Children giving evidence in court

Posted on 26th March 202126th March 2021 by mcalister-admin

Children giving evidence in court

In the final blog of our series covering the Brad Pitt and Angelina Jolie relationship difficulties making headlines around the world, Senior Associate Nicola McDaid discusses the very difficult topic of children giving evidence in court.

Angelina Jolie and Brad Pitt‘s son Maddox has testified against his father during the couple’s contentious divorce and custody battle – offering a “not very flattering” opinion about the actor.

When a couple goes through a separation or divorce, it can be an exceptionally difficult time for all concerned, but when children are involved it can become even more emotionally challenging.

The issue of whether a child should give evidence in proceedings should be considered at the earliest opportunity by the Court and all parties. This decision will depend on the purpose of the child giving evidence, the significance of the allegations made and whether other evidence is available.

This is not commonplace and every case will be different, so specialist advice on this issue is crucial.

Following the leading case of Re W (Children) [2010] UKSC 12 and again reiterated in by McFarlane LJ in E (A Child) [2016] EWCA Civ 473, the Court’s main objective is to achieve a fair trial. With this objective the Court must weigh up two considerations to a child giving evidence in Court. They must consider:

* the advantages that it will bring to the determination of the truth

* the the damage it may do to the welfare of the child.

In determining these considerations, the Court must have regard to:

* the child’s voice, age, needs, maturity, vulnerability, abilities

* the nature of the allegations

* the quality and importance of the child’s evidence

The Court must always take into account the risk of harm which giving evidence may do to the child and how to minimise that harm. Section 1(3) of the Children Act 1989 sets out a checklist of factors the Court is required to take into account when making a decision which affects the welfare of a child. The Court will also need to take into account practical and procedural issues, such as:

* giving the child the opportunity to refresh their memory

* the type and nature of the questions

* the appropriate identity of the questioner, as one person is generally identified to ask agreed questions of the child.

A child generally does not give evidence to the Court in the same way as an adult would.

The court also needs to look at what other evidence maybe available. The child may have given an interview to the police for example. If so, the Judge may need to view the interview before making any decision as to whether a child should give oral evidence to the Court.

Following the case of Re W, 12 guidelines were issued. They were specifically designed to assist the Courts in deciding upon whether it is appropriate for a child to give evidence.

If there are criminal proceedings in which the child has given interviews, then there needs to be close liaison between the criminal and family Courts so as to avoid any prejudice to either set of proceedings.

As can be seen is it a complex area to navigate and for children, giving evidence in court can be a frightening experience for them; all factors need to be taken into account not only to ensure that the case is dealt with justly, but also to protect and minimise any emotional damage that could be caused to children who go through this experience.

At McAlister Family Law we have an experienced team of family lawyers specialising in this area, who are passionate in ensuring that the voice of the child is heard but also ensuring that they are protected wherever possible.

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

Will a history of drug and alcohol misuse prevent you from spending time with your children?

Posted on 25th March 2021 by mcalister-admin

Will a history of drug and alcohol misuse prevent you from spending time with your children?

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, today Associate Melissa Jones look at Brad Pitt’s history of drug and alcohol misuse, and examines whether this would affect a separated parent’s contact with their children.

Brad Pitt alcohol

It is a matter of record that Brad Pitt has battled addictions to both alcohol and marijuana for many years, and attended Alcoholics Anonymous meetings for more than a year after his now ex-wife Angelina Jolie filed for divorce from him in 2016.

“I can’t remember a day since I got out of college when I wasn’t boozing or had a spliff, or something.” Pitt told GQ Style in 2017, several months after Angelina Jolie, with whom he shares six children, filed for divorce. “I’m really happy to be done with all of that. I mean I stopped everything except boozing when I started my family.”

Child contact and the law

The law, as it stands, presumes that it is in the children’s best interests for each parent, even when they have separated, to continue to be involved in the lives of any and all of their children, unless such involvement may subject them to a risk of harm.

This misuse of alcohol, drugs – both prescribed and illegal ones – often feature in cases coming before the family court, where one parent wants to prevent contact with the couple’s children because of concerns around the safety of the children. That allegation may set in motion assessment, by the courts, CAFCASS or Social Services, of the risks that may be posed to the children involved.

As family law solicitors, we are all too familiar with such cases coming before family court, and it is not unusual for an ex-partner to allege the other parent should have only limited, or indeed no, contact, with the couple’s children because of previous drug and alcohol misuse and the risk such misuse poses to those children.

What measures can the court take?

The court has a number of ways it will both establish any potential risk and manage it:

– it can make regular testing and monitoring of alcohol and drugs, which might include hair strand testing, breathalysing pre and post child contact, and/or the wearing of a SCRAM bracelet*

– it can require an undertaking that the parent will not consume alcohol or drugs when having contact

– it can require the parent’s attendance on specific therapeutic and remedial courses

With parents that do have difficulties like those outlined above, from the courts’ perspective, there are ways of working through them so that children can maintain positive relationships with both parents.

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

*Like a breathalyser for the ankle, the SCRAM Continuous Alcohol Monitoring (SCRAM CAM) bracelet provides 24/7 transdermal alcohol testing, automatically sampling the wearer’s perspiration every 30 minutes.

Domestic abuse and divorce

Posted on 24th March 2021 by mcalister-admin

Domestic abuse and divorce

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, and in which Jolie has made allegations of abuse against Pitt, today solicitor Heather Lucy looks at the issue of domestic abuse and divorce.

Domestic abuse is, sadly, a perennial issue in interpersonal relationships. When someone has found the opportunity, means, and assistance to leave a marriage that is characterised by domestic abuse, they often ask themselves the question “what impact will my ex partner’s behaviour have on our financial settlement?”

Funding

Legal Aid is not usually available for matters arising on the breakdown of a relationship, including the divorce proceedings and financial remedy proceedings, but, in a case where there has been domestic abuse, the victim may be eligible to receive public funding. It should be noted that this is a means-tested award and the applicant will need to show some evidence of their abuse at the hands of their ex-partner. A lawyer should be able to ascertain whether a client is likely to receive financial assistance and help them make the necessary applications.

Finances – the arena

Resolving the matter of the family finances on divorce is something that will likely weigh heavily on any separating couple’s minds. Separating spouses are encouraged by the courts to use means of Alternative Dispute Resolution (ADR) before resorting to an application to the court but this is not appropriate in all circumstances. One such circumstance is where there has been domestic abuse; the courts do not consider it appropriate to make attempting ADR a pre-requisite of any application for financial remedy in this case.

Finances – the award

If a separating couple cannot decide on how their assets should be divided, they will most likely ask the court to make a decision for them. When the court looks at how the parties’ assets should be split, they will need to consider a list of factors including the parties’ relative ages and earning capacities, the length of the marriage, and whether there are children of the family. One of the other factors the court can consider is the conduct of each party.

Conduct is very rarely considered to be sufficient to change the outcome of a case. This is, in part, because the court does not seek to apportion blame for the breakdown of a relationship. The court, in reality, only takes into account conduct that it would be ‘inequitable to disregard’. So, what exactly does that mean? In short, it is unlikely to include domestic abuse.

Family lawyers will refer to this as the ‘gasp factor’ which shows that the behaviour of the perpetrating party must be enough to warrant shock – however, bear in mind this is not a precise legal test.

When coming to a final award, the court must have regard to meeting a parties’ needs. Interestingly, the court can choose to penalise a party for their conduct to an extent that their needs are not met but this is a rare situation indeed.

In short

Domestic abuse, unless it is of the most extreme nature, is unlikely to impact a court’s decision on how the matrimonial assets should be divided. Parties should be made aware of this at the outset of their case as not to increase litigation costs or protract the proceedings bringing an end to a particularly unhappy marriage.

At McAlister Family Law we can give guidance on what the courts may take into account, but the behaviour is generally thought to be extreme to the point that the courts feel that it would be inequitable to ignore the behaviour. Unfortunately, the vast majority of cases that have an element of abusive or controlling behaviour do not impact on the financial settlement that the court would order or approve.

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

Changing your children’s last name after divorce

Posted on 22nd March 2021 by mcalister-admin

Changing your children’s last name after divorce

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, it is reported that the couple’s son Maddox doesn’t use Pitt as his last name on documents that aren’t legal, using Jolie instead – and wants to make this name change legal. Solicitor George Wilson looks at the options available in this country, and considers the wider implications of such a decision.

It is a matter of record that Maddox Jolie-Pitt has a troubled relationship with his father, especially after an altercation during a private jet flight to Los Angeles, five years ago. Although Maddox wants to drop his father’s name and go from Jolie-Pitt to Jolie, it’s reported that his mother doesn’t support this. What would be the situation here?

Changing your name by deed poll

Under English law, if you are over the age of 16 you can change your name by deed poll, and you do not usually need your parents’ consent to do this. Your parents also cannot change your name for you without your consent.

However, there are some exceptions to the above. If you are subject to

* A ‘Live with order’ whether that is a Child Arrangements Order or Residence Order in England, Wales, or Northern Island

* A Special Guardianship Order in England and Wales

* A Care Order (or interim Care Order) in England, Wales, or Northern Island

* Any other court order which says that your name cannot be changed

If one of the four instances outlined above applies to you, then you’ll need the consent from everyone who has Parental Responsibility for you, for as long as the court order remains in force. The order might be drafted so that it ends on a specific date. If not, then it’s safe to assume that it will come to an end on your 18^th birthday.

If one of the four orders outlined above applies to you, and someone with parental responsibility refuses to give their consent, then you would need to apply for an Order of the Court allowing the change.

What about changing a child’s name?

Anyone under the age of 16 is, in law, a “child”, which means whoever has parental responsibility for the child would have to change the name by deed poll on the child’s behalf. To change the name of a child resident in England, Wales, or Northern Ireland, or overseas, there must be consent from everyone with parental responsibility, and that consent must be in writing.

What happens if the other parent refuses consent?

If only one person with parental responsibility wants to change the child’s name, and everyone else who has parental responsibility for the child won’t consent, then the person who does want to change the name can apply to the Court for a Specific Issue Order.

Usually, unless the Court believes that the link to a family name is better broken, they will be reluctant to take away the name of one of the parents. Courts tend to regard a child’s surname as something fundamental, and an important part of their identity. Even if one parent has had no contact for many years, it’s still seen as important for a child to have the absent parent’s surname, because it may be the last remaining link to them.

That being said, there are very often more important things to consider than the continuation of the link of identity between a child and a parent.

It is worth noting that the closer the child is to the age of 16, the more weight the court will likely give that child’s wishes and feelings.

What if no one gives consent to change your name?

If you are under 16 years of age, want to change your name, but none of the people with parental responsibility for you will consent to it, then you can apply to the court yourself, again for a Specific Issue Order.

You will need to show the Court that you have tried to work out any differences between you and those with parental responsibility before you made the application. You’ll also need to get the Court’s permission to make the application as you’re a child. This is called “Leave of the Court”, and you have to apply for permission first, before the Court would hear your application. The older you are, the more likely the Court are to give their permission to make the application for a Specific Issue Order and you’ll have to prove that you have a sufficient understanding of what you are applying for.

Think carefully before making any decision

Maddox Jolie-Pitt wants to change his surname, but his mother disagrees with this. If he goes ahead however, it’s likely Maddox’s brothers and sisters will have a different surname and they may be unhappy with this. There are wider implications which need to be considered thoroughly. A divorce and various disputes that are still going on many years later is without question going to put a strain on any family. This is why all factors need to be considered carefully and we at McAlister Family Law are here to help should any of these issues affect you and your family.

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

Can my ex stop me moving abroad with our children?

Posted on 22nd March 202122nd March 2021 by mcalister-admin

Can my ex stop me moving abroad with our children?

The Brad Pitt and Angelina Jolie relationship difficulties seem never-ending, and unfortunately, it’s a situation many warring ex-couples are all too familiar with. The divorce, which Jolie filed for in 2016, has gone through many iterations, including custody discussions and property discussions; they were declared legally single in 2019 but the legal arguments between the two continue.

At Christmas time, an anonymous source told US Weekly: “Brad and Angelina are equally responsible for the never-ending drama. Sadly, their children are collateral damage.”

The latest news from Hollywood is that the couple’s eldest son, Maddox Jolie-Pitt, has testified against his father during the exes’ lengthy custody battle. We have learned, according once again to stories attributed to an anonymous source, that “Maddox has already given testimony as [an] adult in the ongoing custody dispute and it wasn’t very flattering toward Brad. He doesn’t use Pitt as his last name on documents that aren’t legal and instead uses Jolie. Maddox wants to legally change his last name to Jolie, which Angelina has said she doesn’t support.”

Jolie filed new court documents on Friday, March 12, that accused Pitt of domestic violence. The papers state that the actress and their children — Maddox, 19, Pax, 17, Zahara, 16, Shiloh, 14, and twins Knox and Vivienne, 12 — are willing to offer “proof and authority in support” of the claims against their father.

The couple are now said to be hashing out custody and financial arrangements, which will see their youngest children provide testimony – if they give permission.

A big factor in the couple’s battle is Jolie’s much reported desire to move abroad with the children – something which Pitt is reportedly vehemently opposed to.

This week the family law experts at McAlister Family Law will each day look at the specific elements raised in this sad case. American law is not the same as the law in England and Wales, but there are sufficient similarities to make these issues universal for divorcing parents. Today, Melissa Jones, Associate, answers the question: can my ex stop me moving abroad with our children?

Jolie Pitt divorce

Can my ex stop me from taking the children out of the country?

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

When parents separate, one of the considerations might be moving out of the family home and to a close location, but for others they might want to move much further away, potentially to another country entirely. When children are involved in the move, it can be quite daunting for the parent remaining in the original country, and equally just as worrying for the parent who wants to move, as they don’t know if their plans can go ahead.

Can Angelina and her children be forced to stay in Los Angeles?

This case is being decided in the USA. In England and Wales, both parents’ consent would be needed for the move. If an agreement cannot be reached and a parent fears the other parent will travel regardless, that parent can apply to the court for a Prohibited Steps Order.

The first step the parties should look at in a dispute of this kind is whether they can engage in meaningful discussion or perhaps alternative dispute options such as mediation or the help of solicitor in negotiations.

What if the other parent still refuses the move?

This is quite a complex area of law. If consent is not forthcoming, a parent can apply to the court for a Specific Issue Order, for permission of the court to relocate abroad with the child(ren).

However, such proceedings are intricate, and complicated. In the particular case of Jolie and Pitt, the court would need to scrutinise the proposals by Angelina Jolie and be satisfied that the proposals are reasonable and very importantly, in the children’s interest.

The case of Payne v Payne provided a number of factors the court will consider in an international relocation matter. Such factors include being satisfied that there is a genuine motivation for the proposed move and not simply to bring a divide between the other parent and the children, and in effect stop contact. The court will need to look at the effect on the “left-behind parent” if the move was granted alongside the contact that they would be able to have.

There has also been a more recent case of Re C [2015] in which the courts provided a more streamlined approach to decided such cases:

– There is no difference in the basic approach between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.

– The wishes, feelings and interest of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child.

– In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.

We will have to wait to see what the American courts decide. Sometimes, when both parents possess seemingly limitless funds, they will carry on arguing in court for years. As a family lawyer, I wonder about the damage that may be done to the children involved.

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