Leap Year Proposals - February 29th 2016

Will you propose today? If so have you considered how you will protect your financial interests?

The Family Department at Breeze and Wyles Solicitors Limited are able to offer a bespoke service in relation to advice and the drafting of pre-nuptial and post nuptial agreements. We are also able to assist a party in relation to divorce and/or financial proceedings whether a pre-nuptial agreement has been entered into or not. Our experienced solicitors can offer assistance at all stages including negotiations in relation to financial matters or in the event that Court proceedings are issued. We also offer other forms of resolution such as mediation, collaborative law and family arbitration.

Lisa Honey is a family solicitor at Breeze and Wyles Ltd specialising in family law and deals with matters covering a range of issues including divorce and financial settlements, separation following the breakdown of a relationship, children matters and declarations of trust. Lisa is also an honorary solicitor providing advice at the Citizens Advice Bureau in Cheshunt.


MAINTAINING THE STATUS QUO

In June 2015, the Court of Appeal in Re M’P-P (Children) 2015 EWCA Civ 584 overturned a decision made by a trial judge which held that two young children should be removed from their foster carer’s care in the UK to live with their paternal Aunt in Belgium.

The facts of the case involve two young children, a boy (A) who is 3 years old and a girl (B) who is 2 years old. Both children have been in the care of a foster carer for most of their lives. Although, the biological parents of A and B could not care for the children, the children still have contact with both their mother and father as well as their other siblings, who are also in foster care with different foster parents. The foster carer of A and B had expressed their wish to become the children’s adopted parents. However, the children’s paternal aunt (who the children had had contact with on one occasion and is resident in Belgium), then came forward to offer herself as a long term carer for the children under a ‘Special Guardianship Order’.

The original trial judge, HHJ Atkins, held that A and B should live with their paternal aunt in Belgium. In making his decision, the judge took into consideration the impact of his decision on A and B. It was held that by placing A and B with their paternal aunt that this would allow the children to remain with close family and enjoy continued contact with their parents and siblings. The judge felt that any short term problems in the transition stage of relocating to Belgium were far outweighed by the long term benefits of remaining with close family.

An Appeal was made by the foster carer, on the basis (amongst other grounds) that HHJ Atkins had failed to maintain the ‘Status Quo’ in his decision. In maintaining the Status Quo, a Court will be reluctant to remove a child from their current home without good reason for doing so.

The Appeal was allowed on the basis that they found the trial judge’s analysis of the case to be flawed, in that he had not given any regard to the effect on the children of removing them from the care of their primary career who was their ‘mother figure’. The Court of Appeal found that the choice was between the life the children had already established with their foster parents who were not related to them or a life with a close relative who they had only met once and who lived in circumstances very different from those with which they were already familiar.

The Appeal by the foster carer was allowed and the case was reheard by a different trial Judge, HHJ Carol Atkinson in Re B and E (children) [2015] EWFC B203. HHJ Atkinson stated that the options and the issues she must consider were whether; the children should be separated, whether they should be placed with their parents, the paternal aunt in Belgium under a special guardianship order or remain with the foster parents and if the latter then should the placement with the foster parent be under a special guardianship order or under an adoption order?

The Judge was clear that the children should not be separated from one another and that their relationship as siblings should not be disrupted. It was also held that the children should not be returned to their parents due to the high risk of harm. The Judge therefore considered whether the children should be remain with the foster parent or if they should be placed with their paternal aunt. It was held that placing the children with the paternal aunt would have the benefits of maintaining family ties but it would also have the disadvantage of causing a severe trauma in severing their attachment with their current primary carer with whom the children were very settled and had a very close bond. The Judge therefore held that the children should remain with the foster parent as this would cause the least disruption to the children’s lives. The Judge further held that the eldest child (A) would be subject to an adoption order in favour of the foster parent whilst the youngest child (B) would for the moment be subject to a care order and a placement order in favour of the foster parent. HHJ Atkinson was of the view that (B) would in due course also be adopted by the foster parent.

In terms of contact the Judge did not make any orders as it was felt this would place too much pressure on the foster parent. Instead, the Judge recommended the children have contact with their parents twice a year and with the paternal aunt 2-4 times a year.

At Breeze and Wyles Solicitors Ltd we offer advice on children matters including general advice, assisting with contact arrangements and representing client’s in Court proceedings. We are also able to offer other forms of dispute resolution such as mediation and collaborative law.

Lisa Honey is a family solicitor at Breeze and Wyles Ltd specialising in family law and deals with matters covering a range of issues including divorce and financial settlements, separation following the breakdown of a relationship, children matters and declarations of trust. Lisa is also an honorary solicitor providing advice at the Citizens Advice Bureau in Cheshunt.