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Keeping Calm with CAFCASS

So you are in involved in Family Court Proceedings and CAFCASS have been asked to prepare a report to assist the court.

Who or what is CAFCASS? CAFCASS stands for Children and Family Court Advisory and Support Service. They represent children in family court cases in England and Wales. Their duty is to safeguard and promote the welfare of children going through the family justice system, putting children’s’ needs, wishes and feelings first, making sure that children’s voices are heard in the process so that decisions are made in their best interests. CAFCASS workers are qualified and experienced social workers used to dealing with vulnerable children and their families. They are also required to have particular expertise in safeguarding and be able to engage with children of all ages.

They are effectively the eyes and ears of the court for the purposes of ascertaining what is in the best interests of the child involved in one of several types of proceedings; divorce and separation, where parents are unable to agree arrangements for their children, care proceedings (also known as Public law Proceedings) where there are issues regarding the safety and well being of a child (and during which children may be removed from or returned to their families) and during adoption proceedings. CAFCASS cannot offer legal advice and will not advise on any issues raised.
What should you expect from your visit from CAFCASS? In order to hear from everyone involved in the proceedings CAFCASS will visit each of the parents/ parties at home. If children are of school age they will usually be seen there.

What can you do to prepare for a visit from CAFCASS?
• Ensure that your home is clean, tidy and welcoming. Where there are very young children at issue your home needs to be child friendly with appropriate safety measures in place e.g. stair-gates, etc. If overnight contact is being sought the CAFCASS officer will want to see where the child will be sleeping. Give some thought to making the bedroom warm and cosy with appropriate bedding, toys and books for the child.
• During the interview, remain calm, friendly, positive and polite. It is important that you remain child-focused. Explain what you would like the court to order in terms of where you want the child to live and how you want contact to be arranged.
• Be clear, calm and concise. Make some notes in advance to remind you of the points you would like to make during your appointment. Describe to the CAFCASS officer what your family life with your child is like and what you and your child like to do together, mentioning any special routines, activities or interests you and your child share.
• Having some photographs on display of you and your child is also very helpful.
• Try not to exaggerate, or criticise your former partner personally. Always tell the truth and never make false allegations.
• Don’t speak about your child as if you are his/her only parent. Remember that it is your child’s right to have an ongoing relationship with both parents and regular, meaningful contact with the non-resident parent is important unless there are serious safeguarding issues, which must be reported.

Once the court appointed CAFCASS officer has met with all parties to the proceedings (including the child, whose wishes and feelings will be considered as a paramount consideration – the older the child the more weight will be attached to his/ her wishes), a report will be prepared for the court with a recommendation as to the appropriate order to make in all the circumstances.

Whilst a report by CAFCASS is persuasive it is not binding on the court. However, it is relatively unusual for a Judge to depart from a recommendation from CAFCASS and he/ she would be required to provide a reason for doing so.

In the event that you are unhappy with the report recommendations you can make this known and raise this during the court proceedings.
Should you require advise or information regarding any aspect of family law, please do not hesitate to contact the Family Team at GC Solicitors on -1462 483800.

Claire Ballard

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Traumatic Brain Injury from an Accident can lead to Dementia Risk

Although it is known that repeated brain injuries may result in dementia type conditions such as with Muhammad Ali, a new study from the University of Glasgow led by the ‘not-for-profit’ Mario Negri institute for Pharmological Research shows that a single head injury or traumatic brain injury can result in brain degeneration.

The process involves the production of an abnormal version of a protein called ‘tau’. Tau is associated with the development of dementia and slowly spreads through the brain causing memory problems. Evidence in head injury claims will now need to consider these new findings when considering the prognosis for the injured party.

Sylvia Phillips
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Whose Fault is it Anyway…?

So you and your neighbours used to get along, but no more. They accuse you of all sorts of mischief; you accuse them back and that neighbourly friendship cannot be recovered. No matter, let’s all go and have a cup of tea together. Who cares if your neighbour accused you of poisoning their prized delphiniums and you accused them of letting their dog in to poo in your garden. So that cup of tea…realistic? Not really, and nobody would expect it to be. Yet for decades separating couples in England and Wales have been faced with needing to accuse their spouse of a fault in order to obtain a divorce, unless they want to wait 2 years from the point of separation until they can start divorce proceedings (and even then if the other spouse does not agree to the divorce at that stage, they must wait until they have been separated for 5 years). With a background of either bad behaviour or adultery, these couples are expected to try to reach an agreement on finances and children.

Until the recent case of Owens v Owens [2018] UKSC 41, the practice of most family lawyers in drafting a behaviour based divorce was to cite a handful of reasonably anodyne allegations that would be considered to be enough to show the marriage had broken down but would minimise the hostility between the divorcing couple. The Owens case has led us to re-evaluate the damping down of allegations, in case the court decides there is insufficient evidence of marital breakdown. Though it is the rare case in which someone will be able to stop a divorce by defending it, Owens showed all that it is possible if a party is stubborn and unwilling to compromise.

So it was with relief that the government recently confirmed it would consult on introducing no fault divorce. This will not be the first time a government has looked at changing the law. The Family Law Act 1996 had a section that would have introduced no-fault divorce, however that part of the Act was never enacted and has now been repealed. The usual justification for failing to support such a change by “family values” politicians is that changing the basis for divorce to purely no-fault will undermine marriage. This is simply not the case. In the not too distant old days, before the massive cuts which have caused significant delays, it used to be possible to obtain a divorce in as little as 3 months (the so called “quickie divorce”). Realistically with court delays it is more like double that these days, but the point is that a fault based divorce can result in much faster divorces than a separation based divorce.

The need to blame one person for the breakdown of a marriage is unfair and often encourages people to lie. Very often the breakdown is caused by both parties whether actively or simply because they have grown apart. In the latter case, someone who wants a divorce may exaggerate or make up accusations. Particularly where there are children and an ongoing relationship is required to parent the children, this is to say the least, unhelpful. Getting rid of fault based divorce will reduce conflict and that can only be a good thing, especially when there is a need to deal with finances and/or children.

There are very few people who would not consider marriage to be a choice in life. Politicians are doing what they can to stop forced marriages. People can run off to a registry office and get married with 28 days’ notice and having given no particular thought about whether it is the right thing to do. Why should it therefore be so much harder to exit a marriage? There are few family lawyers out there who are not keeping their fingers crossed that common sense will prevail.

Stephanie Wells
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Is September the new January?

Often we experience an increase in the number of enquiries from couples looking to separate following the summer holidays. We have previously noticed a significant increase in the number of new enquiries in the first week of September, which of course coincides with children returning to school.

Many parents put off divorcing until this time; and in many cases extended periods spent with partners, for instance on holiday, can lead to separation among childless couples too.
Unfortunately, this is a pattern which we have seen before. Quite often people have been on holiday together and have come to realise that perhaps there are more issues in a relationship than previously thought.

Often those couples with children find that problems raise their heads during the same time, and once the children are back at school have more time to consult a solicitor. Once the normality and routine return, we usually find an associated increase in enquiries relating to divorce. There is also often a desire to have a divorce completed by Christmas, and the process can be fairly lengthy, so people consult a solicitor at this time of year.

For further information, please do not hesitate to contact one of our family & divorce team.

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What’s in a name?

A recent study by Aviva, the insurance company found that 49% of adults in the UK who live with a spouse or partner or children have had at least one past relationship which they regarded as committed either by marriage or cohabitation. Nearly a third of families now include a stepchild from a previous relationship and in 2014 the Office for National Statistics reported that there were 2 million lone parents with dependent children living in the UK.

Increasingly, parents ask if it is possible to change a child’s name following the breakdown of a relationship and loss of contact between a father and child, remarriage or when a subsequent relationship becomes long term.
Legally a child’s name can be changed easily by deed poll or change of name deed providing that everyone with parental responsibility for the child consents. This is necessary even where the parents of the child have separated, divorced and remarried.

Once a child turns 16 they can apply for their own deed poll and parental responsibility is no longer required.

Parental responsibility is the legal term that defines who has the legal rights, duties, powers and responsibilities for a child under the age of 16. The mother of a child automatically acquires parental responsibility at the time of birth. A father also automatically acquires parental responsibility at the time of the child’s birth if he is married to the mother of the child at the time or subsequently marries the mother. Since 1st December 2003 an unmarried father will acquire parental responsibility if he is named or is later entered on the child’s birth certificate.

In circumstances where the mother has sole parental responsibility she is not required to seek the consent of the father and it is only necessary for her to complete a declaration confirming her legal right to change her child’s name and confirm that she is not required to seek the consent of any other person.

Consent to change a child’s name can be by agreement between the parents and evidenced by a letter from the parent giving permission for the name to be changed. In the absence of consent it is necessary to apply to the court for permission. This is done by making an application under the Children’s Act 1989 for a s8 Specific Issue Order.

A court will consider if it will be in the child’s best interests to allow the name change. The level of commitment of the non-consenting father to the child will also be taken into consideration as will the frequency and quality of contact and involvement between the father and child to determine whether the name link between the father and the child can be broken.

Older children of secondary school age (ie 11 years and over) will have their views taken into consideration to determine if the name change sought should be allowed.

GC Solicitors can advise and assist you should you be considering changing your child’s name.

Claire Ballard

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Injury Prevention Day 2018

Ahead of Injury Prevention Day 2018 on Wednesday 15 August 2018, how about joining in? The Association for Personal Injury Lawyers (APIL) are campaigning to raise awareness of the important role car head rests play in protecting your neck. Research by Thatcham suggests that whiplash injuries occur in 80% of road traffic accidents. You can join in by checking the head rests in your car to minimise any whiplash injury if you are involved in a car accident.

If you are not sure that your head rest is adjusted correctly you can see a guide by clicking here. Remember to make sure your passengers adjust their head-rests in the back too.

Sylvia Phillips
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Fitbit – a good way to show the impact on daily life in accident claims?

Technology is being integrated into everyday life with increasing sophistication each year. Wearable technology such as the Fitbit has been heralded for its uses in weight loss but now the activity tracker is help victims with their injury claims. These technologies come in a variety of forms including smartwatches and GPS trackers and even include computerised clothing such as Google Glasses. They can provide validation for victims who have suffered injuries which impact on their daily lives and may have led to a permanent lifestyle change.

In assessing the legitimacy and success of a Personal Injury claim several aspects will need to be considered including medical records, assessments and reports from experts. To strengthen the case it is now becoming increasingly possible to submit digital records from wearable technology which would have recorded the event and its aftermath to aid the claim.

Most significantly a device similar to that of a Fitbit can be used to show a deterioration in health; if worn every day the activity tracker will become accustomed to daily routine thus can recognise when activity has fallen below average levels. An injury may lead to reduced mobility, disrupted sleep patterns or even emotional damage which can be validated by this data. This creates a clearer picture of a victim’s physical state thus strengthening the case.

Whilst in most cases the use of wearable technology should be helpful in the pursuit of lawful injury claims we must also consider the dark side to this technology if it is to be used in widespread practice. Some people may be tempted to make fraudulent claims with skewed or falsified data and this would complicate the matter in pursuing a case. In addition to this, the personal data collected will be subject to public use, this arguably, could lead to a privacy issue as insurance companies may want to access this information.

By Shaan Raju
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Driverless Cars and Injury Claims of the Future

With further automation on the horizon we can anticipate a future that converges human and artificial intelligence in society. One area seeing rapid developments that will impact the way our lives is the phenomenon of cars without drivers.

In the realm of road traffic accidents and the future of legal claims one question may be posed:

What do we do when there is no human involved?

In most instances road traffic accidents are the result of human error, this is primarily due to distractions whilst driving. However, as the BBC reports, a driverless car industry is racing towards us and bold government plans could see this in play as early as 2021. One prediction believes that by 2035 we could see 21 million examples of automated vehicle technology (AVT) on our roads. Generally it is the aim of this technology to improve road safety, but where do road traffic accident claims go when this is not the case.

The Debate: Accidents happen but who do we blame?

As news broke out earlier this year of a US women becoming the first fatal accident at the hands (or lack of) of Uber’s self-driving car the question of liability enters the conversation.

Does the absence of human involvement equate to the absence of human accountability?

So who’s to blame: Vehicle manufacturer? Manufacturer of specific components? Software engineer?

In most instances of car accidents blame is placed with the drivers, so following this logic, when no driver is present this responsibility naturally shifts to the manufacturer.

In cases that are solely AVT, manufactures will be held to a higher degree of accountability. Some manufactures welcome this, like Volvo who led with a bold statement in 2015 that pledged to accept 100% liability in a collision of self-driving cars.

Notably, widespread usage of driverless cars could see the shift from mobile liability to product liability. This brings its own complexities with insurance and legislation which could include more potential defendants for claimants to prove their case to.

The Association of Personal Injury Lawyers (APIL) are seeking clearer answers to this and debate the possibility of expanding upon existing motor insurance policies or bringing about change to existing procedures.

While it is difficult to know with certainty the future of legalisation for driverless cars as this requires mutual cooperation from manufactures and insurance companies in the claims process. What can be said on the issue is that clients will remain the focus of road traffic accident and injury claims.

By Shaan Raju
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