Parental Responsibility

Posted on January 10, 2012 by admin

Parental Responsibility

The purpose of this article is not to provide a comprehensive over view of the law, but to produce a summary for those who find themselves in a situation involving parental responsibility and problems involving maintenance.

The meaning of Parental Responsibility is governed by Section 3 Children Act 1989 and encompasses all rights, responsibilities, duties, powers and authority which by law, a parent of a child has in relation to the child and his property.

This often confuses some parents and they often enquire as to what rights this specifically covers. Examples of such rights are set out as follows;

  • providing a home for the child
  • having contact with the child
  • protecting/ disciplining the child
  • choosing the school/ determining the religion of the child
  • making decisions as to the schooling of the child
  • agreeing to changes in the child’s name

Who has parental responsibility ?

  • A mother automatically acquires parental responsibility.
  • A father acquires this automatically if they are married at the time of the child’s birth, or if they are named on the child’s birth certificate.

How can it be acquired ?

  • A father can acquire parental responsibility if he is registered on the birth certificate or if he jointly registers the birth with the mother.
  • By a Parental Responsibility Order made by the Court.
  • By a Parental Responsibility Agreement with the mother.
  • Point to note: Parents do not lose parental responsibility if they divorce and if the parents are not married, parental responsibility does not always pass to the natural father should the mother pass away.

 

Acquiring PR through the Courts

A father can apply to the court to gain parental responsibility. In considering an application from a father, the Court will take the following information in to account:

  • The degree of commitment shown b the father to his child
  • The degree of attachment between father and child
  • The father’s reasons for applying for the order

 

The Court will then decide to accept or reject the application based on what it believes is in the child’s best interest.

A father who does not have parental responsibility can also apply for a contact order through the court, to set out a timetable for contact, if this cannot be agreed amicable between the parties. This is usually done at the same time as applying for a parental responsibility order.

Maintenance

The question of maintenance often arises in conjunction with the issue of parental responsibility. A parent who does not live with the child still has a legal obligation to contribute to the day to day maintenance of their child, regardless of whether they have parental responsibility or not.

Maintenance can be arranged via a private agreement between the parties or can be arranged through the Child Support Agency directly. If the CSA is used, their role is to calculate the rate of maintenance payable, based on the non residing parent’s net weekly income, the number of dependants and the amount of nights spent with the non residing parent. Once this has been decided, the maintenance is deducted at source from their earnings and passed on to the parent who has residence.

This article was written by Maya Bhatiani, an Assistant Solicitor in the litigation and family law departments at Darlingtons Solicitors. Follow us on twitter @darlingtons_

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Party walls

Posted on November 22, 2011 by admin

What do I do if my neighbour starts building a large extension without my permission?

The purpose of this article is not to provide a comprehensive over view of the law on party walls, but to produce a guide for those who find themselves in a similar situation to the one outlined in this title.

If your neighbour is commences building works and they fall within the scope of the Party Walls Act, then you may have the right to prevent your neighbour from building their extension.

For example, the Act will cover boundaries which are deemed as party walls, being walls which fall on the boundary line between two properties and any excavation, construction or connective work which may affect the neighbouring property’s foundations or structure.

The first issue arising is whether the works your neighbours are carrying out fall within the Act. If the works directly affect the party wall or other party structure then this will be included in the Act. If your neighbours are excavating close to your property and the works are likely to compromise the foundations of your property, or are constructing a new wall at the junction of the properties, these works are likely to be caught by the Act.

If the works are caught by the Act, your neighbour must serve a Party Wall Notice on you, two months before the proposed works are to begin, in order to gain your consent to begin the works.

You may serve a counter notice setting out any reasonable requirements or conditions you require the works to adhere to.

However, if you do not respond, this will be taken as dissent to the works and your neighbour must appoint a jointly agreed surveyor or a surveyor must be appointed on behalf of each party, in order to come to an agreement about the works needed to be carried out.

Once this has been agreed, the Surveyors will make a ‘Party Wall Award’ which in essence, determines the right to execute any works, the time and manner in which the works must be carried out and resolving any other issues arising from such works.

This Award can be appealed by you, but there is a time limit of 14 days in which to do this. A Court will make a decision on whether to rescind the Award and will award costs at its discretion.

Once the Award has been made, works may commence and reasonable costs in relation to making and obtaining the award, in relation to reasonable inspections of work and any matters arising from the dispute will be payable by the party determined by the surveyor.

However, your neighbour can also retrospectively serve party notice in order to obtain the necessary award if they have completed works without an award. However, if you can show that damage has been done to your property, you are likely to be able to sue for breach of statutory duty, damages and injunctive relief in order to relieve damages done to your property and costs.

Maya Bhatiani is an Assistant Solicitor in the Litigation Department at Darlingtons

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Enforcing a County Court Judgment

Posted on November 2, 2011 by admin

Enforcing a Financial Order made in the County Court

In many cases when a party has applied and received an Order for Financial Relief, the Respondent will fail to comply with some or all of the Order. It is therefore important for people to know what they can do to enforce such an Order and which way is most likely to succeed in their specific circumstances.

Before deciding on the best course of action to enforce a Financial Order, it is important that the affected party inform their solicitor or take advice immediately if the other party is in default. This is because in cases of periodical payments, should the arrears be more than 12 months old, the Court will only hear the matter if you apply for leave to bring the matter before the Court, and it is possible that the Court will refuse, which wipes the slate clean for the Respondent.

The method of enforcement to use will depend on the circumstances and assets of the Respondent. Whilst you may have known what these were at the time of the original hearing, should you believe that they could have substantially changed, you can apply for the Respondent to attend Court to have an oral examination as to their current financial circumstances. Failure by the Respondent to attend would be contempt of Court.

The following are possible ways of enforcement:

1. Attachment of Earnings Order:

Under such an Order the Respondent’s employer will be obligated to deduct a specified sum from his earnings. This amount will usually represent the amount of the maintenance with a proportion of the arrears, where possible. This money is then sent to the Court which will then forward it to the party in whose favour the Financial Order was made.

Such an Order will also specify a ‘minimum amount’, below which the Respondent’s wage cannot fall. This will mean that should his earnings drop below this amount, the employer will no longer be able to deduct any money from his wage.

This type of Order is best suited where there has been an Order for periodical payments. It can be applied for either when the Order is first made, or later when the Respondent defaults.

The main drawback of this method is that should the Respondent lose his job, or have his wage fall below the minimum amount, then this Order will not be enforceable. Additionally if they are self employed it cannot be used and if they constantly change jobs, it will make it administratively difficult to maintain.

2. Warrant of Execution:

This warrant enables the County Court Bailiff to seize and sell assets belonging to the Respondent so as to cover the outstanding arrears. No hearing is required for this. This method is most useful for unpaid lump sum orders, but could also be used where periodical payments have substantial arrears.

This method assumes the Respondent has sufficient goods of a value which could be sold to make up the arrears.

3. Third Party Debt Order:

Under this Order, the  Applicant is able to receive payment direct from a third party who owed the Respondent money, such as a bank or building society.

Such an Order has two stages. First an Interim Order is made which will freeze the account/assets of the Respondent. This Order can be made without notice. Then a full hearing will take place where the Court can make the Interim Order final. This method can be useful to enforce any unpaid lump sum Orders.

4. S.24A Matrimonial Causes Act 1973:

Under this Act the Court can make a Financial Order with a condition attached relating to the property of the Respondent. So, for example, the Order could provide for the Respondent to pay a lump sum of £30,000 – which would be the Applicant’s share of the home – and should that sum not be paid within a specified time limit, then there is an Order to sell the home and have £30,000 of the proceeds paid to the applicant.

5. Charging Order:

The Applicant can apply to Land Registry for a charge to be placed against the Respondent’s land, or land in which they have an interest in. Again, such an Order is acquired in two stages, first obtaining an Interim Charging Order and then a Final one at a full hearing.

Once the Applicant has a Charging Order they will have a security for the debt. It can also be possible that the Court will Order the property to be sold, however where it is the Respondent’s home and the amount owed is relatively small it is likely that the Court will not make such a draconian Order. In this case the Applicant would have to wait until such time as the Respondent decided to sell their house.

6. Judgment Summons:

The Court has the power to commit the Respondent to prison where they have failed to pay under the Order, so long as the Respondent has defaulted on the Order and they have the means to pay but are refusing or neglecting to do so.

Although originally the Court would bring the Respondent in for questioning about their means, this is now seen as a breach of their Human Rights, so it is now necessary for the Applicant to show beyond reasonable doubt that the Respondent has the means to pay. This can make it very difficult so is rarely used.

An additional option is to apply to register the County Court Order in the Family Proceedings Court. In this way payments are made by the Respondent direct to the Clerk of the Court, enabling them to make a complete record of what money is being paid and when. It should be noted that many Family Proceeding Courts will only accept registration of a County Court Order where the Respondent is already in arrears.

An added benefit of registering the Order at the Family Proceedings Court is that they will then start enforcement proceedings, should the Respondent fall into arrears.

In deciding which route is best to take to enforce a Judgment you must take into account all the circumstances of the case, especially that of the Respondent. There would be no point going down a long and expensive route where at the end of it the Respondent has no assets to actually take.

This helpful article kindly contributed by Darlingtons Solicitors, who offer specialist advice in litigation and many other areas of law.

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Litigation costs – what you need to know

Posted on September 28, 2011 by admin

This article is aimed specifically at costs in contentious cases.

Solicitors usually charge for their time by recording their time in units of 6 minutes so that 1 unit equals 6 minutes, and 10 units is 1 hr, and so on and so forth.

Usually, time will be recorded with a description of that time. That time record should usually be recorded in the form of a letter, a note, a document, a memo, or an internal file note.

How do you know if what your Solicitor is charging you is reasonable?

The truth is that you usually get what you pay for. Cheap may not necessary be good. Expensive, may not necessarily be affordable to you.

Consumer Sovereignty generally dictates what are reasonable costs. You will expect to pay more costs if you retain a Solicitor in the City of London, and the West End, than if you were to retain a Solicitor in Greater London.

The general reason is that fixed costs, and the running costs of a Law firm in central areas are higher than say Greater London.

Accordingly, in the Civil Procedure Rules 1998, there is a guide to costs and what are reasonable charges, based on the experience of a Solicitor, the qualification, and location of their offices. Legal Advisers are graded A to D.

Grade A is for a Solicitor of over 10 years post-qualification experience. Grade D is usually for Trainee Solicitors and Legal Clerks.

Alternatively to this, a Solicitor may be a specialist in his/her field, and can dictate a fee over and beyond the notional guideline costs set out in the Civil Procedure Rules 1998, but you pay for that knowledge and experience, and this may have nothing whatsoever to do with where that Lawyer’s offices are based.

David Rosen is a Solicitor-Advocate with higher rights of audience in all proceedings, Partner and head of Litigation at Darlingtons, a member of the London Solicitors Litigation Association, and a visiting Associate Professor of Law at Brunel University.

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Summary Judgment

Posted on July 11, 2011 by admin

Should we consider an application for summary judgment ?

It’s very tempting to consider applying for summary judgment as a way of avoiding a long drawn out and expensive court process. However, summary judgment applications have a high technical burden on the applicant and it should be remembered that failing with such an ap0plication will involve, in all probability, not only paying your own legal costs of the application but also being ordered to pay your opponent’s cost of contesting the application.

It is also worth remembering that summary judgment relates potentially to all or part of a case and also such an application can be made either by a defendant on a counterclaim or the claimant on the main claim. The essential legal test is whether there is :-

  • a claim, issue or defence has no real prospect of success.
  • There is no other compelling reason for a trial.

There are certain categories of claims where it is not possible to apply for summary judgment. Consult us for further advice or information.

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Specialist courts – the way forward ?

Posted on May 29, 2011 by admin

New & sensible thinking  (finally) ?

The debate about crime rates, court time, resources and societal problems seems tro go round and round in circles, picked up by politicians from time to time to castigate their opponents. And yet, nothing seems to change, certainly not for the positive.

But wait, some sensible thinking may have finally arrived !

Under a new pilot scheme, specialist courts are working with drug-addicted and alcoholic parents in an attempt to keep families together and where that can’t be achieved, adopting a sensible and speedy approach to finding new homes for vulnerable children.

Research suggests specialist court making a positive difference

Research by Bunel University and the Nuffield Foundation is interesting in finding that 39% of mothers dealt with by the pilot court have been reunited with children, in contrast to 21% in ordinary care proceedings. The costs are cheaper also. The pilot scheme has been given another year to assess results in a longer term basis.

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Intestacy

Posted on May 7, 2011 by admin

Intestacy – what is it ?

A person who dies in England or Wales without having made a will is said to have died ‘intestate’. In such a case legislation determines who will be appointed to administer the estate (deal with the deceased’s affairs) and to whom the deceased’s estate (property, personal possessions and money) should be distributed. The person charged with that responsibility is called an Administrator. Where there is a will he or she is known as the Executor or Executrix. Generically they are the “personal representatives”.

Administering the estate of one who died intestate  can be a lengthy, time consuming and complex exercise even for a lawyer or other specialist but for an unqualified Administrator it could take as long as several months or even years in the most difficult cases.

Administrators, in such cases, should consider very carefully appointing a probate solicitor. What may seem like an expensive indulgence may be a significant saving in the long run.

There are strict rules that determine the chain of representation, i.e the order in which family members are appointed by the Probate Registry as personal representatives to deal with the estate.  Administrators (or executors) are entitled to renounce if they don’t want the job and ultimately if the Probate Registry runs out of candidates in the Chain of Administration the Court will appoint the Official Solicitor to deal with the administration

Once it has been decided who is to administer the deceased’s estate the task of the administrator is exactly the same as an executor, namely to marshall all the deceased’s assets and pay debts and then distribute the net assets. In order to administer an estate the Probate Registry will issue a ‘Grant of Letters of Administration’ to the person nearest to the top of the Chain of Administration. having received the grant the applicant becomes the ‘administrator’ of the estate, which provides proof to banks, building societies and other institutions that the Administrator is entitled to collect in and distribute the deceased’s estate.

 

Some important points

 

  • An Estate of less than £5,000, containing no land, property or shares, will probably not require a grant

 

  • The rules regarding inheritance changed in February 2009. On intestacy the deceased’s estate will be distributed  in the following order.

 

●    For spouses or civil partners the first person entitled to the estate is their spouse or civil partner, although they will not necessarily inherit all of it. The amount they inherit depends on in the size of the estate, and which children survive.

 

 

●    If you were not married or a registered civil partner, you will not qualify for a share of your partner’s estate if he or she dies intestate. Your only option is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the grounds that that you have not received reasonable financial provision.

 

●    This is a complex and specialist area of law and a claim may not succeed. Anyone embarking on such a course would be well advised to take legal advice before so doing.

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Driving bans

Posted on May 5, 2011 by admin

39 penalty points but no driving ban

 

It seems that a driver who accumulated 39 penalty points on his licence has avoided a ban, an answer to a Freedom of Information request has revealed.

 

In usual circumstances, where 12 points are accumulated on a licence this would result in a 6 month driving ban. However, the courts do have discretion as to whether or not to impose and in mitigation, a commonly raised plea is often that if a driver loses his or her licence, this would create significant hardship.

 

Examples of significant hardship might include the driver living in an isolated area with few or no other options of getting to work, or if they have a vital role as carer of a disabled child or adult. This may also include a driver not being able to earn a living.

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County Court System – the basics

Posted on March 12, 2011 by admin

Cases dealt with by County Courts


  • County courts deal with civil cases
  • Most cases (some types of case like bankruptcy must be issued in the local court dealing with that type of case) can be started in any county court but the case may be transferred to the defendant’s local court automatically if the defendant is an individual not a company.
  • In some cases the defendant can request its transfer.
  • There are currently (subject to planned cost cutting closures) 226 county courts
    • County courts deal with a wide range of cases, but the most common ones are:- landlord and tenant disputes, consumer disputes, personal injury claims, undefended divorce cases, some domestic violence cases (but these may also be heard in the magistrates court, debt claims

 

 

 

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Small claims

Posted on March 12, 2011 by admin

Small claims cases

In England and Wales, a case will, if defended, be dealt with in one of three ways. The court will decide which of these applies and then allocate the case to the corresponding ‘track’, which if the claim is generally £5,000.00 or less, will be the small claims track.

The procedure in the small claims track is simpler and generally faster than for other claims but the law is still the same. the advantage of a small claims case is that it eliminates the risk on costs but as against this, there are many case with a value of less than £5,000.00 where the law and evidence are complex and if the claimant has a strong but complicated case, that claimant may want to instruct a solicitor but will not recover his/her/their legal costs incurred.

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