I am Stalker- But what if I’m a victim?

Posted on 18th March 2024 by McAlister Family Law

I am Stalker – But what if I’m a victim?

“I am Stalker” is a new Netflix documentary about convicted stalkers in the US who talk about their personal experiences. Whilst for some viewers it is an interesting watch about true crime, it is actually an awful reality for victims of stalking. Here, Weronika Husejko looks at how victims of stalking can protect themselves through the family court.

Stalking has a fairly wide definition and some examples of stalking under the Protection from Harassment Act 1997 include: –

Following a person
Watching or spying on a person
Monitoring the use by a person of the internet or email

Stalking is generally considered to be a more aggressive type of harassment. However, it is not always easy to identify a victim of stalking. For example, stalking may include purchasing something in another person’s name without their consent.

The police say that the four warning signs of stalking are:-

Fixated
Obsessive
Unwanted
Repeated

If you are a victim of stalking, you may have recourse to some protective remedies via the Family Court.

Non-Molestation Orders

This is a type of injunction which is aimed at protecting you from a range of behaviours that can include stalking and harassment.

This option is available to those who are being stalked by what we refer to as an “associated person”. This includes people such as family members and ex-partners of the victim.

Injunction under Protection from Harassment Act 1976

Victims of stalking can also apply for an injunction under the Protection from Harassment Act. If granted this is a civil order from the Court which prohibits the stalker from taking steps which are considered to be stalking or harassment. The victim may also be able to seek damages from the Civil Court via this route.

This option is available to all who are being stalked, including those victims who are being stalked by a stranger for example.

It is always sensible to speak to a solicitor about the most appropriate options for you in the first instance as this can of course vary dependent upon your specific set of circumstances.

The police can also apply for a Stalking Protection Order on your behalf which is a civil order. They may also refer your case to the Crown Prosecution Service who may decide to prosecute the stalker via the Criminal Courts in addition to the above Family Court remedies.

If you are indeed being stalked or harassed and you feel that you are in danger, we would always suggest that you contact the police. There is also a National Stalking Helpline that you can contact for help.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

Child Maintenance and Domestic Abuse – New measures to assist survivors of domestic abuse

Posted on 2nd March 2023 by McAlister Family Law

Child Maintenance and Domestic Abuse – New measures to assist survivors of domestic abuse

New laws will soon be introduced to protect victims of domestic abuse from having to deal with the other parent, if they are the perpetrator of the abuse, in regard to child maintenance applications. Here, Melissa Jones, Senior Associate, looks at what this means for domestic abuse victims and how the Child Maintenance Service is going to support them.

It’s not physical violence, is it Domestic Abuse?

Domestic abuse is when someone close to you, often a partner or spouse causes you physical, sexual, financial or emotional hardship. It is a misconception that in order for you to be categorized as being in an abusive relationship, there must be physical violence. In many cases there is no physical violence; instead, there is psychological and emotional abuse.

Domestic violence can take many forms. Other than physical violence and threats of violence, you may feel intimidated by things that are said to you, or the manner in which you are treated. You may feel controlled and prevented from spending time with friends and family. Abuse can be verbal; you may feel belittled by your partner at home or in front of others.

In addition to the above, you might feel anxious about claiming child maintenance from the other parent, if they have been abusive towards you, because they might use a child maintenance application as a way to further contact you, harass your, intimidate you or as a way of exerting financial control.

What is Child Maintenance? Can I claim this?

All parents have a responsibility to provide financially for their child even if they live apart from the child and the other parent. Child maintenance can make a significant difference to a child’s wellbeing and the quality of family relationships. Child maintenance is the regular, reliable financial support parents provide for their child when they separate. It can help towards a child’s everyday living costs and give them the best start in life.

Child maintenance can be agreed voluntarily between parents. If an agreement cannot be reached, then an application can be made to the Child Maintenance Service (CMS) – a government body that assesses one parent’s financial means and can make a mandatory requirement that he or she pays child maintenance to the other.

The amount of child maintenance that will need to be paid will depend on a number of factors. For further information visit the Government website.

How will the Child Maintenance Service help me?

Under the new measures soon to be introduced, the CMS will:

Give you the choice, as a survivor of domestic abuse, to allow the CMS to collect Child Maintenance and make payments on your behalf. This would be without the consent of the abusive ex-partner.
Be given powers to report suspected cases of financial coercion to the Crown Protection Service.

Senior Associate, Melissa Jones comments “this is a very helpful and proactive step in tackling domestic abuse and practically assisting survivors of domestic abuse. Sadly, help for a victim is not only needed when they are still with perpetrator but long after too, and with Child Maintenance claims, protection might still be needed after the relationship has ended to prevent further emotional and financial control. The new measures are much needed, and will no doubt help a number of domestic abuse survivors in difficult times and adds an extra layer of protection as they move on with their lives.”

If you believe you are, or someone you know is suffering from domestic abuse, then there are ways to help you, and them. At McAlister Family Law we can help victims of domestic abuse by advising them on the most appropriate course of action in their particular situation,

If you are anxious about claiming child maintenance, want to learn more about your rights pet and want some advice, then contact our team of family experts who can advise you further.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.

Sources

https://www.familylawweek.co.uk/site.aspx?i=ed235424

How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

Posted on 1st September 202224th January 2023 by McAlister Family Law

How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

Sylvester Stallone hit the headlines once again recently, after news broke that his wife of some 25 years, Jennifer Flavin, had filed for divorce. In his latest blog post, George Wilson takes a closer look at how Stallone’s alleged misconduct would sit with the Courts of England and Wales.

The divorce suit was filed just days before a video emerged of Stallone, now 76 years old, covering up a tattoo of Flavin on his bicep with a picture of Butkus, the bull mastiff from the Rocky film franchise. Although Stallone was not shy about disclosing the video to the world at large, it has been alleged by Flavin that he hasn’t quite disclosed things he should have and has hidden marital assets within the divorce proceedings. Flavin’s legal team further state that the Stallone has:

“engaged in the intentional dissipation, depletion and/or waste of marital assets which has had an adverse economic impact on the marital estate”

Naturally, Stallone’s solicitors have denied any sort of misconduct.

How would Stallone’s alleged misconduct sit with the Courts of England and Wales?

In the jurisdiction of England and Wales, all parties to financial remedy proceedings within divorce owe a duty of full and frank financial disclosure to the Court and, in turn, their spouse. Essentially, parties within the proceedings must disclose all of the available information about their assets and income, by way of detailed financial disclosure, usually on the standard document used for such disclosure, Form E. Such disclosure will include evidence of the value of properties parties have an interest in, copies of bank statements linked to bank accounts in their name, evidence of their income and income needs, evidence of other assets such as investments and ISAs, valuable chattels such as artwork, jewellery, and watches, and motor vehicles.

Parties will also need to provide evidence of dividend counterfoils, company accounts, tax returns, and any liabilities they might have against their name. This list is by no means exhaustive, and parties are often shocked at how much detail they are required to provide within their financial disclosure. A blank Form E can be found at this link for ease of reference.

If parties to a divorce refuse, or fail to provide the required disclosure, the consequences (and remedies available to the Court and their spouse) are very serious. The court is likely to draw “adverse inferences” about parties who fail to provide the required disclosure. Essentially, this means that the Court can, and will, assume a spouse has something to hide and can make robust assumptions about the trust value of their assets and level of their income. Furthermore, if the divorce (and financial remedy proceedings) has concluded and one spouse believes that their ex-spouse had hidden assets, it may be possible to reopen the case. The court can reopen any case if it finds there has been deliberate and fraudulent non-disclosure of assets by one spouse.

Such assets, now visible and disclosed, will come under scrutiny, and the court can decide as to how the same should be divided. Perhaps the worst outcome of being found ‘guilty’ of non-disclosure, is the Court finding that a spouse has been in contempt of court and if the contempt has been deliberate, then the guilty spouse can be fined or even have a custodial sentence forced upon them. It is therefore of paramount important to work with a solicitor to ensure that the disclosure you provide is full and frank.

Stallone has also been accused of dissipating marital assets. Dissipation of assets occurs when one spouse has used, given away or otherwise transferred, converted, wasted, mismanaged, or adversely affected assets that would have been subject to division and distribution. Dissipation of assets may be in the form of the quick sale of assets such as property, stocks and shares, or other chattels such as artwork. Dissipation can also be more subtle and can be in the form of significant ‘gifts’ to friends and family, substantial cash withdrawals, gambling, or other unusual and possible reckless purchases. The court will see such dissipation of assets as an act of litigation misconduct.

Under the Matrimonial Causes Act 1973, it is possible for one spouse to apply to freeze certain assets belonging to the other, to reduce the risk that they are dissipated. In such circumstances, it is essential to act quickly, with the assistance of solicitor, should you suspect that your spouse intends to dissipate assets, as it is much more difficult to deal with the assets once they have been dissipated.

Can my children go on holiday with their grandparents if my ex does not consent?

Posted on 26th August 202224th January 2023 by McAlister Family Law

Can my children go on holiday with their grandparents if my ex does not consent?

Taking children on holiday can often be more challenging between separated parents, but can grandparents take their grandchildren on holiday, and how easy is it in a separated family? Here, Michael Compston looks at court orders, parental responsibility, and offers advice to grandparents looking to plan a holiday.

Firstly, who can take children on holiday? This blog assumes that you and your ex- have separated and no longer live together, but that there is no court order in place; if you do have a court order, you should refer to the warning notices within that order.

Only those individuals with parental responsibility have the capacity to make decisions on who may take children out of the country on foreign holidays. Parents acquire parental responsibility most typically at birth; the mother will acquire it by virtue of being the child’s mother, and the Father will acquire parental responsibility if he is married to the Mother at the time the child’s birth or he is named on the child’s birth certificate as the Father. Similar provisions apply for same-sex couples.

With no court order in place, permission of those with parental responsibility is required before taking children on a foreign holiday. This is the case regardless of who the child lives with. Consent should not be unreasonably withheld – why would a parent not want their child to experience a foreign holiday – but if the holiday is at risk of putting a child in danger, or there are concerns about the children not returning, then consent may be withheld. Consent is often withheld because the ex- is worried about their routine time with the child being interrupted. It may be helpful to consider how any lost time could be made up, if consent is being withheld, as a means to broker an agreement.

Grandparents typically don’t have parental responsibility for children – there are exceptions to this, of course, but we are looking at the general position here. Those with parental responsibility are free to delegate childcare to who they consider appropriate to provide such childcare. We see this when parents work longer hours than children are at school or nursery and grandma or grandad need to collect the children and provide childcare for a couple of hours. We don’t often think about the action of delegating that responsibility as it is simply what many working families do as part and parcel of 21^st century life; everybody pitches in for the childcare, especially when both parents work full-time, or close to full-time jobs.

It is advisable for grandparents to plan their holidays well in advance and they must ensure that they have permission of all individuals with parental responsibility. Written consent is not strictly a legal requirement but it would be a very good idea to have something from everyone who has parental responsibility, in writing, that can be shown to any customs officials querying the legal right to take the children on holiday. This is particularly important when the children have a different surname to the grandparents.

If consent is withheld from any individual with parental responsibility, then the grandparents can apply to court for a Specific Issue Order. They will need permission to make such an application, granted by the court, but getting permission to make the application is usually a formality – this is not the same as permission being given to take the children on holiday. The court will list the matter for a Final Hearing where the parties – grandparents and those with parental responsibility – will give evidence in front of a Judge and have the opportunity to cross-examine (ask questions) of the other parties before the Judge makes a final decision.

The Judge will consider first and foremost what is in the child’s best interests. Judges will encourage the parties to come to an agreement but, if no agreement is reached, then they will decide what is in the child’s best interests and make an order accordingly.

Separated parents and international travel during Covid-19 restrictions

Posted on 18th August 202224th January 2023 by McAlister Family Law

Separated parents and international travel during Covid-19 restrictions

As of August 2022, the Covid-19 pandemic continues to affect international travel, for most, this can mean a last-minute rush to the airport to avoid isolation, but for separated parents the added stress of acquiring consent to travel with their child from the other parent can make holidays even more challenging. Here, Heather Lucy explains how the ongoing Covid-19 pandemic can play a role in organising a holiday between separated parents.

With holiday season in full swing, many parents want to take the opportunity to take their children on holiday. For most families this tends not to be much of an issue, but for families with separated parents there are a few more things to consider. Firstly, if one parent wants to take a child abroad, whether that be permanently or temporarily, the other parent with parental responsibility will need to give consent. However, anyone with the benefit of a Child Arrangements Order, stating that their child is to ‘live with’ them, is legally allowed to remove the child from England and Wales for a period of less than 28 days without the consent of the other parent, even though they have parental responsibility.

What about Covid-19?

As of August 2022, providing you and your child are fully vaccinated, there are 172 countries open to you worldwide, 28 countries that require you to test before you travel, 3 countries that require you to quarantine upon arrival, and only 24 countries fully closed. On the other hand, if either you or your child are unvaccinated or haven’t received all of your vaccinations, only 87 countries are open to you, 71 require you to test before you travel, 19 countries require you to quarantine upon arrival, and 50 countries are fully closed. However, the status of each of these countries so called ‘openness’ can change at any given point.

It is understandable then why any parent may have some reservations around their child travelling abroad with their ex-partner, not least because of the fear that once in the destination country, your ex-partner and child might face a period of self-isolation upon their arrival. Again, changes in the status of ‘openness’ can happen at any time and parents can be caught out with an unexpectedly long stay and issues with accommodation. On top of this, there is the ever-present worry around the risk of the child either contracting Covid-19 or transferring it.

Written consent.

If you do wish to travel abroad with your child, the first step is to seek written consent from the other parent before travelling. If this is something which may prove difficult, try to have an open discussion with the other parent; understand and alleviate any fears that they may have by confirming:

Travel dates and times
Where you will be staying
Explain how you will keep the child safe throughout the holiday
Explain the rules around quarantine and testing if you are traveling to a country where this is required

Compromise and flexibility is key, but what happens if you cannot come to an agreement or if your ex-partner gives consent but then changes their mind?

You can make an application to the court for a Specific Issue Order stating that you can remove the child from the country and the court will make the final decision. On the other hand, if you are the partner who is not traveling and you haven’t given consent and are worried that your ex-partner will travel with your child regardless, you can apply to the court for a Prohibited Steps Order to prevent them from traveling. If you are in this situation, you should seek legal advice urgently as this may also be considered child abduction.

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 arrangement can be reached.

If you are affected by any of the issues outlined here, please get in touch with our specialist teams today.

Can I stop my children going on holiday with my ex’s new partner?

Posted on 11th August 202224th January 2023 by McAlister Family Law

Can I stop my children going on holiday with my ex’s new partner?

With the school holidays here and plans being made for families to go abroad or on holiday in the UK, one of the most frequently asked questions is where a parent stands with their children going on holiday with their ex’s new partner. Here Melissa Jones explains the factors at play when the Court decides whether or not a parent can prevent their children from going on holiday with their ex’s new partner.

Perhaps you have not yet met your ex’s new partner and therefore know little about them or maybe the two of you didn’t get off on the best foot.

Before you make any decisions, with family law cases concerning children, it is always best to start from their point of view and think reasonably as to why you might object to the partner tagging along. You might be worried that the new partner has only just come on the scene and is therefore unfamiliar with your children. This is understandable but is unlikely to convince a court that this holiday should not happen if the partner was to attend.

But why should I miss out on time with my children and the new partner gets to spend time with them?

This is understandable, but the court is becoming more familiar with “separated families” or “blended families”. The court will appreciate that parents move on after separation and each should be afforded the opportunity to go on holiday as a family. The focus in this scenario is to ensure you arrange your own holiday(s) with the children so you can enjoy quality time with them, one on one.

It may be that in the future, you may also want to go on holiday with the children and your new partner and you would ideally want this to be fully supported by your children’s other parents.

Can I get a court order to stop my ex taking the children on holiday with their partner?

If there is an Order in place, usually a Child Arrangements Order (formerly a Residence Order) then a child can be taken abroad for up to a month without needing the written consent of the other parent.

Parental Responsibility

If there is not a court order in place, what first needs to be considered is whether you have parental responsibility. If both parents share parental responsibility, then what is often overlooked is that your partner will need your written consent in order to take the child out of the United Kingdom (Section 13 (2) of the Children Act 1989). Failing to do so could lead to that parent committing an offence of abduction for which they can be fined, imprisoned or both.

If you object to the partner attending the holiday, you are essentially objecting to the other parent taking the children on holiday. As such, you can make an application to the court for a Prohibited Steps Order, to prohibit the other parent taking the children on the holiday.

Likewise, if the other parent believes your consent is being unreasonably withheld, then they can make an application to the court for a Specific Issuer Order, for permission to take the children on holiday in the absence of your consent.

In either scenario, the Judge will take into account the individual circumstances of each family. The Court rarely denies permission to take a child on holiday abroad where there is an existing relationship between the parent and child and the plans are reasonable in all of the circumstances. The court is unlikely to implement a restriction against the new partner attending in the absence of safeguarding concerns as it is a dispute between the two parents. Any Prohibited Steps Order or Specific Issue Order will relate to the parent either being given permission to go abroad with the children or being prohibited from taking the children on holiday, not in relation to the new partner. It would be very rare for a third party to be named in either order.

When the court denied permission it is usually in circumstances where the plans are patently not in the child’s best interests or where the Court deems the child may not be returned to the country.

The child’s best interests

If only one parent has parental responsibility, and again there are no Court orders in place, then permission is not necessarily needed to take a child abroad on holiday. That being said, and with your child’s best interests at heart, consultation should always take place with the other parent (if they are in regular contact with the child) in order to reach an agreement that is right for everyone.

Open lines of communication

What is important is communication and trying to agree any travel arrangements between you and the other parent in advance. This is not always possible, but if it can be achieved, it will avoid any applications to the court being necessary.

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