Remote hearings in the family justice system

Remote hearings
in the family
justice system

Among the many challenges of a 21st century global pandemic is the maintenance of a fair and open family justice system. How can the courts adapt to ensure that decisions about the future of children are made without prejudicing the welfare of those children?

From the children’s perspective, the decisions made about their future from determining with which parent they should live with or spend time with or whether they should be permanently removed from their birth family will shape their whole life.

“Justice must not only be done but must also be seen to be done” is a much quoted reference and dates back to a case from 1924.

“It is vital that all professionals bear in mind the importance of ensuring that all court users feel that family justice is done, and is seen to be done.”

Nick Hodson, partner

Research into remote and hybrid hearings

In light of the Covid-19 changes to the system, the President of the Family Division commissioned research into how remote working was operating and the implications for all participants.

The Nuffield Family Justice Observatory has published a survey of over 1,300 parents, other family members and professionals on remote and hybrid hearings in the family court. The results highlight the different experiences of professionals and lay parties.

On the whole, the findings show that the professional court users are reasonably satisfied as to the process and that, in most cases, fairness and justice had been achieved.

However, the survey highlights that many parents involved in family hearings do not find the process fair and are struggling to understand what is happening. Common problems that were highlighted included: parents taking part in hearings remotely alone, and from their homes; a lack of communication between lay parties and their legal representatives before hearings, and difficulties with communication during hearings because of the need to use more than one device or to adjourn the hearing. Particular difficulties are experienced by parents who require an interpreter or who have a disability.

Even during these difficult times, the courts will almost always ensure a face to face hearings when the permanent removal of children from their family is contemplated. The parents and their lawyers will attend court, as will the judge but most of the other participants will attend by video. These ‘hybrid’ hearings allow the parents to be with their legal representatives and have direct contact with the judge.

Improving the remote system

What can be done to improve the remote system? Many believe that such hearings are here to stay – even when life returns to some sort of normality, there are significant benefits to be able to deal with straightforward administrative hearings without the need for face to face attendance.

The report highlights suggested ways of helping lay parties such as technological improvements, support in person for all vulnerable parties, additional help to enable litigants in person to participate effectively and more administrative staff to ensure the smooth and efficient running of hearings.

The report is a sobering reminder as to the impact of remote working on the parents and children whose lives are impacted by the decisions made by the family court. It is vital that all professionals bear in mind the importance of ensuring that all court users feel that family justice is done and is seen to be done.

McAlister Family Law highly ranked by Chambers

McAlister Family Law
highly ranked by
Chambers

McAlister Family Law has climbed to Band 3 in the prestigious Chambers and Partners directory – a fantastic accolade for such a young family law firm. We are described as“a dynamic firm that maintains an excellent standard….what they don’t know isn’t worth knowing.” 

We are also praised for being “incredibly approachable and remain[ing] very calm in a crisis”  and defined as a team that is“highly respected and extremely efficient”.  

“This ranking is a true reflection of the outstanding commitment and sheer talent of everyone in the McAlister Family Law team.”

Amanda McAlister, managing partner

Amanda McAlister is once again awarded the title of “eminent practitioner”, the only individual in the region to achieve this accolade. The directory says of her: “She has deep experience in matrimonial finance cases, often taking on matters involving international clients as well as those that include complex pensions and trusts issues.”

For the first time partner Fiona Wood has been ranked as a “noted practitioner”, with the directory saying she: is particularly adept at advising on cases involving complex business assets. One client reports: ‘Fiona was excellent throughout. She clearly explained parameters, working through options and effectively negotiating on my behalf. Critically, she was extremely supportive and understanding.'”

We are all absolutely delighted to have our work acknowledged in such a way, and this ranking is a true reflection of the outstanding commitment and sheer talent of everyone in the McAlister Family Law team. Said Amanda: “I could not be prouder of them all.”

Separated parents and travel abroad during Covid

Separated parents
and travel abroad
during Covid

At the time of writing, there are a still plenty of destinations throughout Europe and further afield that are open to visiting tourists and which will not result in quarantine when you return. It is now, or soon will be, half term for many school children and of course some parents will want to take their children on holiday.  What must you consider?

  • if one parent wants to take a child abroad, whether permanently or temporarily, the other parent with parental responsibility needs to consent
  • anyone with the benefit of a Child Arrangements Order (for the child to live with them) can remove the child from England and Wales for a period of less than one month without the consent of the other parent with parental responsibility.

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

“If one parent wants to take a child abroad, whether permanently or temporarily, the other parent with parental responsibility needs to consent.”

Melissa Jones, Associate

What about Covid-19?

Because the situation is changing all the time however, it might be that the parent not going on holiday is nervous at the thought of the children travelling abroad during such a period of uncertainty, not least because of the fear that once in the destination country, your ex and your children might face a period of self-isolation upon their return. If you are the one wishing to travel bear in mind the so-called “travel corridor” may change and you could find yourself rushing to the borders to fly back to the UK at very little notice, in order to avoid going into quarantine. And there is the ever-present worry around the risk of the children either contracting the virus or transferring it.

If you do wish to travel abroad, the first step is to get written consent from other parent before travelling but even if you do, they may change their mind given that the rules are constantly evolving. Try to have an open discussion with the other parent and understand and alleviate any fears they may have by confirming:

  • travel dates and times
  • where you will be staying
  • how you will be keeping the children safe throughout the holiday
  • will they agree for you and the children to self-isolate upon your return if necessary? Bear in mind this will add time to the period they are in your care and if that is the case, that this may impact the children’s education – and your other half may want the extra time with the children to make up for this

If the inevitable happens and you do have to self-isolate on your return, prepare for this, and be understanding that you may have to agree to the same situation if they go on holiday with the children. Compromise and flexibility are key.

What happens if we cannot agree?

You can make an application to the court for a Specific Issue Order and the court will decide the matter. If an agreement cannot be reached and one parent fears the other parent will travel regardless, they can apply to the court for a Prohibited Steps Order.

Will the court hear this matter in time?

The court is dealing with a significant amount of cases and there is no guarantee that it will be able to deal with an application such as this as quickly as might be necessary. Our advice is to deal with this matter before it becomes an urgent one. There are alternatives to making a court application, such as engaging your solicitor and seeing if the matter can be negotiated or referring to mediation to see if an agreement can be reached.

Parental Alienation: what can you do about it?

Parental Alienation:
what can you do
about it?

While there is no single definition of Parental Alienation, according to the Children and Family Court Advisory and Support Service (CAFCASS), it is recognised as being when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent. It can result in a child becoming estranged from one parent – perhaps even the wider family – and it can have a devastating impact on those who experience it.

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

The Family Courts are witnessing an increasing number of cases whereby one parent has attempted to, or has perhaps successfully, alienated their child(ren) from the other parent. Parental alienation may take many different forms, including, but not limited to:

  • discussing inappropriate/sensitive adult topics in front of a child, for example relationship issues between the two parents, perhaps divulging an affair or instances of unreasonable behaviour
  • not allowing the child to see their other parent, or actively dissuading them from doing so
  • insisting the child’s personal belongings are kept at their house
  • planning tempting activities to take place during the other parent’s contact
  • frequently breaking or bending contact arrangements
  • controlling the other parent’s contact with the child, such as monitoring phone calls or text messages, or even insisting contact must be supervised when there are no grounds for this
  • gossiping with the child about the other parent, or perhaps the parent’s new partner

Parental Alienation is now of growing interest to Family Law and Social Work sectors, with some psychologists even coining the phrase ‘parental alienation syndrome’, to describe the symptoms of children who have been exposed to this form of manipulation by their parent.

Some of the symptoms of parental alienation may manifest themselves in a variety of behaviours in the child, such as:

  • fear, hostility, or disrespect towards the distant parent
  • the child constantly criticising the alienated parent, with no strong evidence or justifications for doing so
  • the child having overwhelmingly negative feelings towards the alienated parent – in the sense that these feelings are not ‘mixed’
  • the child having unwavering support of the alienator
  • the child using terms and phrases that seem to be borrowed from adult language
  • the child does not feel guilty about mistreating or hating the alienated parent

If you find that your child is displaying some, or all, of these behaviours towards you or another family member, naturally you will be worried – these are tricky waters to navigate. But there is support out there. The Chief Executive of CAFCASS describes parental alienation as “undoubtedly a form of neglect or child abuse”. There is a considerable amount of research to back up the belief that such alienation is a long-term harm to the child, as he or she grows up around high levels of unresolved conflict and moreover, for a child to not have a relationship with both parents whilst growing up.

The Court takes a tough stance against Parental Alienation, as the overriding view is that it is in the child’s best interests to have an ongoing relationship with both parents. At the heart of every decision made by the Family Court is what course of action is in the best interests of the child.

If you or your ex does resort to taking a case to Court, the judge will assess all the behaviours and factors, including whether it is safe and in the best interests of the child to have contact with one or both parents, the child’s resilience and vulnerabilities and more. The judge will then make a decision about what contact the child will have with either parent.

Keeping lines of communication open between the separated parents is key, and putting your child first, no matter how challenging you may find your ex, is also central to the well-being of that child.

The role of a children’s guardian in children’s proceedings

The role of a
children’s guardian in
children’s proceedings

The role of a children’s guardian is a significant one in all public law applications in respect of children, and is one which often becomes a part of complex and particularly acrimonious private law applications.

One of the difficulties is that both the term children’s guardian and the role of the children’s guardian are not immediately understood by the parents in those proceedings. So, what is the role of the children’s guardian?

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

“The court can often be faced with cases in which parents may present the court with diametrically opposed descriptions of what a child is saying they want: in such cases it can almost seem to the court like the voice of the child becomes lost.”

Paul Webb, Partner

One of the main roles of the children’s guardian is to be the voice of the child within the court proceedings and moreover an independent voice for the child. The court can often be faced with cases in which parents may present the court with diametrically opposed descriptions of what a child is saying they want: in such cases it can almost seem to the court like the voice of the child becomes lost. In such circumstances the children’s guardian can provide the court with a means of establishing – from a totally independent source – the wishes and feelings of the child.

That being said, the role of the children’s guardian is much more than just reporting the wishes and feelings of a child. It also includes examining all the available evidence, interviewing the parents and gathering information from other sources including schools and other professionals who may be involved with that child.

Ultimately, the role of the children’s guardian is to carefully analyse all the available evidence and then provide a recommendation as to what arrangements for a child, both in terms of where they live and how they spend time with their parents, siblings or extended family, best meet the needs of that particular child. Whilst a child’s wishes and feelings are an important factor for a children’s guardian to consider, they are not determinative and are one of many factors a guardian will have to carefully balance before reaching a final recommendation. There may well be occasions where a children’s guardian concludes that what a child or young person wishes to happen is not safe for them.

When a children’s guardian is appointed, whether it be public or private law proceedings, a solicitor will also be appointed on behalf of the child and the solicitor and that guardian will work on behalf of that young person. On occasion, particularly where the child is older, there are times when the guardian and the solicitor will meet the child together, so that the child can see them working as a team on their behalf. It can also help them understand the different roles of the two.

Can I force my ex to pay school fees?

Can I force my ex
to pay school fees?

An increasing number of parents have made the decision to educate their children at fee-paying schools. The parents have made the decision together, and all is well until those parents separate and an argument breaks out about who can afford to pay the school fees, and who should pay the school fees.

The court has the power to make a school fees order as part of the financial settlement on divorce. If parents are not married, or your divorce settlement did not include the payment of school fees, the court can also make an order for school fees under Schedule 1 of the Children Act.

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

“The court has the power to make a school fees order as part of the financial settlement on divorce. If parents are not married, or your divorce settlement did not include the payment of school fees, the court can also make an order for school fees under Schedule 1 of the Children Act.”

Johnathan Casey, solicitor

Applications for Orders Under Schedule 1 of the Children Act

If you are a separated, unmarried parent, or if your divorce settlement did not include an order for the payment of school fees, you can apply to the court for a child’s school fees to be paid by the other parent ,. This application is more likely to succeed if the child attended private school during the relationship and at the time of separation. However, the court will decide each case on its own facts and the court has a broad discretion. The court will have to consider the income of the  parents and the financial commitments of each  parent, together with the needs of the child and the expectations for the child. Upon considering all these factors, the court will make a decision in relation to the payment of the school fees.

Enforcing a School Fees order

If you have an order in place and the other parent will not pay the school fees, the order can be enforced through the courts. However, if there has been a change of circumstances and your ex-partner cannot pay, they may apply to the court to vary an existing order and potentially circumvent paying the fees. There must be good reason for this, like the loss of employment. In any event, seeking advice from a solicitor in relation to applying for an order, or enforcing an order, is recommended.

Ultimately, it is best for both parties if the payment of school fees can be agreed, but the court is there for those who cannot. A school fees order must be affordable, and the court does take the needs of the child or children into account, particularly if removal from school is likely to adversely affect them. An order can cover the entire school fees and may cover extras such as school uniform, school trips, extra-curricular activities and even boarding.

If you are considering applying to the court for an order in relation to school fees or if you are concerned about the impact of a separation on the payment of school fees, you should obtain specialist legal advice from a family lawyer.

What is “shared care”?

What is “shared care”?

When representing parents in disputes over children, family lawyers are often told by their clients that they wish to obtain a ‘shared care arrangement’ for their children – in our experience, an often misunderstood term.

The concept of ‘shared care’ has different meanings to different people. Some parents deem shared care to be an arrangement whereby the child spends an equal amount of time with both parents. Others believe shared care means their child will live with them 50 percent of the time and live with the other parent for the remaining 50 percent. And there are those parents who may say that shared care is the right to have an equal say when it comes to making decisions about the children, although this is covered by parental responsibility.

These beliefs may be the result of there being no true legal definition of ‘shared care’ as universally understood by family judges, although what is understood is that the law recognises it is in the best interests of the child to have both parents involved in their upbringing (unless in very exceptional circumstances, such as where one parent may pose a real and genuine risk to the child). Generally speaking, the court will make orders which, although they may not be labelled ‘shared care’, ensure that the child spends enough time with both parents so that they have as full a relationship as possible with them both.

If you are affected by any of the issues outlined here, please do get in touch today. We are here to help.

“When representing parents in disputes over children, family lawyers are often told by their clients that they wish to obtain a ‘shared care arrangement’ for their children – in our experience, an often misunderstood term.”

Rebecca O’Rourke

Things to consider when deciding on child arrangements after separation

It is important that parents make realistic arrangements for their children after they separate, and recognise that it is beneficial for all concerned for these arrangements to be managed in a civil and flexible way. This is why it’s often best parents come to an agreement between themselves, rather than asking a judge to decide, although the reality is that some may need advice and guidance to identify and implement an appropriate arrangement.

It’s worth looking at the comment made by an appeal judge in the 2014 case of M(A Child):

It is still the case that 50/50 shared care arrangements between parents are comparatively rare in private law children cases. Research shows that a number of factors have to be in place, practical matters such as the close geographical proximity, but, above all, the couple have to be on reasonable or good terms so that the to and fro of everyday life for a child is accommodated without undue emotional fall out.”

The judge continued: “Both parents have equal status. So a division of time 50/50 will remain, in my view, a rare order and only to be contemplated where there is some confidence that it will not work to the disadvantage of the child, albeit that the aim is to give good quality and substantial time with each parent.”

It is therefore important to consider whether a 50/50 shared care arrangement is something that will be manageable between you and your ex-partner. Consider how this would work, from both practical and emotional perspectives for your child. The Family Court will always look at cases on an individual basis, and the best interests of the children is always at the heart of all decisions made.

Remember that any order made by the Court is legally binding. It therefore may be more advantageous to come to an agreement outside of the Court system, allowing for a degree of flexibility so that both parents can manage child arrangements in such a way as to allow for the unpredictability of real-life commitments.

Gender equality campaign

World Mental Health Day

World Mental Health Day

The World Health Organisation (WHO) recognises World Mental Health Day every year on 10 October as a day to encourage education, awareness and advocacy against social stigma around mental health on a global scale. The focus for this year will be on mental health for all.

The working environment can have a significant effect on the mental health of workers and the mental health of workers can have a significant effect on performance at work. In recent years, various bodies including the Institute for Employment Studies (IES), the Chartered Institute of Personnel and Development (CIPD) and the mental health charity, MIND, have commissioned and published studies into mental health in the workplace. The findings are clear: almost half of UK adults have reported suffering from a mental health issue in their current job, and stress and mental ill health were among the most common causes of long-term absence from work.

“Employers have the ability to make real and tangible differences to the mental health of their employees.”

Lucy Flynn

An unmanageable workload was reported to be by far the most common cause of stress at work and in 2019, CIPD reported that the rising prevalence of presenteeism culture was potentially very harmful to health and wellbeing at work.  Although non-work relationships, management style and personal health issues were also cited as reasons for absence, the overwhelming conclusion was that workload was the main reason for stress at work, which in turn was one of the most common causes for absence.

Given the prevalence of stress and mental health issues in the workplace, it is perhaps worth understanding the basic legal obligations of an employer towards employees:

  • The Health and Safety at Work etc Act 1974 (HSA) imposes a general duty on an employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees
  • The Equality Act 2019 imposes a general duty on an employer not to discriminate against employees on the grounds of any protected characteristic and a specific duty to make reasonable adjustments for disabled employees
  • An employer has a common law duty to take reasonable care to provide employees with a safe place of work, safe equipment and a safe system of working
  • An employer has specific duties under the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) (MHSW) to
    • undertake risk assessments
    • implement measures to
      • avoid risks
      • combat risks at source
      • develop an overall risk prevention policy and
      • give appropriate instructions to employees regarding risk
    • provide information to employees about work-related risks to their health and safety

Employers must do all they can to reasonably to support the health, including the mental health, and wellbeing of their employees, and ACAS guidance suggests that it is very much in interest of employers to improve mental health within their organisations by

  • tackling the causes of work-related mental health issues
  • creating a culture where staff can discuss their mental health and
  • supporting those staff who are experiencing mental health issues

In practical terms, employers have the ability to make real and tangible differences to the mental health of their employees. In addition to providing a good working environment which balances work and home life, employers should consider identifying a plan for promoting good mental health at work for all.  Any such plan should meaningfully show how the employer will develop mindfulness across the organisation about mental health issues at work, encourage a culture of open dialogue and routinely monitor employee health and wellbeing at work.  In doing so, employers can help to raise awareness and remove the stigma attached to mental ill health.

About the author: Lucy Flynn is a senior employment solicitor with our sister company Beyond Corporate Law. She has a breadth of experience acting for businesses and individuals, advising on all general HR and employment law issues.

Legal 500: McAlister Family Law climbs to Tier 2

Legal 500:
McAlister Family Law
climbs to Tier 2

We are absolutely thrilled to say that we have climbed to Tier 2 in the rankings of legal directory Legal 500. This is an astonishing achievement for a firm that is not yet three years old and is testament to the dedication, hard work and sheer talent of the team, described as being

“commercially astute, no-nonsense”

Our entry reads:

“Led by managing partner Amanda McAlister, the “commercially astute, no-nonsense” team at McAlister Family Law specialises in three distinct areas of family law: divorce and finance, private children law, and public children law. In the private space, the growing department handles divorce and finance mandates, while its public law team is split into two – one acting for children and parents, and the other for local authorities. Another name to note is Liz Cowell, who represents a number of international clients.”

Testimonials

Fiona Wood was my lawyer. She has always been very reactive and helpful, very easy to communicate with and had a clear strategy to follow.”

“The firm has a vast level of experience from the established individuals brought into the practice alongside a progressive training and staff development programme. This ensures the highest quality service to its clients.”

“Fiona Wood’s experience gives her the status of one of the best matrimonial finance practitioners in Manchester. She has successfully dealt with cases of high value and complexity, having the knowledge and attention to detail to provide a top tier service.”

Named as key lawyers are Liz Cowell, Fiona Wood and Nicola Wilburn-Shaw

A huge well done to everyone!

McALISTER FAMILY LAW
MCALISTER HQ LOCATION:

Second Floor, Commercial Wharf

6 Commercial Street
Manchester, M15 4PZ

GET IN CONTACT
SOCIAL MEDIA:
HOW CAN WE HELP?
HOW CAN WE HELP?

If your enquiry is urgent please call

+44 (0)333 202 6433