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Divorce help

Court is not the only way

By family, Legal, Relationships
by Rachael House
Partner, Dutton Gregory

Contrary to what we may see on television, when couples divorce or dissolve a civil partnership, there are not many people who say to their lawyers “I want to take my ex to the cleaners!”. In my experience the majority of people say the opposite: “I want to be fair but get what I am entitled to”. In that circumstance, I commend my client for their sensible outlook and discuss with them the ways that settlement can be achieved without going to court.

We will then attempt to engage the spouse/civil partner in an out of court route such as mediation, the collaborative process, round table meetings, arbitration, a private financial dispute resolution hearing or early neutral evaluation. This list of options has grown in recent years, so there are plenty of routes to keep people away from the overworked and underfunded courts.

Despite all the options, it can sometimes become apparent that each party’s perception of what is fair can differ, or one party is an ostrich and does not engage in any meaningful negotiations. This can result in a stalemate in negotiations. Thus, an application to the Family Court to ask a Judge to make decisions for the couple can sometimes seem the only way forward. This can result in the parties both having an outcome imposed upon them that neither of them is happy with. Furthermore, each person will have spent many thousands of pounds in legal fees and may be stuck in the court system for a number of years.

If the above is not enough to put people off going to court, there is now even more of a deterrent in the form of two new elements being applied to the process in 2024:

1 Parties to court proceedings will need to let the court know what their thoughts are on trying to reach settlement outside of the court process, rather than staying within the court arena. If they do not wish to negotiate out of court, then they have to justify why they should not have to go and try an out of court route. If the Judge is not satisfied with the answer, an order can still be made to send the couple off to try and progress matters outside of the court arena.

Furthermore, if the Judge is not satisfied with a party’s engagement, they can make that person pay towards the other person’s legal costs. The court has long been trying to get couples to engage in out of court processes, and so is formalising the process from April so that couples will need to be much more alive to the risk of paying even more money to their ex if they show no interest in trying to move their disagreement away from the court.

2 The press will be allowed to report on court hearings. Initially just in proceedings concerning disputes over children – but this is expected to extend to financial proceedings in due course. This will be subject to strict rules on not naming the parties. There has been a pilot in place across a number of courts in England and Wales, but as from 29th January it has been extended to include 16 more courts including Guildford.

Imagine feeling nervous already about going to court but then having a journalist gawping at you as they type every word on their laptop, hoping for a juicy snippet of detail to entice their readers about the way the relationship has failed.

If your relationship has broken down and you are wondering what the difference is between the out of court routes, here is a summary:
Mediation – a third independent party helps couples reach a negotiated agreement.
Collaborative process – negotiations face to face with lawyers and a firm commitment to try and stay away from court.
Round table meetings – negotiations face to face with lawyers.
Arbitration – a jointly appointed arbitrator makes a decision that will be binding on the couple and become a court order but is more flexible and much quicker than court.
Private dispute resolution hearing/early neutral evaluation – the assistance of a specially trained person acting as a judge identifies and seeks to resolve the issues in the case, with the aim of limiting overall legal costs and time delays.

I know there will still always be situations where court is unavoidable. However, I hope that more people will become aware that going to court to resolve their issues is fraught with risk as to the uncertainty of outcome, speed, cost and privacy.

Rachael House is a specialist family solicitor at Dutton Gregory so if you want advice, then please contact Rachael House on 01483 755609 or

legal rights for grandparents

Grandparents’ rights

By Legal, Relationships

Jennie Apsey, Solicitor in the Family Department at Dean Wilson LLP,

explores the rights of grandparents.

In an ideal world, all family relationships would be strong and healthy, and everyone would get on. However, family arguments do happen and sometimes have significant consequences. Whether as a result of falling out with your children and their partners, or as result of them going through an acrimonious separation or divorce, you may find that access to your grandchildren is restricted or completely cut-off, which can be a very painful experience.

Do I have any legal rights as a grandparent in England?
Grandparents do not have an automatic right to contact with their grandchildren and the law primarily recognises the rights of parents in matters concerning the upbringing of their children. However, under the Children Act 1989 what is in the best interests of the child is the primary consideration and therefore all is not lost should you find yourself being denied a relationship with your grandchildren.

What should I do if I am not being allowed to see my grandchildren?
If you find yourself in this situation and you have been unable to negotiate with the children’s parents to come to an agreement, you should see if you can resolve the issue amicably with the help of a mediator. A trained mediator could help you come to a satisfactory agreement without the need for any court orders and they are likely to understand the sensitive and emotionally stressful nature
of the situation.

What happens if mediation is refused, or it breaks down?
In this instance, it is important to take specialist family law advice. Only people with Parental Responsibility have an automatic right to make an application to the Court for a Child Arrangements Order, and grandparents will require the permission of the Court to make an application. In practice, the application for permission is dealt with at the same time and on the same form as the application for a Child Arrangements Order (form C100). You will need to explain your reasons for making the application, and in the majority of cases permission will granted and the application issued after consideration of the following:
• The grandparent’s relationship with the grandchildren;
• The nature of the application;
• Whether there may be a risk of any harm to the grandchildren if the application is granted;
• Whether permitting the grandparents to have contact with the grandchildren would have any negative effects on the rest of the family.

What happens when an application is issued?
The parents of the children will be notified of the application made by the grandparents and a hearing will be listed. If no agreement can be reached at this stage of the proceedings, further hearings will be necessary, culminating in a Final Hearing at which oral evidence will be heard from both parties. During the course of the proceedings, usually with the help of Cafcass, the Court will obtain the views of the grandchildren, providing they are old enough to express them.

The Court will make a final decision with reference to the Welfare Checklist found in section 1(3) of the Children Act 1989:
• The ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding);
• Their physical, emotional and educational needs;
• The likely effect on them of any change in their circumstances;
• Their age, sex, background and any characteristics of theirs which the court considers relevant;
• Any harm which they have suffered or are at risk of suffering;
• How capable each of their parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting their needs;
• The range of powers available to the court under the Act in the proceedings in question.

The Court must put the best interests of the children ahead of any other considerations including the wishes of the parties. If the Court believes that contact with the grand-parents is beneficial for the children, they will grant a Child Arrangements Order which will stipulate the terms of that contact.

Dean Wilson LLP’s reputation has been built upon our ability to deliver and exceed our clients’ expectations. For over 100 years our success has been founded upon our client focused approach, backed by the knowledge and expertise of our lawyers.


family christmas

Giving children the best Christmas

By Christmas, family, Legal, Relationships, Toys

For a lot of people, Christmas is about spending time with family, but what happens when children have more than one? If not handled carefully, talk of Christmas can descend into conflict and arguments about where children spend the festive season.

In this article, Family Law Specialist, Rachael House, from Dutton Gregory Solicitors in Woking gives her tips on how to establish a Happy Christmas for all.

Top tips for child arrangements over Christmas:
1. Plan ahead
Discussions should be had as soon as possible. That way, if there is disagreement, there is time to resolve it.
2. Child first
A good way for parents to try and reach an agreement and overcome the desire to spend as much time as possible with their children, is to focus on what the child needs or wants.
3. Compromise
It is always best if parents, who know their children and what is best for them, can find a solution between themselves.
4. No point-scoring
Parents shouldn’t try and outdo each other, either in terms of time or presents.
5. Keep records
Arrangements are best confirmed in writing, (an email conversation will suffice) so there is a clear record of what has been agreed.

If you need help
If they cannot agree, a lot of parents find benefits in using mediation. This is where an independent, neutral third party assists in discussing and negotiating through a situation.

The process is voluntary, and a mediator cannot make a binding decision, but if parties can reach a solution, a ‘Memorandum of Understanding’ can be drawn up to record what parties have agreed to. In certain circumstances this be drawn up in to a Court Order, but only if it is deemed of benefit to the child.

There are alternatives to mediation. Collaborative Law is where parties sit around a table (or in different rooms if they don’t want to meet face-to-face) and engage in negotiations with the support of their solicitors providing legal advice. This too is a voluntary process and any decision is not legally binding.

A couple can also choose to undertake Arbitration where the decision of the arbitrator is legally binding on both parties. The parties jointly agree an arbitrator (a professionally trained and qualified expert who effectively performs the role of the Judge), prepares paper evidence and the arbitrator then hears from each party before making a decision. Arbitration is often a very effective way of resolving a dispute where the issues are limited or narrow, such as arrangements for Christmas.

If you want advice about Christmas, or any child contact, then contact Rachael House on 01483 755609 or

Adult Carers Week

Unpaid carers and their rights

By Childcare and Nannying, Legal, Relationships, Work employment
by Barbara Cormie
Marketing and Communications Manager, Action for Carers Surrey

Life as an unpaid carer can be tough – but it’s even tougher if you’re not aware of the rights you’re entitled to. The UK has nearly 10 million people in a caring role – people that are helping a relative or friend who is disabled, frail, or unwell, who couldn’t manage without this support.

People can become carers overnight, or can only realise they are carers over time, as a partner or parent’s health declines. And some people never know a life that’s not caring, as they are born with a disabled brother or sister.

carer adviceAlthough it can be rewarding, and deepen relationships, caring can also be extremely hard, and will often affect someone practically, socially, emotionally, and financially.

Statutory rights
But here in the UK there is some understanding of what a carer’s role entails, and in theory – there is statutory support for unpaid carers, and a number of rights which should help make lives easier.

Your rights include the right to a Carers’ Assessment, the right not to be discriminated against, and employment rights.

So what exactly are my rights?

The right to a carers assessment
Under the Care Act 2014, adult carers have the right to an assessment by their council, of their caring role, and to be provided with the financial and practical support they are found to need. The assessment should include finding out whether the carer is able – and willing – to care, as well as the affect on their wellbeing, and their access to work, study and recreation.

And under the Children Act 1989 and the Children and Families Act 2014, there is a requirement for councils to similarly assess the needs of parent carers of disabled children under 18. And under the same Acts, children themselves under 18 who are carers, have the right to an assessment, which looks at the impact of caring, and whether the young person wishes to continue caring, and if it’s appropriate for them to do so.

advisor chatYour employment rights
If you’re a carer juggling work with your caring role, then you also have employment rights. This includes the right to request flexible working.

And just this year, the Carers Leave Act was passed, meaning that from a yet undefined date in 2024, all carers will now have the right to up a week of unpaid carers leave. (The right to request some leave, was previously only available to certain qualifying employees.)

It is also worth checking your contract as increasingly employers are recognising the value of supporting carers in their workforce and you might find that you are offered more generous terms.

The Equality Act
In the UK people have protection from discrimination in employment, in education and when receiving services. You are protected from being discriminated against on the basis of various ‘protected characteristics’, one of which is disability.

So this means, a carer cannot be discriminated against on the basis of their ‘association’ with a disabled person. For example, if you were verbally abused by a shop assistant about your child’s mental health condition, then potentially you would have been discriminated against under the Act.

The Government, working with CAB’s guide: ‘The Equality Act: What do I need to know as a carer?’ talks through the Act, different situations, and how you might take action if you think you have been discriminated against.

Further information on rights
National charity, Carers UK, have lots of in-depth information on your rights.

Carer Rights Day
To raise awareness of carers’ rights and entitlements, the annual Carers Rights Day helps carers get the support they need – and this year it’s on Thursday 23rd November. So look out for events near you to help you find out more.

If you are in Surrey, please consider coming along to one of charity Action for Carers 10 Information Fairs, being held across the county, between 20-25th November. Action for Carers and many other charities and organisations will be there, offering advice and information about your rights, and caring generally. Fairs are ‘drop in’ and free. Visit to find out more.

Don’t struggle on alone
Try and find out what you are entitled to, and if you need any help, please give your local carers organisation a call.

Barbara Cormie is Marketing and Communications Manager for Action for Carers Surrey. Action for Carers are a charity supporting Surrey’s unpaid carers aged 5-95, with advice, information, free events and more. Visit, or call the Helpline on 0303 040 1234 for more information.

autism laid out

Supporting children with Autism in school

By Education, Legal, Relationships, special educational needs
by Chloe Chapman
SEND Consultancy Services

An estimated 700,000 adults and children have a diagnosis of Autism Spectrum Disorder (ASD) in the UK – approximately 1% of the population. However, there may be many more who do not have an official diagnosis but have the same profile of needs. If your child has Autism or suspected Autism, school can be an overwhelming and challenging experience.

The NHS website details the common signs of Autism in young and older children. There are also useful descriptors of how Autism can present differently in girls and boys; with girls generally being better at ‘masking’ typical Autistic behaviours, making it harder to spot (and diagnose) in girls.

How do I obtain a diagnosis of Autism?
If you suspect that your child may have Autism you will need to make a referral through your GP or child’s school, which is then referred to a Paediatrician. A Paediatrician will meet your child in a clinic setting and discuss their developmental milestones, and observe how your child plays and interacts. It is important to share any reports written by other medical professionals, and your child’s educational setting. Following this you will receive a written report outlining whether your child meets the criteria for a diagnosis of Autism. It is important to note that waiting lists to see a Paediatrician are often a minimum of 20 weeks long, and in reality significantly longer. It is possible to pay privately for a Health Professional to provide an assessment of Autism; this can typically cost a minimum of £1,500 and sometimes significantly more.

What school support is available for children with ASD?
If your child is struggling with the demands of the classroom or the social aspects of the playground it is important to ask for a meeting with the Special Educational Needs Co-ordinator (SENCo) in the first instance. You will need to check if your child is on the school’s SEN Support Register as this will allow the school to draw up to £6,000 funding to support your child (it is useful to note this is roughly 12 hours of support across the school week). You have the right to ask how this funding is being spent to support your child. Typical support for children with ASD might include a social skills group, structured social groups such as LEGO® therapy, sensory circuits and structured learning activities to support attention span in adult led tasks. Educational settings are able to seek advice from, and make referrals to, outside professionals such as an Educational Psychologist, Specialist Autism Advisory Teacher, Speech and Language Therapist or Occupational Therapist. These professionals will be able to provide individually tailored advice to the school in how best to support your child.

Autistic children can sometimes present with difficult or challenging behaviour in the classroom. This can be a response to the overwhelming sensory nature of the classroom, the number of social interactions that are required or because delayed social communication skills make it difficult to verbally communicate effectively. If your Autistic child is displaying dysregulated behaviours it is important to work with the school to identify possible triggers and support strategies. Difficult behaviours can be considered a means of communication (especially in non-verbal children) so it is important to work out what message your child is trying to get across. Providing alternative means of communication through; Picture Exchange Communication System (PECS), Signing, Objects of Reference or other means) can help to support your child to communicate and reduce frustrated behaviours.

Do I need a diagnosis to apply for an Education, Health and Care (EHC) Needs Assessment?
If your child has ASD traits and is struggling to manage in the school environment it is important to note that you do not need a diagnosis in order to apply for an EHC Needs Assessment. An EHC Needs Assessment is a statutory process through the Local Authority to assess the type and amount of support a child needs in an educational setting (Information about how to apply for an EHC Needs Assessment is on the Local Offer for your area). The types of difficulties your child faces and the way they communicate and behave does not change upon diagnosis; however having a recognised diagnosis can help others understand more about why your child may find certain things challenging. If you are worried about how your child is managing in a mainstream school and would like the Local Authority to consider a special school place you may need a diagnosis of Autism in order to be considered for a space in certain schools.

What if things are not going well for my child in school?
If things are not going well for your child in school (whether or not they have an ASD diagnosis) and they are on an SEN Support Plan you could consider (in conversation with the school) whether to apply for an EHC Needs Assessment. If your child already has an EHC Plan in place you should contact the school and Local Authority to arrange an early Annual Review to consider if the provision in place is working or not.

You can also contact local support groups or SENDIASS (as outlined in the Local Offer) both of which can offer impartial advice. You could also consider contacting an independent SEN Consultant who would be able to discuss the individual concerns regarding your child and advise next steps accordingly.

If you would like more information and advice about supporting a child with Autism then please get in touch.


Parental alienation

By Finance, Legal

In this issue of the magazine, Jennie Apsey, Solicitor in the Family Department at Dean Wilson LLP, looks at the issue of parental alienation.

In recent years, there has been a significant amount of media attention around the phrase ‘parental alienation’. Most family solicitors would report that up until three or four years ago, this was not an issue that was raised as a concern by parents, or at least such behaviour did not have a specific name, nor was it a recognised phenomenon. It is now something that arises regularly when discussing difficulties with child arrangements and co-parenting issues post separation, albeit true parental alienation remains a relatively rare phenomenon and what most parents are actually talking about is high-level conflict with the other parent or implacable hostility.

So what is parental alienation?
The term ‘parental alienation’ is not very well defined, in fact there is no single or fixed definition. In essence, it is the concept of a child rejecting a parent with whom they have previously had a positive relationship, seemingly without good reason. Cafcass (Children and Family Court Advisory and Support Service) define parental alienation as “when a child’s resistance or hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.”

Parental alienation is therefore the process of psychologically manipulating a child into showing fear, disrespect, anger, or hostility towards a parent with the alienating parent’s aim being to exclude the other parent from the child’s life. It is characterised by the child showing extreme negativity towards the alienated parent.

What are the potential warning signs of parental alienation?
• Your child starts to criticise you unfairly without evidence or justification.
• Your child suddenly refuses to see or speak to you for no apparent reason, particularly where there has been no trigger event.
• Your child appears to only hold negative feelings towards you and does not seem able to see any positives in your relationship.
• Your child claims that their criticism of you is as a result of their own thinking when it is clear that their ideas have been fed to them by the alienating parent.
• Your child shows no remorse after telling you they hate you.
• Your child is also directing negative feelings or hatred towards other family members, like grandparents on your side of the family.

What can I do if I suspect my ex-partner of parental alienation?
If you suspect parental alienation, it is important to seek early legal advice. It may be necessary to make an application to the Court under the Children Act 1989 for a Child Arrangements Order. The Court will need to distinguish whether the alienation comes directly from the child or from the influence and manipulation of the other parent. It is common for a fact-finding hearing to take place to establish the factual matrix of the case before Cafcass are directed to write a Section 7 report. A Section 7 report will involve both parents and the child being spoken to separately, along with any other relevant parties, for example other key family members or the child’s school.

Cafcass will assess the child and identify any alienating behaviours. The Section 7 report will report the outcome of the assessment and provide recommendations as to the next step. In very serious cases of parental alienation, the Court may decide that a child should be removed from the care of the alienating parent and placed with the alienated parent to prevent further emotional harm to the child.

As children get older, their views are given increasing weight by the Court. Where an older child has clearly expressed their wishes not to see the other parent, the Court must carefully explore the basis of this resistance before overriding it. In other words, establish whether it has come from the child’s independent thoughts or through manipulation by the resident parent.

The Court will always make its decision with careful reference to the Welfare Checklist found under Section 1 (3) of Children Act 1989:
• The ascertainable wishes and feelings of the child concerned while considering the understanding and age of the child.
• The child’s physical, emotional and educational needs.
• The likely effect on the child if circumstances are changed as a result of the Court’s decision.
• The child’s age, sex, background and any other characteristics which will be relevant to the Court’s decision.
• Any harm the child has suffered or may be suffering.
• Capability of the child’s parents (or any other person the Court finds relevant) at meeting the child’s needs.
• The powers available to the Court in the given proceedings.

Early assessment of allegations, prompt intervention and careful consideration of the wishes and feelings of the child are key in cases where parental alienation is suspected. The Family Department at Dean Wilson LLP is highly experienced and able to call on a wealth of other professionals such as family consultants, to assist in cases of this nature.

Dean Wilson LLP’s reputation has been built upon our ability to deliver and exceed our clients’ expectations. For over 100 years our success has been founded upon our client focused approach, backed by the knowledge and expertise of our lawyers.

As an ABC reader you can call the Family Department on 01273 249200 to arrange a no obligation telephone discussion and, if required, a fixed-fee meeting.


Separation and divorce: What should we tell the children?

By Finance, Legal, Mental health, Relationships

In this issue of the magazine, Jennie Apsey, Solicitor in the Family Department at Dean Wilson LLP, looks at the best way for parents to tell their children that they are separating and how to come to agreement in respect of Child Arrangements.

We have decided to separate but have not yet told the children. How do you advise we should do this?
Every situation and child is different so there is no one answer to this question. Of course, much will depend on the age and emotional maturity of the children concerned. Pre-school children need simple, concrete explanations and are unlikely to be able to articulate their feelings. You as their parents are their whole world and they will not have the ability to think about the future. They will need reassurance about where they will live, who will look after them and how often they will see the other parent. Six to 11 years olds will be more able to understand and think and talk about their feelings, however they do still tend to see things in black and white and will have a limited understanding of complex adult issues like separation and divorce. Secondary school age children will have a far greater capacity to understand these issues and are likely to ask more questions and challenge parental authority and decision making.

From my experience as a Family Solicitor I have assessed that damage to children of all ages may be limited by following some or all of the following:
1. Inform your children jointly of the decision to separate.
2. Talk to them in an environment in which they
feel comfortable, for example at home.
3. Be honest but avoid blaming each other. Avoid giving children too much information or information they do not need.
4. Emphasise that it is not the children’s fault and that both parents love them equally. They need to understand that the decision to separate is an adult decision which they didn’t cause and can’t influence.
5. Do not make children feel they have to choose between you. Tell them that their life will be different but do not give them choices – it is your job as their parents to make the decisions. Children will want to know how life will change from their point of view, not yours, so letting them know what will change and what will still be the same is important.
6. Make sure they realise that they are free to love both parents as before. Try to separate your feelings from the children’s feelings – do not confuse your child by belittling or criticising the other parent.
7. Expect your child to play one parent off against the other or even to take sides. This is very common. Do not hold what they say against them – allow them to express their feelings.
8. For contact arrangements, make them clear to the children and make them regular – children usually like routines as they feel more secure knowing where they will be, when and with whom.

We are having difficulty agreeing what is in the best interests of the children in terms of living and contact arrangements. How can we overcome this?
You may need the help of a third party to come to an agreement about Child Arrangements and a family consultant or mediator can assist with this and help you formulate a Parenting Plan to refer to moving forwards.

What is the difference between a family consultant and a mediator?
A family consultant provides therapeutic and emotional support and helps separating parents navigate a way forward in the best interests of their children. A family consultant does not focus on legal or financial matters, focussing instead on the emotional wellbeing of all the family members. It can sometimes be helpful to speak with a family consultant to prepare you for the process of mediation, or even for them to work alongside the mediator. Family consultants aim to provide an impartial ‘third-eye’ perspective to assist parents in prioritising their children’s needs and wellbeing.

A mediator is trained to listen to both parents, to assist them in their discussions and to work towards a solution that is in the best interests of the children. The mediator will ensure that both parents have the opportunity to speak and put their views forward within a neutral, safe environment. Mediators do not take sides and do not advise. Mediators are not therapists, and their role does not extend to providing therapeutic or emotional support.

Do I need a Solicitor?
A Solicitor will be able to advise you in relation to your rights and obligations which you may find helpful prior to embarking on mediation with your partner. However, Solicitor and Court intervention should be considered as a last resort. Some cases require Solicitors to negotiate on the parents’ behalf and/or the benefit of a Court Order to regulate Child Arrangements. However, in the first instance it is far better to try hard to sort difficulties direct with your ex-partner. The children will benefit most if you are able to maintain communication and establish a good co-parenting arrangement going forwards.

Dean Wilson LLP’s reputation has been built upon our ability to deliver and exceed our clients’ expectations. For over 100 years our success has been founded upon our client focused approach, backed by the knowledge and expertise of our lawyers.

As an ABC reader you can call the Family Department on 01273 249200 to arrange a no obligation telephone discussion and, if required, a fixed-fee meeting.

New year, new beginnings – changes to the divorce process in 2022

By family, Legal, Relationships
by Julian Hunt
Head of the Family department Dean Wilson LLP Solicitors

The government’s Divorce, Dissolution and Separation Act 2020 was passed in June 2020 and aims to implement major reform to the divorce process, becoming law on 6 April of this year.

Julian Hunt, Head of the Family department and member of Resolution, has been an active campaigner in the move toward no-fault divorce and has lobbied local MP’s in favour of the same.

What is the legislation’s main reform?
The Act will remove the concept of ‘fault’ in divorce proceedings – a welcome change to the divorce legislation that has not been amended in any significant way for over 50 years.

What is the current regime?
If a couple want to divorce, they have limited options to choose to present their petition on. Set out as five ‘facts’, these are: adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation without consent.

If a couple wish to divorce quickly those options are limited to the grounds of adultery and unreasonable behaviour, with the less contentious divorce routes only achievable after two or five years separation.

The prospect of a long and unnecessary wait often means that parties will choose the blame route with the unwanted result of intensifying conflict and causing long lasting damage, particularly impacting future co-parenting.

Why doesn’t the current regime work?
The current regime fosters animosity between parties by encouraging the assignment of blame, which can lead to delays in obtaining the end goal of a divorce and can have a knock on effect if the parties have children related matters to resolve at the same time.

The need for a no fault divorce process was highlighted in the recent case of Owens v Owens.

Mrs Owens issued her petition based on Mr Owens unreasonable behaviour in which she stated she could not reasonably be expected to live with Mr Owens anymore. Mr Owens defended the petition on the basis that his behaviour had not been unreasonable when looked at in the context of their marriage and the Court agreed with him. The Court found no behaviour that Mrs Owens could not reasonably be expected to live with and as such the marriage could not be said to have irretrievably broken down and her petition was dismissed. Although Mrs Owens appealed, it was held that judges could only interpret and apply the law handed to them and that under the current regime the petitioner is required to find fault in the respondent.

This decision highlighted the need for a no fault divorce process. Mrs Owens was left in the unenviable position of having to wait out a five year separation in order to proceed with a divorce without her husband’s consent.

What is the aim of the reform and why is it needed?
An acrimonious divorce consumes parties’ lives, and that acrimony usually spills over, even once the Decree Absolute is finalised, especially where children are involved. The fault system encourages discord which often affects the parties’ mental health, as well as the mental health of any children (especially if they are old enough to understand what’s going on). Therefore, divorces using one of the fault-based facts are usually quite traumatic to the parties.

A common misconception under the fault based regime is that the bad behaviour of one party will affect the financial outcome of the divorce, when in fact one has no bearing on the other, unless the behaviour is sufficiently extreme but, these cases are extremely rare.

Parties tend to settle finances subsequent to issuing their divorce petition and the tone of blame is usually carried over so as to frustrate and slow down the financial proceedings which in affect helps no one, including the Family Court whose resources are overwhelmed already.

The proposed changes should simplify the divorce process and reduce conflict from the very start. Parties will then be able to focus on the important issues like children, property and finances bringing resolution more quickly and amicably so that both can heal and move forward.

What will be the new regime?
The new legislation aims to make a number of significant changes, such as:
• Replace the ‘five facts’ with a new requirement to provide a statement of irretrievable breakdown (the Court then must take this statement as conclusive evidence that the marriage has broken down irretrievably);
• Remove the possibility of contesting the divorce;
• Introduce an option for a joint application;
These changes will also apply to the dissolution of civil partnerships.

Family law – what’s next?
The Law Society are currently campaigning for legal aid to be reintroduced for early advice, particularly in family law and we at Dean Wilson LLP believe this would be a further welcome step to focus parties’ minds on the practicalities at hand of separating joint lives into separate healthy and happy futures.

Dean Wilson LLP’s reputation has been built upon our ability to deliver and exceed our clients’ expectations. For over 100 years our success has been founded upon our client focused approach, backed by the knowledge and expertise of our lawyers.

Choosing the right primary school for your child

By Education, family, Legal, Relationships
by Emma Willing and Antonia Felix
Mishcon de Reya law firm

The choice of a child’s school is one of the most important decisions parents will make. For separated parents in particular, the decision can be more challenging, especially if living arrangements are not settled or if there is divergence of views as to the best educational setting for a child.

The deadline for parents (of children due to start primary school in September 2022) to apply for a state primary school place is 15 January 2022. Following the making of an application, the offer of a school place will be received from the relevant Local Authority on 16 April 2022.

Emma Willing and Antonia Felix from Mishcon de Reya’s Family and Education teams consider some of the common issues and questions which can arise when choosing the right school and making the application as parents.

Who has the ability to make a decision about where a child goes to school?
Provided both parents have parental responsibility, any important decisions in respect to a child, including regarding education, must be made by the parents jointly.

If agreement cannot be reached, or one parent has acted without the other parent’s agreement, it may be that a method of dispute resolution such as those discussed below can assist. Ultimately, if parents cannot reach an agreement, an application can be made to Court to determine the issue in dispute.

The Court’s primary focus in determining such a dispute will be an assessment of what is in the child’s best interests.

What is ‘parental responsibility’?
Parental responsibility defines the rights and responsibilities that an individual has in respect to a child, and determines who has decision-making power in matters such as education, religion and medical treatment.

The birth mother of a child automatically acquires parental responsibility at birth. This does not apply to the father or non-birth mother (in the case of a same-sex female couple), unless they were married or in a civil partnership with the mother at the time of the birth.

If the parents are unmarried, the mother is not required to enter the father or non-birth mother’s name on the birth certificate and if she does not, the father or non-birth mother will not then have parental responsibility. Despite this, if agreement cannot be reached, there are Court applications which can be made in order to obtain parental responsibility.

How can a disagreement about schooling be resolved?
While some separated parents will be able to reach a decision about the choice of schooling between themselves, others may encounter difficulties and the situation can become increasingly stressful as the application deadline looms.

There are various ways in which to resolve a disagreement:
Family member / mutual friend – A trusted family member or mutual friend may be able to assist parents in discussions. This can be particularly useful to diffuse a situation of conflict and involve someone neutral in the discussions.
Mediation – A mediator is a neutral facilitator. The mediator will be entirely independent from the parents and their respective solicitors (should the parents have them). While the mediator can facilitate and encourage discussions between separated parents, overall resolution can only be reached by agreement. Following an agreement reached by mediation, it is then advisable for both parents to consult with their own solicitors in order to formalise any agreement reached.
Arbitration – An arbitrator can be jointly appointed by the parents to make a decision in respect of the dispute. The advantage of arbitration is that resolution can normally be reached far more quickly than through the Court process. The arbitrator can impose a final outcome on the parents. However, unlike mediation which may result in an agreement, the parents may feel that they have less control over the eventual outcome.
Round table meeting/discussions between solicitors – There can be discussions between the parents’ respective solicitors either via correspondence or at a so-called ’round table meeting’ (which does not, despite the name, have to involve the parties sitting together) to resolve the issues.
Court – If agreement cannot be reached and parents do not want to use arbitration, an application can be made to Court. This should however be seen as a last resort.

What other planning can be put in place to avoid future disagreements?
It is advisable for parents to engage in discussions about the choice of a child’s school early. Where possible, parents should seek to meet or engage a third party to facilitate discussions around six to twelve months in advance of a school application deadline. Careful planning and thought is required, including attending school open days, considering up to date Ofsted reports and speaking to other parents. The earlier discussions commence, the sooner any areas of disagreement can be identified.

Parents should consider diarising future dates when applications are required to be made or assessments taken throughout their child’s education, and seek to approach the process together wherever possible.

Deciding between a mainstream school or a special needs school
Some children need more support than others to gain as much as they can from their education. A child may have been diagnosed with a medical condition, disability or special educational needs and there may be a professional assessment setting out what kind of educational help they need.

For children who need more help than a mainstream school would normally be able to provide, a plan in England called an Education Health and Care (EHC) Plan will be issued (following a formal assessment) by the local authority where a child lives. This will detail the child’s educational needs and the support they will receive.

Many children with an EHC Plan in place will go to a mainstream school, and the law gives children a right to a mainstream education if parents want this. However, parents may decide a child will be better supported in a specialist needs school. The local authority will discuss schooling options with parents when a child’s plan is drawn up, or reviewed, and must consider the parents’ views. The final decision rests with the local authority, however, if the level of provision is not agreed, an appeal to the First-tier Tribunal may need to be considered.
All mainstream schools in England and Wales will have a staff member, known as a Special Educational Needs Co-ordinator (SENCO), who is responsible for arranging support for pupils with special educational needs (SEN).

Before making a decision – whether you are separated parents, a single parent or two parents together – the key is to do research in advance, and discuss your child’s needs. Try to talk to other parents at the school, and ensure you visit the school to see first-hand how it is run.

What steps should parents take if issues arise with a Local Authority once the offer of a school place has been made?
First, it is important to remember that there is movement with school places after offers have been made during the spring and summer period. If a child does not have a place in one of the schools selected on 16 April 2022, then contact should be made with the local council to obtain details of schools with places. The council may be able to assist, avoiding any need for parents to engage the appeals process.

It is also possible to put a child’s name down on a waiting list at a preferred school via the school or the council (the ‘admission authority’ for each school must keep a waiting list open for at least the first term of each school year).

Even if a child has a school place, it is possible to go on the waiting list for another school. Parents should not automatically reject the place offered, in case doing so may result in a situation of a child having no school place. It is important to be aware that for Reception, Year 1 and Year 2 the class size is limited to 30 so the school can refuse the appeal if the limit has been reached.

Legal Solutions

By family, Legal

All Your Legal Worries Answered

In each issue of ABC, one of Brighton’s leading firms of Solicitors, Dean Wilson LLP, covers a topic of interest to parents everywhere. In this issue, Jennie Apsey, Solicitor in the Family Department, discusses the impact of Covid-19 on Child Arrangements.

As Family lawyers, of all the issues we have been asked to advise on over the last year, the issue of child contact arrangements throughout the Coronavirus pandemic has come up time and time again.

What are the Government guidelines concerning child contact arrangements during the pandemic and can parents alter contact arrangements even if they are the subject of a Child Arrangements Order?
Government advice throughout the pandemic and lockdowns has been that children may move freely between parents’ households, including between households situated in different Tiers. However, the President of the Family Division of the High Court noted that the guidance did not mean that children must move between homes, the decision being one for parents to take after assessing their individual circumstances, for example, the child’s health, the risk of infection and the presence of any recognised vulnerable individuals in either household. Furthermore, the Department of Health and Social Care advised that if a child was instructed to self-isolate by NHS Test and Trace, where possible the child was to remain at the same address throughout the period of isolation.

The President of the Family Division gave further guidance that where Coronavirus restrictions caused the letter of a Child Arrangements Order to be varied by a parent, the spirit of the Order should still be delivered by making alternative arrangements for contact including facilitating video calls through FaceTime, Skype or Zoom.

What child contact issues have you encountered as a result of the pandemic?
Perhaps inevitably, the Government guidance gave rise to some uncertainty with parents questioning what they were permitted to do, and whether they could insist on usual contact arrangements being adhered to. A minority of parents attempted to exploit the situation to exclude the other parent from their usual contact.

What can I do if the other parent breaches the terms of our Child Arrangements Order?
Child Arrangement Orders made since 2008 contain a Warning Notice which explains the consequences of breaching an Order. The penalties that the Court can impose include fines or imprisonment for contempt of court, orders to undertake unpaid work in the community or orders for financial compensation. However, for those parents wanting to bring such breaches to the Court’s attention, an application for enforcement must be made, for which a Court fee of £215 is payable. Parents should also bear in mind, that under section 11J of the Children Act 1989, the Court can decide not to make an enforcement order “if it is satisfied that the person had a reasonable excuse for failing to comply with the provision.” Unfortunately, “reasonable excuse” is not defined within the legislation and is therefore open to interpretation and the Court’s discretion.

Other than making an application to the Court for enforcement, what can I do to ensure that I continue to see my children?
We cannot emphasise enough that now more than ever there is a need to work with the other parent and to look at alternative means of resolving issues that arise between you in relation to care of the children. In our experience, the Court system is currently so clogged up, you are very unlikely to obtain a swift resolution to your contact problem by making an application to the Court. The effects on the Court system of the Coronavirus pandemic are ongoing. Therefore, we would strongly advise only making an application to the Court as a last resort once all other avenues of communication and alternative dispute resolution have been explored.

In the first instance, we would suggest mediation as a means of attempting to resolve matters with the other parent. Mediation is likely to be cheaper, less stressful, and far quicker than the Court process. Furthermore, since you will need to continue to co-parent your children for the duration of their minority, minimising conflict and animosity between you is likely to be hugely beneficial, not only to yourselves as individual parents, but also to your children.