HopeHolm Family Law

A Guide to Agreeing Christmas Child Contact Arrangement for Separated Parents
Christmas should be a time we look forward to, whether we celebrate Christmas as a religious festival or enjoy it as an opportunity to spend time with extended family or just to relax, eat a bit too much, and play with the kids.

If you are a separated or divorced parent Xmas can be a tough time, especially when you are struggling to agree on the Christmas child contact arrangements.

Family law solicitor, Angelique Holm, is a children law expert. In this blog, she offers guidance to separated parents on how best to sort out Christmas contact. If you need legal advice on children law and contact arrangements then Angelique Holm can help you.

Look ahead
Family law solicitors tend to plan ahead for Christmas, knowing that many anxious parents will call them in November and December to inquire about applying for a child arrangement order to sort out their Xmas contact.

Ideally, all parents should look ahead and make early Christmas plans. That may involve accepting an invite to stay with your parents knowing that means the grandparents will get to see their grandchildren this Xmas as it is ‘your year with the children’ or volunteering to work knowing that next Xmas is your time with the kids or booking something special with friends who are in the same boat as you and who will be struggling to see their children this year.

If you have not planned ahead, it is not too late to try and reach an agreement over Christmas contact or to apply to the family court for a child arrangement order. However, do remember that reaching an agreement or securing a court order takes time and the longer you give your family law solicitor the better. It also reduces the risk that your ex-partner will say that they have already made plans that are incapable of change.

Christmas amnesty
Xmas is meant to be a time of peace and goodwill to all. Even if you think your ex-partner is lazy and ignorant and does not deserve to see their children at Xmas or if you hate your mother-in-law for the way she treated you during the marriage, maybe Christmas is the time to offer an olive branch. If you can agree on the Christmas contact arrangements it is likely to make Christmas a far less stressful experience.

Christmas for the children
As adults we are often guilty of focusing on what we want, assuming our children will want the same thing as us or that our children will go along with our Xmas plans because they have no choice. Most parents don’t recall back to their growing-up years and remember what they hated about Christmas. Maybe it was not seeing Dad on Christmas Day or maybe it was being forced into a car on Xmas Day to travel to see the other parent when all you wanted to do was relax after a large meal and play with new toys.

Thinking back to your own experiences or looking at your proposed Christmas plans from your child’s perspective can really help you focus on what would work best for your children.

If you present your Christmas proposals to your ex-partner by looking at your child’s needs this can help you thrash out an agreement.

Christmas contact rights
There is no right in law that says parents have a right to see their children at Xmas. Most parents have what is called parental responsibility for their children and that is shared with the other parent. Parental responsibility does not guarantee you shared parenting or contact. You either need to agree on custody and contact arrangements (including special occasion contact such as Xmas and birthdays) or you need to apply to the family court for a child arrangement order.

A child arrangement order sets out the parenting arrangements and can be detailed to include Christmas contact or overseas holiday contact. If the order is intended to stand the test of time it may say you get alternate Christmases with your child from 5 pm on Xmas Eve to 5 pm on Xmas Day so you do not have to go back to court every year to resolve specific dates or times.

If you cannot agree on contact and you do not have a child arrangement order in place it can be tempting to turn up and demand to see your children because you have parental responsibility and because it is Xmas. That is a bad idea and your ex-partner may try to further restrict your contact or even apply to the court for an injunction order to stop you from turning up unannounced at their property. An agreement or a court order is the best solution.

Help with agreeing Christmas contact arrangements
Some parents know that they cannot talk to their ex-partner directly or have tried and failed. You may need help in sorting out the Xmas contact through:
• Solicitor negotiations – sometimes a letter from a solicitor will make parents realise that it is sensible to compromise
• Solicitor roundtable meeting – this type of meeting can resolve an impasse
• Legal support during family mediation – so you understand your parental rights and the potential outcome of any child arrangement order application so you know where to compromise in mediation and when to stand your ground
• Representation in a child arrangement order application for a Xmas contact order – these orders take time to obtain so the sooner you contact a family law solicitor for advice the better chance you have of securing an order

If you think that you have left it too late to sort out Christmas contact this year then you may not have done so. It is also never too early to start discussions for the following year if you did not get what you wanted this year or if you want to change Xmas contact arrangements that have been in place since your separation or divorce.

Angelique Holm can talk to you about the best approach to reaching an agreement on Xmas contact or help you apply for a child arrangement order.

For advice on child arrangement orders and resolving family law disputes advice call Angelique Holm on 0203 488 8620 or email [email protected] or visit our website Hopeholm Family Law.

Related Posts:
1. What is a Child Arrangement Consent Order and do I Need One?
2. No-Fault Divorce
3. What is Parental Alienation

What is a Section 7 Report?
Family law solicitor, Angelique Holm, answers your questions on what a S7 report is and why it is important in your child arrangement order, specific issue, relocation or prohibited steps order application.

When an application is made to the family court for a children law order the family judge can order that a S7 report be prepared. The court application is then delayed for the report to be produced.

A S7 report is prepared by an officer from the Children and Family Court Advisory and Support Service (CAFCASS). The report is sent to the court but all parties to the court application receive a copy of it. After the report is released there is normally a further court directions hearing. At that directions hearing the court may order further statements, order a report from an expert (such as a child psychologist) or the court may list the application for a final hearing.

If you can reach an agreement over future parenting arrangements with the other parent then the directions appointment can be used to make a final order to conclude the child arrangement order, specific issue order, relocation order or prohibited steps order application.

What does a Section 7 report cover?
A S7 report can either focus on your child’s wishes and feelings or the judge can ask the report writer to also address welfare issues.

An example of a welfare issue is your ability or your ex-partner’s ability to meet your child’s physical or emotional needs. Another example of a welfare issue is the impact of any change in living or contact arrangements on your child. The length of time it takes to obtain the report may depend on whether the report is focused on your child’s wishes or if it is also addressing wider welfare issues.

Who prepares a Section 7 report?
A S7 report is prepared by a CAFCASS officer. CAFCASS is an organisation independent of the family court and local authority. The job of a CAFCASS officer is to help the court decide a children law application by providing information about the child or their circumstances.

In preparing their report the CAFCASS officer will normally meet the child and they will speak to both parents and professionals who can provide relevant information. For example, a CAFCASS officer may speak to the child’s school or nursery. The CAFCASS officer may want to observe a contact visit between parent and child.
A CAFCASS officer has a social work background and is specially trained to interview older children and to talk to and observe younger children.

Can a parent insist on a Section 7 report?
The court decides if a S7 report is required. A parent cannot insist that one is ordered although you can request one and make submissions to the judge about why the report will help the court. The other parent could object to the report. For example, they could say that you are asking for the report as a delaying tactic because the court will need to delay deciding the children law application pending receipt of the report.

A judge may refuse to order a report if the judge does not think one is necessary. For example, the judge may say a report is unnecessary if parents are in dispute over whether their child is returned home at 5 o’clock or 6 o’clock or if contact takes place on a Saturday or a Sunday. A judge may say a report is needed if parents are in dispute over their child’s wishes or if one parent is alleging that the other parent is incapable of meeting the child’s needs. For example, if there are allegations of alcohol addiction, drug abuse or parental alienation behaviour.

Can a parent refuse to participate in a Section 7 investigation and report?
A parent can decide that they do not want to meet with the CAFCASS officer. The officer will still prepare a report and the court may draw adverse inferences from the fact that a parent refused to speak to the CAFCASS officer.

Will a Section 7 report decide the outcome of a children law application?
The judge decides on what type of child arrangement order, relocation order, specific issue order or prohibited steps order is in your child’s best interests. However, the judge will be highly influenced by the views and recommendations of the CAFCASS officer. The judge is only likely to go against the report recommendations if you can bring a very sound case to say why there are cogent reasons the CAFCASS officer’s recommendations should not be followed.

As the CAFCASS report is highly influential it is best to carefully consider with your family law solicitor whether it is in your interests to ask for one and the steps to take if the report does not make the recommendations you hoped for. There are ways a specialist family law solicitor can challenge the report or its recommendations.
It is best to take specialist legal advice before you start an application for a children law order but it is never too late to ask for help and representation in the court proceedings.

For advice on children law applications and for representation in family law disputes call Angelique Holm on 0203 488 8620 or email [email protected] or visit our website Hopeholm Family Law.

Related Posts:
1. What is Alienating Behaviour?
2. What is a Fact Finding Hearing
3. Child custody and contact

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HopeHolm goes to High Court
Inter-country adoption

RECOGNITION OF FOREIGN ADOPTIONS / LEGAL GUARDIANSHIP ORDERS AS ADOPTIONS UNDER ENGLISH COMMON
IN THE HIGH COURT OF JUSTICE (FAMILY DIVISION)

IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT

AND IN THE MATTER OF THE SENIOR COURTS ACT 1981

This case concerns an application under England jurisprudence for the recognition of the legal (and it is asserted permanent) parent-child relationship between Mr and Mrs D (‘the applicants’) and their two children, (‘I’), and (‘E’). That relationship is captured under the auspices of legal guardianship orders (‘the orders”) made in Calcutta, India in 2007 and 2010 respectively.

At this final hearing, the applicants invite the court to exercise its inherent jurisdiction and recognise the foreign legal guardianship Orders of I dated 1 June 2007 and E dated 24 February 2010, finding that these orders created permanent legal relationships akin to adoptions in England and Wales.

Under India’s domestic laws, legal guardianship orders were granted pursuant to Section 10 of the Guardians and Wards Act 1890 (“GWA”), and to ‘parents’/’guardians’ who, for all intents and purposes, were habitually resident and domicile in India at the time.

The court is cognizant of the submissions respectfully advanced on behalf of the applicants, that it would not be enough to recognise the applicants as guardians of E and I, that recognising the legal and permanent parent/child relationship as synonymous to an English adoption is necessary to achieve a crucial outcome for this family, endorsing the parent-child relationship in satisfaction of Home Office rules.

Thus, the court will be invited to give declaratory effect to the same and find that E and I are the adopted children of the applicants. It is respectfully submitted that the applicants were prejudiced by the legal climate in India at the time of E and I’s legal guardianship orders, and as non-Hindus were not entitled to rely on the “simple….and straightforward process for adoptions for Hindus” under the Hindu Adoptions and Maintenance Act 1956 (“HAMA”) HAMA, a law that legally sanctioned the discrimination of non-Hindus in India for decades.

Indeed, it may be argued that by the time Mr and Mrs D sought to become parents of I and E, a new provision had come into force enable adoptions by non-Hindus, in reality and for various reasons, non-Hindus continued to defer to the GWA; and in Mrs and Mrs D’s case, upon legal advice. The expert further observes how although the coming into force of the JJA 2000 and 2015 sought to address the discrimination between religions, in reality, the process remained blatantly different and discriminatory. In essence, access to justice remained skewed and inequitable.

This court is not being invited to appraise the Indian legal system, nor are the applicants seeking to cast aspersions, the court is respectfully invited to issues pertaining to recognition in this jurisdiction, and ultimately to find that to deny recognition in a manner sought would constitute an unwarranted interference with this family’s Article 8 rights: QS v RS & Anor [2016] EWHC 2470 (Fam).

E and I’s legal guardianship orders took place in India. The applicants cannot directly apply for recognition under the Adoption (Recognition of Overseas Adoptions) Order 2013 as they do not satisfy the criteria. India is not on the “overseas list” or list of designated countries relDnt to the periods to which I and E’s respective orders were made. In any event, pursuant to the requirements under Section 83 of the Adoption and Children Act 2002, adoptions in Indian or before 3 January 2014 are not recognised in the UK.

Thus, it is not opened to the applicants for the orders in respect of I and E to be registered in the Adopted Children Register, nor are the applicants able to obtain a certificate of eligibility for a foreign adoptive child.

The court may be amply persuaded it can recognise the legal guardianship orders of E and I from the evidence before it, but respectfully, the arguments advance on behalf of the parents goes beyond that. It would seem that under Home Office rules and in order that the children may enjoy the full benefits of their British Citizen Mother, the recognition of these orders need to bear the characteristics of an English adoption.

For the full judgment and report, please see Case No: D, Re [2022] EWHC 3602 (Fam) / FD22P00448

Can I get an Agreed Child Arrangement Order?

If you are splitting up from an unmarried partner or divorcing a husband or wife you need to know if you require a child arrangement order from the family court to sort out the custody and contact arrangements for your children.

Family law solicitor, Angelique Holm, is an expert in children law and can answer all your questions on whether you need a child arrangement order and how to get one.

Who needs a child arrangement order?
Any parent who is separating or divorcing and who has children under the age of 16 may need a child arrangement order. If your child is over 16 but has special needs or is vulnerable, you may still need an order.

How do you obtain a child arrangement order?
A child arrangement order can be obtained from the family court either by agreement with the other parent or after a contested court hearing.

If you have reached an agreement with the other parent over the residence and contact arrangements for your children then you may be able to secure an order without needing to go to a court hearing or you may only need to attend one short hearing.

Even if you can’t reach an agreement on residence or contact Arrangements before you start the court application for a child arrangement order you may be able to do so during the court proceedings. You can then ask the court to make an agreed order.

Why do you need a child arrangement order?
You may question why you need a child arrangement order if you have reached an agreement on the residence and contact arrangements for your children. It is best to speak to a family lawyer about why you need a child arrangement order when you have an agreement with your ex-partner because there are many different reasons why you need an order. It all depends on your family circumstances.

You may need an agreed child arrangement order if:

Despite your agreement with your ex-partner, you fear that they won’t return the children at the end of contact visits and you are concerned that it will take a long time to get a child arrangement order if that happens.

Without a court order or obvious safeguarding and welfare concerns, the police and authorities may not want to get involved in ensuring that the children come back to you at the end of a contact visit as originally agreed by your ex.

Alternatively, you may be concerned that your former partner will not allow the children to go on agreed contact visits. Your fears may be very genuine if your ex-partner has a history of reneging on agreements or doing their own thing on a whim and you want a stable routine for your children

You are the main day-to-day carer of the children and you plan to go abroad frequently with the children. If you do not have a child arrangement order in place that names you as the residential parent you will need to get your ex-partner’s consent to your taking the children out of the UK every time you want to take the children abroad on holiday.

If you have a child arrangement order that says the children live with you then the law says you can take the children abroad on holiday for up to four weeks without first needing the agreement of your ex-partner or a court holiday order.

If you have a different surname to your children and you are travelling abroad with them then border officials may question your right to travel with the children. That’s because border officials are always on the alert for cases of potential child abduction, including parental child abduction. A child arrangement order, that includes the agreed overseas holiday contact arrangements, can be helpful as it provides clear evidence of your right to take the children on holiday with you.

If your children are taken overseas on holiday by extended families, such as a grandparent or aunt, then an order or a recording in an agreed child arrangement order can be important evidence of their right to take the children abroad.

Your ex-partner may have a history of changing their mind or using the children to blackmail you into doing what they want. Alternatively, your former partner may be a great parent but you want the security of a child arrangement order because they are heavily influenced by their extended family.

There are many other reasons why you may need a child arrangement order even though the childcare arrangements are agreed upon with your ex-partner. For a discussion about why you may need an order from the family court call Angelique Holm on 0203 488 8620 or email [email protected].

Alternatives to a child arrangement order
If you do not want to ask the court to make an agreed child arrangement order then a family law solicitor can draw up a parenting plan for you recording your agreement on where the children willlive and the contact arrangements, including holiday and special occasion contact and other important parenting decisions.

For example, whether the children will follow a faith or attend a faith school, whether the children will be vaccinated with childhood vaccines, or whether you both agree to allow ear piercings and at what age.

The agreed residence and contact arrangements set out in a parenting plan do not carry the force of a child arrangement order. However, if your agreement with the other parent does break down, you can use the parenting plan as evidence of what had been agreed between you.

In any subsequent child arrangement order application, you can argue that the children need continuity and that the same parenting arrangements should remain in place.

For advice on child arrangement orders and resolving family law disputes advice call Angelique Holm on 0203 488 8620 or email [email protected] or visit our website Hopeholm Family Law.

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Who gets the House in a Divorce?
Who gets the house in a divorce is a key question when you are separating from your husband or wife. You may want to keep the house for sentimental reasons or because you don’t want to disrupt your children. Maybe you can’t face the thought of a house move when you are going through the emotional turmoil of divorce
proceedings and sorting out parenting and contact arrangements.

As a family law solicitor, I am often asked whether a husband or wife will get to keep the house in their divorce financial settlement.

I understand how important it is that the question of who gets the house in a divorce is answered as honestly and as quickly as possible to help you plan for your future.

Who gets the family home when a husband and wife divorce?
A family law solicitor can only give you their best advice on who is likely to end up with the house as their divorce financial settlement when they have enough information about the assets and your family.

Information is needed because, contrary to popular belief, the mother doesn’t always end up staying in the family home with the children. Even if the house is owned in the sole name of the husband or wife it doesn’t mean that the legal owner will keep the property. In divorce financial proceedings the court can order that the family home is sold and the equity divided (not necessarily split 50/50) or that the house is transferred to the other spouse. In some circumstances, the court can order a delayed sale. For example, the sale of the house could be delayed until the youngest child is 18 as the parent caring for the children can't downsize until the children have finished their secondary education.

The court has wide discretion over what should happen to the house and other assets, such as the family business, savings and investments, and pensions. That’s why your divorce solicitor will want to know all about your assets as well as assets owned jointly and owned in the sole name of your husband or wife. The family home can't be looked at in complete isolation from the other assets.

Will I have to sell the family home if I get divorced?
You may not have to sell the family home just because you are separating or getting divorced. A lot will depend on how much the house is worth, the size of the mortgage (the amount outstanding), and the monthly mortgage payments. If the outstanding mortgage is large the mortgage company may not be willing to transfer the mortgage into your sole name. The mortgage company will make a decision based on your income but some companies will also take into account spousal maintenance and child support payments when assessing mortgage affordability.

Financial advisors can help you with mortgage options and divorce. A mortgage broker may recommend a solution or remortgage that enables you to stay in the family home whilst your spouse is released from the mortgage.

If your husband or wife cannot be released from the mortgage this may mean they cannot take out another mortgage in their name. This could make it unlikely that they will agree to you keeping the house as they won't be able to rehouse themselves until you are in a position to get the mortgage transferred into your sole name.

There are various options to achieve a mortgage transfer, such as a parent standing as guarantor to the mortgage or a parent helping you out financially so your mortgage is reduced to a level that the mortgage company will accept that you can take the mortgage over based on your income.

Is it best to keep the family home if you get divorced?
Assumptions can be made about whether it is best to keep the house when you are getting divorced. Divorce solicitors recommend that you consider the extent of all the assets before you come to a fixed view about whether you want the house. That’s because there are situations where it may be best for you to sell up or to agree to the house being transferred to your husband or wife.

For example:
• Although a pension may have a similar value on paper to the amount of the equity in the family home the real value of the pension may be a lot more than the house equity if you had to invest the equity to produce a pension income. That may be particularly relevant to you if you plan to downsize to fund your retirement. You might be better off agreeing to the sale of the family home and to a split of the equity and a pension sharing order in respect of your spouse’s pension pot

• You may be able to afford to take on the family home but at what cost to your lifestyle if, even with your salary, spousal maintenance, and child support, you will not be able to afford holidays or send the children to school trips and will have to cut back on everyday items

• You want to stay at the family home because you think the children need continuity but will the children be heading off to university soon or moving to live with their partners? It is important to make housing decisions based on your needs. You may not want to stay in the house with its memories or have the upkeep associated with an older property

• You may want to share the risk with your spouse of assets going up or down in value. For example, if the deal is that you can keep the house if your spouse keeps the family business (of similar value to the equity in the family home) then you won't be able to renegotiate the divorce financial settlement later on if the house price falls (so your equity is reduced) and the value of the business increases substantially over the same period

Negotiating who gets the house in a divorce
You can ask the family court to decide who gets to keep the house and to make a financial court order dealing with the ownership of the property and all other assets, such as pensions or the family business. Divorce solicitors say that it is normally best to reach an agreement with your husband or wife by negotiation so you do not incur the expense of contested divorce financial settlement proceedings. Once you have reached an agreement you can ask the court to make an agreed financial consent order so you have the protection and security of a binding court order.

Divorce solicitors can help you negotiate who gets the house after a divorce through solicitor negotiations or through providing legal support whilst you are participating in family mediation sessions.

For advice on divorce proceedings and resolving family law disputes advice call Angelique Holm on 0203 488 8620 or email [email protected] or visit our website Hopeholm Family Law.

Related Posts:
1. No-Fault Divorce
2. Divorce Settlement
3. Factors in Financial Proceedings under s25 Matrimonial Causes Act 1973

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Does Adultery Affect Divorce Settlement UK

When you are getting divorced because either you or your spouse has had an affair it is often assumed that the innocent party should get a better divorce financial settlement than the guilty party because as the separation is down to adultery the guilty spouse should pay up. That isn’t how UK divorce law works

As a family law solicitor, I represent divorcing couples trying to reach divorce financial settlements. Often one of the major barriers to agreeing on a division of property and assets after a divorce is the emotional fall-out from the separation and the anger and hurt adultery creates. Those emotions can make you feel that your ex needs to be punished and that the best way to achieve that is by punishing them financially.

What is adultery?
You may think that the definition of adultery is obvious but, from a family law perspective, adultery is defined as in*******se between a man and a woman. Sexual relations with a member of the same s*x aren’t classed as adultery.

Some think that a relationship is only viewed as adultery if the spouse was living with their husband or wife when they began their affair. That isn’t correct. An affair is defined as adultery even if the adulterous relationship started after the separation from your husband or wife or after one of you decided to start divorce proceedings. An affair only stops being legally classed as ‘adultery’ once you are divorced with a final order of divorce.

People’s reactions to learning about adultery can be very different depending on whether they already knew their marriage was in trouble or the circumstances in which they learned about the new relationship or the identity of the ‘third person’.

Sometimes people are very upset or angry about an affair even though the decision had already been taken to separate before the affair started. That can be because the person is frightened about their own financial future or does not like the thought of another person trying to take their place as mum or dad to their child.

Adultery and the family court
The family court will normally not investigate the reasons why a marriage has broken down when deciding on an appropriate financial court order or when deciding on child custody and contact and making a child arrangement order. That’s because the court makes financial decisions after assessing a range of statutory factors, including needs, and makes children law decisions based on the child’s welfare and best interests.

UK divorce law emphasised that it does not look into the reasons for the marriage breakdown by moving to no-fault divorce proceedings. It is now no longer necessary to say that your husband or wife committed adultery or behaved unreasonably to get divorced. The change occurred because Parliament wanted to take the acrimony out of divorce proceedings.

There are rare scenarios when the family court may be persuaded to look at the reasons for the marriage breakdown but the court is always wary of doing so because of the cost consequences to both husband and wife in spending time analysing the reasons for the separation. That’s because things are not always clear-cut. For example, a spouse may say they had an affair but it was down to their spouse’s unreasonable behaviour or because their spouse had an affair years earlier.

Spending time on lawyers’ fees to work out the reasons for a marriage breakdown is rarely productive. Instead, family lawyers recommend that the focus of any child arrangement order or divorce financial settlement proceedings is the child’s needs and relevant financial considerations, such as housing needs, earnings capacity, pension needs, or contributions to the marriage.

Does adultery ever affect a divorce financial settlement?
There are times when the fact that someone had an affair and is in a new relationship may be of relevance to the divorce financial settlement. A one-night stand or a short-term affair will not be relevant in the vast majority of divorce financial settlement court proceedings but a relationship may be relevant to:
• Whether spousal maintenance should be paid - if the husband or wife is cohabiting then their partner should be contributing to their household expenses so there is no need or reduced need to receive spousal maintenance payments. Family law disputes can often centre on whether a relationship is ongoing or not or if a couple are living together or in a casual relationship
• Whether the party who is in a new relationship and living with their partner has an immediate housing need. For example, whether it is appropriate for the sale of the family home to be delayed until the youngest child finishes secondary education as the non-custodial parent is living with their new partner in settled accommodation
• Whether any spousal maintenance claim should be capitalised. That is less likely if the spouse claiming spousal maintenance has a new partner

If you are uncertain about whether adultery will affect a divorce financial settlement then the best option is to take early specialist legal advice so you know where you stand so you are better able to reach a negotiated divorce financial settlement.

For advice on divorce proceedings and resolving family law disputes advice call Angelique Holm on 0203 488 8620 or email [email protected] or visit our website Hopeholm Family Law.

Related Posts:
1. No-Fault Divorce
1. Divorce Settlement
2. What is a Child Arrangement Consent Order and do I Need One?