#17064 - Family Hearing - Family Law

Choice of Forum

Habitual Residence/ Domicile-

Steps to take

1. Act quickly

2. Instruct a family lawyer in Germany to advise on:

   • Whether there is a clear choice of forum

   • Laws that a German court will apply

   • Type/ quantum of financial orders

   • Any material difference in law/ procedure/ enforcement

3. Compare position E&W v Germany and advice client about pros and cons

1. What different courses of action would you advise?

   • Speak to Debbie- most couples agreed and do not need court order, less expensive

   • Send a formal letter to Debbie- make sure Debbie knows what Myles want

   • Negotiations- prob solicitor to solicitor when clients are angry at each other

   • Mediation not effective when violence or abuse (if not able to have sensible discussion)

   • Arbitration- binding results (compare to mediation)

   • Collaborative law- agreed not to start court proceedings, need to disinstruct solicitor and possible cost order if violate

   • Child Arrangements Order- Living arrangements

   • Specific Order- Instruct to do something

   • Prohibitive Order- Not allowing to do something

   • MIAM- learn about mediation (C100 exceptions)

   • Issue s.8 applications if above efforts fail

2. Will be eligible for legal aid? If not what options are available to him?

   • Legal aid only available for cases of Domestic violence or harming of children’s life

   • Legal aid available to meditation, still need to meet means test

   • If legal aid is available for mediation, also eligible for help for meditation (Form CW1- means and merits tests)

   • Other than pay from savings, private funding options available: insurance, loan, legal services order, sears tooth agreement, unbundling

3. In the event that an application to court is unavoidable, research what form is required to make the application. Complete a copy of the relevant form to make the application (obtainable via the Justice website or other means).

   • Different case number and court than divorce (possible different position as applicant and respondent)

   • Choice of court- London (wife-friendly court)

   • Drug/ alcohol abuse is more serious than concern on risk of harm, usually rely on being the main carer all the time

   • Parental responsibility

     • Mother- automatic for birth mother

     • Father- automatic if married to mother, parental responsibility order, appointed guardian (PR upon mother’s death), named on birth certificate(born after 2003), agreed parental responsibility arrangement, child arrangement’s order(automatic when named to live with father)

1. Does we have a choice as to whether she issues the proceedings to see the children in England and Wales or Spain? (Please refer to the PLC article titled ‘Establishing jurisdiction in proceedings concerning children’ which you read as part of your preparation for the Workshop.)

   • Brussels II and Hague convention- court have jurisdiction where children has habitual residence

   • S.2 FLA 1986

   • Brussels II Revised- ‘right of access

   • Jurisdiction lies with courts of the member state where the child is habitually resident (Article 8)

2. Assuming the application is issued in England and Wales, will Alexia require leave? Research the law and procedure on an application for leave to apply for a s8 order. C100

   • P.201, 202

   • Any s.8 order- parents

   • Child Arrangements Order

   • S.10(9) CA 1989- applying for leave to apply for a s.8 order

   • Nature of the proposed application

   • Applicant’s connection with the child

   • Risk of proposed application disrupting the child’s life to the extent that he/she will be harmed by it

   • No other applications can be made without court’s permission

   • Child arrangement orders are revoked when the parties reconciled for 6 months

FHDRA

• Safeguarding checks- none necessary

• Dispute Resolution- attempted but both parties maintain it is in the children’s interests that they live with them, further dispute resolution inappropriate

• Principle of no delay- case management (directions)

• Directions- for future conduct of the case

  • Case management- matters agreed at this stage/ matters outstanding

  • Children’s voice

  • S.7 welfare report- CAFCASS

  • Experts evidence (police report, psychologist report)

  • Fact- finding

  • Parties to file and serve witness statements within 14 days

  • Timetable- dates for Dispute Resolution Arrangement/ final hearing (s1(2) No delay- strict timetable)

  • Court allocation

• Parenting plan- learning to be a separated parent

• Any delay is prejudice to the...