Sun08202017

Last updateTue, 24 Feb 2015 5pm

Family Law Journal: September 2011
Pannone LLP

Clare Williams examines issues of jurisdiction upon an application for a mirror order

Commentators have long noted the proliferation of cross-border disputes caused by the increase in international mobility and the consequent increase in ‘international’ families. When an international family breaks down, disputes over residence and contact will readily engage complex jurisdictional principles and questions of comity. An element of such disputes may be whether and how the decision of the court in one jurisdiction can be effectuated in another. This issue takes on a particular significance where contact is to take place in a foreign country.

Rachel Osgood looks at the impact of MK v CK on the guidelines in Payne v Payne on leave to remove

If you asked a family lawyer in recent years about the law in relation to international relocation the reply would have been that if the primary carer was genuinely motivated, and if their plans were reasonable, then it was almost certain that they would be granted permission to emigrate with the child. If you were acting for the applicant you would no doubt establish that the effect of a refusal of permission on them would be devastating. You would then issue an application, confident that you would be likely to succeed, almost regardless of the other parent.

David Hodson recounts the history of shared residence orders and considers future developments

In the beginning, or at least in the 1980s, three dinosaurs roamed the post-parental separation world: custody; care and control; and access. When parents divorced, and most then were married rather than cohabiting, they knew that each would get one of these, and one might even get two! Dads were often fortunate to have the child for one night per fortnight and definitely only had access. Children lived with mum and she had care and control. That meant that she also had custody, taking the major decisions of the child’s life. Most lawyers never worried about the distinction between custody and care and control as they went together automatically. Very occasionally, custody would be joint, but this was reserved for exceptional couples. Custody was clearly the gold medal, care and control the silver medal, and access was for the also-rans. There was no option about having no medal ceremony!

In the conclusion to his two-part analysis Andrew Moore sets out practical points for dealing with an application under Schedule 1 to the Children Act 1989

In part one we looked at legislative and procedural provisions together with trust and tax issues. This part will focus on practice points and practical considerations including how a property that is the subject of Schedule 1 proceedings may be held and responsibilities in relation to the property.

Clintons

Maggie Rae contemplates recent ADR developments and the potential for further change

Family mediation has a long history in this country, with the first family mediation service established in Bristol in 1978. It was the first formal system of alternative dispute resolution available for family disputes in England and Wales, and it has proven successful. Mediation services are now available across the country.

Sian Hodgson and Julia Thackray consider claims under the Inheritance Act 1975 when drafting prenuptial and cohabitation agreements

One thing we can be sure of, post- Radmacher v Granatino [2010], and with the recommendations of the Law Commission on marital agreements yet to be published, is that prenuptial agreements are here to stay. Whether we see a new form of enforceable qualifying nuptial agreement, or whether the law remains within the current discretionary framework, it seems that for many people the promise of autonomy in entering agreements continues to appeal. Family lawyers are familiar with the arguments in favour of and against prenuptial agreements; essentially the benefit of certainty comes at the price of less flexibility to adapt to the particular circumstances of the case, whereas the benefits of a flexible discretionary system are accompanied by uncertainty and cost. We are also now familiar with the issues of enforceability and answering questions on enforceability with ‘it depends…’. One area that poses another problem is that of how a prenuptial agreement affects the position on death and the extent to which an individual’s capacity to make choices about financial provision on death and on divorce are in step.

Emma Mould discusses options when dealing with child support issues

Child maintenance is often seen as a somewhat murky area of countless technical rules and intricate and intersecting jurisdictional issues. However, with an assessment of the client’s reasonable requirements and the opponent spouse’s circumstances (or perhaps their preferences as appropriate) the ‘right’ answer will often reveal itself by a process of elimination. The first port of call will be the Child Support Act 1991 (CSA 1991), which provides the statutory regime for a calculation of child maintenance. A calculation can be applied for by either the parent with care (PWC) or the non resident parent (NRP) where the Child Support Agency (CSA), as administered by the Child Maintenance Enforcement Commission (C-MEC), have jurisdiction unless: