Over the years the prevailing view on this question and what is in the best interests of the children has shifted from saying that the children should be heard, to keeping them away from the court and the parental dispute, leaving it to the court and the parents to decide what is in their best interests.
The United Nations Convention on the Rights of the Child 1989 provides that children should be given the opportunity to be heard where they are capable of forming a view. Opinion has and does vary as to the age at which the child’s view should be taken into account. The European Convention on Human Rights gives similar rights.
With the agreement of the parents children can be consulted in the mediation process where the parents consider this would be of help. Research in Australia has found that this can have significant beneficial outcomes for the children and the family.
In November 2014 the Government set up the Child Dispute Resolution Advisory Group to consider these matters. The Group published its Final Report in March 2015. It concluded that children should have the opportunity to be heard during processes to resolve disputes and that this should be the normal starting point for family mediators. The emphasis from the Group was strongly on the child’s rights. It recommended there be a non-legal presumption that all children aged 10 and above should be offered the opportunity to be heard during any dispute resolution processes, including mediation. The right to be heard is about including the child in the process, taking note of what the child has to say and listening to those views.
Separating couples considering family mediation sometimes worry that what they say in mediation or other matters relating to the mediation process will be reported to the judge if the mediation doesn’t work.
Whilst not unusual, this worry is ill founded. Mediation is a private process which is one of its main principles. Accordingly, a judge is not told about what happened in mediation other than the fact that it took place but didn’t achieve a settlement on some or all of the issues. It might be the case that some issues will have been resolved and it might be that both parties are then happy for the court to know about that.
HM Courts and Tribunals Service are making changes in the way they work following the Crime and Courts Act 2013 which enabled legal advisers to deal with applications for uncontested decrees nisi of divorce and with directions for trial. Before it was District Judges who did this work.
The country, this is England and Wales, will have 11 divorce centres at which legal advisers will consider these types of applications. Divorce Centres in the South of England are : the South West, at Southampton and London and South East based in Bury St Edmunds. The transfer of divorce work is to be phased in. The changes will start in South West in February/April 2015 and in London and South East April/October 2015.
In practise this means that unless the case is urgent applications for divorce and financial remedies have to be sent to a divorce centre.
How to find the correct divorce centre? Use the Court and Tribunal Service finder: courttribunalfinder.service.gov.uk/search
From 6 April 2015 those aged 55 and over with a defined benefits pension will be able to access all of their pension savings. Before then this was limited to 25%.
There is a government website which gives information to help you to understand your options and obtain guidance www.pensionwise.gov.uk
That site provides guidance and help can also be obtained for free on the telephone or face to face through “Pension Wise Guidance Appointments” with a “Guidance Specialist”.
So the government provides free guidance only and not advice.
A recent case, decided by the Supreme Court, Wyatt and Vince, has allowed a wife to make financial claims after separating in 1984 ( 3 years after the marriage) and 18 years after their divorce.
During the marriage the parties had no money and after separation neither had money for some time. They had a child between them who was raised mainly by the wife. However, the husband, who had adopted a new-age traveller’s lifestyle, had an interest in the environment and went on to develop a wind turbine technology which then made him many millions. The wife remained poor.
The divorce papers were lost so the court assumed that no final financial order had been made. The Supreme Court therefore held that the wife was free to pursue her financial claims against her former husband notwithstanding the time that had passed since the separation and divorce and the fact that he had made all his money since then and without any help from the wife.
The Supreme Court therefore directed that the wife’s application proceed in the Family Division of the High Court so the final outcome is awaited. However, the case has alreaady cost hundreds of thousands of pounds in legal costs. The Supreme Court also reinstated an earlier order for the husband to pay £125,000 to the wife to pay her legal costs. By the time of this last court decision that had all been spent.
So some of the lessons are: to be very careful at the time of the divorce to ensure that there is a final clean break court order, to keep the divorce papers for a long time and to keep a record of child care and financial contributions for the children. In this case the wife was claiming to be compensated for having borne the brunt of raising the child without financial support from the husband even though during many of those years he also was without money.
Where parentage is disputed DNA testing can be used and is very effective. The dispute is often about who is the father of the child. However, the cost of paying for the tests is expensive and has often stopped parties using this service which frequently results in longer court cases.
Examples of where these disputes arise and come to court are: where a parent is refusing to allow the other parent to see the child and where a parent is refusing to provide financial support alleging he/she is not a parent.
From September 2015 Judges in Family Courts will have the power to order these tests which will be funded by CAFCASS (a government agency). The Justice Minister Simon Hughes announced this on 17th February. The government hope this will help to save courts time and money. Also it says this will help judges to feel more confident in their decisions and that parents are more likely to honour any court orders.
The dispute has to get to court before the government will help with the costs. That is unfortunate especially as the government says it is committed to other means of resolving disputes before they get to court eg Family Mediation, but have not provided free DNA testing to support these other means.
Justice Minister, Simon Hughes, has announced that children aged 10 and older will have an opportunity for their views and feelings to be heard by a judge in proceedings that concern them.
No detail of how this will work in practise has been announced except that this initiative is to be implemented as soon as practically possible.
At the same time arrangements will be made in appropriate cases for children to be heard by a mediator.
On 30 June 2014, a new system aimed at ending the Child Support Agency over the next 3 years, comes into force.
Applicants for child maintenance will have to pay a £20 fee to the Child Maintenance Service and there will be financial penalties of up to £300 for payers who try to avoid payments.
The government’s intention is to encourage couples to make their own arrangements and to make for financial costs if the state system has to be used.
There will be a Direct Pay system under which the state will calculate how much should be paid and the payments will then be made direct but the state will help if payment is not made.
Otherwise there will be Collect and Pay system under which the state will also organise payment. However, to discourage use of the latter there will be huge costs:
20 % of the sum assessed for the paying parent and 4% of receipts for the receiving parent.
At present pre nuptial agreements can be taken into account by courts but are not legally binding. Should married couples be able to agree, in advance of problems, how their property and other assets should be divided when they divorce ? If so, should there be any limitations ? For example, how should the future birth of children come into account ?
The House of Lords gave the Divorce ( Financial Provisions) Bill its second reading on 27.06.14. This Bill will make such agreements made before and after marriage binding, so amending the present law which is contained in the Matrimonial Causes Act 1973. The Bill also seeks to make other changes, for example limiting maintenance payments to 3 years.
The content of pre nuptial agreements is a matter that can be discussed in mediation. To then make it legally binding the process is to take the proposals to a lawyer who will deal with the legal formalities.
Following the government abolishing legal aid for most family court applications about children, finances and property, there have been many more people going to court unrepresented.
They are called Litigants in Person (LIPs). As they have no legal training they often do not know the court procedures and what facts are relevant in law. This has slowed down court proceedings as they often take longer where no lawyers are involved.
To help these folk a mediator/barrister has produced 3 practical videos to help them understand the court process. They can be found on YouTube (click on the link below to open the video) :
1. Preparing for your first court hearing.
2. The Hearing Itself.
3. Giving evidence and challenging evidence.