget all the stuff that needs to get done, and just sit for a few minutes. Or, if you can, go outside and take a walk. This will help to clear your head and enable you to return to your responsibilities refreshed. Make plans to swap play dates with a neighbour or go out with some friends for an evening. Alternatively, consider hiring a babysitter so you can go out by yourself for a bit.  If you feel like you just need a fresh start with your kids, doing something completely different and unexpected can break the tension and provide a clean slate to start from.

· Try not to take out our stress or anxieties on the children, or talk to them about “grown-up” matters (this is what your support network is for, this places extra responsibilities and burdens on young shoulders that they shouldn’t have. Children are very good at picking up vibes from their parents. They’re very sensitive to our moods. If we can explain to our children, why we’re feeling anxious it will help them to understand and they may not be so worried by our behaviour. For example,” I’m sorry, I am a bit tense today, as I’ve just had the phone bill in.”

· It’s much easier for a child to handle something specific, rather than to just see you in tears or in tantrums! Also, some children always assume it is their fault, and it’s good for your children to know that they are not the problem.

· Make sure the children understand house rules and why they are there, and encourage them to help with some of the household chores in return for a small treat or pocket money.

· Be patient - It may take the children a while to adjust to the fact that you only have one pair of hands and can’t do everything at once. Try and be patient and explain this to them.

· Pick your arguments, with teenagers sometimes it’s worth foregoing on some things

· Be prepared for the other parent to move on with their life (if they haven’t already done so relationship wise) this can also mean geographically, prepare the kids for this sort of ‘change’ issue as well.

· Let your children express their fears, concerns and hurts.  Reassure them as much as you can.  Prepare for your time with them.  Plan activities; preferably ones which require lots of interaction and which their other parent won’t do.

· Don’t disparage the other parent in front of your children, even if you are aware he or she is alienating them against you.  The children love you equally and your criticisms of one another will only confuse and stress them.  In the long run, it is counterproductive for either parent to vilify the other. Have you considered that your child might still miss their estranged mum or dad – regardless of how you feel?  Eventually – and it may be a long way down the road – the children will see through the criticisms and lies and will turn against an alienating parent.  And never argue about aspects of the court case or any other issue in front of them: this will just make them more anxious and angry about their new fractured situation.

Healthy relationships, including those with the ex, need to be worked out. Success doesn’t happen overnight, and often calls for much personal sacrifice and self-discipline. But it’s worth all the effort in order to provide a stable environment for your children so they can grow up to be happy, confident and well-balanced adults.

Victorian Divorce Scandals

An adulterous Victorian wife successfully explained away incriminating evidence of her infidelity by claiming she was suffering sexual “hallucinations” .    

Henry Robinson, an engineer, attempted to divorce his wife, Isabella, after finding a detailed account of her pursuit and subsequent affair with a younger man set out in her diary.

But he failed after a jury sided with Mrs Robinson who claimed the account was a work of fiction in one of the most sensational divorce cases of its day.

Records of the trial, in 1859, are the centrepiece of 70,000 divorce cases held by The National Archives which have been made available online for the first time on the genealogy website ancestry.co.uk.

Others include the divorce of Kitty O’Shea and her husband Captain William O’Shea, which changed the course of British history by triggering the downfall of her lover Charles Stewart Parnell, the leader of the Irish Home Rule movement, in the ensuing scandal.

The records of the Robinson case detail Mr Robinson’s “horror and astonishment” at chancing upon his wife’s diary and finding details of how she had “induced” Dr Edward Lane into an adulterous affair.

But the jury accepted Mrs Robinson’s claim that her writings were the result of a “species of insanity”. She told the court she was “labouring under hallucinations” brought on by an unspecified “disease of the womb”.

The Robinson divorce was the subject of the book “Mrs Robinson’s Disgrace” by Kate Summerscale published last year.

Many of the records involve what may have been cases of “staged” adultery because of strict divorce laws which meant that couples who had simply grown apart had no other means of legal dissolution.

In some cases the supposed adulterer would be photographed in bed fully dressed – including top hat.

Miriam Silverman, an historian at Ancestry.co.uk, said: “As couples needed a reason to divorce, fake adultery ‘evidence’ wasn’t uncommon.

“The gentleman would often hire a hotel room, where a paid-for ‘mistress’ would partially undress and they would both sit on the edge of the bed.

“The wife would then burst in at a pre-arranged time with a detective and photographer, to catch her husband in the act.

“Such evidence was eventually seen for what it was and dismissed in court as collusive, but for many years this was a tool available for those desperate to divorce.”

 

from today’s Telegraph 

Petrodell v Prest appeal to be heard by the Supreme Court in March 2013

The Court of Appeal has given permission to Yasmin Prest to appeal to the Supreme Court against its decision in Petrodel v Prest [2012] EWCA Civ 1395

The background

The parties were both aged about 50. They married in 1993 and had four teenage children. The husband was a prominent and successful businessman who worked in international oil development and trading. Throughout the marriage the family lived in London but also had properties in Nigeria and the Caribbean. They had a very high standard of living and came from affluent backgrounds. Three main companies owned various properties in London (including the former matrimonial home) and elsewhere.

The key issues in the case were:

1. The extent of the husband’s wealth including the nature and extent of his interest in the respondent companies and;
2. Whether the court had the jurisdiction to make orders directly against properties and shares held in the name of some of the respondent companies. Were the assets owned by the companies effectively the husband’s property or not?

The High Court

Mr Justice Moylan concluded that the assets held within the companies were effectively the husband’s property. After assessing an award to the wife of £17.5 million, he ordered the husband to transfer or cause to be transferred to the wife the London properties held by the companies along with three properties in another company. The £4 million former matrimonial home was found to be held on trust for the husband and it therefore formed part of the matrimonial assets. The companies appealed (although permission was not given to appeal the finding regarding the former matrimonial home).

The Court of Appeal

In October 2012, the Court of Appeal allowed the companies’ appeal against the order of Mr Justice Moylan.

Thorpe LJ dissented and rejected the arguments made on behalf of the companies. He stated that the question was whether the individual is entitled to the property held by the companies within the meaning of the Matrimonial Causes Act 1973 s24 (1)(a). This statutory provision states that the court may make an order that a party to a marriage shall transfer such property as may be specified, being property to which that party is entitled, either in possession or reversion. To be entitled to property, that person must be the beneficial owner. Thorpe LJ stated that the judges of the Family Division have frequently stressed the need to look at the reality of the ownership of assets and Mr Justice Moylan had achieved justice for the Mrs Prest. He concluded that

“in this case the reality is plain. So long as the marriage lasted, the husband’s companies were milked to provide him and his family with an extravagant lifestyle. That was only possible because the companies were wholly owned and controlled by the husband and there were no third party interests.”

Rimer LJ (with Patten LJ concurring) allowed the companies’ appeals. He held that Mr Justice Moylan was wrong to find that the husband’s sole control of the companies as their 100% owner enabled him to deal as he wished with the companies’ assets and that it followed that the husband was therefore the beneficial owner of such assets and so ‘entitled’ to them within the meaning of MCA 1973 s.24(1)(a). Section 24(1)(a) had no application to the properties and gave the court no jurisdiction to make the orders. This was because a company’s assets are owned by the company in its own right. The company is a distinct legal entity its assets belong to it and not to anyone else. Rimer LJ held that these legal principles apply as much to ancillary relief proceedings as they do to any other types of proceedings. After a detailed review of the family authorities he concluded that once the court was satisfied that there was no impropriety as a means of piercing the corporate veil it was left with no choice but to reject the claim made against the companies that the properties were or could be regarded as properties to which the husband was entitled. Patten LJ agreed and stated that the approach of the Family Division judges whereby there was almost a separate system of legal rules regarding companies law must now cease.

What about fairness?

Following the Court of Appeal’s decision, Jeremy Posnansky QC of Farrer & Co, acting for Mrs Prest, commented that “devious men who want to avoid making fair provision for their wives will rejoice at this decision” because it means that unless the company is being used as a façade and there is impropriety in order to defeat the other party’s claim, the court cannot pierce the corporate veil. The legal community awaits the Supreme Court decision next year with baited breath…..

 

original source

Child Arrangements after Separation in Scotland

Parents have equal rights and responsibilities for their children, as defined in section 1 of the Children Act (Scotland) 1995:

Parental Responsibilities

To safeguard and promote the child’s health, development and welfare
To provide, in a manner appropriate to the stage of development of the child, direction and guidance
If the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis
To act as the child’s legal representative.
Parental Rights

To have the child living with you or otherwise to regulate the child’s residence
To control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing
If the child is not living with you, to maintain personal relations and direct contact with the child on a regular basis
To act as the child’s legal representative.
Who has Parental Responsibilities and Rights?

A biological mother will automatically have PRR, regardless of marital status.
A father automatically obtains PRRs in two situations -
1 – Where he was/is married to the child’s mother at the date of conception or any time thereafter
2 – Where the father has not married the child’s mother he will automatically obtain PRRs if he is registered as the child’s father. This rule only applies on or after 4th May 2006, which is when the Family Law (Scotland) 2006 came into force.
Unmarried fathers registered prior to this date do not obtain automatic PRRs.  However, PRRs can be obtained either by way of a formal agreement with the mother or by making an application to the sheriff court or Court of Session under s 11 of the Children (Scotland) Act 1995. I have recently blogged about the continuing disadvantage of unmarried fathers
Agreeing Arrangements for Children                                                                   

It is recommended that separating/divorcing couples try very hard to reach an amicable agreement as to the residency and contact arrangements for the children. A useful tool is the Scottish Government’s Parenting Agreement, which can be downloaded from the Scottish Government’s website

If you are having difficulty reaching agreement then, before rushing to the lawyers, it is well worth trying to use the available counselling or mediation services such as those provided by Relationships Scotland.

If you cannot agree on the arrangements the matter can be settled by the courts. Any application for an order relating to parental responsibilities and rights must be made under section 11 of the Children Act (Scotland) 1995.

If there is a dispute in respect of children and the action is being defended in the sheriff court, the next step in proceedings is a Child Welfare Hearing. The sheriff may also order such a hearing in other instances where they consider it appropriate.
This is intended to bring about the quick resolution of disputes about children, proving that this can be done in a manner consistent with the child’s welfare. All parties are required to attend the hearing personally and are under a duty to provide the sheriff with as much information as possible so that he or she can take whatever steps necessary to deal with the matter.
HEARINGS

Option Hearing -

An Options Hearings is purely procedural and the sheriff has no power to make an order. Instead he/she is trying to make an informed decision as to what should be the next step in the court procedure. The Options Hearing is intended to give parties a chance to meet before the sheriff in order to ascertain if agreement can be reached without proceeding to a CWH or, if this is not possible, to focus the precise disagreement between parties.

Child Welfare Hearing

A Child Welfare Hearing is a fairly informal affair, intended to bring about the quick resolution of contact disputes, aiming to resolve the problem(s) and bring about agreement, if at all possible. A child welfare hearing is fairly informal and usually held in private, with only the parties and their legal representatives and the Sheriff usually being present. . The child’s welfare will be the court’s paramount consideration.

The sheriff will ascertain from parties, or their solicitors if they are to be represented, what matters are in dispute in relation to the child. Parties provide the Sheriff with information relating to the issues in dispute.
Solicitors (or the party litigant) put each side’s case to the Sheriff, then after discussion, if an agreement can’t be reached, the sheriff will set out a timetable how to proceed. The sheriff may make interim orders, or refers both parties to a family mediator, like Relationships Scotland.

If parties are unable to reach agreement, disputes may have to be decided after often lengthy and expensive ‘proof hearings’ where the parties give spoken evidence and are subject to cross examination, and where witnesses may also be called to the hearing to provide testimony, or supply a written affidavit.

Under Section 11(7) of the Children Act (Scotland) 1995, the court shall, so far as it is practical, take into account a child’s age and maturity, and the court will give the child the opportunity to express his views and thoughts, should he wish to, and give due consideration and regard to those views the child expresses.
A child is also entitled to his own legal representation if necessary. The action is required to be intimated to the child, and his views must be taken into account by the court. Usually, a child aged 12 years or more will be considered by the Court to be considered of sufficient age and maturity however, it’s possible for children younger than 12 years to present their views to the Court, if they have a formed view.

A child’s views may sought and represented in a number of different ways: the Sheriff may interview the child in Chambers privately, without parents or a third party being present, or the child may be invited to attend the hearing, or a bar reporter may be appointed by the Court in order to obtain the child’s views.

The most important factor in any decision by the court regarding children is the consideration of the child’s/children’s welfare – this is paramount at all times. (See section 11(7) of the Children Act (Scotland) 1995). The Court would also consider those involved in the application, ie the mother and father. While the mother, by de-facto, has a relationship with the child, the onus is on the father to prove his reasoning for either applying for or for defending the application, so motive would be a consideration. The courts would consider if those involved, ie the parents are able, or will be able, to co-operate with sufficient willingness.

The Courts may also consider the arrangements for the non-resident parent to see their child/children, if the resident parent doesn’t agree with the contact arrangements; the Court may make a Contact Order. Other factors are: the domestic living arrangements of the child currently in place, the person/parent best able to meet the daily needs of the child/children, the working arrangements of the person applying for the order, and whose arrangements are most conducive to the primary needs and care of the child, and in the case of very young children, the Court makes the assumption that the children are better left in the care of the mother – however each case is based on its own merits, and the suitability of all parties is considered.

Contact orders

Where courts are required to and do make decisions, parents must stick by them. These decisions are enforceable. If a parent fails to obey the terms of a Court Order he or she could be held to be in contempt of court and liable for punishment for that contempt.

Court decisions on children recognise the possible need for change. Where a parent applies to vary previous decisions, courts normally require that the parent should demonstrate that the change in circumstances was important (or ‘material’). The person seeking change would have to satisfy the court that the best interests of the child would be served by altering what had previously been decided. Although ‘ Parental Agreements’ may be new to the courts, they would almost certainly approach them in the same way. Any change would have to be in the best interests of the child.

Diverse post-divorce parenting arrangements on the increase in Australia

A new study mapping when children spend time with their father after divorce, has revealed a shift away from children only spending time with their father every second weekend.

 

 

The study, based on a random sample of 408 separated parents registered with the                 Australian Child Support Agency, found that despite the complexity of some parenting arrangements, children generally moved between homes two or four times each fortnight. Led by Dr Bruce Smyth of the ANU College of Arts and Social Sciences the study found that modern parenting schedules post-divorce show a greater sharing of parental responsibilities and richer paternal involvement than previously evident. This was also the case for children in 50/50 shared-time arrangements, with the most common pattern being week-about arrangements starting each Monday. “This is an important new finding because there have been concerns that children in 50/50 arrangements often move between mum’s and dad’s house in ‘ping-pong’ type arrangements,” Dr Smyth said. “But the new data suggests that arrangements involving frequent moves between homes are not the norm. Fewer transitions help to limit children’s exposure to parental hostility at handovers and offers greater predictability for children, especially young children. “All parenting arrangements involve trade-offs, single long blocks of time with each parent require fewer transitions for children, but involve longer absences from one parent. By contrast, more fragmented schedules require more transitions for children but help to minimise the time away from each parent. “We are finding that separated parents are putting in place much more varied, creative and lateral arrangements to spend time with their children than was previously the case. “Many children like to see both parents, and to know where they will be on a particular night, and what they will be doing. There are lots of possibilities for sharing the care of children. Each child and family is unique and what works well for one family may be a poor fit for another family. “In an ideal world, children’s activities and needs would always be the anchor points in any parenting schedule. But in the push and shove of modern family dynamics, especially post separation, competing interests mean difficult choices and trade-offs need to be made by parents in balancing the needs of their children, against their own needs and circumstances. “Most parenting arrangements can work well where parents get along, there’s some flexibility, and the arrangements are child-responsive.” The study’s findings will appear in the December edition of the Journal of Family Studies, which is a special issue focusing on fathering in Australia.

original source

Co-Habitation or Marriage – you choose.

“One of society’s biggest problems today is that we’ve allowed relationships to be accepted as impermanent, particularly marriage”. ~ Anon

I am a firm believer in marriage, and the benefits it brings to spouses, their family unit, and society as a whole.  Often, people will try to convince me that there is no difference between co-habitating and being married, and that a piece of paper doesn’t make a relationship stronger.  The facts below demonstrate otherwise, and make clear the benefits of marriage. I will let those facts speak for themselves, and allow you to make your mind up as to whether a piece of paper does or doesn’t make a difference.

Co-Habitation or Marriage?

Cohabitation in Great Britain more often functions as a prelude to marriage or a trial marriage rather than a lasting alternative to marriage. Co-habitation suggests a temporary relationship and one that is lacking in commitment.  The benefits and protections accruing to marriage are largely due to “commitment”. The long-term nature of commitment allows couples to risk specialising or letting go of domestic roles. This is an efficient arrangement in terms of time, stress and money. Commitment motivates couples to look out for one another, providing an explanation behind gains in health and wealth. Married couples also receive more social and financial support from both extended families. ^[1]

Cohabitees are far more likely to break-up than married couples. The median length of UK cohabitations is under 2 years. Just 4% of these last more than 10 years ^[2]. 84% of UK cohabiting couples dissolve within 5 years^[3]. Unmarried parents are still 4-5 times more likely to break up than married parents ^[4]  Within 5 years of the birth of a child, 8% of UK married couples have split up, compared to 52% of cohabitees, and 25% of those who marry after the birth ^[5].

Recent figures published by the ONS show that by 2010 the number of children in England and Wales born outside marriage had reached 338,790, This amounts to just under half (46.8%) of the 723,165 babies born that year. In 1971, 91.6% of births were within marriage^[6]

The number of opposite sex cohabiting couple families increased significantly, from 2.1 million in 2001 to 2.9 million in 2011. The number of dependent children living in opposite sex cohabiting couple families increased significantly, from 1.3 million to 1.8 million over the same period

There were 2.0 million lone parents with dependent children in the UK in 2011, a figure which has grown steadily but significantly from 1.7 million in 2001

The number of married couple families decreased by 262,000 between 2001 and 2011 to 12.0 million in 2011 – this was the only family type to have decreased during this time-period.  Single parent families saw an increase with 2.0 million lone parents with dependent children in the UK in 2011, a figure which has grown significantly from 1.7 million in 2001. Lone parents with dependent children represented 26 per cent of all families with dependent children in 2011, an increase of two percentage points since 2001. Mothers make up 92% of lone parents. ^[7]

62 per cent of dependent children lived in a married couple family in 2011, a decrease from 68 per cent in 2001. Over the same period, the percentage of dependent children living in opposite sex cohabiting couple families increased by four percentage points to 14 per cent, and those living in lone parent families increased by two percentage points to 24 percent. ^[8]

The effects of Marriage on Children

Children born into married unions are estimated   to be twice as likely as those born into cohabiting unions to spend their entire childhood with both natural parents (70 percent versus 36 percent).[9] Only 8 percent of children born into a married household see their parents split before their

Fifth birthday, whereas 52 percent born into a cohabiting household see their parents split. Marrying after the birth is associated with a reduction in the risk of break-up—down to 25 percent. [10]   In Britain, less than half of children in lone-mother families see their fathers once a week, and the percentage is even smaller where the father was never married to his child’s mother.

Twenty to thirty percent of non-resident fathers have not seen their children in the last year.[11]

There is even growing evidence that remaining in an unhappy marriage might have less of a negative effect on father-child relationships than divorce[12] In Britain, two-parent families are half as likely as lone mother families to live in poverty.[13] Children living in lone-parent households were still 80 percent more likely to have health symptoms and illness such as pains, headaches, stomach aches, and feeling sick.[14]

 

Children are safer:

Marriage protects children from abuse, while cohabitation increases the risk. Children are much safer being brought up in a home with a father in it; fathers play an important role in protecting their children from harm.

One UK study found that rates of serious child abuse were 6 times higher in stepfamilies, 14 times higher with mother alone, 20 times higher with biological parents cohabiting, 20 times higher with father alone, and 33 times higher with mother cohabiting, all compared to living with both biological parents married^.[15] Other US studies confirm this greater risk of abuse from a live-in non-parent at 6-40 times [16]. The greater risk of an under two-year-old child being killed by a live-in non-parent is 3-100 times ^[17]

 

 Consequences of divorce for children

Although a child’s emotional well-being can improve following divorce from a “high-conflict” marriage, the majority of divorces follow “low-conflict” marriages: these have the most damaging immediate effects on children ^[18]. A landmark 25-year US study of 93 children of divorce found that the immediate trauma of divorce is less important than during the first ten years of adult life, when man-woman relationships come to centre stage ^[19]. Adult children of divorce are 2-3 times more likely to cohabit and, if they do marry, are far more vulnerable to divorce, especially early in their marriage and the younger they were when their own parents divorced ^[20].

A UK longitudinal study of 8-32 year old males found that parental divorce before age 10 was a major predictor of later adolescent delinquency and adult criminality ^[21].

Children of cohabiting parents performed worse than pupils born to married couples in assessments including vocabulary, reading, and mathematics and making patterns at the ages of three, five and seven.

They were also significantly more likely to show signs of hyperactivity, lack of attention, and problems forming friendships with other children than pupils whose parents were married ^[22]

Benefits of marriage for adults/parents

Married couples report greater sexual satisfaction. The highest levels of sexual satisfaction were reported by individuals who were in married, monogamous relationships, while those who were single or cohabiting reported slightly lower levels of sexual satisfaction.^[23]

Married women report higher levels of physical and psychological health. Formerly married women reported the worst health while never married women fell between these two groups. Compared with unmarried women, married women had less job stress, environment stress, child stress, financial stress, and relationship stress. Health measures included self-rated health, distress level, chronic illness, and a number of stress types, ranging from social life stress to job strain^.[24]

Married men appear to have greater work commitment, less likelihood of resigning, and healthier and more stable personal routines (including sleep, diet and alcohol consumption). Husbands also benefit from both the work effort and emotional support that they receive from wives^[25]

Married men earn more money than do single men  with  similar education and job histories^[26]

Marriedmen make more money. Taking into consideration a number of factors including educational attainment, compared with unmarried peers, married men earned, on average, 20 percent more in wages^.[31]

Married people are more likely to volunteer. Compared to unmarried peers, married adults were1.3 times more likely to have volunteered for social services and averaged 1.4 times more volunteer hours.^[27]

Being married increases the likelihood of affluence. This association applied to all age groups.^[28]

Married people tend to experience less depression and fewer problems with alcohol. Men who married and stayed married tended to be less depressed than those who remained single. Among women, marriage was associated with fewer alcohol problems.^[29]

Getting married increases the probability of moving out of a poor residential area. Marriage nearly doubled the probability that a person would move from a poor to a non-poor residential area. Likewise, the dissolution of a marriage more than doubled the probability that a person would move from a non-poor to poor residential area. Among blacks, marital dissolution increased the likelihood of moving from a non-poor to a poor residential area almost six-fold.^[30]

Ever-married women are less likely to experience poverty. Compared to never-married peers, women who had ever been married were substantially less likely to be poor—regardless of race, family background, non-marital births, or education. Ever-married women have a poverty rate that was roughly one-third lower than the poverty rate of never-married women. Currently married women had an even lower probability of living in poverty—about two-thirds lower than other women.^[32]

Marriage is associated with a lower mortality risk. Compared to married individuals, those who have never been married had nearly twice the mortality risk. Divorced or separated individuals ran a mortality risk more than 50 percent higher than those who were married. The black-white mortality gap narrowed when marital status was taken into account.^[33]

Marriage is an important social good, associated with an impressively broad array of positive outcomes for children and adults alike.’ ^[34]

 

 

Citations:

1 – The Case For Marriage by Linda J. Waite and Maggie Gallagher (2000)

2 – Ermisch, J. and Francesconi, M., Cohabitation in Great Britain: Not for Long, but Here to Stay, Institute for Social and Economic Research, University of Essex, 1998

3 –  Kiernan, K. and Estaugh, V. (1993) Cohabitation Extra-marital Childbearing and Social Policy,  Joseph Rowntree Foundation/Family Policy Studies Centre.

4 – R Boheim and J Ermisch, Royal Economic Society Conference, Nottingham, 1999

5 – Kiernan, K. E. (1999) ‘Childbearing outside marriage in Western Europe

6 – . Office of National Statistics; Measuring national well-being: Households and families, 2012

7 – Office of National Statistics; Measuring national well-being: Households and families, 2012

8 -  Office of National Stastics, Families and households, 2001 to 2011

9 – Ermisch, J. and Francesconi, M., ‘Patterns of Household and Family Formation’, in Berthoud, R. and Gershuny, J. (eds.),  Seven Years in the Lives of British Families, Bristol: The Policy Press, 2000, pp. 38-40.

10 – Kiernan, K., ‘Childbearing Outside Marriage in Western Europe’, Population Trends 98, 1999, pp. 11- 20.

11 – Burghes, L., Clarke, L., and Cronin, N.,  Fathers and Fatherhood in Britain, London: Family Policy Studies Centre, 1997. Based on Simpson, B., McCarthy, P. and Walker, J.,  Being There: Fathers after Divorce, University of Newcastle-upon-Tyne: Relate Centre for Family Studies, 1995; and Bradshaw, J. and Millar, J.,  Lone Parent Families in the UK, Research Report No 6., Department of Social Security. HMSO, 1991; and Bradshaw, J. Stimson, C., Williams, J. and Skinner, C.,  Non Resident Fathers in Britain. Paper presented to ESRC Programme on Population and Household Change seminar, 13 March 1997.

12 -  Amato and Booth, A Generation At Risk, 1997.

13- Households Below Average Income 1994/95-2000/01, Department for Work and Pensions, London: The Stationery Office, 2002, pp. 81. These figures are for Before Housing Costs. After Housing Costs figures retain the same ratio, 72 percent versus 36 percent. See also p. 141.

14 – Cockett and Tripp, The Exeter Family Study, 1994, p. 21

15 – Whelan, Robert. 1993. Broken Homes and Battered Children. London: Family Education Trust

16 – Daly, M.; M. Wilson (1985). “Child Abuse and Other Risks of Not Living with Both Parents”

17 – Daly, Martin; Margo Wilson (1998). The Truth About Cinderella: a Darwinian View of Parental Love

18 – Booth, A. & Amato, P. 2001. Parental pre-divorce relations and offspring post-divorce well-bei ng

19 – Wallerstein, 2000 – The Unexpected Legacy Of Divorce: A 25 Year landmark Study

20 – Amato & Booth, 1997 – A Generation at Risk: Growing Up in an Era of Family Upheaval

21 – Farrington, 1990 – Implications of Criminal Career Research For the Prevention of re-offending

22 – Millienum Cohort Study, MCS4 (2008)

23 –  Christopher F. Scott and Susan Sprecher, “Sexuality in Marriage, Dating, and Other Relationships: A Decade Review,” Journal of Marriage and Family, Vol. 62, No. 4 (November 2000), pp. 999–1017.

24 – Peggy McDonugh, Vivienne Walters, and Lisa Strohschein, “Chronic Stress and the Social Patterning of Women’s Health in Canada,”Social Science and Medicine, Vol. 54 (2002), pp. 767–782.

25 – Waite, L.J. and Gallagher, M., The Case for Marriage: Why Married People are Happier, Healthier, and Better-Off Financially, New York: Doubleday, 2000, pp. 97-109

26 – O’Connor, T.G. et al., ‘Frequency and Predictors of Relationship Dissolution in a Community Sample in England’,  Journal of Family Psychology 13(3), 1999, pp. 436-449; Brown and Booth, ‘Cohabitation Versus Marriage: A Comparison of Relationship Quality’, 1996.

27 – Corey L. M. Keyes, “Social Civility in the United States,” Sociological Inquiry, Vol. 72, No. 3 (2002), pp. 393–408.

28 – Thomas A. Hirschl, Joyce Altobelli, and Mark R. Rank, “Does Marriage Increase the Odds of Affluence? Exploring the Life Course Probabilities,” Journal of Marriage and Family, Vol. 65, No. 4(November 2003), pp. 927–938.

29 – Allan V. Horwitz, Helene R. White, and Sandra Howell-White,“Becoming Married and Mental Health: A Longitudinal Study of a Cohort of Young Adults,” Journal of Marriage and Family, Vol. 58(November 1996), pp. 895–907.

30 – Scott J. South and Kyle D. Crowder, “Escaping Distressed Neighborhoods: Individual, Community, and Metropolitan Influences,” American Journal of Sociology, Vol. 102, No. 4 (January1997), pp. 1040–1084.

31 – Kate Antonovics and Robert Town, “Are All the Good Men Married? Uncovering the Sources of the Marital Wage Premium,” American Economic Review, Vol. 94 (May 2004), pp. 317–321.

32 – Daniel T. Lichter, Deborah Roempke, and Brian J. Brown, “Is Marriage a Panacea? Union Formation Among Economically Disadvantaged Unwed Mothers,” Social Problems, Vol. 50 (2003),pp. 60–86.

33 – Stephanie A. Bond Huie, Robert A. Hummer, and Richard G. Rogers,“Individual and Contextual Risks of Death among Race and Ethnic Groups in the United States,” Journal of Health and Social Behavior,Vol. 43 (2002), pp. 359–381.

34 –  Why Marriage Matters: Twenty-One Conclusions from the Social Sciences, New York: Institute for American Values, 2002.