Parental alienation is a term that comes up frequently in a family law context, including in the mainstream media, and especially on social media.
But the term is often quite misunderstood, and few non-lawyers will know how the family court will deal with a claim by one parent that the other parent has alienated their child against them.
Such claims will normally be made in the course of child arrangements proceedings, when one parent has applied to the court for an order that the child live with, or have contact with, them.
But before we look in detail at how the court deals with parental alienation claims we first need to examine what exactly is meant by the term ‘parental alienation’.
As mentioned above, the term ‘parental alienation’ is often misunderstood.
For example, it is often referred to as a ‘syndrome’, as if it was capable of being diagnosed.
But this is not how parental alienation is viewed by the courts.
There is in fact no legal definition of ‘parental alienation’. Perhaps the closest thing to an ‘official’ definition is the approach taken by the Children and Family Court Advisory and Support Service (“Cafcass”), which uses the term “alienating behaviours” to describe behaviours where one parent or carer expresses an ongoing pattern of negative attitudes and communication about the other parent or carer, that have the potential or intention to undermine or even destroy the child’s relationship with their other parent or carer.
Cafcass also say that: “These behaviours can result from a parent’s feelings of unresolved anger and a desire, conscious or not, to punish the other parent or carer. Alienating behaviours range in intensity and their impact on children.”
As to exactly what type of behaviours can be involved, it has been said that: “These behaviours can include negative attitudes, communications and beliefs that denigrate, demean, vilify, malign, ridicule or dismiss the child’s other parent. It includes conveying false beliefs or stories to, and withholding positive information from, the child about the other parent, together with the relative absence of observable positive attitudes and behaviours.” (Johnston and Sullivan, 2020).
Whether there have been any such behaviours by one parent is simply a matter of fact for the court to decide. As the President of the Family Division has said:
“What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court’s focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”
The court will deal with allegations of parental alienation in a similar way to any other allegations that one parent might make against the other. In short, it will be all about the evidence.
The evidence will generally take two forms: the evidence of the parties (and any other witnesses they may call), and expert evidence.
The parties will give their evidence in two ways: in the form of written statements and orally in court, when the other party will have the opportunity to cross-examine them.
Whether or not an expert (for example a psychologist) is instructed to give evidence is a matter for the court to decide. If the court does direct that an expert be instructed, it will usually give detailed directions as to who should be instructed, and the remit of their instructions. The expert will carry out those instructions, prepare a report, and give evidence orally in court.
The court will normally decide the truth of the parental alienation allegations at a ‘fact-finding’ hearing. At the hearing the court will go over the allegations in detail, and decide whether they have been proved.
The findings will then be used at the final hearing, when the court will decide what order or orders should be made on the child arrangements application.
The way that the court deals with parental alienation allegations can be illustrated by two case studies from real cases, one in which the allegations were found to be proved, and one in which they were not proved.
The first case concerned a father’s application for a child arrangements order, for his son to live with him.
The background to the case was as follows.
The parties were unmarried. They had an on/off relationship, which ended when their son was born in 2016. Thereafter, the father had extensive contact with his son, including staying contact.
In or around December 2020, the mother made an allegation to her GP that the father had inappropriately touched the child. She also informed the father that he may not be the biological father, and that she was moving away.
According to the father, this coincided with him requesting parental responsibility. The father stopped seeing the child in January 2021, when the mother suddenly relocated from Kent to Manchester, without giving the father her new address.
The father then made his application, in April 2021.
The court ordered a psychological assessment of the family and for the local authority to investigate the case and prepare a report.
Both the psychological assessment and the report were clear that there had been parental alienation on the part of the mother which would cause significant harm to the child, and that the child had already suffered emotional and psychological harm in the care of his mother.
The local authority also very clearly recommended a change of residence for the child, from the mother to the father.
The mother had been found to have been continually reporting that the child had been sexually harmed by his father, despite an investigation by Children’s Services finding no evidence of this. The allegations against the father had been made in order to alienate the father after he had indicated to the mother that he wanted to be named on the child’s birth certificate, to enable him to have parental responsibility.
In the light of these findings the court made an order in June 2022 that the child should be moved to live with his father, pending further assessment and a final hearing.
The final hearing took place in March this year.
The evidence at the final hearing was clear: the child had suffered, and would continue to suffer, from significant emotional harm if returned to the care of his mother.
Accordingly, the judge had no hesitation in concluding that the child should remain living with his father. She therefore ordered that the child should live with the father.
The second case illustrates a not uncommon phenomenon: an allegation of alienating behaviour being used as a counter-allegation to an allegation of domestic abuse.
The case concerned a mother’s application for a child arrangements order for the children, who were aged 12 and 9, to live with her. At the time the children were having no direct contact with their father, consistent with their expressed wishes.
In connection with her application the mother made numerous allegations of serious domestic abuse against the father. The father, in turn, alleged that the mother had alienated the children against him.
The court fixed a fact-finding hearing to determine the truth of the parties’ allegations against each other. The hearing took place over six days, in March this year.
The full findings after such a long hearing would obviously take some time to repeat. In short, the court made findings of fact in respect of the father’s use of coercive controlling behaviour towards the children and towards the mother, neglect of the younger child’s medical needs, financial control over the mother, making major decisions about the children’s lives without the mother’s consent, providing misleading information to the court and using court proceedings to emotionally torment the children and the mother.
Further, and most significantly, the court made findings that the father had raped the mother.
Meanwhile, the court found none of the father’s allegations to be proved.
It should also be noted that the court made an order that the father pay the mother’s legal costs, which were assessed at £50,445.40.
At the next hearing, a Dispute Resolution Appointment, the father indicated that he did not accept the court’s findings, but did accept that until and unless the findings were successfully appealed they were binding on all parties, and for that reason he did “not oppose anything.”
Accordingly, the court made an order that the children live with the mother, and have indirect contact only with the father.
But that was not all. The court also made an order permitting the mother to change the children’s surname, an order restricting the father’s parental responsibility for the children (including prohibiting him from communicating with their schools), and an order barring the father from making any application in relation to the children without the court’s permission, until the youngest child attains the age of 16.
Obviously, this case was just as much about domestic abuse as parental alienation, but it does demonstrate the lengths that the court is prepared to go to establish the truth of allegations by one parent against the other. Parental alienation allegations are a serious matter, and the truth of the allegations is likely to have a considerable bearing upon the outcome of the case.
The world of family law can be something of a mystery to the uninitiated, and everyone coming into contact with a family law issue has a question to ask. Here, we will endeavour to shed a little light upon the subject, by providing answers to ten of the most commonly asked questions.
Divorce can obviously be extremely stressful, so many people going through it will be anxious to know how long it will take.
Unfortunately, there is no fixed answer to how long a divorce will take, as it depends upon the circumstances.
And it is not just about the process of dissolving the marriage. There will often be other issues to deal with. In particular, it will usually be necessary to sort out arrangements regarding finances and property. Those arrangements will often take considerably longer than the divorce process.
As to the divorce process, this will take place in two stages: up to the conditional divorce order, and up to the final divorce order.
The process up to the conditional divorce order is begun by issuing the divorce application. After that, twenty weeks must elapse before the party or parties who issued the application can apply for the conditional order.
And then a further six weeks must elapse after the conditional order before an application can be made for the final order.
Accordingly, the divorce process will take at least twenty-six weeks, or six months, from start to finish.
But as we mentioned earlier, there may also be arrangements for finances and property to sort out, and it is usually advisable not to apply for the final divorce order until those arrangements have been dealt with, which could take several more months, or longer.
For the vast majority of cases, the answer to this question is simple: it is not possible to defend a divorce under the current divorce law (it was possible under the old law, which was replaced in April 2022).
To give a little more detail, there is only one ground for divorce, and that is that the marriage has broken down irretrievably. The court will accept a statement from the party who applied for the divorce that the marriage has broken down irretrievably as proof of that fact. The other party therefore does not have the opportunity to argue that the marriage has not broken down.
There are however three situations where the other party can oppose the divorce, but they are very unusual: where they do not believe that the court has jurisdiction to deal with the divorce, if they can prove that the marriage was never valid, or if the marriage has already legally ended.
Again, this question has a simple answer: yes, it is possible for both parties to the marriage to apply jointly for the divorce.
Such joint applications were first made possible by the introduction of the new law on divorce in April 2022.
Joint divorce applications proceed in a similar way to applications by one party, save for one point.
Where the conditional divorce order (see above) was made in favour of both parties, but the application for the final divorce order is to be made by one party only, that party must first give the other party 14 days’ notice of their intention to apply to the court for the conditional order to be made final.
The answer to this question is once again: it depends upon the circumstances.
The first thing to understand is that the assets that are divided between the parties on divorce are those assets that are considered to be ‘matrimonial’. Matrimonial assets are those assets that were acquired during the marriage, through the joint efforts of both parties to the marriage. Accordingly, assets acquired before the marriage, after the parties separated, or by way of gifts or inheritances acquired by one party, are not ‘matrimonial’. Non-matrimonial assets will only be awarded to the party who did not acquire them if they are required to meet that party’s needs (more of which in a moment).
The next thing to understand is that there is a general principle that the courts use when deciding upon the division of the matrimonial assets. It is known as the ‘sharing principle’. The sharing principle states that an equal division of assets between husband and wife should be departed from only if, and to the extent that, there is a good reason for doing so.
The sharing principle means that in many cases the assets will indeed be divided equally on divorce.
However, in many other cases there is a good reason to depart from equal division. The most common such reason is the financial needs of the parties, in particular in relation to their housing and income. Those needs may well mean that one party should receive more of the assets than the other party.
You may well be entitled to a share of your spouse’s pension on divorce, particularly if the pension was accrued during the course of the marriage, and your spouse has greater pension provision than you.
Pensions are often one of the most valuable assets on divorce, and it is therefore essential that they are taken into account in the divorce settlement.
Exactly how the pensions are taken into account will depend upon the circumstances, but the ‘sharing principle’ mentioned above still applies. This means that it is not uncommon for pensions to be ‘equalised’ between the parties, so that each party is left with the same pension provision.
Pensions can be dealt with in there ways: by a pension sharing order, which transfers all or part of one party’s pension into a pension belonging to the other party; by a pension attachment order, which states that one party will receive part of the other party’s pension, when the other party receives it; or by an offsetting arrangement, whereby the pension owning party keeps the pension, and the other party receives more of the other assets, in compensation.
It is certainly advisable that an order be obtained, to ensure that the agreement is both final and enforceable.
Such an order is usually referred to as a ‘consent order’. Consent orders are technical legal documents, which should be prepared by a specialist family lawyer.
Consent orders can normally be obtained without the necessity of attending court, but the court will require details of each party’s means, so that it can be sure that the order is broadly reasonable. In rare cases the court might refuse to make the order, so it is best for both parties to seek legal advice before applying for the order, to ensure that the terms of the agreement are reasonable.
Parental responsibility is defined by the law as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
There is no definitive list of parental responsibilities, but they include such things as the duty to maintain the child, the duty to educate the child, the decision to have medical treatment administered to the child, and the right to choose the child’s name.
Where the parents are married, both automatically acquire parental responsibility. Where they are not married, only the mother automatically acquires it – the father can acquire it by being registered as the father on the child’s birth certificate, with the mother’s agreement, or by obtaining a parental responsibility order from the court.
There are essentially three types of orders that the court can make in private law children cases (i.e. cases not involving social services):
The answer to this is simple: there is no such thing as a common law marriage. An unmarried couple will never acquire the status of marriage simply by living together, no matter how long they do so.
Importantly, this means that anyone who lives together without getting married will not acquire the rights of a married person to make financial claims against the other party, in the event that the relationship breaks down.
Everyone will understand that domestic abuse includes violence by one party against the other, but it also includes much more.
Domestic abuse consists of any of the following:
Needless to say, if you have been the victim of any type of domestic abuse then you should seek urgent advice upon how you can obtain the protection of the law.
It is hoped that the above was useful, but obviously there is no substitute for detailed advice, tailored to your particular issue. We can provide you with that advice. To speak to one of our specialist family lawyers, complete the form on this page.
Re H (A Child)(Recusal) 2023 EWCA Civ 860 – Walker Family Law acted for the Appellant mother in a successful appeal to the Court of Appeal in this case.
The Court of Appeal handed down judgement on 24 July 2023 in the matter of Re H (A Child) (Recusal),an appeal heard on the application led by Solicitor Lucy Roberts instructing counsel Grant Armstrong and Thaiza Khan of 6 Pump Court Chambers.
The decision concerns an application for a Judge to recuse himself from the case and highlights that when applying the test for unfairness as in Porter v McGill, the fair-minded observer is an impartial observer who is abreast to the circumstances in their entirety.
This matter has been in private proceedings before the Family Court since 2020. In 2022 there was a fact-finding hearing concerning allegations of domestic abuse, and the Judge gave a judgment in which he made findings of controlling and coercive behaviour from the father towards the mother, and of sexual abuse including sexual assault and rape. After the judgment, both parties brought to the Judge’s attention a factual error in the judgment, whereby the Judge had found one incident of rape on a specific occasion which had not been alleged by the mother. This finding within the judgment was duly amended, however the Judge declined the father’s invitation to review the entirety of the judgment in light of this error. The father sought to appeal the findings to the High Court but permission was refused. At a later hearing before the trial Judge, the father made an oral application for the judge to recuse himself on the basis of an appearance of bias. The Judge declined to recuse himself. The father was granted permission to appeal this decision in the High Court in 2023 on the grounds that 1) the trial Judge admitted that he fell into serious error and created unfairness when he made a finding of rape which had no basis in the evidence and 2) that the Judge created the appearance of bias. In his Judgment Newton J upheld the father’s grounds considering that the trial Judge, His Honour Judge McPhee had failed to properly apply the test in Porter v McGill and should have recused himself on the basis of apparent bias.
On the mother’s application to the Court of Appeal, Moylan LJ considered that mother’s counsel having taken the court through the ‘impugned procedural decisions in some detail. When seen in their proper context, it is plain that Judge McPhee was justified in making each of them’ [para 77]. While the trial Judge should have given more thorough reasons in his judgment refusing the father’s application for the Judge to recuse himself – there was no appearance of bias, the father was not unfairly treated within the proceedings, and Judge McPhee was right to refuse to recuse himself.
The full judgment can be viewed here: https://www.bailii.org/ew/cases/EWCA/Civ/2023/860.html
NB see other articles:
H (A Child : Recusal) [2023] EWCA Civ 860 – Family Law Week
The Court of Appeal considered an application for the Judge to recuse himself on the basis of apparent bias, made in a private law dispute concerning a young child, H.
Reported: 24th July 2023
The mother made various allegations of violence, including sexual abuse, against the father. The father made cross-allegations. Following the fact-finding hearing, HHJ McPhee made findings against the father of rape, sexual assault, and coercive and controlling behaviour. Following submissions on behalf the mother that the Judge had misunderstood her pleaded case, the finding of rape was amended to a finding of sexual assault on the relevant date.
A further report from Cafcass was obtained, and the matter came back before HHJ McPhee to consider welfare.
At a hearing on 16 November 2022, the father made an oral application (without notice to either the court or the mother) for the Judge to recuse himself. The Judge adjourned the application to 23 November 2022, on which date he heard submissions from both parties and dismissed the application.
The father filed a notice of appeal against HHJ McPhee’s decision not to recuse himself. Permission to appeal was granted on the papers, and the substantive appeal allowed by Newton J, who allocated the case to a new judge. The mother appealed the decision of Newton J to the Court of Appeal, resulting in the present judgment.
Baker, Lewison and Peter Jackson LJJ unanimously allowed the appeal against Newton J’s decision. The test for apparent bias applied by the court was “whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the father would not receive a fair trial”. The narrower test from Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 was not applied.
In setting out the law, Baker LJ noted:
The Court of Appeal found that HHJ McPhee had given inadequate reasons for his refusal to recuse himself, and had otherwise failed to properly engage with a number of the father’s arguments. Despite this, the Court of Appeal concluded that, upon closer examination, none of the arguments raised by the father were meritorious, and so Newton J was wrong to find that HHJ McPhee should have recused himself.
Case Summary by Savannah Laurent, Barrister, Field Court Chambers.
For full case, please see BAILII.
Family Law Week judgment summary: H (A Child : Recusal) [2023] EWCA Civ 860 – Field Court Chambers.
Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.
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It goes without saying that all parents will normally do everything they reasonably can to keep their children safe. And quite often a parent will feel that it would be unsafe for their children to see a particular person. What legal steps can they take to stop that person from seeing their children?
In this article we will look at who can see your child, why a court might stop someone’s contact with a child, how the court decides who can see a child, and other related matters.
In most cases the ‘someone’ will, of course, be the parent with whom the child does not live, and this article will therefore be primarily concerned with the issue of contact between that parent and the child.
Note that what is often still referred to as a ‘contact order’ is technically now a child arrangements order, but for the sake of simplicity we will refer to it here as a contact order.
Obviously, a child will come into contact with many people during its life, and there is no restriction upon who they can have contact with, unless a court has ordered otherwise.
But that is not to say that everyone has a legal right to have contact with your child. If you do not agree to them having contact then they will only have such a right if a court has made an order permitting them to have contact with the child.
And this is so even if that person has parental responsibility for the child. Parental responsibility does not include an automatic right to have contact with the child. There are many fathers, for example, who have parental responsibility but do not have contact with their child.
But parental responsibility is still relevant, as clearly a court is more likely to make a contact order in favour of someone who has parental responsibility.
And that brings us to our next question: who has parental responsibility for a child?
All mothers will acquire parental responsibility automatically, as will fathers if they are married to the mother.
Unmarried fathers do not acquire parental responsibility automatically, but they will acquire it if they are named as the father on the child’s birth certificate, or if the mother agrees to them having parental responsibility, and a parental responsibility agreement is signed.
Otherwise, anyone seeking parental responsibility will need to acquire it via a court order.
The starting position for the court in most cases is that contact with both parents and, to a lesser extent, with close relatives such as grandparents, is likely to be a good thing for the child’s welfare.
In fact, there is a statutory presumption that the involvement of both parents in the life of the child will further the child’s welfare, unless the contrary is shown.
So there does really have to be a good reason for the court to stop contact between a parent and their child. Possible examples of such reasons are that the parent has shown no interest in the child, and has had no contact with them for a considerable period of time; and that the parent has been involved in serious criminal activity, such as using Class A drugs, or committing offences against children.
But the most common reason is that that parent has been found to have seriously abused the other parent and/or the child. Domestic abuse is the primary reason why courts order that a parent should have no contact with their child.
As the law stands at present a finding of domestic abuse does not automatically mean that that parent should have no contact with their child, although it will often have a bearing upon the amount and type of contact that should take place.
There are, however, some who believe that there should be an automatic ban on domestic abusers seeing their children.
For example Kate Kniveton MP, who was herself a victim of abuse, has called upon the government to change the law to bring about a presumption of no contact between an abusive parent and their children. Whether such a presumption ever becomes law, we will have to wait and see.
Often, one parent will want to stop the other parent from seeing their child because the other parent fails to pay child support maintenance for the child.
However, whilst this can be extremely frustrating for the parent with care of the child, failure to pay child support is not of itself normally a sufficient reason for the court to make an order stopping the ‘non-resident’ parent from having contact with the child.
Obviously, the parent with care should take other steps to ensure that the non-resident parent pays the child support.
Where there is already a contact order in favour of the other parent then if the parent with whom the child lives wants to stop the contact they will have to apply to the court to have the contact order varied or stopped entirely.
In such a situation the parent making the application will of course have to show to the court that there has been a change in circumstances since the original contact order was made, such that the contact should stop.
Where there is no contact order in existence the parent with whom the child lives can themselves apply for a child arrangements order, stating that the child should live with them and have no contact with the other parent.
In practice, however, the most common scenario is that the parent with whom the child lives will refuse to allow the other parent to have contact, and the other parent will apply to the court for a contact order. The court will then have to decide whether contact should take place.
The question whether or not a court will make a contact order normally relates to someone closely connected with the child, such as a parent or grandparent.
But sometimes the issue relates to whether the child should have contact with someone with whom they are not closely connected, for example where it is considered that such contact may be harmful to the child.
In such circumstances a parent can apply to the court for a prohibited steps order, restricting or prohibiting contact between that person and the child.
Whatever decision the court is being asked to make in relation to a child, it will base its decision upon what it considers to be best for the welfare of the child. In so doing, it will have regard in particular to the following matters, referred to as the ‘welfare checklist’:
1. The ascertainable wishes and feelings of the child concerned, considered in the light of the child’s age and understanding. Thus if, for example, an older child expresses a very clear wish that they do not want to have contact with one of their parents then that is a matter to which the court will attach considerable weight, and it may even decide the outcome of the case.
2. The child’s physical, emotional and educational needs.
3. The likely effect on the child of any change in their circumstances – this can obviously be relevant if the court is asked to stop a parent from seeing the child.
4. The child’s age, sex, background and any characteristics of his or hers which the court considers relevant.
5. Any harm which the child has suffered, or is at risk of suffering. This is of course the primary reason why a court may stop someone from seeing the child, as will be seen from the examples of why a court may stop contact mentioned above.
6. How capable each of the parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs.
7. Lastly, the range of powers available to the court, for example ordering that the contact be indirect only (such as via letter, telephone, email, etc.), rather than direct ‘face to face’ contact.
In short, anyone wishing to obtain an order stopping someone from seeing their child will need to persuade the court that that is the best thing to do for the child’s welfare, having regard to these factors.
Stopping someone from seeing your child, particularly the other parent, is a serious step to take, which could obviously have a very significant effect upon your child. And just attempting to stop the other parent from seeing your child could have serious consequences for your relationship with the other parent, which in turn could harm your child.
It is therefore essential that that you seek expert legal advice, before making any attempt to stop someone from seeing your child.
At Walker Family Law we have highly experienced expert family lawyers, who can give you the advice that you require. To get in touch with us, simply fill in the form on this page.
And for more information about child arrangements orders generally and the services we offer, see this page.
Please note that this article sets out the law as it is in England and Wales. The law in other parts of the United Kingdom may differ. You should seek advice from an expert in the law of the particular country concerned.
Walker Family Law is happy to announce that The Public Law Update 2024, hosted by Safda Mahmood, has now taken place. The event took place on the 9th May 2024. We had a fantastic turn out of approximately 55 attendees. Safda Mahmood provided attendees with invaluable insights into the most recent developments in public law.
The update covered a variety of valuable topics. Attendees had the chance to connect with Safda Mahmood and gain extensive knowledge on key issues covered, including:
“We are delighted to have partnered with Safda Mahmood to host The Public Law Update 2024”, said Ian Walker, Managing Director at Walker Family Law. “The event was a huge success and Safda provided attendees with valuable information into recent developments in public law”.
We were very fortunate to have had the opportunity to host the event in the Health Innovation South West office, who provided a fantastic venue for the day along with great food.
Attendees provided positive feedback on the event and Safda Mahmood’s expertise. Walker Family Law is once again thrilled to have had the pleasure of hosting such an event and we hope to have the opportunity again in the future. We are also pleased to be able to donate the remaining funds to two wonderful charities; Love Musgrove and Stand Against Violence.
A victim of domestic abuse may seek the protection of the court by applying for a domestic violence order, often referred to as an ‘injunction’.
There are two types of domestic violence orders: non-molestation orders and occupation orders.
A non-molestation order is fairly self-explanatory. It is an order prohibiting one party from molesting, threatening or otherwise harassing the other party, including by the use of coercive and controlling behaviour.
But what is an occupation order?
An occupation order is essentially an order that regulates who can occupy the parties’ home, although it can do much more than that.
The most common way in which an occupation order is used is to require one party to vacate the property, but it can also be used, for example, to require one party to allow the other party back into the property after they have previously been forced to leave.
An occupation order can even regulate which parts of the home each party may occupy, although this can obviously only happen where the property is large enough for the parties to live separately within it.
An occupation order can also exclude one party from an area around the home.
For more details of what an occupation order can do, and how the court decides whether to make an occupation order, see this recent post.
Clearly, an occupation order can be extremely useful when dealing with domestic abuse. Ensuring that a victim is safe in their own home is absolutely essential.
So it is important that anyone wishing to apply for an occupation order has the evidence that they require to obtain it. An occupation order is a serious order for a court to make, especially if it is ordering someone to leave their home. The court will only therefore make such an order if it has the evidence necessary to satisfy it that the order is required.
Obviously you will need to provide the court with evidence of the domestic abuse. The main way in which you will do this is by providing the court with a statement setting out details of the abuse, including the first, worst, and most recent incidents of abuse.
Sometimes the abuse does not consist of separate incidents but is rather a pattern of abuse, such as where there has been controlling behaviour by the abuser. In such a case you will need to explain the pattern of abuse.
You may also be able to provide the court with independent evidence of the abuse, for example from a friend or family member, although this is not always possible, where the abuse only takes place within the home.
Some other types of independent evidence are mentioned below, in connection with applying for legal aid.
The court will also want details of the home, including whether it is owned or rented and by whom, and who pays the mortgage or rent. The court will also want to know what your housing needs are, for example where you have children to look after.
In short, provide the court with as much relevant evidence as you can, to explain why you need the occupation order.
You may be able to obtain legal aid to cover the legal costs involved in applying for non-molestation and occupation orders.
To obtain legal aid you will need to provide the Legal Aid Agency with written evidence of the domestic abuse.
The evidence can come from one or more of various specified sources, such as: the court, where a previous domestic abuse order has been made, the court has made a finding of domestic abuse against the abuser or where the abuser has been convicted of a domestic violence offence; the police, where they have had dealings with the abuser such as arresting or cautioning them for a domestic violence offence; or a doctor, where they have examined you and found that you have suffered injuries consistent with being a victim of domestic violence.
We can provide you with full details of the types of evidence needed to obtain legal aid. To get in touch with us, click the link on this page.
If you are the victim of domestic abuse you should seek expert legal advice as soon as possible. We can provide you with that advice.
For more information about our domestic abuse services, and how to get in touch, see this page.
Parental responsibility is a term that often crops up in family law-related discussions. Parent-child relationships are often valued, despite common misunderstandings about their nature and significance. Often someone in such a relationship will apply to the court for a child arrangements order. But does a child arrangements order give parental responsibility for the child (assuming they did not have it already)?
Before we answer that question we should first remind ourselves exactly what parental responsibility is, and who gets it automatically.
We will also look at just what a child arrangements order is.
As mentioned above, the concept of parental responsibility is often misunderstood.
In particular, it is commonly mixed up with the concept of ‘parental rights’ over the child.
In fact, that concept was largely done away with when the Children Act 1989 was passed, replacing it with the concept of parental responsibility.
The Act defines parental responsibility as: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
This definition is not particularly helpful, as it doesn’t include a list of ‘parental responsibilities’. The decision to not list all ‘parental responsibilities’ in the Act was a positive decision.
But we can give a few examples: the responsibility to maintain the child, the responsibility to ensure that the child is educated, and the responsibility to ensure that the child receives appropriate medical treatment are important ones.
In general, parental responsibility means the legal right and responsibility to make important decisions about a child’s upbringing.
Certain people do not have to do anything to acquire parental responsibility – they acquire it automatically.
All mothers acquire parental responsibility automatically, as do fathers if they are married to the mother.
Unmarried fathers do not acquire parental responsibility automatically, but will if they are named as the father on the child’s birth certificate, or if the mother agrees to them having parental responsibility, and a parental responsibility agreement is signed.
A child arrangements order is not a parental responsibility order.
A child arrangements order determines where a child should live and their contact arrangements with others.
There are therefore two types of child arrangements order: one that states who the child should live with, and one stating what contact the child should have with anyone else.
The difference between the two is important for parental responsibility, as we will see now.
The rules relating to this are slightly complicated, but we will simplify them and set out the most important parts.
If a father does not already have parental responsibility and the court makes a child arrangements order stating that the child will live with them then the court must also make an order giving them parental responsibility.
If a father does not already have parental responsibility and the court makes a child arrangements order stating that the child should have contact with them then the court must decide whether it would be appropriate to also make an order giving them parental responsibility.
Lastly, if the court makes a child arrangements order stating that the child is to live with anyone who is not a parent or guardian of the child, that person will have parental responsibility for the child while the order remains in force.
For more information about child arrangements and how we can help, see this page.
We are proud to announce that Walker Family Law has been shortlisted for the Law Firm of the Year award by the Devon and Somerset Law Society (DASLS).
This nomination highlights the firm’s commitment to excellence and unwavering dedication to great client service. Being shortlisted for this respected award is a testament to the team’s consistent efforts.
“Walker Family Law is honoured to be shortlisted for the DASLS Law Firm of the Year award,” said Ian Walker, Managing Director at Walker Family Law. “This recognition reflects the firm’s ongoing dedication to providing exceptional legal services and exceeding client expectations.”
The DASLS Law Firm of the Year award honours committed law firms across the South West and we are thrilled to be among the finalists and look forward to attending the ceremony.
“Walker Family Law thanks DASLS for this nomination and to its clients for their ongoing support and trust,” added Fiona, Head of Divorce & Relationships Team at Walker Family Law.
The winners of the award will be announced at the awards ceremony on the 20th June 2024 at the University of Exeter.
On the 6th of April 2022 divorce law in England and Wales changed forever. Gone was the necessity to attribute blame for the breakdown of the marriage, and in came a modern no-fault divorce system.
It was the most radical change to divorce law in England and Wales since the civil courts were first able to grant divorces in 1858.
Two years on, we look at the effect of the change.
In particular, we ask four questions: Has no-fault divorce led to more couples getting divorced? How has the new possibility of couples jointly applying for the divorce worked out? Has the removal of fault from divorce led to more couples settling matters relating to children and finances by agreement? And: Has it led to fewer couples getting married?
A major objection to the introduction of no-fault divorce was that it would make divorce easier and therefore lead to a flood of couples getting divorced rather than trying to save their marriages, and a permanent increase in the divorce rate.
During the legislation process in the Lords, the Bishop of Carlisle voiced a typical concern, stating:
“Reducing divorce to a statement made by one party that the marriage has broken down undermines the seriousness with which marriage and divorce are regarded … What is more, studies suggest that making divorce quicker and easier will significantly increase the already high divorce rate, with all the implications that has both for human misery and financial cost.”
So have these fears materialised?
To answer this we will look at the latest available statistics for the Family Court (the latest divorce statistics are for 2022, and therefore do not cover a full year under the new regime). The statistics cover the quarter October to December 2023, but also include earlier figures.
The statistics show that there were 23,517 divorce and civil partnership dissolution applications in that quarter, which was actually down from the same quarter in the previous year, when the figure was 25,636.
And the figures for 2021, the last full year under the old divorce regime, were actually pretty similar to the figures for 2023.
In short, there seems to be no evidence yet that no-fault divorce has led to more couples getting divorced.
The new system of no-fault divorce introduced for the first time the possibility of a couple jointly applying for the divorce.
It was hoped that a large proportion of divorcing couples would make joint applications, thereby making divorce more amicable.
So how many couples have chosen this route?
The latest Family Court statistics show that in the quarter October to December 2023 25% of divorce applications were made jointly.
This may be rather lower than some had hoped, but it is not an unreasonable ‘return’, and it may yet be that more applications will be made jointly in future, as the possibility becomes more widely known.
One of the biggest arguments in favour of no-fault divorce was that it would reduce animosity between divorcing couples, by removing the need for one party to blame the other for the breakdown of the marriage. This, it was hoped, would lead to more couples settling arrangements for children and finances by agreement, rather than having to go through contested court proceedings.
Has this hope been realised?
Once again we will look to the Family Court statistics for the answer.
As to court applications relating to children, 54,652 were made in 2021, the last full year of the old divorce regime, whereas in 2023 this dropped to 50,789.
But as to financial remedies, there were 12,446 contested applications in 2021, compared to 12,910 in 2023.
So the answer thus far is somewhat inconclusive.
Another fear of the opponents of no-fault divorce was that it would undermine the institution of marriage, thereby leading to fewer couples getting married, and more couples choosing simply to cohabit, which it is feared is a less secure form of relationship, particularly for any children.
This comment of Fiona Bruce MP when the new legislation was debated in the House of Commons is typical. She said:
“People will marry less due to the low expectation of permanence in marriage, and they will cohabit more as the distinction between the two is eroded and what marriage really means becomes confused: no longer “till death us do part”, but “until I give you six months’ notice to quit, with no reason given.””
Unfortunately, we will have to wait to see whether Mrs Bruce’s fears will be borne out, as statistics for marriages in England and Wales since April 2022 are not yet available.
The latest published marriage statistics are for 2020, and they showed that the number of marriages that year was the lowest on record since 1838. Marriage appears to already be in decline, and whether no-fault divorce has hastened the decline, only time will tell.
For more information about divorce and separation and how we can help, see this page.
We are thrilled to announce the launch of our new Divorce Support Club podcast.
The Divorce Support Club, hosted by Claire Macklin – Divorce Support Coach, and our team of solicitors that take turns in hosting the sessions each month, aims to provide subscribers with valuable advice and support on different aspects of divorce. Each session is filled with tips from Claire and advice (legal and general) from the solicitor hosting that month. The Divorce Support Club also welcomes expert guest speakers throughout the year, to give detailed, expert advice on varying topics such as pensions, well-being and building confidence post separation.
“We’re excited to widen our community with the launch of our podcast” said Fiona, head of the divorce team and host of the Divorce Support Club. “Divorce can be a challenging journey in so many ways, and our goal is to provide a support network and valuable resources to help people to navigate their life during and after divorce.”
The Divorce Support Club visits a wide range of topics in relation to divorce including planning your future, supporting your children, self-care tips and more. It is a completely free service and subscribers are anonymous to one another.
The aim behind launching the podcast is to make the Divorce Support Club more accessible. If subscribers don’t have time to attend the live sessions or they need to be able to listen on the go, the podcast is an ideal alternative from the live webinar or the YouTube upload. Subscribers can simply press play, pop their phone in their pocket, and get advice whilst carrying on with their day.
To listen to the podcast, visit our Spotify channel. Episodes are released each month, a few days after the live session.
To subscribe to the Divorce Support Club and gain access to the full resources, please sign up here.
