Child Abductions and International Cases
Pre-nuptial and Cohabitation Agreements
Domestic Violence Injunctions
Forced Marriage (Civil Protection) Act 2007
Local Authority Care Work
Pre-nuptial and Post-nuptial Agreements
Child Abductions and International Cases
Lyons Davidson has a team dealing with international child abduction and cases with an international element, headed by Resolution-accredited specialist Philippa Morgan, who has a wealth of experience in this field. The team at Lyons Davidson specialise in acting for a party who has had a child wrongfully removed or wrongfully retained away from their usual place of residence. Philippa Morgan is on the Lord Chancellor’s International Child Abduction and Contact Unit Panel, and receives instructions from parties abroad who have had children brought to this country. We also act for defendants who are faced with an application under the Hague Convention. We can also advise parties about children who have been wrongfully removed from this country or who are being wrongfully retained away from it, and can put them in touch with lawyers in the appropriate jurisdiction.
Furthermore, we can provide advice to parties regarding international contact matters and for those parties seeking to relocate abroad.
Steps to be taken
There are a number of steps that can be taken when a child has either been wrongfully removed or wrongfully retained and it is important that there is as little delay as possible. When receiving instructions from the International Child Abduction and Contact Unit, we aim to obtain public funding and issue proceedings within 48 hours. When acting for a defendant, it is imperative we are contacted without delay, as often we have to prepare urgent documents and attend a court hearing.
If the country where the child usually lives is a signatory to the Hague Convention, an urgent application can be made to the High Court, under the Child Abduction and Custody Act 1985, for the return of the child to their home country. It would then be for the court in that country to make any further decisions about where the child should live and arrangements for contact. If the country where the child usually lives is not signatory to the Hague Convention, we can advise on the appropriate course of action to take (including wardship proceedings) and liaise with lawyers abroad with a view to achieving the return of the child to this country.
A party making an application for the return of a child under the Hague Convention will automatically be entitled to public funding. For all other cases, we can advise on applying for public funding.
Reunite is the leading UK charity specialising in international child abduction and it provides support, advice and information to parents, family members and guardians who have had a child abducted or who fear abduction. Their website can be found at www.reunite.org or you can call their Advice Line: +44 (0) 116 2556 234. Sometimes, if appropriate, Lyons Davidson will arrange for Reunite to provide a mediation service for parties to discuss their concerns with a neutral party, with a view to reaching an agreement without the need for court action.
Contact: Philippa Morgan or Alice Harrington
Lyons Davidson's Family department have specialist expertise available to assist parents in relation to difficulties involving their children, following the breakdown in a relationship or marriage.
Going through the breakdown of a relationship is an extremely difficult and emotional time. Sometimes the split is amicable but when parents separate, there are often disagreements about where a child should live or how often each parent should see the child. If it is not possible for parents to reach an agreement then either parent can apply to the court for a variety of orders under the Children Act.
The Children Act 1989 came into force on 14 October 1991. It introduced the new concept of Parental Responsibility (PR), defined in S.3(1) as "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." All mothers automatically have PR, as do married fathers and fathers who are named as father on the child’s birth certificate after 01 December 2003. PR can be acquired by Agreement or Order of the Court.
The Children Act enables the court to make specific orders about particular problems involving the child, which have been unable to be resolved by negotiation between the parents. The Children Act replaced the types of orders such as “custody orders” and “access orders” with four new orders known as Section 8 Orders. The Orders which the court can make are as follows:
If parents are separating or divorcing and are unable to agree where the child should live, the Court can make a Residence Order saying where the child should live. Where the child spends a significant amount of time with both parents, the court may make a Shared Residence Order.
If parents cannot agree an arrangement for their child to share time between them, then the court can decide whether to make a Contact Order. This may require the parent with whom the child is to living to allow the child to have contact, such as telephone calls, visits and overnight stays.
Prohibited Steps Orders
If one parent objects to something which the other is doing regarding the child, then he or she can apply to the court for a Prohibited Steps Order. If granted, this will stop the other parent from taking the action outlined in the order without obtaining the court's permission first.
Specific Issue Order
If a parent disagrees about a specific aspect of their child's upbringing, for example which school the child should go to, the court is able to give consideration to this and make a Specific Issue Order.
If you require any advice or assistance relating to difficulties involving children following the breakdown of your relationship, please contact the Family Department at Lyons Davidson, who will be happy to help.
For further information please contact: Iona Phillips or Bernice Mumford
The Civil Partnership Act 2004 came in to force on 5 December 2005, combining family law and civil rights with equality, in what has been described as a major piece of social reform.
Lyons Davidson have a team of specialist family lawyers who can advise and assist you with any problems or queries you may have.
What is a Civil Partnership?
This is defined as a relationship between two people of the same sex. The Act provides civil partners with the same rights and responsibilities enjoyed by parties to a marriage. The Act does not apply to cohabiting heterosexual couples. A civil partnership is formed through registration of the civil partners signing a civil partnership document in the presence of each other, the registrar and two witnesses.
Once a civil partnership is formed, it can only (like marriage) be dissolved in restricted ways on the basis that the partnership has “broken down irretrievably” and no application for dissolution can be made within the first year of the partnership.
What happens if the partnership breaks down?
The financial relief available on dissolution of the civil partnership is the same as that for divorce and the factors that are to be considered by the court in deciding on any financial settlement almost identical to those considered in divorce.
What happens with regard to children?
All rights and responsibilities concerning children that are available to married partners are available to civil partners. A civil partner can now acquire Parental Responsibility for a child as step-parent to that child, either through agreement or by court order and a civil partner can now apply for a residence or contact order in relation to a child of the family, without requiring the permission of the court.
What if one of us were to die?
The Wills Act 1837 has been amended so that the formation and dissolution of a civil partnership is done in the same way as a marriage. On intestacy, a civil partner has the same rights as a spouse and can claim financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.
Contact: James Myatt
Prenuptial and Cohabitation Agreements
Over the last few years there has been a steady increase in the number of couples who wish to regulate their financial arrangements on divorce, recognising the high incidence of marriage breakdown. A common arrangement in Europe and in the USA, prenuptial agreements are catching on in England and Wales. They have been given greater impetus by House of Lords and High Court decisions regarding the way in which a couple should share their assets in divorce.
Although they are not binding on a court in divorce or judicial separation (where the court retains an unfretted discretion to make such Orders as it consider appropriate), 'prenups' are viewed as a significant factor that the court should take into account. They is a growing body of opinion that it will not be long before the Higher Courts lay down guidelines, based upon which they would be more likely than not to approve an Order in the terms of the prenup. These factors are likely to include:
- A full and frank exchange of financial circumstances by the couple;
- Separate independent legal advice for each party;
- Completion of the prenuptial agreement at least 21 days before the marriage.
The team at Lyons Davidson have considerable experience in drafting prenuptial agreements and will readily do so sitting with the other party and their legal advisers, to ensure that a document is prepared that is acceptable to all.
The incidence of cohabitation is steadily increasing. Many people are under the misconception that after a period of time (often a year) they become 'common law husband and wife'. However, the English courts have not recognised such a principle for over 200 years. More and more couples wish to regulate their domestic arrangements to include the plans that they wish to put in place in the sad event that their relationship breaks down. As with prenuptial agreements, the Family team at Lyons Davidson have extensive experience in drafting cohabitation agreements. The senior courts have not yet confirmed that they will enforce cohabitation agreements, as the traditional view is that they promote immorality (!). However, there is a widespread view that if the couple have had separate independent legal advice, a court is more likely than not to uphold the terms of the cohabitation agreement if there were to be an issue over the validity of any term.
It should be borne in mind that, whether you are entering into a prenup or a cohabitation agreement, the arrival of children is likely to bring into question the enforceability of the agreement (unless it contains appropriate provisions for the support of those children).
Contact: James Myatt
Collaborative practice is a new way for divorcing or separating couples to work together as a team with trained professionals to resolve disputes without going to court. Each client has the support, protection and guidance of his or her own lawyer. The lawyers agree that they are there to help clients through the collaborative process. They are not there to take the case to court and are prevented from doing so.
The collaborative process helps you to:
- Negotiate a mutually acceptable settlement without using court to decide issues;
- Engage in open communication and information sharing;
- Discuss and create solutions that take into account the highest priorities for each of you.
How it works
You and your partner each instruct a collaborative lawyer. You all agree to work together as a team to resolve issues without going to court. There is an open disclosure of all financial information. Experts can be instructed to help as part of the team. There is usually a series of face-to-face meetings with the two of you and your lawyers. You both remain in control of this process and your lawyers are present to provide support, legal advice and guidance. If no settlement can be reached, then you will need to instruct new lawyers to issue court proceedings.
The advantages of collaborative law:
- You control the process. There is no need to go to court;
- Your children's needs are placed first;
- You try and reach agreement through using a problem-solving approach;
- There is full disclosure of the facts and information;
- Face-to-face meetings with lawyers makes negotiations direct and efficient and avoids lengthy exchange of correspondence;
- The process helps you both plan for your future and your family's future.
For more information about collaborative law, please contact James Myatt or visit the Collaborative Family Lawyers website.
Lyons Davidson offers expertise on divorce and separation issues when your marriage breaks down. We can help guide you through what may be a difficult time.
Counselling for you both as a couple or individually may be beneficial and we can help you find a specialist counsellor.
Divorce is a court process, by which a marriage is formally dissolved. The divorce procedure begins with a Petition and ends with Decree Absolute. We can provide you with comprehensive advice in relation to the process together with advice on separate but related issues arising from the divorce, such as financial and children issues.
In order to seek a divorce, you must have been married for at least a year and you must prove that your marriage has irretrievably broken down. This must be proven by one of five 'facts': adultery, behaviour, desertion, two years separation with the consent of both parties, or five years separation without consent from the other party. The court procedure normally takes four to six months. We can advise you which facts are appropriate in your circumstances.
In rare cases, it may be appropriate to obtain a decree from the court confirming you will live apart from your spouse, but remain married to him or her. This is called a judicial separation; the facts are the same as for divorce. There may also be questions about the validity of your marriage which would mean the issue of special 'nullity proceedings'.
We will discuss with you which option might be appropriate.
Contact: James Myatt
Domestic abuse is:
- The misuse of physical, emotional, sexual or financial control by one person over another who is, or has been, in the relationship. This includes family members;
- Domestic abuse covers a wide range of behaviours and may be actual or threatened;
- Domestic abuse is usually perpetrated by men against women, but not exclusively;
- Domestic abuse occurs in all groups and sections of society, and may be experienced differently because of race, sexuality, disability, age, religion, culture, class or mental health.
We offer a 24-hour legal advice helpline on 0117 904 5999, as we understand the importance of accessing advice immediately. We are able to advise you on protective measures, whether you are sharing a home with an abusive partner or living separately.
In order to prevent further violence or secure your property, an urgent Injunction Order may be required. The main two types of Order are:
1. Non-Molestation Order, which prohibits the abuser from using or threatening violence or from intimidating, harassing or pestering you
A breach of a Non-Molestation Order is a criminal offence and carries a penalty of up to five years imprisonment.
2. Occupation Order, which excludes the abuser from your home or a specific area around it
A power of arrest may be attached to an occupation order, which means that the perpetrator can be arrested without a warrant if the order is breached. Breach of an order can carry a custodial sentence.
Both orders generally last for 12 months, although in certain cases a Non-Molestation Order may be extended.
We work with a range of domestic abuse support service providers. Some useful telephone numbers are listed below. We are able to advise you on eligibility for public funding over the telephone.
Help and advice is available during the day Monday to Friday from:
Next Link – Safe House, Crisis Response and Advice (women only) 0117 925 0680
Womankind 0845 458 2914
Men's Advice Line - for men in abusive relationships 0808 801 0327
Awaz Utaoh (support for Asian women in Bristol) 07968 621079
Broken Rainbow (LGBT domestic violence helpline) 0300 999 5428
Respect (for perpetrators of abuse) 0808 802 4040
Police 0845 456 7000
Social Services (out of hours) 01454 615 165
National Domestic Violence Helpline 0808 2000 247
Bristol Domestic Abuse Advice Helpline 0800 6949 999
Emergency Legal Advice 0117 904 5999
Childline 0800 1111
Contact: Iona Phillips or Bernice Mumford
The Family Department at Lyons Davidson has acknowledged expertise in dealing with the financial issues consequent upon relationship breakdown. James Myatt and Alexandra Mills are our principal case handlers in this field, with James a Resolution-accredited specialist in cases involving substantial assets and pensions.
The Finance team, which includes a number of more junior case handlers, has extensive knowledge and experience of dealing with financial issues. The team regularly advises on cases involving businesses, farms and limited companies. Where appropriate, specialist assistance is sought from other professionals, such as accountants and valuers.
We will guide you through the process of resolving the financial issues in your relationship breakdown. We will discuss with you the various options available for this, to include the collaborative process, written negotiations, round-table meetings, mediation and court proceedings. We aim to help you resolve matters in the manner which suits you best.
The underlining duty is to provide your former spouse or partner with a full and frank disclosure of your financial circumstances. The disclosure is often provided by completing a standard printed form with supporting background documents. These are exchanged and questions can be asked in order to clarify each party's financial position. Where court proceedings are necessary, we will guide you through them, explaining how the various steps within the court timetable assist you in moving your case forward to a settlement.
The criteria or factors taken into account are as follows:
- Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including – in the case of earning capacity – any increase in that capacity that would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire;
- Financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future;
- Standard of living enjoyed by the family before the breakdown of the marriage;
- Age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- Contributions that each of the parties has made – or is likely to make in the foreseeable future – to the welfare of the family, including any contributions by looking after the home or caring for the family;
- Conduct of each of the parties, if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it;
- In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by return of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
Additional factors apply in relation to claims on behalf of children.
The team has extensive links with specialist barristers, both locally and nationally, who are brought in to assist where appropriate. The team also regularly deals with applications made on behalf of the children of unmarried couples for financial provision to cover accommodation, transport, education and general support.
Contact: James Myatt
Understanding Forced Marriage
“A marriage conducted without the valid consent of both parties where duress (emotional pressure in addition to physical abuse) is a factor.”
A choice by right: the report of the working group on forced marriage - Home Office (2000).
“Force” is defined in s.63A (6) of the The Forced Marriage (Civil Protection) Act 2007 as meaning to "coerce by threats or other psychological means (and related expressions are to be read accordingly)."
Forced marriages are not the same as arranged marriages. In an arranged marriage, the family will take the lead in arranging the match but the couples have a choice as to whether to proceed. In a forced marriage, there is no choice. It is an abuse of human rights, and a form of domestic violence and child abuse.
The Forced Marriage (Civil Protection) Act 2007 inserts a new Part 4A into the Family Law Act 1996 and allows courts to make a Forced Marriage Protection Order (FMPO) for the purposes of protecting a person being forced into marriage or someone who has already been forced into marriage.
The courts can make orders to protect the victim and help remove them from that situation. Breach of an order is not a criminal offence but a police officer may arrest a person who he has reasonable cause to suspect is in breach or otherwise in contempt of the order. Breach is dealt with as contempt of court, with the courts having the usual full range of sanctions available to them. This means that a breach of the order could lead to imprisonment. The courts may add a power of arrest where there is significant risk of harm, either to the intended victim or somebody else in connection with the intended marriage.
The victim, a relevant third party or any other person who is given leave by the court can make an application for an FMPO. Relevant third parties include government bodies, the NSPCC, police, local authorities, non-governmental organisation and so on. Relatives and friends of the victim will need leave of the court to make the application.
As someone can apply on behalf of another, the rules provide that the victim should be served with a copy of the application and may apply to be party to the proceedings.
An FMPO, like existing orders can be made on an ex parte basis. Examples of types of orders that the court may make are:
- To prevent a forced marriage from occurring;
- To hand over passports;
- To stop intimidation and violence;
- To reveal the whereabouts of a person;
- To stop someone from being taken abroad;
- To prevent contact; and
- To change a name.
Orders can apply to people who are not even named as respondents if it can be shown that the person knew about the order, i.e. the order can apply to those who aid, abet, encourage or assist another person to force, or attempt to force a person to enter into marriage. The order may relate to conduct in the UK and overseas.
The court may make an order without an application if there are other family proceedings before it. The victim may not be party to these proceedings but the respondent must be, e.g., where a wife applies for a non-molestation order against her husband, a FMPO may be made in respect of their daughter if the father is trying to force her into marriage. Mediation is likely to prove extremely dangerous in such cases. There have been cases of victims being murdered by their families while mediation was being undertaken.
The draft rules for FMPO are set out at Annex A of the Family Proceeding Rules 1991, in the form of a statutory instrument. The rules make no special requirement for applicants under 16. Certain minors may bring or defend proceedings without the assistance of a next friend or guardian, either where leave of the court is obtained or a solicitor considers that the minor is able to give instructions.
Who to contact
The Forced Marriage Unit (FMU) is a joint initiative with the Home Office. It is a single point of confidential advice and assistance for those at risk of being forced into marriage overseas. Although FMU sees cases from around the world, approximately 65% of cases are in families of Pakistani origin and 25% are in families of Bangladeshi origin. Around a third of cases the FMU deals with are children, some as young as 13.
Tel: (+44) (0) 207 008 0151 between 9-5pm Monday to Friday
Tel: (+44) (0) 0207 0081500 - emergency duty officer (out of office hours)
Or email firstname.lastname@example.org
Local Authority Care Work
We represent both parents, other adult parties and children who are the subject of Care Proceedings. We are able to offer objective and professional guidance at this very distressing time.
On 01 April 2008, the Public Law Outline (PLO) introduced a new approach to Care and Supervision proceedings, the objective being to enable the courts to deal with cases justly, having regard to the welfare issues involved. One of the biggest changes was to the tway hat local authorities practise before court proceedings.
Letter before proceedings
Local authorities are now required to notify all parents and others with Parental Responsibility "where the short-term safety and welfare of the child permits" of their concerns about the child. If you receive a letter like this, you are entitled to public funding (legal aid), so that you can have a legal representative present to advise and assist you.
What are the threshold criteria?
1. A court shall not make an Interim Care Order or Interim Supervision Order unless it is satisfied that there are reasonable grounds for believing that the Threshold Criteria has been crossed, section 31(2) of the Children Act 1989 states that: “a court may only make a Care Order or a Supervision Order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm; and
2. that the harm, or likelihood of harm is attributable to
(i) the care given to the child or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being “beyond parental control”.
These are called the 'threshold criteria'.
Harm is widely defined by the Children Act legislation. The local authority only has to establish “reasonable grounds” and “likelihood of harm” to obtain a care order on an interim basis. An Interim Care Order is commonly referred to as a holding position pending the outcome of further investigation.
The court is under a duty to consider making no order in children proceedings. There are, however, options available other than a Care Order. This includes a Supervision Order or a Residence or Special Guardianship Order to another family member while the local authority carries out its assessments.
What is a Care Order?
The effect of a Care Order is that the local authority would share Parental Responsibility with any other person who has Parental Responsibility; the local authority can then define how Parental Responsibility is exercised. A Care Order does enable the local authority to remove a child from their current carers. The local authority, however, does have a duty to consider other family members first before placing a child with foster carers. It also has a duty to rehabilitate children back to their parents wherever possible. While a child is the subject of a Care Order, the local authority has an obligation to arrange contact with the parents or carers of the child and a general discretion in relation to other family members.
What is a Supervision Order?
A Supervision Order under the Children Act 1989 places a child under the supervision of a designated local authority and places the appointed supervisor under a duty:
- To advise, assist and befriend the supervised child;
- To take such steps as are reasonably necessary to give effect to the order; and
- Where the order is not wholly complied with, or the supervisor considers that the order may no longer be necessary, to consider whether or not to apply to the court for its variation or discharge.
If care proceedings are issued, we assist parents in accessing supportive services and agencies to obtain the best result for the child.
Public funding (legal aid) is automatically available to parents and children involved in care proceedings. Public funding may be available to other family members subject to financial eligibility. We are able to advise on this over the telephone.
For further information please contact: Iona Phillips
Pensions have now become an all too important part of a family's assets. Where a couple divorce, the court has power to share ('split') pensions between them in order to achieve fairness. Where appropriate, the court will instead make an Attachment or Earmarking Order.
A Pension Sharing Order will divide a pension to create a pension for each party or transfer a pension to the other spouse.
A Pension Attachment Order leaves the pension in the hands of the 'pensioner' but provides the court with powers to direct that all or part of the pension income (when in payment) or any lump sum gratuity be paid over to the other spouse. Such orders are also made when dealing with any death in service benefits. This can be particularly useful where the pension has a relatively low value but where death in service benefits are substantial.
Pensions legislation is complex. Head of Department James Myatt, is a Resolution-accredited specialist in dealing with pensions in divorce. He and the team will be able to guide you through the various options that may be available, to include not only sharing and attachment, but also 'off-setting', where other assets are provided to a spouse in return for forgoing all or part of a Pension Sharing Order.
The team regularly call upon specialist assistance from a carefully selected panel of Independent Financial Advisors (IFAs) and from pension actuaries who specialise in advising in divorce cases.
Contact: James Myatt
Prenuptial and Postnuptial Agreements
The team at Lyons Davidson has considerable experience in drafting prenuptial agreements and will readily do so, meeting with the other party and their legal advisers to ensure that a document is prepared that is acceptable to all.
Contact: James Myatt