We cannot agree on counselling for our child – What will the court decide?

Posted on 12th January 202312th January 2023 by McAlister Family Law

We cannot agree on counselling for our child – What will the court decide?

According to statistics, nearly one in 10 children and young people are affected by a mental health problem. The good news is that there is now more awareness of this issue and a number of resources available to children and young people who may be suffering. Here, Melissa Jones looks at what the court can decide if parents cannot agree on counselling for their child?

Understandably, separation and divorce can be a difficult and anxious time for children. They might feel confused and believe they need to “pick sides”. They might also believe that the separation of their parents is “their fault” and might be feeling guilty.

Where does this leave you?

Decisions on a child attending counselling would fall under the umbrella of medical decisions. If you both agree, then great, they would attend counselling. If only one parent agrees, this does not necessarily mean that the counselling should go ahead and with such important decisions is not advisable to act unilaterally. This issue should be agreed upon by all of those with parental responsibility for the child(ren).

What is Parental Responsibility?

Under section 3 (1) of the Children Act 1989 “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

What application do I need to make?

In the absence consent from all those who hold parental responsibility, a parent may wish to apply to the court for a Specific Issue Order, for the court’s permission to enable them to make decisions about the child in the absence of the other parent’s consent.

The application that would need to be made comes under Section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education and medical matters. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However, prior to making an application, the court would encourage the parties to engage in Alternative Dispute Resolution, to see if matters can be resolved. It may be that if you have spoken to a medical professional or a GP who highly recommends that the child or children attend counselling then you may be better assisted in your discussions with the other parent or in any application to the court.

Most importantly it would be best to understand why the other parent objects to the child(ren) attending counselling. Perhaps they need more information first or would like to speak to the counsellor themselves either on their own or jointly with you.

What will the court decide?

If matters relating to a child’s medical care are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child and will have regard to the Welfare Checklist (s.1 (3) CA 1989) when reaching their decisions. Arguably attending Counselling for the child might be in the child’s best interest and a vital resource to help them deal with their mental health issues. Conversely, it might not be necessary for the child to attend counselling and it may be considered intrusive and invasive given their age, characteristics and understanding. It is of course a balancing act.

Can I not just take them to counselling anyway?

However, if one parent has taken matters in their own hands and begins the process of making medical decisions without the other parents’ consent, that would not be perceived well by the court. In fact, if you choose to ignore the other parent’s views or objections, then they in turn could make an application to the family court to prevent you from making the child(ren) available for counselling. This also comes under Section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the child(ren) from attending counselling.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.

Resource: https://www.counselling-directory.org.uk/young-people-stats.html#riskfactors

How will I get a fair divorce settlement if my ex hides their assets?

Posted on 5th January 20235th January 2023 by McAlister Family Law

How will I get a fair divorce settlement if my ex hides their assets?

A common worry that those divorcing have is that their ex will hide assets to prevent them receiving a fair divorce settlement. Thankfully most people who get divorced are honest about their financial circumstances, but what if they are not? Here, Partner Fiona Wood discusses what you can do to if you suspect your spouse is hiding assets throughout financial settlements.

Before a financial settlement is negotiated it is usual for both spouses to give full financial disclosure, confirming all their assets, company interests, pensions, incomes and liabilities. Documentation needs to be provided to support what they state their financial circumstances are, including bank statements for all accounts for at least the last 12 months. If assets have not been disclosed it is often possible to prove this from the documents that have been provided, such as regular transfers from one bank account to another account that has not been disclosed.

Sometimes people give assets to friends or family, shortly before they divorce, in an attempt to exclude them from the divorce settlement. If an asset has been transferred to another person at an undervalue within a period of three years before the divorce, the onus is on the person who did this to prove that it was a legitimate transfer that was not done to reduce their ex’s financial claims. If they cannot prove this, a judge can overturn the transfer, or they can add the amount that has been lost back into the matrimonial pot.

If you are genuinely concerned that your ex is about to give away an asset or transfer it out of the country, you can apply to court for a freezing order. You need good evidence that this is about to happen, to successfully obtain a freezing order, but it is an order that can be made in court proceedings.

Sometimes one spouse has complicated finances, often of an international nature, and their ex is concerned that they will not provide a true picture of their assets. In this scenario you can do some research yourself, looking at Companies House and at the Land Registry in the UK, both of which are accessible to the public, and their equivalents in some other countries. I had a case where one spouse failed to disclose a property that he purchased in Florida, but as there is a public land registry in Florida, we were able to show that they owned this property.

There are also professionals who specialise in assets tracing, on an international scale, who use all legal means available to track down assets owned in the UK and across the world. Even if they cannot locate specific assets, they may be able to provide enough information to enable you to convince a judge that there are hidden assets and that this should be taken into account within the divorce settlement.

If you are concerned about your ex hiding assets to reduce your financial claims on divorce, there are several ways in which you can investigate this and there are legal remedies available to you if it transpires that they have done this or they are about to do this.

Understandably Judges are very unimpressed by those who do try to hide assets. There are likely to be cost orders made against them. Also, as Judges have a broad discretion when it comes to deciding what a fair financial settlement is, so the judge may order that they receive a less generous settlement than they would have received if they had not tried to hide assets.

If you have already obtained a financial settlement, but it comes to light that your ex failed to disclose some of their assets whilst you were negotiating that settlement, the financial settlement can be reopened. There are significant consequences for those who try to hide assets. Don’t do it!

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

Kanye to pay $200,000 / month in child maintenance. What lessons can be learned from the settlements of the ultra-rich?

Posted on 2nd December 20222nd December 2022 by McAlister Family Law

Kanye to pay $200,000 / month in child maintenance. What lessons can be learned from the settlements of the ultra-rich?

In the long line of staggering elements of Kanye West’s most tumultuous year, him agreeing to pay a $200,000 (around £165,000) a month settlement to his ex-wife, Kim Kardashian, for child support, is not even the most surprising or jaw-dropping. Here, Michael Compston discusses how this figure was decided upon and what lessons can be learned from the settlements of the ultra-ultra-rich for the remainder of society.

Before we begin, let’s look at some background. West, or Ye as he now likes to be known, is 45 and Kardashian is 42. They married in 2014 and divorced in 2022, being married for some 8 years. The couple happily had four children together, North (9), Saint (6), Chicago (4) and Psalm (2).

For starters, West and Kardashian have agreed to there being no spousal maintenance being paid to either. This, given their extraordinary wealth – both being estimated as being worth at least $1billion individually in the last twelve months, though West’s current status may be “just” that of a 9-figure millionaire – is perhaps not surprising. What they have agreed is for West to pay the sum of $200,000 a month to Kardashian for child support.

The concept of child support, or child maintenance in England & Wales, is one whereby one parent pays a monthly sum to the other parent to ‘support’ or ‘maintain’ the children. The use of the word ‘maintain’ is perhaps more helpful in understanding what the concept of child support actually is. The children must be maintained in the lifestyle that they have become accustomed to. It is most commonly paid by the parent with whom the children spend less time, though in the West v Kardashian case the arrangements in the US case for the children are seemingly shared. The mechanism by which a court would consider maintenance is paid is found under the Matrimonial Causes Act 1973, though most separating couples will use the maintenance calculator on the Child Maintenance Service website.

In some cases where the ultra-ultra-rich are not concerned, this might extend to items such as ballet lessons, horse riding, art workshops etc. If the couple used to holiday abroad twice a year, then the children should still be able to do so upon divorce, if it can be afforded. Divorce should not be a reason why a child is not able to continue to take part in the activities that they enjoyed when the family lived together all under one roof.

In cases of the West children, the activities are slightly more extravagant. They will not be staying at chain hotels but staying at the most luxurious accommodation worldwide. It is not uncommon for either parent to fly by private jet; those tickets do not come cheap even for the uber-wealthy. The elder children have become accustomed to that lifestyle and would not be expected to have to go without, irrespective of how detached from the norm we may consider that to be. As a family very much in the “A-List”, there are security costs to ensure their safety. All of this has a cost, even to the billionaires.

Schooling is often a big factor. As part of financial settlements upon divorce in England and Wales, the court can make specific school fees orders that ensure a child is kept in the level of education to which they have become accustomed. The West children all attend a fee-paying school and if this was being dealt with in England and Wales it would not be expected to stop attending that school, or a school of similar standing especially as they progress from elementary (primary) to high (secondary) school, because of their parent’s divorce. It is understood that the couple have agreed to share the school fees, which will have been factored into the $200,000 a month payment; not only this, but college funds will need to have been carefully considered for all four.

West and Kardashian have, perhaps sensibly, avoided the need for a trial by reaching a settlement. This is behaviour that would be encouraged regardless of the parties’ wealth and behaviour that we would encourage in those individuals struggling to reach an agreement. By avoiding the trial, they have avoided the considerable expense and emotional difficulty of having their finances and activities laid bare in front a judge, before a decision is made without necessarily having their agreement.

The same principle applies in the ‘real world’, In England and Wales if you attend a final hearing on finances, you are handing over the power to make decisions to a Judge. Negotiations beforehand may result in an outcome that, whilst not ticking every box, might just be a better settlement for both, rather than risk a Judge falling closer to the opponent’s side of the spectrum than yours.

West’s 2022 has been chaotic, to say the least. He has lost a number of endorsements as a result of anti-semitic rants and has been suspended from Twitter. Mega companies such as Adidas and Balenciaga have cut all ties with him. This will no doubt impact his finances for years to come and it may be that the $200,000 a month payment to Kardashian is unaffordable in the future. West will need to bring the matter back to court and provide sufficient evidence that his means have dwindled to the extent he cannot pay the sum agreed. The same principle operates in any settlement in England and Wales; if there is a material change in the financial circumstance of the paying party, then it is only fair that a reassessment be considered. A party cannot simply choose not to work or not be employed to an appropriate standard to try and frustrate the other parent; it is unlikely that if the case was being dealt with over here we would see West stacking shelves in a supermarket any time soon, as he would be accused of failing to maximise his earning potential.

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