Shared parenting – a move in the right direction?

On 17th June 2011 the Shared Parenting Orders Bill will receive its second reading in the House of Commons.

When, a child’s residence, formerly known as ‘custody,’ cannot be agreed by his/her parents, it will be determined by the Court. The Courts are governed by the Children Act 1989 and, whilst the Court’s paramount consideration is the welfare of the child, it will take into consideration various other factors to determine with which parent a child shall live including the child’s wishes and feelings, the capability of the parents to meet his/her needs and any harm the child has suffered or is at risk of suffering. The Court does have the option to make a shared residence order where a child spends significant periods of time with each parent but typically, where a child’s place of residence is in dispute, the Court will be asked to specify with which parent the child shall live and, often, the level of contact s/he shall have with the non-resident parent. The Shared Parenting bill is seeking to change the way in which the Courts consider the arrangements for children.

The Bill was initially presented on 13th July 2010. The purpose of the proposed legislation is to ensure that, wherever possible, children benefit from the full involvement of both parents in their upbringing. A “shared parenting order” means an order providing for both parents to have a full involvement in the upbringing of a child particularly in respect of major long-term issues, and requiring that the child must spend a substantial and significant amount of time with both parents. This is to be distinguished from a shared residence order.
The presumption of shared parenting has been considered by the Family Justice Review in their interim report dated 31st March 2011. The Panel comments that currently the Court follows case law which sets out that it is almost always in the interests of a child whose parents are separated that he or she should have contact with the parent with whom the child is not living (Re P (Contact: Supervision) [1996] 2 FLR 314). The Court will only depart from this presumption where the potential for harm to the child outweighs the benefit of parental contact.

Shared parenting legislation is increasingly common elsewhere in the world. Australia, France, Denmark, Belgium and a number of US states are examples. However, the Family Justice Review Panel considered evidence from Australia and Sweden in particular about the harm caused to children resulting from the conflict between parents where the legislation has created a presumption of shared time. It concluded that these countries have experienced difficulties in interpreting and implementing the legislation which goes against the aim of family lawyers and policy makers to keep disputes regarding children away from the Courts.

As a result of this evidence, the panel has concluded that no legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents. It is recommended that the existing legislation should be amended to include a general statement of intent, to reinforce the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.

There are concerns that to adopt such a broad-brush approach will remove the current case-by-case approach which is tailored to the individual needs of the child. A presumption of shared parenting could move away from the current role of the Courts to make decisions in the best interests of children and may favour the best interests of the parents.

Sophie Key at Rogers & Norton comments " the principles of shared parenting would be beneficial to many families. That said, applying the presumption to all families could be detrimental to the welfare of some children – no two cases are the same, and the current legislation providing for every case to be considered on their individual factors is a much safer option. "

Whether the proposed shared parenting legislation comes into force remains to be seen but it would appear that the fight for children to have an equal relationship with both parents is as strong as ever.

Should you wish for any further information or advice on Children matters please contact Sophie Key on sok@rogers-norton.co.uk or 01603 675666.

Lone Workers Seminars

May has been a busy month for Phil Kerridge as he presented two seminars on the Legal Implications of Employing Lone Workers on successive nights.  Firstly, Phil took part in a seminar that was co – presented with OneStream, Sitex Orbis and NORCAS at the Forum in Norwich.  The seminar examined an Employer’s general legal obligations towards employees who work alone.

The following night Phil made a presentation on the same subject to the Norfolk Association of Estate Agents at their branch meeting, which took place at Dunston Hall.  On this occasion, the seminar was particularly focussed on the risks facing the Estate Agency industry.

Phil would be happy to speak to anybody who missed either of the above events but would like to discuss the possible ramifications of this issue for their business. He can be contacted on 01603 675603 or alternatively at pnk@rogers-norton.co.uk.









The importance of file notes for Surveyors and other professionals

John Cadywould, partner in the firm's Commercial Dispute Resolution team, was recently invited to give a keynote presentation to the annual conference of the national agents/surveyors Brown & Co. The presentation focused on the practical importance for all professional advisors on keeping a proper written record of instructions received and advice given and in particular its relevance in the context of disputes arising between the professional and his client over the service or advice provided.



John Cadywould



When things go wrong between professional and client and a complaint or claim for professional negligence arises, then file notes become of crucial significance in the Court’s weighing of conflicting evidence of what was really said or done.  Using examples from his experience and the reported cases John provided guidance to the delegates upon what he would recommend as best practice and took a number of questions on the practical and legal issues which can arise.  John has many years’ experience and recognised expertise in a wide range of commercial dispute resolution and was ideally placed to provide the delegates with the benefit of his experience.

The presentation was part of Rogers & Norton’s ongoing commitment to offering clients and contacts practical legal guidance and added value business advice.

For more information please contact John Cadywould on 01603 675603 or email jbc@rogers-norton.co.uk.

New Family Law Rules

New Rules!

I hear you all ask what are the New Rules all about?

They are a reform which represents one of the most significant developments in Family Courts for years.

The theory is that the introduction of the new Family Procedure Rules 2010 (SI 2010 No 2955), which have effect from 6 April 2011, will provide a unified procedural code for family proceedings in the High Court, county courts and magistrates’ courts. The New Rules will replace all the existing rules and create a comprehensive and accessible source for all who come into contact with the family justice system. The majority of forms used in family proceedings have also been revised, many have been given a fresh look and tick box options are appearing on most forms. This will make the forms quicker to complete but complete with caution to ensure your tick does not end up in the wrong box!!

In practice the launch of the new rules are a minefield for family Practioners who have not been given access to all the new forms. Further, across the country County and Magistrate Courts are adopting their own policies as to when they will be enforcing the New Rules. This may be due to the fact that some Judges have been unable to enrol on courses concerning the new rules until later this year.
The previous rules should continue to be applied to proceedings that were commenced before 6th April 2011 but the first time on or after 6th April 2011 proceedings come before a Court the Court may direct how the Family Procedure Rules apply or disapply. The general presumption therefore for Family practitioners will be that the Family Proceedings Rules apply unless the Court directs otherwise under Practice Direction 36A.
The rules should not have a great impact on clients save for the introduction of the mandatory mediation assessments before making any application to the Court for disputes concerning children or finances.
The New Rules are structured to ensure that family court proceedings have a uniformed ethos relating to the form on which applications are made, timescales, costs, enforcement, and how evidence should be presented. These are just a few of the areas covered in the rules. The New Rules have also been written in a manner which is intended to be easier to decipher with less Latin terminology. Also, phrases such as an Ancillary Relief application have disappeared, now referred to as a Financial Order Application. The Divorce Petition is now called a Divorce/Dissolution/(judicial) separation Petition and Divorce Proceedings are referred to as an Application in Matrimonial Proceedings. The Family Proceedings Rules refer to applications and Petitions rather than Divorce like the Matrimonial Cause Act 1973. However, phrases such as Decree Nisi and Decree Absolute remain in the New Rules.
In conclusion, Family Practitioners know what to expect but can give no guarantees how the new rules will be enforced or accepted by different regional Courts!
For more information please contact Amy Walpole, Partner & Head of our family law department.

Are you ready for Mandatory Mediation from the 6th April?

The Government has radically reformed the Family Law system to encourage people to take advantage of alternative sources of help and advice to resolve matters without involving expensive lawyers or Courts.

From 6 April 2011 new Court Rules makes it mandatory for separating and divorcing Couples to attend a Mediation Assessment meeting before making an application to Court, in relation to disputes regarding children and financial issues.

The Government's introduction of compulsory mediation awareness meetings means that no person can apply to the Court to seek the help of the Court to resolve their issues, unless they have attended a Mediation Assessment. There are of course exceptions in cases involving domestic abuse or child protection issues. Further, if mediation is not a workable option, for example one party refuses to take part in it; the case can still proceed to Court. If you have no issues to resolve and simply want to divorce and can reach a financial agreement without the intervention of formal Court proceedings, then you do not need to attend a Mediation Awareness meeting.

The thought process behind the introduction of these meetings is that in the longer term, successful mediation is more often than not cheaper and quicker than negotiations through solicitors or the Court process. Thus, this system ensures that this process is always considered before clients embark on an application to the Court.

However, in some regions there is a shortage of qualified mediators and one has to wonder if the Government has considered the impact of compulsory referrals to mediation on mediators - is the increased intake of referrals going to increase delays for clients?

Amy Walpole, Head of the Family Team at Rogers & Norton Solicitors comments “generally, all Resolution family solicitors will aim to achieve an agreed solution through negotiation and discussion because we all recognise that going to Court is stressful and expensive for our clients. Mediation and collaborative law are additional options which I always discuss with clients. However, these options are not suitable to all clients and reaching an agreement is not always possible without Court intervention. It is questionable whether these clients should then be forced to attend a Mediation Assessment which could delay proceedings and allow tension to increase between the parties. This is a controversial subject and there are swings and roundabouts depending on your client interest and needs. “

Some clients are apprehensive about engaging in the Mediation process as a mediator can provide information to the parties but not legal advice. This ensures that the Mediator remains neutral, and this is why people are encouraged to seek background support and advice from their independent solicitors during and at the conclusion of the mediation process.

If Mediation is not appropriate some people may wish to consider engaging in the Collaborative Law Process which allows a client to benefit from open negotiations by way of 4 way meetings with their partner or spouse and their legal representative. With the Collaborative approach both clients also benefit from receiving independent legal advice throughout the process.

For for information please contact Amy Walpole.

Breaking News from R&N

Promotions as Rogers and Norton strengthens team

 

Partner Amy Walpole has been promoted to head of the firm's family department.  Amy joined the firm in 2002 and qualified as a solicitor in 2003 before becoming a partner of the practice three years ago.  Amy is highly experienced in advising clients on divorce, separation and ancillary relief matters. 

amy.walpole@rogers-norton.co.uk

 

Tom Lawrence, previously an associate with the firm, has become a partner and head of the wills and probate department. Tom joined Rogers & Norton four years ago and specialises in wills, trusts, administration of estates and powers of attorney.  The 2009 edition of the Legal 500 praised him for having “built a reputation for high quality and attentive service”.

tom.lawrence@rogers-norton.co.uk

Managing partner Richard Etheridge said: “We are delighted to announce these two promotions at Rogers & Norton because we attach great importance to nurturing and rewarding talent within our expert team.  Tom and Amy have proved to be industrious, committed and highly able solicitors who we believe will play key roles in the future development and direction of our firm.” 

Founded in 1982, Rogers & Norton has grown from two partners to 12 partners and now has more than 60 fee-earners and support staff. The firm is based in The Old Chapel, Willow Lane, Norwich. 

For further information please contact Amy Walpole on 01603 675604 or Tom Lawrence on 01603 675610.  

www.rogers-norton.co.uk

Rogers and Norton host Bribery Act seminar

Rogers & Norton's Commercial Teams held a workshop on The Bribery Act 2010 at its office on 9 February 2011. 

The Act was due to come into force on 1st April 2011 but has been suspended until 2012. However, speakers Peter Hastings and Lauren Coleman explained to the appreciative audience that the changes due will affect many clients and introducers in the everyday running of their business, with tough penalties such as unlimited fines and imprisonment for business owners and directors found guilty of bribery offences being introduced.  Peter added "Ignorance will be no defence - directors will still be liable and must have demonstrable, active anti-bribery and anti-corruption policies and procedures in place. " Lauren advised the audience that "commercial organisations must incorporate anti-corruption elements into their code of conduct, risk management, due diligence, decision making, procurement and contract management, employee vetting and disciplinary procedures. The organisation must ensure relevant staff are appropriately trained in these areas. Organisations should establish gifts and hospitality policies and registers".

One of the attendees commented " Thank you for last night's presentation which answered several questions that are likely to arise in the various worlds that I work in. It gave a clear idea of the consequences of not having procedures and policies in place - so, as part of the ISO9001 quality system ,that I work on I shall be drafting some policies for my MD to look at as a matter of some urgency.Thank you for arranging the event".

The firm will be organising a series of workshops for businesses and directors and private clients, and also aimed at particular sectors including the construction and healthcare sectors.