Family law terms explained
In this episode, Catriona Attride is joined by Vanessa Gardiner who provides insight into the legal terminology often used in family law, focusing on divorce, financial matters and children matters.
Listen to our latest episode:
In this episode:
- We define the key terminology used in divorce proceedings including the terms 'divorce' and 'dissolution'.
- An overview of the 5 legal reasons for divorce.
- An explanation to why financial matters need to be dealt with within the divorce proceedings.
- We define prenuptial and postnuptial agreements.
- We define some of the key terminology used in children's law.
- We outline the key aspects of the Children's Act.
- We define parental responsibility.
Subscribe to the podcast series
This episode is part of our Talking family and wealth podcast series. Learn more about the series and what we cover. This podcast is available on iTunes, Spotify and Soundcloud.
Read the transcript:
Catriona Attride: Welcome to Talking Family and Wealth, your straight-talking guide to dealing with matters that are at the heart of the family in terms of planning for the future and protecting assets and resolving difficulties that might arise in family relationships. My name is Catriona Attride, and I am a private client lawyer with over 20 years' experience supporting clients in their estates and tax planning. In each episode, I'll be joined by an expert, and together we'll lift the lid on how best to handle everything from inheritance to divorce. Along the way, we'll share some of the situations we've encountered, some good, some bad, and many ugly, but all useful in helping you to protect your family and wealth.
Catriona Attride: Welcome to another edition of Talking Family and Wealth. Today, I'm joined by Vanessa Gardiner, who is Legal Director in our family team, to debunk some of the confusion around legal terms. I think most people would agree that when they instruct a lawyer, they can feel a bit like we speak another language with all the legal terms flying around, and particularly when you're going through a relationship breakdown, that can probably feel quite overwhelming. I think whilst we've considered that we're very good at cutting through all of that and giving clear explanations to clients, we do acknowledge that some of the terminology probably is a little bit daunting. So, today, Vanessa is going to talk to us about three main categories of terminology and what's meant within them, and they are divorce, financial matters, and children matters. So welcome, Vanessa. How are you?
Vanessa Gardiner: I'm fine, thank you. Good to be here.
Catriona Attride: Good. Great. So do you want to start by telling us the basics, I suppose, in terms of what does the term divorce and dissolution mean when we talk about the ending of a marriage?
Vanessa Gardiner: So going right back to basics for you, the term divorce and dissolution, these are simply the names of the legal processes which bring about the legal end to a marriage or a civil partnership.
Catriona Attride: Okay, that's fairly clear, isn't it? So explain a bit about the divorce process and what's the first stage of getting that going?
Vanessa Gardiner: So you have a petitioner or an applicant, and this is the person that is going to start the divorce proceedings, and they will prepare a divorce petition, which gets sent to a divorce centre. Now, a divorce petition, this is the first document, pretty commonly heard of, and it's prepared within the divorce proceedings by the petitioner to commence the divorce proceedings. This is the document where you are going to state that the marriage has irretrievably broken down and when you're going to give one of the five legal reasons to prove that the marriage has broken down. So it's the first stage, the first document, that you're going to be asked to prepare in the divorce proceedings.
Catriona Attride: Okay. And so you said that there are five legal reasons to prove the breakdown. What are they?
Vanessa Gardiner: So, again, these are some of the things you may have heard of but might not be clear about what they are. You have unreasonable behaviour or adultery of the respondent, and the respondent is the person who is receiving the divorce petition and is the person who is technically being divorced. Unreasonable behaviour, the best way to describe this is ... This is what I say to clients, is think about making a list of all the things that your spouse does that you really dislike, that you find incredibly annoying, possibly illegal in some circumstances. You can give a range from small actions or behaviours to sometimes quite substantial allegations. They can be abuse or neglect. So unreasonable behaviour is discretionary. It's subjective to the person who is describing the behaviour. It's how if you think it's unreasonable, then it's unreasonable. There's no objective test to it. Then you have adultery, and this is very clearly defined as sexual intercourse with a person of the opposite sex. And then you have-
Catriona Attride: Oh, really? So you can't have same-sex adultery?
Vanessa Gardiner: No, you can't. It has to be sexual intercourse that's proven or admitted with a person of the opposite sex.
Catriona Attride: Oh, okay. That's interesting.
Vanessa Gardiner: It's not a reason for divorce in gay marriage or civil partnerships.
Catriona Attride: Okay. Thank you for clearing that up. I think that will come as a surprise to people.
Vanessa Gardiner: Yeah, it normally does, actually, when you explain that. The other ones which you've got are, well, slightly acrimonious. You have two years or five years of acknowledged separation, so two years with consent that you agree after two years you'll divorce with two years' separation or five years. It just has to be accepted that there's been separated for a period of five years. Sorry, separation is living separately but can also be apart within the same household, which, again, a lot of people aren't aware of.
Catriona Attride: So, again, you could have a situation where perhaps you can't afford to run two homes but you can live separate lives within the family home. So I suppose as long as you've got separate bedrooms, you do your own laundry, your own cooking, that sort of thing?
Vanessa Gardiner: Absolutely, and you can be asked ... I think, in the application for decree nisi, there is a question. If you have put two years' separation in the same household, you have to give examples of how you are living independently of each other, exactly, not sharing a bed, not even really supposed to be sharing meals, yeah, doing the other person's laundry, anything like that. You are supposed to live separately of each other, flatmates, almost.
Catriona Attride: Yeah, absolutely.
Vanessa Gardiner: And the final one ... Sorry.
Catriona Attride: No, go on.
Vanessa Gardiner: Sorry. The final ... Sorry, goodness. The final legal reason would be desertion, which is quite rare. I have done it once. However, best described as your spouse goes out for a pint of milk and just literally never comes back.
Catriona Attride: So you said you've done it once. What was the situation?
Vanessa Gardiner: It was my husband who said he was going shopping and then he never came back.
Catriona Attride: Oh, that was the actual case? Oh, my word.
Vanessa Gardiner: That was the actual case, and when she tried to contact him, he said, "Oh, yeah, I've left you. I'm just staying with a friend." We actually did the divorce proceedings on the basis of desertion. They barely saw each other ever again.
Catriona Attride: Wow.
Vanessa Gardiner: Extremely rare and unusual and upsetting, but it actually does happen.
Catriona Attride: Yeah. Gosh, that's extraordinary, isn't it?
Vanessa Gardiner: Yeah.
Catriona Attride: So once the divorce petition's been sent to the court, what happens next?
Vanessa Gardiner: Okay. So the respondent, they receive the divorce petition directly from the divorce centre, and a document is also sent to them called an acknowledgement of service form. This is very much what it says on the tin. The respondent is given the opportunity to comment and acknowledge that they've received the divorce petition, and if they wish to, they can respond to some or all of the allegations, or they can simply acknowledge that they've received it and read it but they don't agree with what's being said. You can complete it, really the bare minimum, and just send it back to the court. The important thing with an acknowledgement of service form is that the petitioner has to show the court, the divorce centre, that the respondent has received the petition and is aware of the divorce proceedings. So the real purpose of the document is to ensure that that statuary criteria has been met, but it does give the respondent receiving the petition an opportunity, if they want to, to comment. Most people actually don't. They just say, "I don't accept them, but it can go ahead." Some people take issue if serious allegations have been made.
Catriona Attride: Because I suppose you must have situations where people are outlining their version of unreasonable behaviour and the other party doesn't agree with them. I suppose that would be the opportunity for them to come up against it and say, "No, I don't agree."
Vanessa Gardiner: Absolutely. So I do sometimes do a response with the acknowledgement of service to the allegations if I think there's a risk of them being brought up in other proceedings, perhaps children proceedings or in financial proceedings if there's some kind of misconduct being alleged. That's more of a tactic for protection later down the line. Some people, they just want to feel like they've had their say. If something unpleasant has been said about them, they feel the need to defend themselves, which you can do without necessarily defending the divorce proceedings themselves and saying you don't want to get divorced. You just don't agree with it, and you just want to have a bit of a say about what's been said about you.
Catriona Attride: Yeah. And I suppose because our divorce system is no-fault, the court actually doesn't really care about the versions of the story, do they? So like you say, you might use it as a tactic because it might have ramifications in the children or financial proceedings. But in the court of the divorce, actually, it doesn't matter really, does it, who's to blame?
Vanessa Gardiner: It real-
Catriona Attride: We don't work on blame.
Vanessa Gardiner: No. It really doesn't matter, and that's something we do explain to our clients particularly, and sometimes we try to explain it to the other side as well if they're actually in person, that the divorce proceedings are really a vehicle to enable the marriage to be brought to an end, and they're a means to an end and trying not to get too wrapped up in what is being said and what is being done because some clients, you have to say something. If you've not been separated and there's no adultery, then you have to use unreasonable behaviour and you have to come up with something, whether you like it or not. So it is trying not to get too wrapped up in it unless there's a tactical reason to respond. Normally, that's the reason we're doing it, and if people are unrepresented, sometimes they don't really understand that and they want to respond, which is fine, as long as it doesn't actually disrupt the divorce proceedings and they're not actually defending the divorce proceedings, which is an entirely different new process to go into.
Catriona Attride: So you've just got to be careful with that, haven't you?
Vanessa Gardiner: Yes, it's a bit of a fine line.
Catriona Attride: Yeah. So once you've got the acknowledgement of service, what's the next step there?
Vanessa Gardiner: So the next step, once the acknowledgement of service has gone back to the court and we've seen a copy of it, is to prepare the application for decree nisi. The term decree nisi is something a lot of people have heard and, probably slightly misled by newspapers and the media, tend to think that that's when they're divorced, and it really isn't. You are still married. The decree nisi is an important court document. It means the court official has now reviewed the divorce petition and the acknowledgement of service form and they've decided that the petitioner has complied with all the court rules and all the statutory requirements. They're basically sealing it to say, "We will now allow you to proceed in due course to make your application for decree absolute." But at this point in time, you are still married, and you are not divorced, and, also, there is no such thing as a quickie divorce, which everybody seems to think as well. Everybody goes through the same process, and it basically takes the same amount of time.
Vanessa Gardiner: So you're absolutely right, the next stage is to move on in the divorce proceedings and for the petitioner to make the application for decree absolute. Now, you cannot do that until you have your decree nisi, and you have to wait six weeks and a day from when the decree nisi order is made until you can make your decree absolute application. When the courts receive the application for the decree absolute, it is very much at this point an administrative process. They already know the decree nisi has been granted, so they're going to seal it and it's going to be sent out to all the parties. It is only at this very important stage where the decree absolute is made by the court that you are divorced.
Catriona Attride: So it's kind of like the green light. Then the nisi is the orange, and the absolute is the green light to go.
Yeah, absolutely. So-
Catriona Attride: And is there a reason why you don't apply for the absolute within the six weeks and a day? Is there a reason why you might wait a bit longer to get your absolute?
Vanessa Gardiner: Well, interestingly, it's a statutory criteria. It's a statutory requirement. You have to wait six weeks and a day. It's really, really old-fashioned, and the pause is to just make sure you're absolutely confident that you want to do it. It's like a little circuit-breaker. But your solicitor will say to you at the end of that six weeks and a day, "Do you want to apply for the decree absolute?" But they will also advise you not to do so if you haven't yet got your financial settlement agreed with your ex-spouse because you can financially prejudice yourself in different ways if you haven't reached your financial agreement and it might not be in your interest to actually be divorced yet. Usually, you would be advised to wait for that financial settlement to be put into a court order, hopefully by agreement, and then apply for the decree absolute. So there may be a longer pause than the six weeks and a day, but it will be in your interest, and you will be advised why you should do that.
Catriona Attride: Okay. Maybe we now look at the financial matters.
Vanessa Gardiner: Sure.
Catriona Attride: Why do financial matters need to be dealt with within the divorce proceedings?
Vanessa Gardiner: So when you get married, and this is something, really, a lot of people are not aware of ... When you get married, you both acquire the right to make financial claims against each other within divorce proceedings. This is in statute. If you do not come to a financial agreement as to how to deal with those assets and income of the marriage, you can lose the right to then seek financial remedies from your ex-husband or ex-wife once the decree absolute is made and if you are to remarry. So you can only get a legally binding full and financial agreement through the court by obtaining a consent order or a financial remedy order if you go into litigation.
Catriona Attride: And this is why, I suppose, spouses are advised to prepare financial disclosure before they negotiate a financial settlement?
Vanessa Gardiner: Absolutely. A lot of people will come and say, "Well, I've been told I need to do a financial statement or I have to give him all of my financial information." We call that the financial disclosure process and your solicitor will want you to do this with your spouse. We will prepare for you a document called a Form E. It is a financial statement. It's a document which the court uses but, actually, we find extremely helpful for voluntary negotiations for presenting financial information in a clear and consistent and logical manner. Financial disclosure will include information and documentation which will show us what capital assets there are, so capital savings, investments, bank accounts, pension funds, also properties, valuations, and income that you have and how much they're worth.
Vanessa Gardiner: Your solicitor needs to know this and needs to know this in respect of you and your spouse to quantify what you've got. Once they know what you have and what you've got, they can assess what your needs are, so your housing needs, your living expenses, how much of a pension fund you might need in retirement. Then they can give you advice, based on your circumstances, based on your needs, as to what would be an appropriate financial settlement for you. That's the important thing, is your solicitor is advising you, not your other spouse. They're going to try and look for a balance, but they're always going to look at what's in the best interest of you.
Catriona Attride: And what do you do if you feel that the information that's been put on the form by your spouse isn't accurate? Perhaps they've missed some things off. Is there anything that they can do?
Vanessa Gardiner: Absolutely. So whether you're in court litigation or whether you're negotiating voluntarily, which is between solicitors, possibly through mediation, or even directly, you can raise questions. If I see a Form E, I'll go through it, I'll go through all the bank statements, I'll go through all the documents. If there are inconsistencies or maybe there are transfers which are into an account that I don't have documents for or large sums of money the client thinks are missing or pension funds that don't seem worth as much as they thought they might be, then we will raise a questionnaire, and we'll say very specifically, "Can you please explain this? Can you provide an up-to-date valuation for this? This doesn't look right. Can you explain how you've got to these figures?" It's completely legitimate to raise a questionnaire and to seek further information or further documentation. This is something that is commonly done because just because someone fills out a Form E, it doesn't necessarily mean it's complete, and you are entitled to have all the information that should be available to you.
Catriona Attride: Okay. So going back to the terminology, we hear sometimes the phrase consent order being mentioned. What's a consent order?
Vanessa Gardiner: This is certainly something that causes quite a lot of confusion. When spouses are getting divorced, they're going to be advised to negotiate a financial settlement, hopefully through their solicitors, about dividing up the assets. Once they have done that, once you've agreed exactly what's going to be divided between you, is the house going to be sold or is it going to be transferred or will there be a pension share, that information is drafted up into a written financial agreement which we call a consent order. That consent order is then signed by both parties, dated, and it will be sent to the court on paper for a judge to review, consider, and hopefully approve.
Catriona Attride: So how does that differ from a financial remedy court order?
Vanessa Gardiner: If you can't agree between you or with legal assistance what agreement you're going to have in regard to your finances, then you might be advised to make a court application. Within those court proceedings, eventually, you may end up at a final hearing, when the court makes a decision for you about how your assets and income are going to be divided. They will then prepare a financial remedy court order. Essentially, whether the court approves a consent order or the court makes an order of their own judgment, the consequences are the same. They're both legally-binding, enforceable documents. They're essentially the same. It's a written financial settlement. It's that one is imposed by the court and one is agreed voluntarily between the parties.
Catriona Attride: Okay, thank you. So if someone does make a court application, are there different types of court hearings which they may have to attend, or is everything done on paper?
Vanessa Gardiner: You may speak to friends or families and they'll say, "I had to go to court. I had to attend a hearing." It is possible that they have had to attend up to three court hearings, and when you make an application for a financial remedy order, the court is going to set down a timetable and there are going to be three potential court hearings which could take place. The first one, a first directions appointment, this is a procedure or hearing which, basically, you use, with the help of a judge, to decide what information is still needed, what actions are still taken. Maybe you need expert advice or a business valuation report or questions still need to be answered on a questionnaire. The procedural hearing enables you to deal with the administrative matters, really. It's generally quite short. The outcome of it is that you will then go to another court hearing that's going to be set down with a list of actions to take between now and the next court hearing.
Catriona Attride: So it's a bit of a to-do list?
Vanessa Gardiner: Yes, very much so, and, normally, quite a disappointment for everybody who-
Catriona Attride: Yeah, quite an anticlimax.
Vanessa Gardiner: ... isn't a lawyer. Yeah, a huge anticlimax because no matter how many times you say it, people still kind of hope or think that this might resolve all their problems, and-
Catriona Attride: It's their day in court.
Vanessa Gardiner: Yes, and, sadly, it's really an anticlimax because it is just lawyers going, "Right, what needs to be done, and when are you going to do that by, and what's the timeframe, and who's going to do it?" It is very much administrative, and then we move on to I would like to say more exciting but more involved and more progressive hearings later on.
Catriona Attride: So what's the second one then?
Vanessa Gardiner: The second hearing and this actually is where the majority of our cases will settle by way of an agreement at court, is a financial dispute resolution hearing. This hearing is used mainly for negotiation purposes, so your barrister or your solicitor will stand up and basically give submissions as to what your case is and what you think the proposals for settlement should be. The respondent or your ex-spouse's representation is going to stand up in front of the judge and say what they think settlement should be. The judge is going to read the documents, listen to what they've heard, and then they're going to say, "I think that this" ... Either a., "I think this is the right answer," sometimes, they're quite specific. Other times, they might say, "I think you're too high, you're too low. I think that argument is not going to get you anywhere, and I would consider not pursuing that any further. That, I think, is a document that everybody needs to say," and, basically, give you guidance that, on the day, you hope to use to negotiate a settlement.
Vanessa Gardiner: It's a prompt. It's somebody giving you judicial direction, "If I was making the decision today, I think I would do this," in order to break deadlock, circuit-breakers, hopefully, get people past obstacles that are stopping them from negotiating more productively. These are usually very involved, long days, but, hopefully, at the end of it ... I would probably say about 70 to 80% of cases will settle at a FDR, which is the financial dispute resolution hearing.
Catriona Attride: And so I suppose what it's quite good at is, although it's not a binding decision by a judge if someone is a bit entrenched in their views and a judge is saying, "Well, if you came in front of me, I probably would say this," it probably gives the weight that that person needs to shift a little bit.
Vanessa Gardiner: Exactly, exactly, because parties can become entrenched. Sometimes, you just need somebody who's completely independent and neutral to look at the papers and say, "I see what you're saying, but the case still doesn't support that," or, "I see what you're saying, but, actually, in this case, I just think you've gone too far," or, "I think that" ... Sometimes, they will say, "Actually, I feel really comfortable with that proposal, and the other person, you need to really seriously think about agreeing with what they're saying." Because sometimes you can have one person who is just at the real extreme and is so far out of the ballpark of what's ever going to be agreed that unless they move their position, a settlement will be impossible.
Catriona Attride:Yeah, so a bit of a wake-up call, I suppose. If we don't manage to settle at the FDR, I suppose then are we moving into the final hearing or the trial?
Vanessa Gardiner: That's right. For most cases, you're going to move into a third and final hearing or a trial. This is where another judge, who will be completely different from the second hearing judge, this judge will come at it not knowing what's been negotiated, not knowing what was discussed or what indications have been given, completely fresh, reviewing the documents. Then they will hear evidence from the applicant and the respondent. We call them the parties involved. So you're going to have to sit there and you're going to have to give evidence, and the judge can ask you questions, the other person's barrister can ask you questions to try to make or break your case. Then the judge at the end of the day or however many days you could be in court for ... It might be more than one. We've had a five-day hearing recently, where there was various experts involved and multiple people giving evidence, and then the court had to make a decision. The judge will read out his judgment, and then you are bound by it, unless you decide to appeal, which is an entirely different situation. But, ultimately, you are bound by the decision.
Catriona Attride: Yeah, so you-
Vanessa Gardiner: That judgment, you have no control.
Catriona Attride: And you definitely want to avoid that then, don't you, if you can?
Vanessa Gardiner: Absolutely. A final hearing is a lottery. You can be as confident as you like in your case, and you can be right, and you had a good indication, but you can get a judge who just doesn't agree with you. Judges are human, and they actually will look at you, and they'll make a judgment about you and your character and do they believe the evidence that you're giving. Different judges on different days are human beings, and you do not always know what you're going to get. It is better to negotiate an agreement, we would always say than put your life and your decisions in the hands of someone else and then you're bound by them and whatever decision they make is going to be implemented.
Catriona Attride: Yeah, absolutely. Absolutely food for thought. So carrying on with our terminology then, and I suppose it's still linked to the financial bit, but what about prenuptial agreements? What actually does it mean? Obviously, we hear about all the Hollywood celebrities entering into them. Are they actually legal in England and Wales and Northern Ireland and Scotland? Because I think that's what everybody wants to know, is there any point in doing one?
Vanessa Gardiner: Absolutely. So we actually get more and more inquiries about prenuptial agreements now. They are a legal written agreement entered into by a couple who are about to get married, and the purpose of it is they want to decide what they should each get out of that marriage in terms of assets and income later on if they decide to get divorced. Now, you cannot oust the jurisdiction of the court. The court will always have the power to make a financial remedy order in the terms it considers appropriate. But if an application's made and a prenuptial agreement has been signed, the court is under an obligation to consider it as one of the circumstances of this case. It is up to the court, if you're in litigation, to determine whether to hold the parties to the terms of that agreement, and the court can uphold some of the terms, all of the terms, or even none of the terms if it's considered completely unfair and would basically leave one person in financial distress. They would never let that happen.
Vanessa Gardiner: But then, also, a well-drafted prenuptial agreement can also be extremely valuable to you because the purpose of it is to help protect, normally, pre-marital assets or wealth that you've accrued from maybe a previous marriage, you want to preserve it for your children from that earlier marriage, or you've got business investments that you've worked very hard for before you've met this person or a property portfolio. Once you get married, everything that you enjoy the benefit of during that marriage can be brought into the matrimonial pot. If you want to keep it outside of that, a prenuptial agreement enables you to identify what you call your separate property, what you want to keep, what the other person will get. If they've received legal advice, if they've had full disclosure, if they've entered into it a reasonable time before the marriage, well, the court, is very likely to uphold that agreement. You should expect to be held to an agreement unless it puts a person in a position of financial distress. So while it's not automatically legally binding, highly advisable for certain people in certain situations.
Catriona Attride: And I think the key message that comes through there is this is something that really needs to be properly drafted to make sure that it holds water, so trying to do this on the cheap isn't an option.
Vanessa Gardiner: Absolutely not. There is statutory ... Sorry, there is case law that the courts follow very strictly, and there's a lot of case law now about prenuptial agreements. A badly-drafted prenuptial agreement is not worth very much to you. You want a well-drafted, a well-thought-out, a well-considered document that's taken all the circumstances into account and also a document that ideally has been regularly reviewed, preferably with legal advice.
Vanessa Gardiner: We will always advise clients to think about trigger events. If you enter into it and you do not have children, a trigger event will be the birth of a child because that may well need to change the provision that's being made for one or both parties, or a significant change in your financial arrangements, either because you've made a load of money or potentially lost a load of money. Think of it as a document, a fluid document. It should change with your life, and if you continue to review it and change it appropriately during your marriage, it's going to be strong as the day you signed it. But if you leave a document, put it away, come back to it 25 years later and hope to be held to it, you might find it's completely disregarded because the family situation has moved on so far that it's no longer relevant.
Catriona Attride: And then that's the whole postnup thing, isn't it?
Vanessa Gardiner: Absolutely. So you've also got postnuptial agreements as well, and a postnuptial agreement is basically entered into after you get married. Sometimes, and this seems to happen more frequently than I would like, but clients will come to you and say, "I'm getting married in three weeks, and I'd like a prenup." You're like, "Ooh, okay. Let's talk about doing a postnuptial agreement." Sometimes, we do both. Sometimes, we would do a prenup and then follow it up with a postnuptial agreement. The point is if someone enters into an agreement, a prenuptial agreement, so close to the wedding, it can be seen as duress. It can be seen as they were put under pressure to enter into it. Otherwise, the marriage might not take place. Therefore, a postnuptial agreement, on one hand, is entered into because there wasn't enough time to do it properly before. It has the same effect. You're entering into a written agreement you expect to be held to. You're just doing it after the marriage.
Vanessa Gardiner: I have done some postnuptial agreements where they've been married for a number of years, but then, actually, somebody's coming into inheritance and there are reasons why they want to ring-fence that inheritance and they decide to enter into a postnuptial agreement at that point to try to ring-fence protect that money. That, again, really sensible thing to do because inheritance received during a marriage is quite often then mingled with matrimonial funds and then, suddenly, it's become a matrimonial asset.
Catriona Attride: Yeah, that makes a lot of sense. So I think then the third area that we were going to talk about with some terminology was children matters, and there's a lot of terminology around here, isn't there, because we've got the Children's Act that governs what happens with children. Do you want to talk just a little bit about that?
Vanessa Gardiner: Yeah. There's lots of terminology, a lot of terminology when you are entering into legal situations when you're instructing solicitors in relation to children. I'll focus more on the kind of terminology you might come across if you were in court proceedings because that's really where a lot of these names and terms come up, basically. So in the Children Act, you have got ... A lot of you will have heard of residence and contact, or some people will call it custody. We actually don't. That's not terminology we actually use and never really have. I think it's a bit of an American thing, but people will say, "Oh, I want custody or residence." We no longer actually use those terminologies from a legal sense. They're now called child arrangements orders, and a child arrangements order is basically an order that regulates and sets out with whom a child will live and what time they will spend with each parent. You will still hear lawyers say residence and contact because it's a bit more straightforward, but the order that, if you're in court proceedings, you'll end up with is a child arrangements order.
Catriona Attride: Right, okay. And then you can also have prohibited steps orders, can't you?
Vanessa Gardiner: Yeah, that's right. So a prohibited steps order is a little bit like what it says on the tin. If you're applying for a prohibited steps order, you are trying to stop somebody, prohibit them or forbid them, from doing a certain act in relation to a child. An example of that might be I want to take my child ... I've separated or a client's separated and they want to take their child on holiday out of the country, out of England and Wales, and the other person is apparently saying, "No, I don't want you to do that. Actually, I don't think you're going to bring that child back," or, "I don't know where you're taking them." They can apply for a prohibited steps order. You're asking the court to make an order that says, "Mother or father may not remove the child from England or Wales or may not remove the child from their school or change their school or change their surname." It's a protection order, basically.
Vanessa Gardiner: Sometimes, they're made on an interim basis, so I have had a parent threaten to change a child's surname and we did go and get an interim prohibited steps order whilst the court had to list a full hearing, and then we went back and then, actually, that order was upheld and we had a final order saying they cannot change the name. Sometimes, at a hearing, the court might actually say, "We're going to actually discharge that original interim order because we're now satisfied that that's the right thing to do," or maybe the parties have actually agreed a compromise as well. But a prohibited steps order is a protection order to stop a parent from doing a certain act in relation to a child of the family.
Catriona Attride: And how does that differ from a specific issues order?
Vanessa Gardiner: So a specific issue order is slightly different in that, quite frequently, specific issue orders are actually giving permission to do a certain act. It's almost the opposite, permission to change a child's surname or to identify perhaps medical treatment that they should be allowed to have or make decisions in relation to their education, which school they should go to, things like that. The court can then give permission for specific acts to take place in relation to a child where parents can't agree if that's the right thing to do.
Catriona Attride: Okay. And then I think one of the other phrases that get bandied around quite a lot and I don't think people always understand is a parental responsibility. What actually does that mean?
Vanessa Gardiner: This is really important, and it's amazing how many people with children who are completely unaware of what parental responsibility is. Parental responsibility is a statutory status. It is set in law, and it gives the parent all the rights, duties, powers, responsibilities, and authority that as a parent they need in relation to a child, basically. So a parent with parental responsibility can decide which school a child should attend or about a child's religion or they can give consent to medical treatment. Not everybody, however, unbelievably, you might think, has parental responsibility for a child. For example, a mother automatically has parental responsibility for a child they give birth to. If they're in a relationship where they're not married, then a father has to acquire parental responsibility, which they can do in different ways. If you're married to the father of your child, biological father of your child, that father then does automatically get parental responsibility.
Catriona Attride: Right. Complicated.
Vanessa Gardiner: Yes, very complicated. Actually, you can find, and you can get into trouble, but actually, difficulties where you have a parent who has a child spending time with them but, say, the father doesn't have parental responsibility, something happens, have to take the child to the hospital. If the hospital actually says to them, "DO you have parental responsibility," it may be that they don't. They actually cannot give consent for medical treatment, and this is what most people are unaware of and where it comes up as the biggest issue, is you can't consent to emergency treatment being given if you don't have parental responsibility for a child, no matter what situation they're in. They would have to try and get hold of the mother or whoever else may have parental responsibility for the child at that time. So it is something everyone should know about, but they really don't.
Catriona Attride: Oh, absolutely.
Vanessa Gardiner: It's a problem.
Catriona Attride: And can you lose parental responsibility?
Vanessa Gardiner: You can't lose it, but it can in very rare circumstances be taken away from you by the court. There's nothing you can do that will simply diminish or remove your parental responsibility for a child, but in certain circumstances where there are court proceedings, the court can make a decision for ... Obviously, it would have to be very, very serious reasons that your parental responsibility should basically be removed. Obviously, you don't want to find yourself in that situation because you've obviously been found that not only can you cannot care for this child but, actually, that you should really have no interaction, nothing to do with this child whatsoever. So that might be abuse, physical abuse to a very serious level. Even parents who don't have orders to see their children generally don't have their parental responsibility taken away from them. It's a very extreme and rare decision for the court to do. Also, you can't just lose it as well, which is, I think, quite reassuring, actually, for parents-
Catriona Attride: Yes, absolutely. Yeah.
Vanessa Gardiner: ... on the other hand.
Catriona Attride: Yeah. Yeah, absolutely. I think that's probably right, isn't it?
Vanessa Gardiner: Yes.
Catriona Attride: So I think one of the other things that comes up when people are talking about or looking at making child arrangements and the access contact arrangements, Cafcass comes up from time to time, doesn't it? What's Cafcass?
Vanessa Gardiner: So Cafcass, this is an organization, and you will only come across them if you're in court proceedings. It's the Children and Family Court Advisory and Support Services. It's a government agency which looks after the interest of children who are involved in family proceedings. They will work with children and the families, and then they give recommendations and advice to the court as to what actions they think are in that child's best interest. Cafcass, at the beginning of any court application, will contact each parent and just have some initial conversations with them, and they will then write to the court and say, "I've had some initial consultations," and they will raise any initial welfare concerns. They produce an initial safeguarding report, but later Cafcass can be asked to do very in-depth reports. These can take 16, 20 weeks to prepare.
Catriona Attride: Oh, crikey, a long time.
Vanessa Gardiner: Really involved, and everybody's involved. The children get spoken to multiple times. They could be visited in their schools, in the home of each parent. Siblings can be spoken to as well. Cafcass officers are social workers who then go to work for Cafcass, and that is a role that they're there to basically consider the circumstances from a safeguarding perspective. Then they give recommendations to the court. They don't make decisions. They just give recommendations, and it's up to the judge to then decide whether to follow those recommendations or sometimes ignore them, very rarely, but sometimes ignore them or move slightly away from them. But Cafcass, basically, they're the people that go and speak to the children as opposed to the judges.
Catriona Attride: And will it always be the case that the court will make an order in relation to the children matters?
Vanessa Gardiner: No, actually, and that's a really interesting point. Everybody thinks that they will always walk out of court with a court order once they've made an application. Under Section 1 of the Children Act, the court must not make an order unless it considers the making of the order is in the best interest of a child. Now, if the parties have actually come to an agreement between themselves, even within proceedings, they can decide that it isn't helpful to have a court order in place, and they will actually allow those parents to end their proceedings and go about the arrangements they've agreed.
Vanessa Gardiner: Sometimes, it can feel ... You sort of think, "Well, why would they do that? They made an application." But sometimes having something imposed on you doesn't always work as well as an agreement that you have come to between you together, sometimes with a bit of court intervention. But, also, the court sometimes will not make an order if they think it could be detrimental to a child in some way. That's quite a complicated issue as to why the court wouldn't do that, but it isn't always ... More often than not, you will, but it's not always guaranteed that you'll get an order. It really has to be the right decision.
Catriona Attride: So I suppose that ties in with the fact that you wouldn't want to be in court proceedings with all children matters are arising?
Vanessa Gardiner: No, absolutely not. You tend to find when clients come to us, they're either just slightly struggling to ... They're not quite sure what their options are or what they're allowed to do and they're looking for some guidance, or they're in heavily contested proceedings, sorry, they're in heavily contested arguments and there's just no way through. Usually, one parent is being prevented from having contact with another child, and that is usually a reason why someone wants to start court proceedings in relation to a child unless they're after the prohibitive steps or the specific issue order.
Vanessa Gardiner: But if you're making a court application, it's usually fairly acrimonious, and there aren't many cases that end up without an order because the parents suddenly started getting on and saw the light. It doesn't really happen like that. It does very, very rarely, but it doesn't generally happen. If you're in court proceedings, you've ended up there for a reason, and, generally, it's because one child is being stopped from seeing a parent for one reason or another, rightly or wrongly, whatever those reasons are, and it has to be investigated and determined if that's the right course of action or not.
Catriona Attride: Yeah. Then I think the final thing for us just to look at is the protection orders that we can apply for clients who have perhaps been subject to domestic abuse and need an injunction to protect them from abuse or remove a connected person from the home. So can you just talk us through the couple of orders that are open to people there and what they mean?
Vanessa Gardiner: Yeah, absolutely. So we have non-molestation orders, otherwise known as an injunction, and then we have occupation orders. I'll talk about the non-molestation order first. This is an application that you might make to ... You have to make it to the court, and you can do it on a without notice basis or an on notice basis, which basically means sometimes someone will come to us and they normally have been subjected to physical violence. They may have had to get to a refuge, and they're basically afraid for their safety. Without telling the other person, we can go to court with an application, seek a court order that prevents this other person from using or threatening violence against them, intimidating, harassing, or pestering them, or instructing a third party to do any of the above.
Vanessa Gardiner: These are protection orders, and if a non-molestation order is made and then it's personally served upon the other person and we know they've been served with it by, let's say, a process server or a bailiff, as soon as they are served with it and in receipt of it, if they breach it, they can actually now be arrested by the police. A non-molestation order is a family law injunction, but as soon as you breach it, it becomes a criminal matter, and you will be pursued by the police, arrested, and prosecuted through the CPS for breaching a non-molestation order.
Catriona Attride: So it's a powerful, powerful thing to have, isn't it?
Vanessa Gardiner: It's a ... Yes, and, hopefully, it gives people reassurance that you can leave the house because some people were so afraid of behaviour that can be done to them. And especially in this day and age now ... I have to be honest, when I started out practising, you do a lot of non-molestation orders as junior solicitors, and most of what I was seeing 15 years ago was physical abuse. Quite obviously, people would turn up battered and bruised, whereas, actually, now, there's been an extension to the definition of domestic abuse. It's no longer domestic violence. It's domestic abuse, and that abuse can be emotional and psychological and financial as well.
Catriona Attride: So that would include the coercive control?
Vanessa Gardiner: Yes, the bullying, the gas-lighting, that kind of behaviour that leads to confusion. Some people will come and say, "I think I'm going out of my mind. I just don't understand." That is where somebody is being emotionally and psychologically abused. Harder to prove, but, again, you can still obtain injunctions. I've had to do that a year ago for somebody who exactly ... It was no physical abuse, it was all psychological abuse.
Catriona Attride: Gosh. Yeah, that's a lot, isn't it?
Vanessa Gardiner: It's quite frightening. And-
Catriona Attride: And then what's the other sort of order that we can look at?
Vanessa Gardiner: Yes, occupation orders. So this is quite interesting, an order that the court can make regulating the occupation of a home. Now, an occupation order can exclude a person from their own house, even a house that they own, if ... So if you have a couple living in a house together, usually, you would apply for an occupation order in conjunction with a non-molestation order, and you're basically saying, "I am so afraid. An injunction is not enough. I need this person to be removed from this house," and for a period of time, can be up to six months. That person cannot return to that property or even a defined area. Normally, if you apply for an occupation order, it would say that that person cannot not only return to the house but within 100 meters of it or potentially within specific roads that would allow them to access it. I even had a colleague, unbelievably, who got an occupation order that not only excluded someone from a house but from an entire suburb almost that you'd think-
Catriona Attride: Wow, from the whole area.
Vanessa Gardiner: Yeah, from a whole area because they had so many contacts that were being used to intimidate the person as well. They are obviously quite ... We call them quite draconian because you are actually removing someone potentially from a property that they legally own and have a legal right to be in. But if it could cause harm to a child or another person who has also a right to be in that property, the balance of harm test has to be would more harm be caused if they were not excluded than if they were, and what's the harm to the person who is excluded? Do they have somewhere else they can go? Can they afford to stay with a friend or rent or family? They do look at the options. But when it comes down to somebody's safety, yeah, you can be excluded from your house if you're ... Generally, I've only obtained them where there's been physical violence and someone's, say, physical safety is at risk.
Catriona Attride: Yeah, it's a lot, isn't it? Well, look, we've covered a lot today. I think that's been really helpful because I think you have definitely debunked some of the mystery around some of these terminologies. So thank you very much for joining us, Vanessa.
Vanessa Gardiner: Thank you for having me.
Catriona Attride: Thank you for listening to Talking Family and Wealth. To find out more about the series, please visit gateleyplc.com/talkingfamilyandwealth. From here, you can subscribe for all updates, meet our speakers, and get more information on all of the topics being discussed.
Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.