All posts by Bishop & Sewell

Doctor Foster

Doctor Foster

I watched the second series of Doctor Foster with a growing sense of deja vu, as I’m sure many other family solicitors did. I watched in horror as the two parents tried really hard to hurt each other, succeeding on more than one occasion throughout the series. The emotional rollercoaster was obviously exaggerated for great dramatic effect and whilst the actors playing the parents swung unpredictably from obsession to murderous hate, their son was suffering all manner of emotional harm.

So often in practice we come across parents who are so engrossed on disliking (sometimes hating) each other, that they completely lose sight of what is actually the most important thing to both of them. Even in high conflict settings like mediation sessions, if the mediator starts asking them specific details about their children, the tension eases and the room calms. This is a useful technique often employed by skilled mediators. The effect is similar to letting a balloon deflate.

Parents love their children, but what they often cannot agree on is what is best for their offspring, often genuinely believing that it is best that the children do not have any contact with their ex.

In Doctor Foster, as the viewer, it was obvious that Tom was torn between his mum and dad, constantly oscillating between the two, not knowing who to trust or believe and torn apart by their ridiculous behaviour.

My family law practice is varied and as a mediator and litigator I am able to deal with conflict in a number of different ways, sometimes enlisting the help of family consultants and family therapists wherever appropriate. The most fulfilling outcome for me is one in which we are able to reach a constructive and genuine parenting plan for the children involved, as so much damage can be avoided this way.

You can contact Louise Barretto, a Partner in our Family team, on direct dial 020 7091 2869 or by email on lbarretto@bishopandsewell.co.uk if you wish to discuss any issue raised in this article or concerning family relationship and divorce matters more widely.

Is the Home Office trying to break the bank?

Is the Home Office trying to break the bank?

UK banks will be required to check the immigration status behind 70 million bank accounts

From the 30 October 2017, banks and building societies will be obliged to carry out quarterly immigration checks on their consumers. This is the effect of Schedule 7 of the Immigration Act (2016), amending the Immigration Act (2014).

The law, as it currently stands, prohibits banks and building societies from opening current accounts for people who are known not to have Leave to Remain in or Leave to Enter the UK. The new regulations mandates there must now be additional quarterly checks of the immigration status of existing current account customers. For each bank account belonging to anyone who is an over-stayer, that bank must then notify the Home Office, who will in turn close down the account and freeze it.

This new provision is being added to the existing host of rules and regulations that make up the “Hostile Environment” The Hostile Environment is the name given by several immigration campaigners to a raft of measures that the UK government has put in place to make life difficult for individuals without permission to remain in the UK (otherwise known as over-stayers).

Like the rest of the Hostile Environment, this new requirement compels private individuals and businesses to carry out complex immigration checks. This follows the trend of the Home Office forcing the private sector to carry out checks that rightly should be dealt with by trained immigration professionals; Right to Rent being the most widespread. However, a report released by the Chief inspector of Borders and Immigration has indicated that up to 10% of people denied services under the Hostile Environment regulations were incorrectly targeted. This could lead to great swathe of people, who are legally in the UK, being unable to pay their rent, their mortgage or day to day living expenses. To the average person, this would be devastating.

The UK is still depending, to a larger or lesser degree, on immigration to bolster the economy and the workforce. The real question is this: if you are an educated taxpayer, and residing in the UK holds the prospect of spending the remainder of your days attempting to justify your existence because you are an immigrant, why would you want to stay?

Working in tandem with our Company Commercial department, Bishop & Sewell is uniquely placed to advise both businesses and individuals regarding the increasing complex area of immigration law compliance. Bishop & Sewell has the well-earned reputation for being approachable and “going the extra mile” for its clients whilst providing both legal and practical advice. We provide a bespoke holistic approach for our clients, not merely limiting ourselves to just the matter at hand.

If you are looking for assistance with an immigration matter, or if you have any questions about the Hostile Environment, please call 020 7091 2731 and ask for Mariam Khaliq, the head of our Immigration team or email immigration@bishopandsewell.co.uk

This article is intended as a general summary on the law – no reliance should be placed on it. 

 

Tackling unfair practices in the leasehold market – Government consultation

Tackling unfair practices in the leasehold market – Government consultation

The Government consultation on tackling unfair market practices in the leasehold sector has closed on 19th September 2017. This firm, among many others have submitted responses to the Government on the issues raised.

Much publicised issues concerning leasehold houses and ground rents together with parliamentary pressure which has been building for some time (particularly since the debate on the 20 December 2016) and the all-party parliamentary group on leasehold matters chaired by Sir Peter Bottomley, has led to the government commissioning this consultation to discuss current abuses within the system and what can be done about them.

It is interesting that Russell Hewitson, the Chair of the Law Society conveyancing and Land Law Committee commented in a recent article debating the pros and cons of the leasehold system and in particular the question of leasehold houses that it would be:

‘Short sighted for solicitors to dismiss this whole topic in that way, or to compile themselves to a legal minutiae around the edges. Our law is not an end in itself: it must properly serve our society. When a legal structure that we are so familiar with is generating such intense public concerning, we have an important part to play in the debate about the solutions.’

The Government consultation makes plain that a number of options are been considered including restrictions on rents that can be charged, the question of whether properties developed as houses should be sold as leaseholds.

There are a number of valid legal and technical reasons why leasehold structures may be appropriate in relation to shared property, but it is clear the government clearly has determined to investigate and find out what can be done to prevent abuses of the existing system.

As experts in the leasehold area, we have contributed to the consultation both individually and collectively and through our involvement in bodies such as ALEP.

Mark Chick, head of the Landlord and Tenant Team at Bishop and Sewell commented as follows:

‘It is encouraging to see that government has decided to look at this area which has been the subject of debate on the question of reform over a number of years. It is also clear that given the level of publicity that this area has received recently, the government is determined to investigate what can be done to protect the end users of leasehold property. Whilst the headline cases show the far end of the scale as unacceptable practices go, the area itself is highly technical and any change must be appropriately managed. There are a number of good reasons to have leasehold structure, where there are shared services or buildings but the terms of these documents must always be looked at closely.

There appears to have been a failure in the reported cases in so far as access to quality independent advice is concerned and it is precisely because some of the more technical points in the area have not been more widely understood that the current situation has developed.’

If you have a query concerning leasehold property then please contact our expert team by emailing leasehold@bishopandsewell.co.uk.

Is there a marriage between Elle Macpherson and her “husband” to dissolve, or not?

Is there a marriage between Elle Macpherson and her “husband” to dissolve, or not?

Some of you may remember the dramatic press coverage of the breakdown of the relationship between Sir Mick Jagger and Jerry Hall, when he said that there was never a legal marriage between the two of them and therefore there could be no divorce – potentially leaving Jerry Hall in a very different financial position than on a divorce. Of course it is always a good thing to remind people that there really is no such thing as a “common law” spouse in English law. So, it doesn’t matter how long a couple have been together, or how many children they have together, if there has been no legal marriage, there can be no enforceable financial claims as a wife, on the end of this union. Although the other celebrity couple possibly faced with this issue are not living in England, and not seeking a financial settlement here, there will no doubt be some unforeseen circumstances arising for them on discovering that they were not in fact legally married.

Weddings in Fiji

The couple that we are all talking about is; Elle “the body” Macpherson and billionaire Jeffrey Soffer, who were allegedly married in 2013 in a romantic ceremony in Fiji. According to the tourism information available, wedding ceremonies in Fiji are “recognised as legal worldwide”. However, it seems it is not quite that clear cut, as the Fiji embassy in Washington cautions visitors to its shores, who intend to get married there, that the law requires them to obtain a marriage licence from a marriage registry prior to the ceremony.

If it is correct that there was no legal marriage ceremony, then it may turn out that Elle and Jeffrey end up with consequences that neither of them intended or contemplated.

It is ever so slightly unbelievable that two people, who are wealthy business people and who no doubt have access to excellent legal advice, did not check the position beforehand. We will have to wait and see whether the reports we are seeing now turn out to be correct in what will no doubt be another high profile celebrity uncoupling.

If you have any questions about any of the issues raised in this article, please contact Louise Barretto, a Partner in our Family team, on direct dial 020 7091 2869 or by email lbarretto@bishopandsewell.co.uk.

 

International Surrogacy and How to Bring Baby Back to UK

International Surrogacy and How to Bring Baby Back to UK

Sex, love and financial issues usually top the concerns of couples planning a baby but for those who turn to surrogacy after years of trying to conceive, the focus quickly switches to legal problems.

Even so, it is usually only months into the process that the unglamorous topic of immigration and nationality law rears its head, often causing heart-breaking delays, frustration and additional costs for couples whose babies have been born abroad.

Couples who consult me on the best way to bring their babies back to the UK are often taken aback by the variety of information I need from them before I can answer their questions, as the solution is rarely straightforward.

In short, there are three main routes open to intended parents:-

Route 1: Apply directly for British passport 

This is only an option where the surrogate mother is unmarried, the intended father is British and the intended father is genetically related to the child. Among other requirements, the legal connection between father and child must be documented, and an approved DNA provider must show the genetic link.

Route 2: Apply for the baby to be registered as British and then apply for a British passport

This is a two-stage process and is probably the most common route for British parents. It is usually an option either (i) where the surrogate mother is unmarried and the intended mother is British with a genetic connection to the child, or (ii) where the surrogate mother is married, one of intended parents is genetically related to the child and that parent is British.

The registration application is a discretionary one, meaning it is up to the Home Office whether they choose to approve it or not. Among other things, the intended parents will need to demonstrate the genetic link and show that a parental order is likely to be granted to have the baby registered as British.

Once the baby has a Registration Certificate, the intended parents can apply for a British passport for the baby.

Route 3: Apply for a non-British passport for the baby and then apply for a visa for the baby to come to the UK

If couples do not fall into any of the above categories, they are likely to be looking at this route. It is most common in situations where the parents are living in the UK but are not British, or in cases where neither intended parent has a connection to the child. It is particularly important to bear in mind that if the baby cannot obtain a passport from its birth country or another country, then it won’t be able to apply for a visa or travel.

There are a variety of different visa routes that may be open to the baby, and the exact one will depend on the family’s circumstances. In some cases, the family may be able to apply for the baby to be registered as British once it is in the UK and a parental order has been granted.

The above three routes provide a very generalised summary only of the routes available but the exact steps parents need to take will depend on their particular circumstances.

It is also extremely important to bear in mind that the laws and practice on surrogacy and immigration change constantly. This means that intended couples have to be very careful in searching for answers online, as advice from a family in identical circumstances who brought a baby back to the UK a year previously may now be completely outdated.

By way of example, the Home Office’s own guidance on surrogacy and UK visas, ‘Inter-Country Surrogacy and the Immigration Rules’, is in fact several years out of date. It has not yet been replaced and still contains a lot of useful information but it should only be consulted with caution.

Our advice to couples considering surrogacy would be to do your research very carefully. Clinics abroad will often downplay the difficulties of bringing baby home and it is very tempting to listen to what they say – especially when they are promising you your heart’s desire!

That said, in our experience, it is nearly always possible to bring your baby back to the UK one way or another. However, the price for couples who are not properly informed is usually several unnecessary extra months abroad, with all the additional emotional and financial costs this entails.

If you are considering using a surrogate abroad and would like advice on how to bring your baby back to the UK, please do not hesitate to get in contact with a member of our Immigration team on 020 7631 4141.

Karma Hickman is an Associate Solicitor in our Immigration team.

‘Keeping up with the Law’ on surrogacy

‘Keeping up with the Law’ on surrogacy

It is reported in recent news that celebrities, Kim Kardashian West and her husband, Kanye West, are expecting their third child, by means of a surrogate. If you have been ‘Keeping Up With The Kardashians’ on their reality TV show, you may be aware that Kim revealed her desire to have another child, but expressed her worries, due to fertility issues and high-risk pregnancies. It is therefore somewhat unsurprising that she has opted to expand her family, (which includes two children whom she carried), by using a surrogate.

There are several reasons why a couple may choose to use a surrogate, whether as a last resort, due to health reasons, or it simply suits your personal circumstances. Whatever your reason, it is important that you are aware of the legal position when it comes to surrogacy, and what it entails.

What Is A Surrogacy Arrangement?

It is an arrangement whereby a woman carries a child in pursuance of an arrangement:

  1. Made before she began to carry the child, and
  2. Made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable) by another person or other persons.

Are Surrogacy Arrangements Legal?

They are, however there is a prohibition on initiating or taking part in negotiating surrogacy arrangements on a commercial basis. It is a criminal offence!

Payment of money is permitted only ‘to the woman for her benefit in respect of the carrying of the child in pursuance of the arrangement, to that promise or understanding’.

How Can You Gain Legal Recognition as the Child’s Parents?

Legally, the person who gives birth to the child is the legal mother. You will need to apply for a Parental Order within six months from the day on which the child born in order to obtain parental responsibility.

In accordance with statute, the court must be satisfied that all parties ‘have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order’

How Can We Help You?

  • Advise generally those considering surrogacy and whether it is suitable;
  • Represent commissioning parents in proceedings for a Parental Order;
  • Identify international issues where clients need complementary advice in addition to family law (for example, immigration / nationality);
  • Provide written opinions and advice for those living abroad about whether and how UK surrogacy law applies to them;
  • If a Parental Order is refused or cannot be made, advise on other orders that might be made to recognise the child’s relationship with commissioning parents.

If you are considering surrogacy, or dealing with any legal issues concerning your surrogacy arrangement, please contact our team of specialist Family solicitors on 020 7631 4141, to arrange a consultation to discuss your matter in detail.

In the meantime, please feel free to visit the ‘Surrogacy’ page on our website for more information.

Angela Kwokori is a Trainee Solicitor in our Family team.

 

What does parental responsibility really mean?

What does parental responsibility really mean?

Often, when clients come to see me they want to talk about their “rights” when it comes to their children. This is often because they are involved in an acrimonious stand-off with the other parent of their child, and it can become difficult to disentangle the feelings they have for their ex-partner, from what is best for their child. Our law has defined a term called “parental responsibility” (rather than “parental rights”) because it is more appropriate to place the emphasis on the responsibilities rather than the rights which parents often wish to forcefully assert.

Parental responsibility

In terms of the Children Act 1989, ‘Parental Responsibility’ (“PR”) consists of “…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”. You will note that the definition does actually include “rights” but the emphasis is on what responsibilities parents have towards their child when they make decisions about that child’s property and welfare. This includes, but is not limited to, the child’s religion, where he lives, where he is educated and the appropriate medical treatment for him.

Parents, who were married to each other on the date the child was born, both have PR for that child. You can imagine that the exercise of PR can sometimes cause conflict between those parents even if they are not separated, and especially if their relationship with one another is not good, or if they have separated in difficult circumstances. There is very little guidance in our legislation about when people who share PR are able to act on their own, and when they must act in consultation or in agreement with anyone else who has PR.

There is guidance in our case law, but even so, each case will be decided after considering its own particular facts. Our Courts encourage parents to have respect for one another and to ensure that the rights of the other parent are respected for the benefit of the child. The Courts do not like to interfere in decisions relating to children, unless it is absolutely necessary to protect the child. So, you will have seen some cases involving whether or not a child should be immunised, sterilised or circumcised, making headlines. You might have also seen cases relating to religion in the news, especially where there is a difference of religion being practised by each of the parents, and they cannot agree which religion the child should follow (see below).

Everyday decisions – when do you have to consult the other parent?

There are certain basic everyday decisions that can be made without notifying or consulting with the other parent or holder of PR. Examples of these are:

  • What activities the child undertakes (e.g; ballet or chess)
  • How the child spends his time generally – we quite often see differences in parenting styles in this category so one parent might feel that the child should enjoy less screen time and more time pursuing outdoor activities
  • Routine discipline – this will include setting boundaries but will not include physical chastisement
  • Personal care of the child such as washing, dressing, grooming and feeding
  • Routine medical check-ups
  • Generally participating in religious and spiritual pursuits

When the parents who share PR follow different religions, generally it is thought that it benefits the child to have the opportunity to learn about and experience both religions, but occasionally this causes conflict, and a Court is called upon to decide what is in that particular child’s best interests. As you can imagine this can be a very emotive topic which our courts are often called upon to adjudicate.

  • Attendance at school functions and parents’ evenings

There are some decisions where there is no requirement for consultation but the other parent should be notified. These are:

  • Holiday bookings and taking the child abroad during school holidays or agreed contact time
  • Planned visits to a GP and the reasons for this
  • Change of address within the local area that does not destruct contact arrangements nor require change of school
  • Medical treatment in an emergency
  • Changes in living arrangements including a change to people that are living in the same household

Decisions that require consultation

The following is a list of decisions that require all people with PR to make in consultation with one another.

  • Selection of the school that the child is to attend
  • Applications for authorised absence from school and the reasons for this
  • The child’s living arrangements during the school holidays
  • Any medical treatment beyond routine check-ups
  • Circumcision, sterilisation and immunisation require consent from all parties who have PR, or an order from the Court
  • Terminating prescribed medication
  • Surprisingly, the age at which the child should be able to watch videos recommended for children above the age of 12 and 18. There was actually a case concerning this issue called A v. A which was heard in 2004
  • Consenting to the marriage of the child but only if there is no child arrangements order
  • Change of the child’s surname
  • Relocation to another part of England and Wales or abroad

In general solicitors should do their best to encourage the parents to work together and co-operate. Sometimes we are successful at persuading them, and sometimes we are not, and we then turn our attention to assisting them in getting to a solution that works for them and for their children and preparing their case for court in the most constructive way possible. As you can see there are many areas in which possible disputes can arise especially when tensions are already running high between the parents who are under a considerable amount of strain during or after a difficult separation.

If you have any questions about any of the issues raised in this article, please contact Louise Barretto, a Partner in our Family team, on direct dial 020 7091 2869 or by email lbarretto@bishopandsewell.co.uk or alternatively, in relation to family matters more widely.

Bishop & Sewell speaking at the Landlord Investment Show – 6th September 2017

Bishop & Sewell speaking at the Landlord Investment Show – 6th September 2017

Members of the Landlord & Tenant and Property teams will be at the National Landlord Investment Show  in East London on 6th September 2017.

This event provides a platform for current and prospective landlords to keep up-to-date with industry developments and provide access to a host of leading experts, suppliers and educational seminars.

Our Landlord & Tenant Department will be speaking on the subject of ‘What to look for when buying a leasehold property as an investor’ in Seminar Room 2 at 11:50 and several members of the team will be on hand to answer questions.

For follow-up or queries please contact leasehold@bishopandsewell.co.uk or telephone 020 7631 4141 and ask to speak to a member of the Landlord & Tenant team.

Landlord Investment Show

Where are we now on divorce?

Where are we now on divorce?

As the summer holidays move towards a close there will be marriages feeling the strain of prolonged association and activity and many unhappy people concluding they ‘cannot go on like this’.

But for those married or in civil partnership contemplating divorce or dissolution where does the law stand?

Grounds for divorce

Contrary to common belief the grounds for divorce have not changed in well over 40 years – or rather the ground for divorce as there is only one – irretrievable breakdown of the marriage/partnership – which must be evidenced in one of five ways (four for a civil partnership ) and you cannot make up your own grounds, such as ‘no longer getting on’ or ‘grown apart’.

Couples are still stuck with: adultery (uncondoned- but this does not exist for civil partnerships), or behaviour such that one spouse cannot reasonably be expected to live with the other one’ (usually shortened to unreasonable behaviour), or 2 years’ desertion (rarely if ever used as highly technical) or 2 years’ separation with consent (once popular, but less so now as people want to move on in their lives rather more swiftly) or 5 years’ separation without consent (few wait that long these days).

In practice most petitions are based on adultery or unreasonable behaviour, but whatever the assertions provided they are unopposed and satisfy the court’s scrutiny – they as a general rule have no effect on the outcome of the ancillary applications relating to children, houses or money. In cases where there has been domestic violence of any sort more detail is often given to support a claim for an injunction or where there is a dispute over children’s welfare, but conduct has to be exceptionally egregious before it has any bearing at all on the outcome of a spouse’s or partner’s claim for a financial remedy. The courts simply turn away from any such investigations except in the most extreme cases and those accused of unreasonable behaviour simply let petitions go through whilst stating in correspondence that such accusations are untrue and not accepted in order to save face or preserve their technical legal position.

Those served with an adultery petition have to tick a box and sign to say that they accept the assertion, but that is all. No co-respondent need be named and no point would be served by dragging one into the spouses’ dealings with each other.

But if there is no nexus between conduct or adultery cited in a petition why is it cited at all? The short answer is that it is a left over, even though somewhat watered down, from a past age and it now serves no central purpose, at least as far as the courts are concerned.

No fault divorce

Not surprisingly therefore there have been many recent and increasingly noticeable stirrings for reform of the law on relationship dissolution to make it ‘no fault divorce’. This has been led in particular by Resolution, an organisation run for and by Family solicitors, which lobbied all major parties in the run up to the last election asking them to include No Fault Divorce in their manifestos. Labour did so, while the Conservative party was the vaguest. The Ministry of Justice may be beavering away on the subject but there is no evidence of this and no new family legislation planned save that on improving the arrangements for the hearing of domestic violence cases… but that’s another story.

Implications post-Brexit

So what lies ahead with impending Brexit and the Repeal Bill? The Government set out in the Queen’s Speech that they will try to ensure that the same rules will apply ‘wherever practicable’. It is unclear in family law, as in other areas, how this would work and this is particularly important as these days so many family issues, including divorce, straddle different countries and jurisdictions. Whilst at present we have common rules such as on where divorces can be instigated, on various legislative aspects of financial claims and on dealing with disputes, it is far from clear what will happen when we have to move away from EU law and fall back on various unwieldy international conventions – presumably with no oversight from a court such as the EU Court of Justice (CJEU) so unloved by the Brexiteers.

At particular risk are all the laws relating to child abduction and maintenance – both areas where enforcement is a central issue. Whilst enforcement of court orders on family law can at present be dealt with speedily across the borders of EU countries with reciprocal enforcement in the various UK jurisdictions – often with state assistance – if these facilities are effectively lost on exit from the EU it will cause real and costly problems for families caught up in relationship breakdown with an international element.

We may not get ‘no fault’, but also no relief. 

Eileen Pembridge is a Consultant in our Family team.

If you require legal advice in relation to a divorce or family relationship matters more widely, please contact our team of expert matrimonial solicitors on 020 7631 4141.