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Blog posts in Personal law
Shared care for children - could it work?
February 09, 2012
Fierce controversy has characterised discussions this month of whether separated fathers should have the right to equal time with their children. In November 2011, the Family Justice Review rejected the idea – but by February 2012, children's Minister Tim Loughton had stated it was important that decent and loving fathers are not pushed out of their children's lives.
The latest news from Government is that when disputes are settled in court, it will promise to find ways to ensure that every father has a right to access to their children, unless he poses a safety or welfare risk. An extra £10 million will be available to parents for mediation to reduce the number of children’s contact cases going to court - because if both parents are to maintain meaningful relationships with their children cooperation is key, and acrimonious court proceedings don’t help.
However, the fundamental discussion should be in every case what the children need: whether it is equal time with both parents, some sort of sharing arrangement, the right to contact with one parent or no contact at all.
These pointers indicate when a shared, although not necessarily equal , pattern of care might work - suitability may well depend on whether each parents answers yes or no to the questions:
- Can you communicate and negotiate fairly well about the children?
- Do you basically respect your ex as a parent despite your relationship disappointments and personal differences?
- Can you put your personal disagreements and conflicts to one side and focus on what the children need in a given situation?
- Is there a compromise and give-and-take when there are disagreements?
- Can you share control and respect the autonomy of the other parent’s household?
- Are your fundamental child-rearing values and practicalities similar?
- Can you tolerate your differences without seeing them as detrimental to the children, and can you distinguish between the important and unimportant differences?
- Do you value what the other parent has to offer your child?
- Are you willing to tolerate the personal inconvenience and extra work in coordinating schedules?
- Is your child able to handle transitions?
- Whilst you were together were the child-rearing tasks shared (not necessarily equally)? If not, is there a commitment to increase sharing now?
The length of this list shows you just how important cooperation is. If you're prepared to begin negotiating with your ex-partner regarding the care of your children, then it’s time to consider making an appointment for mediation.
Frances Place, Partner at Progressive Mediation
Separated parent information
January 23, 2012
As the divorce peak reaches its annual high in the early months of the year, you may want to know what courts actually do about living arrangements for your children. You might, for instance, be sent on a Separated Parent Information Programme (SPIP) – but if you’re dreading yet more argument, cost and conflict, Frances Place explains this is the last place you’ll find it…
Separated Parent Information Programme
If you are separating or divorcing and you have made an application to the court to sort out living arrangements for your children the court may have ordered you to attend a Separated Parent Information Programme (SPIP). You may feel reluctant to attend. You may want to know more what is involved.
Attending a SPIP will give you the opportunity to meet other people in conflict with their ex-partners over arrangements for the children and give you the opportunity to hear from two experienced trainers, often mediators, about the impact of divorce and separation on children and to discuss ideas to help reduce conflict and improve communication between you and your ex-partner. Research has shown the separation doesn't have to harm children if it is handled well; it is conflict that has a negative effect.
You will watch a DVD made by children that follows a family through a separation. The film focuses on what children feel as their parents separate and what they need from their parents.
There are discussions and tips on how you can try and communicate better with your former partner, even if they are being very difficult and do not seem to be cooperating. There are discussions about the emotional aspects of divorce and separation, tips on helping you look after yourself and on how you can move forward, putting the past behind you.
Parents are sometimes reluctant to attend but most parents who do attend find it a very helpful experience.
Putting the past conflict as a couple behind you isn't always easy; talking to other parents in similar situations and hearing from experienced trainers can sometimes help give you ideas on how to move forward and find ways of working together as separated parents.
Amongst other things, you will learn that:
1. You should try not to fight in front of the children or ask them to choose sides.
2. Your children may have different feelings to yours.
3. You should think about what you can do, not what your ex-partner should or shouldn't do.
4. You should focus on what has worked, not on what hasn't worked.
5. Small steps can lead to big changes.
6. Look after yourself and be the best parent you can.
So if you are ordered to attend a SPIP don't be negative or try and avoid going; you will hopefully find it a useful and informative day.
Frances Place is a qualified solicitor and partner in a family mediation service.
My thoughts on the Family Justice Review
January 05, 2012
This week, traditionally the busiest time for family lawyers dealing with post-Christmas-stress divorce enquiries, here are Colin Mitchell's reflections on the implications of December's Family Justice Review.
So, the long-awaited Family Justice Review, by the former senior civil servant David Norgrove, has now been released. One particular issue which made the headlines is that children should not automatically have the legal right to split their time equally between the mother and the father after their parents have separated (as Norgrove had suggested in his interim report might be one of his recommendations). Some fathers’ action groups have been disappointed with this, as they had hoped to be granted the legal guarantee that their children would have to spend an equal amount of time with them, rather than the children possibly spending the majority of time with their mother.
However, although the fathers’ action groups are disappointed by this part of the Review, the underlying principle of Children Law remains the same; the welfare of a child remains the paramount consideration.
Therefore, what the Family Justice Review has done is recognised that every case is different and that a “one rule fits all” approach is not appropriate in family cases. Current Family Law must still be considered in light of a family’s unique circumstances. When a judge has to make a decision, the law still allows him or her to tailor that decision to fit the unique needs of the children concerned. In some cases, this may result in children spending more time with their mother, but in other cases the time the children spend with their parents can be split more equally. Sometimes, the children spend the majority of time with their father.
However, it’s almost always better that a family problem is resolved outside of court, perhaps using Mediation or the Collaborative Family Law process. These processes not only provide a tailored solution but also provide the opportunity for non-legal professionals to become involved to help the parents focus on the children, not just themselves.
What any decent family law specialist needs to provide is bespoke advice on how exactly the law can apply to particular circumstances, by recognising that every case is
different, whilst also working with experienced and skilled non-legal partners.
Blog taken from Poole Family Law's blog, written by Colin Mitchell, a Collaborative Family Law/Divorce Solicitor working for Coles Miller Solicitors LLP
Families and separation - the happy medium
December 15, 2011
When your relationship has crumbled, and you want to cut your ties as soon as possible, it seems easy to head straight to a divorce solicitor. But there is another way.
Whether you’re married, cohabiting or just have children together, mediation is the calmer and cheaper way forward. As part of a rethink in the way that separations are handled in this country, mediation is being promoted as the first port of call. The Family Justice Review has recommended increased provision of mediation at an early stage to prevent cases ending up in court with no good reason.
The changes were prompted by concern about the huge sums of public money spent on divorce and separation as well as the long-term effects on children and society of couples who remain in conflict for years after they have split. Whereas a divorce can cost thousands in legal fees, mediation can come in at a tenth of the cost.
Mediation: what really happens?
As from this April, anyone considering making an application to the court to sort out arrangements with their ex about the children or their finances following separation must attend an initial Mediation Information and Assessment Meeting (MIAM) with a mediator. An assessment can then be made about the best way forward, for example by working through a parenting agreement in mediation.
The new proposals in the Family Justice Review - if implemented - will enshrine this in legislation and, in addition, say that If children are involved, both parents must also attend a Separated Parent Information Programme (SPIP) to discuss ways of minimising conflict and increasing communication, with the expectation they will then attend mediation. Only after they have attended a MIAM and SPIP can they make an application to the court.
A family mediator will sit down and work out with a separating couple how to divide any assets up in a practical, realistic and fair way. We start by setting out certain guidelines. Neither party is allowed to interrupt or speak over the other person, for example; we know that it is important that people listen to each other.
Mediation can be possible with the most polarised of couples. Mediators work out why exes can get angry with each other - it’s usually fear of some sort, such as the prospect of losing the children. Once their other half has reassured them, they can start talking.
What about the children?
A major mediation goal is to make sure children’s views are taken into account and that they are listened to – we usually see children aged from 7 upwards. There is increasing evidence that children's needs will be met by minimising conflict between their parents and assisting parents to communicate in a constructive way together about their children.
Research shows that 12 years after separation, couples who have gone through the mediation process are still reaping the rewards with a much happier outcome and an ability to communicate as parents in the interests of their children.
Family affairs
Susan and Nick came to see me recently. They were still living in the same house. Susan wanted to stay in the family home with their two children, a six-year-old boy and an eight-year-old girl. Tension was rising because Nick was refusing to move out of the house. Nick told me he was terrified he was going to lose the children and that is why he wouldn't move out. He did not want to be a ‘Saturday’ parent.
Putting the legal terminology aside, such as custody, access, residence and contact, we spent the session focusing on the reality of their day-to-day lives and what arrangements were possible. Using a flip chart, we worked out a schedule of arrangements for the children which suited both parents’ working patterns and the children's activities.
A sense of equality
Sarah and Tom came to mediation. They wanted to separate and reach a financial settlement and work through the idea of a shared arrangement for their two-year-old daughter.
The couple spent the sessions looking into the practical side of how 50-50 shared care pattern would work in reality. They talked about nurseries, bedtimes, dropping off plans, birthdays, holidays, extended families and telephone calls.
Splitting the sessions in half, Sarah and Tom were able to work through financial issues too and reach an agreement to move them both forward, enabling them both to buy a new property.
If you think family mediation might help you or anyone you know look at my website and get in touch.
Where there’s a will there’s a row
July 13, 2011
As the Legal Ombudsman raises the alarm about online will-writers, Georgina Harris explains why attractively cheap deals could turn ugly in the future
A new report by the nation’s law watchdog, the Legal Ombudsman, slams the increasing number of online ‘legal services’ firms that pop up only to vanish with customers’ money – or leave clients with worthless paperwork for their most important life decisions.
The report, which, reveals the public’s complaints about the legal profession that the Ombudsman has received since it opened in 2010, highlights the serious trouble often faced by those buying legal services online. Unlike lawyers, who work to professional standards, online will-writing firms don’t need a single qualification to offer their services. Many people, attracted by low prices, click on a bargain, convincingly legal-looking logo, behind which hides an entirely unqualified and unregulated firm.
The Ombudsman cites the case of Mr and Mrs T, who sent a cheque for over £1,500 to a will-writer they found online. Not only is this double what a decent lawyer charges for a family will, when the T’s precious paperwork arrived, they saw “a standard document with a few minor personal details inserted”. When the Ts complained that “they could have done [it] themselves by getting a pack from a stationers” (WH Smith, £10), they received no response. As an unregulated firm, the Ombudsman can’t help. The Ts are left with no valid will, and, in any case, a lot less money for their old age.
“Phoenix” firms, which the Ombudsman says have increased in number, “close and re-open as different structures, leaving the fall out for their individual customers”. As the Ombudsman points out, regardless of whether it decides a customer has been cheated – through the non-appearance of a will, for instance, or for a badly drafted one – if the firm has disappeared, so does the customers’ money.
The Ombudsman says, with admirable reservation, that buying online “comes with its own set of specific issues for consumers, not least when something goes wrong.”
Ironically, this report comes at a time when old-age planning and will-making are ever more essential to all our lives. Houses are worth more, inheritance tax affects ordinary people as well as the rich, and the eye-watering costs of care need careful thought – not to mention ensuring proper protection and care for those in later life. It might come as a surprise to realise that in the UK none of this can be done informally – set legal wording is required for everything from gifting trinkets in your will to naming the relations who will take care of you and/or your money in case of, say, medical emergency.
Savvy people congratulate themselves on preparing for their dotage well in advance – but as the Ombudsman points out: “the nature of legal services is that, usually, the flaw in the service is not apparent until the end – or many years later.” Is an ‘online discount’ worth ending up with an invalid Power of Attorney when you are bedbound and unable to pay medical bills, or your children finding out a typing error took their shares in the family business? While the Ombudsman and the Law Commission work out how to deal with unscrupulous or incomptetent firms, a lawyer remains the only safe bet.
- Read more about wills in our factsheet Dying without making a will and set of FAQs Making a will: 27 FAQs
Georgina Harris, Law Donut editor
Paying your employees’ pensions: 2012 advance warning
May 04, 2011
From next year, employers will have to pay part of their staff’s pension contributions. David Impey explains what you should know – and do
From 2012, employers will need to start enrolling their employees into either a ‘qualifying pension scheme’ or the new state NEST scheme. Designed to make sure that more low-to-medium earners save for their retirement, the new Government scheme will be funded mostly by employees, with the rest paid by the firm in a contribution that will eventually rise to at least 3 per cent of each salary.
At the moment, employers do not have any legal obligation to contribute to an employees’ pension scheme, so firms nationwide will face more expense when the new law kicks in. That’s why the new rules are being phased in for different-sized businesses over four years from 1 October 2012. Businesses with under 250 employees start contributing in 2014.
How much will it cost?
Costs will vary for each business. The Government estimates administration will cost £46 per employee – but the Federation of Small Businesses puts the expense of admin and contributions for a small business with four workers earning £25,000 at £2,550 a year. Your budget should cover both setting up and running a scheme, and your monthly employer contributions.
When the scheme starts for your size of firm, your first job is to work out who among your workforce needs to be enrolled. Any employee over 22 but below the state pension age who earns between £5,035 and £33,540 should be signed up. These earnings include salary, bonuses, commission and overtime, so you may need to spend time totting up the exact pay of all your staff before you finalise the list.
You then need to make your main decision – choosing the right pension scheme. To be a valid ‘qualifying’ scheme, the pension you pick must be:
- an existing scheme you have already set up, with tweaks;
- a new scheme; or
- the Government’s National Employee Savings Trust (NEST).
To show you comply, you must register with the Pensions Regulator. Contributions must be made starting at two per cent of qualifying earnings in total, and rising to at least 8 per cent by 2017 - when at least 3 per cent of that must come from the employer. Employees can opt out within 30 days, but are automatically re-enrolled every three years, when they must decide whether to opt out again.
How do I get pension that does well for the staff?
For businesses, finding the right pension could be tricky - different employees have such different needs. Your job is to make people of various ages, with different attitudes to risk and varying financial literacy, happy. Many employees may already have made their own retirement plans. However, recent Government announcements mean employers can start thinking sensibly about what to choose.
Now the universal basic state pension for all has been put in motion, it’s less likely that employees will opt out of their firm’s scheme. Your employees will get a flat rate payment of £140 a week in retirement. This won’t be means-tested (as pension benefits are now), so it won’t put people off saving for themselves. And your employees should be able to tell you know how much extra above the state pension they will need to put into their pension pot to meet their retirement aims.
More importantly, last month NEST announced its investment strategy and targets. The default state-run scheme has immediately run into trouble. NEST proposes to aim for growth equivalent to the Consumer Prices Index (CPI) plus 3 per cent. The industry norm is more like CPI plus 5 per cent. For employees paying into NEST for several decades, this could cut their retirement income by tens of thousands of pounds. Your employees won’t thank you for enrolling them in a scheme like that.
However, some pension pundits are suggesting that NEST will become the benchmark for other pension schemes, so that private providers may gradually downgrade their existing investment targets to low NEST levels.
NEST also says it plans to invest younger savers in low-risk assets at first rather than, as is more usual in the pensions industry, starting them on higher risk assets (because, if losses are made, it’s better to make them earlier when the scheme has longer to recover them). NEST say this is because their research shows that younger employees are likely to opt out if they see the value of their pension pot fluctuating/dropping, so it’s better not to do anything risky in the early years.
Nearer the time, you may also need to consider these issues:
- If you have no current pension scheme, the administrative costs of setting up and running a scheme, and the financial costs of your employer contributions.
- Reviewing employees’ remuneration, to make sure elements of it do not inadvertently act as an incentive to opt out, as this is not allowed. For example, if you offer flexible benefits like healthcare in return for lower pension contributions, you may need to change things.
- Consulting and gaining employees’ agreement to the changes – because introducing a new scheme is likely to amount to a change in their terms of employment.
- Managing employees’ reactions to having their employee contributions deducted from their pay.
So start thinking – and get advice from your pensions adviser so you’re ready with the answers when the workers cotton on to their smaller wage slips. Which won’t be long.
David Impey
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