The Success of Family Mediation Vouchers

The Success of Family Mediation Vouchers.

Wayne Cartlidge (Student)

In March 2021 the Ministry of Justice (MoJ) introduced a new scheme in the UK, which was designed to try and help families whose cases would usually end up in court, to work together and ensure that the case did not go to court.

The trial scheme using ‘mediation vouchers’ was introduced to try and minimise the number of family disputes that end up going to court.  Following the trial period, the Ministry of justice have hailed the trial a success and have further announced that they will make a decision to see if the scheme is to continue ‘in the very near future’.

Since March 2021, the MoJ have revealed that the vouchers have been used by and supported more than 13,500 families.  From this number, the MoJ revealed that in two-thirds of those cases a whole or partial agreement was reached away from the court room.

Families who used the scheme were entitled to apply for a £500 voucher towards the cost of the mediation sessions. 

During the sessions, the parties would attend a mediation information and assessment meeting (MIAM) with a trained mediator.  Following the initial meeting, the mediator provides an assessment on whether or not they believe that the family’s case would be eligible and suitable for mediation.  If the mediator decides that the case would be suitable, it would be the mediator who applies for the voucher, and this is then paid directly to the mediator once the mediation sessions have finished.

Prior to this scheme, government data showed that referrals for mediation had dropped after the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force.  According to the MoJ latest statistical report, MIAM’s currently stand at around a third of pre-LASPO levels, with family mediation starts being around half of pre-LASPO levels.

Here at SULAC we can advise on family matters and have close links with local mediators. If you would like an appointment please call 01782 294800 or email SULAC@staffs.ac.uk

What rights do victims of defective products have?

warranty problem concept with torn wire

What rights do victims of defective products have?

Joanne Bennett (Student)

The Consumer Protection Act 1987 gives rights to victims of defective products, enabling them to bring a claim in a civil court. A claim can be brought by anyone injured by a defective product (not just the person who purchased the product). The claim should be brought against the producer of the product (this is usually the manufacturer).

The person who brings the claim (the Claimant) must prove on the balance of probabilities (more likely than not) that a defect in the product (wholly or partly) caused the damage. A defect could be a manufacturing fault, a design problem, or a lack of safety information. The Claimant does not need to show that the producer was at fault.

The product is considered defective if the safety of the product is not such as ‘persons generally are entitled to expect’. When considering what ‘persons generally are entitled to expect’, the following factors are taken into account:

  • How and why the product was marketed (for example, whether it was marketed to a specific category of people such as children)
  • Any warnings and instructions provided relating to how the product should be used (do the benefits of the product outweigh any risks provided for in the warning information?)
  • What might this product reasonably have been expected to be used for? Was the product used for something outside of this expectation?
  • When was the product supplied? (Was this considered a risk for this type of product at the time it was produced?)

If the product was not of a standard that ‘persons generally were entitled to expect’, then the producer may be liable for damage caused by the defective product.

Damage is defined as death or personal injury, or any loss of or damage to property. Injury includes any disease or other impairment of a person’s physical or mental condition, including harm to an unborn baby. Damages can be claimed for pain, suffering or loss of amenity.

Claims must exceed £275 and are limited to property (including land) which is primarily used for personal use. No claim can be brought ten or more years after the product was put into circulation, and claims cannot be brought for damage to the defective product itself.

The producer cannot avoid liability for such damage by using clauses which attempt to exclude or limit their liability.

Here at SULAC, we offer free legal advice for all consumer matters. If you would like an appointment, please call 01782 294800 or email SULAC@Staffs.ac.uk.

Parental Alienation

Parental Alienation
Bruna Lopes (Student)

The definition for parental alienation as stated by Cafcass is” When a child’s resistance / hostility towards one parent is not justified and is the result of psychological manipulation by the other parent.” This definition has received recent approval from the Court of Appeal in Re S (Parental Alienation: Cult) [2020] EWCA Civ 568, [2020] 2 FLR 263, who added to it that the manipulation of the child need not be malicious or even deliberate. It is the process that matters, and not the motive, though the alienating parent’s motive is important and can inform the court’s decision.”

While parental alienation cases are difficult to identify and present a hard job for legal practitioners, professionals have identified signs that alienation is taking place. It is almost fundamental to act on cases of parental alienation very early on, if not irreversible damages could be done to the alienated parent’s relationship with the child. Consequently, both the child and the alienated parent’s well-being are compromised.

 If you fear you are becoming the alienated parents, there are some signs you can look for. If your child is unjustifiably and constantly criticizing you, it could mean you are being alienated. Usually, the child will have no specific examples of things you have done wrong and/or said, and mostly no justification for the criticism or the child could start presenting false or illogical reasoning. Your child, when asked, can make claims that their criticisms are their own based on their own opinion. The reality is that the alienating parent may have encouraged the child to behave and think this way. Another sign to look out for is if the child starts using terms and phrases that only come from adults. Often children will bring up events that happened before they were even born, or simply create a fictional story. If your child’s feelings towards you are all or most of them are negative, it could mean you are being alienated.

Signs that your ex-partner is alienating you:

  • One parent makes efforts to have excessive contact with the child, especially during the other parents bonding time.
  • One parent is suggesting to the child that the other does not possess feelings for them, they might suggest to the child that the other parents does not love or care for them.
  • One parent is deliberately making unfound allegations against the other parent. These allegations can extend to the child and others.
  • One parent is portraying the other to the child in a hurtful, degrading, and negative way.

If you recognise these signs early there is a greater chance of reversing the effects of the influence of the other parent on your child. Firstly, it is important to understand that the priority in these cases is the safety and well-being of the child. The longer your child is exposed to the bad influence, the longer it will take to reverse the effects. 

If you think you are being alienated and you would like to start court proceedings, you should start by finding the right professionals for your case. Under section 7 of the Children Act 1989, performance reports can only be released after a fact-finding hearing. Without fact-finding hearings, those who may be called upon to make recommendations to the court on child welfare issues, whether they be Cafcass officers, independent social workers, or guardians, are doing their work without a factual basis. Serious accusations against parents are a classic case of parental alienation, and it is common for children to say loudly that they do not want to see the accused parent. It is difficult for personal protection professionals to draw any conclusions without properly evaluating the veracity or otherwise of these claims. In addition to the S.7 report, other reports are also helpful. It may also require psychotherapy and intervention for the parent and/or child.

Fact Finding Hearing

The first step you should take is to seek for an early fact-finding hearing.Before entering any court proceedings, it is important to prove the allegations are untrue. While there is still no official regulation for parent alienation in the United Kingdom, family courts will step in if your child’s safety and well-being is under threat. That being said, the assumption from courts is always that the child having contact with both parents is aways the best option. Legal practitioners consider the merits of mediation or collaborative practice to resolve the issue of parental alienation. This is a less formal, non-adversarial process that can help to reduce the impact of parental alienation on the child. It can also help to rebuild the relationship between the parents and the child and can be an effective way to resolve the problem without resorting to a court battle.

Court proceedings

If you think mediation is not a viable option for you then there are legal options you can take. It is advised you seek legal advice as quickly as you can. You could apply for a child arrangements order. This application will allow you to spend time with your child and/or they can live with you.

If the circumstances are more serious, you apply for a prohibited steps order. You can apply for a prohibited steps order if you believe your co-parents is capable or is trying of moving away with your child without you knowing; change your child’s name or make other personal changes like the school they frequent, without your knowledge. Cafcass workers will supervise contact and meetings with both parents, and more fundamentally they will speak to the child and asses their wishes and needs. If necessary, a psychological analysis can also be conducted.

In all cases of parental alienation, where any situation where a parent is estranged, assessing the child’s needs and securing their safety, it number one priority. Of course, There are clearly difficulties in dealing with the desires and feelings of children in alienation cases. The views expressed by the child, no matter how strong they may seem, could be those of the alienating parent, not the child. The list in section 1 of the Children Act 1989 requires courts to consider not children expressed wishes, but their identifiable wishes and feelings, considering their age and understanding. Simply reporting what a child says without examining how and why he said it has been described as superficial and naïve.. Courts can rely heavily on close observation by commissioned experts who will be able to guide children’s responses and better understand their backgrounds. The court has a duty to keep in active contact during and after proceedings. Courts review evidence not to determine who is “culprit,” but to determine how best to ensure the best interests of the child; the child’s welfare comes first. In reaching conclusions about the parents’ conduct, the court first engages in arguments with the parents, trying to persuade them to choose the right path for their children; it only orders when it is best not to order. If an order is required, the court can change the child’s situation to allow the child to be transferred from one parent to the other, and cases in recent years have increasingly shown that courts are willing to do so.

It has been stated that the court will always assume that the best-case scenario for a child is to have both parents present in a healthy relationship. However, when cases do not have the conditions to fulfil the requirements to have both parents present in the child life, and one of the parents is not willing to cooperate, problems arise. Nevertheless, if visitation preparations aren’t met, a dormant order requiring the child to transport to the estranged parent may suffice and attain the favoured ending and resumption of the connection with the estranged parent. Likewise, contact orders with intense and serious consequences for violations may be successful.

Here at SULAC we can help with Child Arrangement Orders. If you would like an appointment please call 01782 294800 or email SULAC@staffs.ac.uk.

Reasonable Adjustments in the Workplace

Tia Collins (Student)

If an employee has a disability Section 20 of the Equality Act 2010 imposes a duty on employers to make reasonable adjustments within the workplace.  Reasonable adjustments are changes which an employer makes to help reduce or remove the disadvantages an employee might face due to a disability, to ensure that they are able to fulfil their role as well as someone who does not have a disability.

Any adjustments which are made must be funded by the employer and they must be reasonable. What is reasonable is subjective to the situation, for example the size of the organisation and the adjustments that are being asked for. The employer should also consider speaking with the employee to determine if the adjustment will remove or reduce the disadvantage. Other considerations which should be taken into account are if the adjustment is practical and affordable to make and whether or not it could harm the health and safety of others.

If an adjustment is not reasonable, the employer should look at other ways in which they can support their employee so that they can carry out their role. For example, if a wheelchair user requests a lift and this is unaffordable for the employer, they should try and take steps to allow the employee to solely work on the ground floor, if this is possible.

There are many ways in which an employer can make an adjustment for an employee, these include, but are not limited to:

  • Making changes to the workplace; for example, providing a ramp for a wheelchair user to access the building
  • Changing someone’s work arrangements; for example, working from home or a hybrid approach
  • Finding different ways of doing something; for example, offering a different role
  • Providing equipment, support, or services; for example, providing emails and documents in alternative formats.

Under section 21 of the Equality Act 2010, if an employer refuses to make a reasonable adjustment this can be seen as being discrimination. The first stage is to make a complaint to the employer and if the organisation has a Human Resources department, you can complain to them. If this does not resolve or the employer still refuses, you can make a claim to the employment tribunal.

Here at SULAC we can assist with employment disputes. If you would like an appointment please call 01782 294800 or email SULAC@staffs.ac.uk

What is Parental Responsibility?

Sam Derry (Student)

Parental Responsibility defines the responsibilities, duties, rights, and powers a parent has in relation to a child. This is found in section 3 of the Children Act 1989. In practice, having parental responsibility allows a parent (or anyone else with parental responsibility) to make decisions for the child such as what school they will go to, what medical treatment the child will have, and how the child will be disciplined. Parental responsibility also comes with the obligations of meeting the child’s needs, including providing food, a home, clothing, etc.

The Children Act 1989 also sets out who has parental responsibility for a child. The mother of the child will automatically have parental responsibility. A father will have parental responsibility if they were married or in a civil partnership at the time the child was born or marries (or enters into a civil partnership with) the mother afterwards. In addition, a father will have parental responsibility if they are entered on the child’s birth certificate.

In order to gain parental responsibility as a father who is neither married to the mother, nor on the birth certificate, you can complete a parental responsibility agreement (C(PRA1) form) with the mother. However, this will require the mother’s signature (and therefore agreement). Alternatively, if the mother of the child is not cooperating, then you can apply for a parental responsibility order (C1 form).

When attempting to gain parental responsibility through a court order, the courts will consider the child’s needs. Unless the order would be contrary to the child’s welfare – such as if the order’s purpose was to disrupt the child, or if the father is a risk to the child’s wellbeing – then the court order will likely be granted. Having parental responsibility does not automatically mean you are allowed contact with the child- a child arrangements court order may say something different.

Where there are two female partners, the parent who carried the child is treated as the mother and so automatically gains parental responsibility. The other female parent can obtain parental responsibility in the same way a father would – either through marriage/civil partnership at the time of or after the child is born, by being on the birth certificate, or through a parental responsibility agreement or order. As a parent it is important to have parental responsibility so that you have the legal power to make decisions for your child, but also to potentially contest certain decisions being made for the child such as name changes or the child being taken abroad for a month or more.

Staffordshire University Legal Advice Clinic (SULAC) offers free legal advice on family law issues, such as obtaining parental responsibility. You can either email SULAC@staffs.ac.uk or call 01782 294800 to book an appointment.

Do You Need a Will?

Glenn Tortal (Student)

Often people fail to make a Will to ensure that their family, spouse or civil partner are protected when they die. Some think that it is not necessary, but it is essential, especially if you are not married to your partner.

Why does a person have to make a Will?

  • Death is uncertain – unless you are prepared and the Will is in place and validly created, your loved ones may have difficulties accessing your estate.
  • Faster claims process – If you have a will the administration of the estate can often be quicker.
  • Avoid intestacy rules – English law provides stringent rules of who can inherit an estate when there is no Will. In most cases where someone is in a relationship (not married/civil partners), the significant other will not be entitled to an estate of a person who died automatically. In contrast, even if you are married, your spouse or civil partner will only receive your entire estate if there are no children in the family. If there are children, then they may be entitled to a share of the estate- this depends on the value of any assets. With a Will in place, it ensures that your wishes regarding your estate can be carried out.
  • Inheritance Tax – A will may be able to help you reduce any inheritance tax liability. At the very least a legal advisor will be able to help you deal with your assets in your lifetime to reduce or negate inheritance tax.
  • Gift or donation of an estate to charity – In some circumstances, you may have a charity or church close to your heart that you wish to donate to. To make sure this happens, you must have a valid Will.
  • Protect your partner if not married – As mentioned above, an unmarried couple will not be entitled to your estate under the intestacy rules but a valid Will can allow you to provide them with total protection in the event of your death.

Staffordshire University Legal Advice Clinic (SULAC) provides free legal advice on probate  matters. For enquiries, please do not hesitate to contact:

Email: Sulac@staffs.ac.uk

Telephone: 01782 294800


 

No Fault Divorce

Kerry Moynihan (Student)

The Divorce Dissolution and Separation Act 2020 (“The Act”) came into force on 6th of April 2022. The Act is a substantial change to divorce law within England and Wales and is the biggest change to divorce law in 50 years. The Act establishes that divorce applications can be made through a ‘no fault divorce procedure’, instead of the previous need to rely on facts to prove the breakdown of the marriage.

Prior to the Act, you had to prove that the marriage had broken down by relying upon one of five facts: behaviour, adultery, separation for 2 years with consent, desertion or separation for 5 years without the need for consent. This meant that if couples seeking a divorce could not prove one of these facts, they risked having to stay married for a minimum of 2 years even whilst separated. Unreasonable behaviour was most commonly used as it covered many types of behaviour, however, as spouses would need to provide information on the circumstances of the behaviour of their spouse, it was seen to be a ‘blame game’. The former Justice Secretary Rt Hon Robert Buckland stated: “By sparing individuals the need to play the blame game, we are stripping out the needless antagonism this creates so families can better move on with their lives.”

The only two criteria that need to be satisfied under the new act is: the marriage needs to have been for a minimum of one year and that it has irretrievably broken down. If both of the criteria are met the parties would be able to obtain   a no-fault divorce. There is now no need to explain why the marriage has broken down irretrievably, eliminating the need for extra stress in the situation by blaming the other person. The new rules will also allow for divorce proceedings to be made as a joint claim. Under the previous act only one person could make an application, however, the new joint applications will help to allow for amicable divorces. This may benefit many people who agree on the relationship breakdown and want to avoid costly legal fees. Data provided by HM Courts & Tribunal Services suggested that there has been an increase as much as 50% in divorce applications since the no-fault divorce procedure was introduced.

Under the old act there would only be a wait of around 6 weeks between the Decree Nisi and Decree Absolute. Under the new law there will be a minimum 20 week wait between the application being submitted and finalised, this is to give both parties the chance to reflect on whether they want to continue with the divorce or if they would like to cease their application. Moreover, a no-fault divorce cannot be contested, this will help ensure those who are in a toxic relationship are not forced to stay in the marriage. There are only specific circumstances in which a divorce can be contested such as if the courts do not have jurisdiction to deal with the divorce.

Outdated language has also been removed from the divorce procedure, terms such as: ‘Decree Nisi’ will become a ‘Conditional order’, ‘Decree Absolute’ will become a ‘Final order’ and ‘The Petitioner’ will become ‘The Applicant’. This is to help ensure that the language used is easier for litigants in person to understand.

Here at SULAC we offer free legal advice on all family matters including divorce and financial affairs. If you would like an appointment, please call 01782 294800 or email SULAC@staffs.ac.uk

Unfair Dismissal

Joanne Bennett (Student)

In March this year, P&O Ferries sacked more than 800 workers without notice. By making staff ‘redundant’ without notice or consultation, P&O Ferries broke British employment laws. The Trade Union and Labour Relations (Consolidation) Act 1992 states that employers making 100 or more staff redundant must give the Redundancy Payments Service 45 days notice.

After this widely reported event that caused public outcry, P&O Ferries offered all dismissed staff a redundancy settlement. However, one employee, Mr Lansdown, declined their offer and decided to pursue legal action and bring a claim for unfair dismissal.

In September, the dispute was finally brought to an end, and Mr Lansdown won his case. In an out-of-court settlement, P&O ferries admitted that no consultation took place and accepted that they had dismissed him unfairly.

What is unfair dismissal?

Dismissals can be unfair when the employer does not have a fair reason for dismissing the employee or when the employer does not follow the correct process when dismissing the employee. It is governed by the Employment Rights Act 1996. Unfair dismissal claims must be brought within 3 months from the employee’s dismissal date.

To bring an unfair dismissal claim:

  • They must have been an employee
  • They must have been in continuous employment with the employer for at least 2 years
  • They must have been dismissed

Things to consider when deciding whether a dismissal was unfair:

  • Was the dismissal for a potentially fair reason?
  • Was the dismissal fair in all the circumstances?
  • Was the procedure by which they were dismissed fair?

When you begin the process, you will need to inform ACAS (a government-funded body that helps with workplace disputes) that you want to make a tribunal claim. This will begin a conciliation process where you and the employer will be encouraged to come to a settlement agreement. You must undergo this process before you can apply to the employment tribunal.

If you do go to an employment tribunal, remedies for unfair dismissal include:

  • Re-instatement (You get your job back under all the same terms)
  • Re-engagement (you can go back to work but under new terms)
  • Compensation (a monetary award to compensate for financial losses – this is the most common remedy)

Here at SULAC, we offer free legal advice on all employment matters, including unfair and constructive dismissal. If you would like an appointment, please call 01782 294458 or email SULAC@staffs.ac.uk

Legal Aid for Housing

Hannah Batho (Student)

On the 17th October 2022, the government announced some planned changes to the eligibility for legal aid. These changes would not be activated immediately but would provide support in the future for ‘at risk’ people facing domestic abuse or eviction from their home.

Firstly, the government plan to put aside an extra £10m towards legal aid relating to housing issues. This would enable struggling tenants to receive free legal advice before they made an appearance in court. Additionally, it would allow tenants who are facing repossession notices to also receive advice on welfare benefits and debt. This adaption to the current eligibility is predicted to come into play in August 2023.

The Ministry of Justice has stated that, under new protection orders and notices, domestic abuse victims will be able to access provisions from a number of different professionals to help with their situation. The police will be given the power to issue notices which require the abuser to leave the victim’s home. In addition to this, the courts will be able to issue orders which offer more long term protections to the victims. Finally, doctors will have the ability to submit letters of evidence which will assist in victims’ applications for legal aid. Before this can be implemented, the Ministry of Justice wish to carry out a ‘future pilot’ of the protection notices and orders, therefore there is no set date for the reforms to take place.

Additionally, the Ministry also announced that legal aid would be offered to domestic abuse victims who were applying for indefinite leave to remain, as well as to special guardians when pursuing court proceedings regarding parental control.

Currently, some practitioners are concerned with the rapid decline in civil legal aid providers. The Legal Aid Agency disclosed that they would be carrying out a ‘major review’ of the current situation surrounding civil legal aid, however the Legal Aid Practitioners Group stated their concerns that it was already too late to prevent the legal aid sector from declining further. Whilst there may be the possibility of more people getting legal aid if there are less solicitors undertaking this kind of work, then the problem will not be solved.

Here at SULAC we can offer assistance with housing issues and help clients who are experiencing domestic abuse. If you would like an appointment please call 01782 294800 or email SULAC@staffs.ac.uk.

Section 21 Eviction notice: Is it staying or is it going?

Izaz Riaz (Student)

In the 2019 general election, part of the conservative party’s manifesto was to abolish Section 21 Eviction notices.

A section 21 eviction notice (or sometimes called notice of possession) is a notice given by a landlord to tenant(s) to leave the property without giving a reason. Section 21 notices are used by landlords as it is a much faster and cheaper process to vacate their properties rather than having to wait until the tenancy ends.If Section 21 notices were to be abolished, landlords would have to use a section 8 notice to evict their tenants and give reasons as to why they are evicting their tenants. This will give greater security to tenants but may make it difficult for landlords to evict problem tenants.

According to the Ministry of Justice, on average it takes around 44 weeks between the initial eviction claim and repossession of the property without a section 21 notice.

There have been 19,790 Section 21 notices given to households in the year 2021/2022 which is a 121% increase from the previous year. There has also been a 53% increase in private renters seeking help with homelessness.

The number of rental properties available have fallen dramatically [HT1] The lack of rental properties available has caused rent prices to increase 12.3% year-on-year, fuelling homelessness.

The Government’s plan back in 2019 to abolish the Section 21 Notice was to “provide greater certainty for tenants,” however, with the current situation of the lack of housing and landlords arguing that keeping Section 21 notices will help promote buy-to-let properties increasing supply, the plans to scrap Section 21 notices have gone into turmoil and it is uncertain if the Government will stick to their promise, particularly in light of recent events.

Matt Downie, Chief Executive of housing charity Crisis, commented abandoning the plan would be “shameful” and that cutting off help in the middle of a cost of living crisis would result in a great number of families into homelessness.

Here at SULAC we can help if you have a housing issue. If you would like an appointment please call 01782 294800 or email SULAC@staffs.ac.u