How much child support do I need to pay?
Am I eligible for legal aid?
What is parental responsibility?
If both parents agree the arrangements for their children, does the Court need to be involved?
Why mediate?
What is collaborative law?
My children live with me and see my ex-partner ever other weekend and one day during the week. We are all happy with this arrangement, but I am worried that my ex-partner will not stick to it. Is there anything I can do now?
My ex-spouse and I are currently arguing over where our child should live. The child wishes to stay with me. At what age are the child’s views taken into account?
What factors will the Court take into account when deciding who my child will live with?
Can I change my children’s surname without my ex-partner’s consent?
Who will pay my legal fees if my case goes to trial?
My ex-partner will not let me see my children. What can I do?
My partner is refusing to leave the home and it is upsetting the children. What can I do?
My partner is threatening to take our children to another country. How can I prevent it?
I want our children to live with me but my partner/spouse disagrees. What can I do?
How do I select a lawyer?

 

 

 

 

How much child support do I need to pay?

Please click the link to go through to the Child Support Agency child maintenance calculator.

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Am I eligible for legal aid?

Please click the link to go through to the Community Legal Services calculator.

Unfortunately we are a not a “legal aid” practice and will be unable to assist you should you need public funding.

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What is parental responsibility?

Parental responsibility is defined as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and its property. In reality, this means that you are responsible for important decisions in the life of your child – for example those concerning education, religion and medical care as well as day-to-day decisions.

Fathers are not automatically entitled to parental responsibility unless they were married to the mother at the time of the child’s birth or after the birth of the child or, in the case of not being married at that time, they signed the birth certificate. More than one person can have parental responsibility and s.2(7) of the Children Act 1989 provides that each person with parental responsibility may act alone or without the other in meeting that responsibility.

The only restrictions placed on parental responsibility are that one parent cannot remove a child from the United Kingdom without the consent of the other parent or person with parental responsibility and the agreement of all parties must be obtained before a child can be placed for adoption, were this situation ever to arise. Furthermore, it has been held by the Court of Appeal in Re G (Parental Responsibility: Education) [1994] that every parent with parental responsibility must be consulted before any other person with parental responsibility makes an important decision regarding the life of the child – for example, changing schools.

There are also a small number of decisions where, if there is a disagreement between the parties, the matter must be referred to the Court. Such situations include irreversible medical treatment, change of name and change of habitual residence.

A person who has parental responsibility for a child will not cease to have responsibility simply because someone else acquires it – for example, in the case of a step-parent. Parental responsibility will only cease on the child attaining the age of 18 or being adopted.

Parental responsibility has nothing to do with where the child lives. Furthermore, it has nothing to do with whether a father or mother has contact with the child. Parental responsibility enables parents to know important things about their children’s welfare and education as well as being able to have an input into the child’s life. This does not mean that the person’s input has to be acted upon. It does mean, however, that in the event that a parent’s input is not acted upon and he or she feels sufficiently strongly about it, that parent can ask the Court to intervene to decide what the correct course of action should be.

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If both parents agree the arrangements for their children, does the Court need to be involved?

Provided the Court is able to see that the arrangements are not in dispute, the Court will not interfere in the current contact arrangements unless these place an undue burden on the child. This is because the Court approaches contact from the point of view that no contact order should be made unless it is strictly necessary – i.e. the Court will not make an order unless it considers that doing so will be better for the child than not doing so. Therefore, the presumption is that no contact order shall be made unless it is necessary and in the best interests of the child.

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Why mediate?

Mediation is a voluntary process in which both the parties enlist the help of a mediator to assist them to resolve areas of dispute between them. The mediator, usually a lawyer, is neutral and merely facilitates the agreement. The mediator does not decide whether anyone is right or wrong and will not put forward ideas.

During family mediations, the parties’ lawyers are not present. Several mediation sessions of about 1 hour in length usually take place over a month or two. Once agreement has been reached, this is documented and given to the parties’ lawyers to advise on.

Mediation can result in amicable agreements being reached at lower cost than would otherwise have been the case. It is not suitable, however, in circumstances where there is abuse or a very dominant partner. In view of the fact that lawyers are not present and the mediator is unable to make suggestions or say what a Court would award if asked, there is the possibility that an unfair or inappropriate agreement could be reached. Whilst lawyers are involved at the end of the process to give advice on the terms of the agreement, it is difficult to unpick an agreement to make it fair after it has been reached, because one party inevitably feels highly aggrieved. Consequently, we suggest that advice is taken from a lawyer before you enter into the mediation process, and between mediation sessions.

Mediation can be undertaken for any dispute. Usually it is useful in the areas of resolving financial disputes and disputes involving children.

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What is collaborative law?

Collaborative law is a voluntary dispute resolution process originally developed by family law practitioners in the USA who had become disenchanted with the traditional style of litigation. Often, Court battles became so bitter and destructive that wounds between the parties never healed. Whilst we have developed a more conciliatory approach to the divorce process in England and Wales, it is acknowledged that whenever a family dispute ends up in Court, everyone involved is likely to suffer, including the children.

In an effort to alleviate the emotional scars and financial hardships of divorcing couples insofar as possible, the collaborative process was born. Alternative Dispute Resolution Group believes the same principles that have preserved the integrity and dignity of families can also bring relief to individuals and/or entities having legal disputes in other areas of the law, particularly in the civil and commercial sectors.

The purpose of collaboration is not to take advantage of the other party but to resolve a dispute in a manner that is beneficial to all concerned. It is not about scoring points but about resolving matters fairly and amicably.

In this collaborative process, the family lawyers and their clients enter into a written agreement to reach settlement without Court involvement, and to treat each other with respect throughout the process. They agree to work together to resolve issues relating to children and financial issues arising out of the separation. In addition, they may enlist other experts, such as child specialists, as part of the team. Utilising their skills in client representation, negotiation and problem-solving, collaborative family lawyers help their clients shape a fair agreement.

Relationship breakdown will inevitably involve financial and emotional costs. The benefits of collaborative family law help to minimise those costs for all concerned.

The collaboration process is as follows:

• You and your partner agree with your lawyers to resolve issues without going to Court;
• Settlement is reached in ‘4-way’ face-to-face meetings (2 of you and 2 lawyers). Breaks are taken in the meetings as required by either party;
• All information and disclosure is provided in the collaborative process; and
• You remain in control of the process but with your lawyers present throughout to provide legal advice and guidance.

If no settlement can be reached, new lawyers will have to be instructed for Court proceedings.

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My children live with me and see my ex-partner ever other weekend and one day during the week. We are all happy with this arrangement, but I am worried that my ex-partner will not stick to it. Is there anything I can do now?

When it comes to issuing court orders regarding children, the Court has a ‘no order principle’. This means that there must be something in the order itself or in the operation of the order that will improve the child’s life, otherwise no order will be made. Consequently, if the arrangement is working well at the moment, a Court will not interfere. You may wish to consider something called a parenting agreement. This is an agreement which embodies the arrangements parents have come to with regard to the care of their children. It is not legally enforceable, but does give the parents something to adhere to. If the arrangements break down in future, it can also be used to show the parents’ intentions with regards to the care of their children.

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My ex-spouse and I are currently arguing over where our child should live. The child wishes to stay with me. At what age are the child’s views taken into account?

With issues such as this, the best interests of the child are paramount. The child’s best interests include where they want to live. Therefore, the child’s wishes and feelings will always be taken into account. The child’s view will be given more or less weight by the Court in light of their age and understanding. The child’s views tend to have a significant weight on the Court’s decision from the age of 11. This is, of course, dependant on the individual child.

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What factors will the Court take into account when deciding who my child will live with?

The factors the Court will take into account are as follows:

1. The ascertainable wishes and feelings of the child in light of their age and understanding;
2. The educational, physical and emotional needs of the child;
3. The age, sex and background of the child;
4. Any potential harm to the child;
5. The ability of each of the parents to the meet the child’s needs;
6. The likely effect of change on the child; and
7. The range of powers available to the Court..

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Can I change my children’s surname without my ex-partner’s consent?

Any application to change a child’s (person under the age of 18) surname by deed poll must be supported by the written consent of every person with parental responsibility for the child or by leave of the Court. Parental responsibility refers to the rights, duties, powers, responsibilities and authority that by law a parent has in regard to a child. All mothers are automatically awarded parental responsibility at the birth of their child. All married fathers are also automatically awarded parental responsibility. Unmarried fathers gain parental responsibility if they are named on the birth certificate and their child was born after 2003. If your ex-partner will not agree to a change of your children’s surname, you must make an application to the Court. The Court views the change of a child’s surname as a very profound matter and will therefore require good evidence as to why a change is necessary.

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Who will pay my legal fees if my case goes to trial?

If you are not eligible for legal aid, you will pay your own fees if your case goes to trial. It may be possible to apply to the Court for maintenance pending suit, whereby the other party pays a contribution towards your costs. You would need to show the Court that you had a need for the maintenance by means of a budget and other documentary evidence. The judge then makes a decision, based on all the evidence, as to whether or not it is fair and reasonable to grant maintenance. You may also be able to seek to recover some of your costs from the other party at the conclusion of your final hearing. However, it is not guaranteed that you will be awarded any of your costs; and if you are, it is very unlikely you will be awarded your full costs.

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My ex-partner will not let me see my children. What can I do?

There are several ways in which you can facilitate contact with your child. It if often found that a contact agreement entered into by the parties rather than imposed on them works better. For this reason, the Court prefers and continually encourages the parents to reach an agreement over contact arrangements without the involvement of the Court. You may arrange contact via a mediator, if your partner is willing to attend mediation. You may also come to an agreement regarding contact through negotiations between solicitors. If neither of these approaches works, you may make an application to the Court for a contact order. It is viewed as the right of the child to have contact with both parents. It is, therefore, very likely that you will be awarded some type of contact with your children. Both you and your ex-partner, as well as both of your solicitors if you are represented, will need to attend Court. It is only if the parties cannot agree at this stage that the Court will get involved, usually setting some contact which is then reviewed in 3-6 months.

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My partner is refusing to leave the home and it is upsetting the children. What can I do?

If your partner refuses to leave the family home, you may apply to the Court for an occupation order. An occupation order can exclude a person who has a legal right to reside in the home from entering it. You must be associated with the person against whom the occupation order is made (if you are co-habitants or married then you are associated). The home must also be, have been at any time or have been intended to be the home of you and the person you are associated with. Normally, you or your partner must also have a right to occupy the home – e.g. be the owner or tenant, although in exceptional cases it is possible to apply for an occupation order where neither party has the right to occupy the home.

Due to the fact that the Court will be removing a legal right of a person, there are strict tests that have to be met before an occupation order is granted. These tests differ depending on what rights you have to occupy the home. However, the Court will always consider the following:

1. The housing needs and housing resources of both parties and any relevant child; 2. The financial resources of each party;
3. The likely effect of any order, or decision not to make an order, on the health, safety and wellbeing of the parties or relevant child; and
4. The conduct of the parties.

The Court applies what is known as ‘the balance of harm test’. If it appears to the Court that failure to grant an order is likely to result in the applicant or any relevant child suffering significant harm attributable to the conduct of the person against whom the order is sought (the respondent), the Court will make the order unless:

1. The respondent or any relevant child is likely to suffer significant harm; and
2. The harm likely to be suffered by the respondent or the child in that event is as great as, or greater than, the harm attributable to the conduct of the respondent that is likely to be suffered by the applicant or child if the order is not made.

In circumstances where the respondent would have nowhere else to reside and the children were simply unhappy, it is unlikely that the Court would grant an occupation order.

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My partner is threatening to take our children to another country. How can I prevent it?

If your partner wishes to remove your child from the country, the Court’s permission must be obtained unless everyone with parental responsibility for the child consents to the removal. If you are afraid that your partner may simply take the child, you should apply for a prohibited steps order. A prohibited steps order prevents someone with parental responsibility from taking decisions about their child’s life and can be used to prevent them removing the child from the country. The child must be under 16 and the person applying for the order must have parental responsibility. A prohibited steps order can be applied for on its own or in conjunction with a contact or residence order. If a prohibited steps order is made, you may also require the passport agency not to issue a UK passport for the child. If your partner holds your child’s passport, the Court can require that they surrender it. If you believe that your child is in imminent danger of being removed, you may issue a port alert. If the police are satisfied that the danger is real, the child’s name and details are circulated on a stop list to all airports and ferry ports. The child’s details will remain on the list for 4 weeks.

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I want our children to live with me but my partner/spouse disagrees. What can I do?

If you and your partner/spouse cannot agree on where the children will live, you can apply to the Court for a residence order. In this case, the Court will decide where the child lives. The Court will try to disrupt the child’s life as little as possible, so will look at who has been the primary carer up to this point. Depending on the child’s age, the Court will ask who they would rather live with. Taking into account the child’s physical, emotional and educational needs, the Court will consider the following:

1. Which parent can better provide for them?
2. Which parent helps the child with their homework, cooks for them and cleans for them etc.?
3. Which parent knows the friends and teachers of the child etc.?
4. Factors such as whether one parent works long hours, making it impossible for them to care for the child;
5. The likelihood of potential harm to the child; and
6. The likely effect on the child of the order.

A Court will often take the view that a very young child needs its mother. A Court will not split up siblings unless it is clear in all the circumstances that this is best for the individual child. In some cases, a Court may make a shared residency order. This is where the child will divide their time between both parents’ homes. The child does not have to spend exactly 50% of its time in each home, but a Court will make such an order if it judges it appropriate in the circumstances.

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How do I select a lawyer?

OK, so you’ve identified a handful of solicitors who may be able to help you with your case. You’ve looked online and even searched the Yellow Pages. How do you know which lawyer would be best suited for your matter? Although price is certainly a consideration, it is rarely wise to choose a lawyer based solely on the rate(s) offered. Here are several questions to consider in selecting a solicitor.

Experience

Has the lawyer handled similar cases? When was the last time the lawyer handled a similar case?

Ask to hear about cases like yours that the lawyer may have handled. Remember: age may have nothing to do with the lawyer’s ability to help you. A lawyer who has practiced for 20 years may have less experience with your type of problem than a lawyer who is three years out of law school.

Has the lawyer been investigated or disciplined? If so, for what?

What types of resolutions has the lawyer had in similar cases? How did those resolutions come about? Settlement? Negotiation? Mediation? Arbitration? Trial?

Availability

Who will work on your case? Will the lawyer do all of the work or will legal assistants, paralegals, or other associates do the work?

Does the lawyer have a large caseload or upcoming Trials that could affect his availability or attention to your case?

Communications

Can the lawyer explain the legal aspects of your case – and the process you should expect – in a way that makes sense to you? If the lawyer cannot explain things to you properly in an initial meeting, there is no reason to believe that he or she will be able to make a convincing presentation on your behalf.

Do you feel that the lawyer listened to you and was interested in your matter?

Did the lawyer (or someone from the lawyer’s office) respond promptly to your initial contact?

Has the lawyer told you both the strengths and the weaknesses of your case?

Can the lawyer give you an estimate on overall costs and time? Are there any alternative courses of action? If so, what are the advantages and disadvantages of each one?

How often will you need to meet with the lawyer? How often will the lawyer call or write to give you updates on the case? Will the lawyer provide you with copies of relevant documents?

Comfort Level and Other Intangibles

A lawyer-client relationship requires trust and confidence. Has the lawyer been able to inspire your trust and confidence?

Do you feel comfortable in revealing to the lawyer all of the relevant information – not simply the "good" facts?

Is the lawyer assertive enough – or conciliatory enough – to make you feel comfortable with his or her approach to your matter?

Has the lawyer explained the nature of the lawyer-client relationship? As the client, you have the right to make the final decisions in your case on most issues. The lawyer should provide you with options, guidance, and recommendations, but also respect your wishes as to how to proceed.

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Davies is the trading name of Davies Solicitors Limited (registration number 5699025). The registered office address is 30 Woollards Lane, Great Shelford, Cambridge CB22 5LZ,
and Richard Davies is the Director. We are regulated by the Solicitors Regulations Authority (reference number 439685).
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