Family Law covers all aspects of family matters and matrimonial issues. This includes divorce and separation, child custody and visiting rights and disputes and laws relating to elderly persons.
Many aspects of the law can feel intimidating and confrontational especially when it applies to us or our loved ones. Sometimes we have to make some hard choices to support our families as well as ourselves.
This information focuses on the possible experience that you, your partner, parents or any family members may come across during any legal proceedings in these areas of the law. It also takes in to consideration what to expect prior to, at court and after any interventions that involve court appearances.
Family Law Courts
What do Family Courts deal with?
A Family Court is the Family Division of the High Court. These courts are usually overseen by district Judges in County Courts and by Magistrates in the Family Proceedings Court. A family Court is not the same as a Criminal Court.
Family Courts deal with:
- Disputes between parents about the upbringing of their children.
- Interventions by the local authority to protect children.
- Financial support for children who are affected by their parents divorce or the breakdown of their parent’s relationship.
- Some of the aspects of domestic violence.
Currently in the UK, all Family Court Proceedings are held in private. Cases that are held in the Family Courts are not reported publically. However there are proposed changes and it may be possible in the future that the media are allowed into a Family Court but they will not be allowed to name anyone involved in the case.
What to expect at a family court.
Arrive early at the court at least 45 minutes before the time that the Hearing will take place. There may be lots of other people around waiting this is because sometimes Hearings will overrun their timings.
When you arrive look for the Usher who will let you know if your case may be running late; where the toilets and refreshments can be found and whether your solicitor has arrived yet. Come to the court prepared to wait, bring something to read.
Prior to attending court your solicitor will take the time to explain the process to you. Although they have attended court on numerous occasions, they will be mindful of your expectations, anxiety and stress. Most times the Hearing will take place round a table. Try to stay calm and remember to turn off your mobile phone,
The dress code for people attending a Family Court is smart. Judges and Barristers will dress formally but not to the point that they are wearing wigs and gowns.
Who will be at the court?
- Depending on the circumstances it could be a Judge or a Magistrate. Their job to make sure that all concerned get a chance to put their view forward in a civilised manner.
- You and your solicitor.
- The other side and their solicitor.
Bear in mind that either solicitor may also have a junior solicitor with them, especially if they have also been working on the case.
What will happen in the court?
The person who is making the application (or complaint) will be invited to speak first. If you have a solicitor they will speak for you. They will start by making an opening statement, which will give an outline of your application to the court and the reason behind your application. It is then the turn of the other side. If they are represented by a solicitor then their solicitor will speak for them.
The Judge or Magistrate may decide that they need further information, and may ask you or the ‘other side’ for additional clarification or information. The Solicitor representing the other side may ask you some questions, and likewise your Solicitor can also ask questions. The Judge or Magistrate may need some time to consider their ruling on the case, or they may ask for additional information and request another hearing.
Don’t be surprised if the case is completely sorted out in one hearing. But it is usual for Family Courts to take at least three sessions. The first session is usually about deciding the deadlines for submission of statements and evidence.
Not all cases of Family Law require court attendance, especially if both parties agree on the outcome. The Solicitors from both sides can complete paperwork that will be put in front of a Judge or Magistrate for their approval.
Can I choose not to attend?
If you have been asked to attend a Family Court hearing you must attend. You can take a friend or relative with you for moral support but you must get court permission first. The important thing to realise is that your friend or relative may also be a witness (in more complex cases), if this is the case they will not be able to sit with you or be part of the court until they have given evidence.
Other areas associated with Family Law:
A carer is someone who helps another person. Carers are often family members or a friends of the person that they are caring for. It is important to realise that there is a difference between the relative and friend who is a carer and a care professional or a carer who is attached to a voluntary organisation.
How are Carer’s supported?
The Care Act of 2014 was devised to set out the legal rights of carer’s, being in mind that there are many carers who are under the age of 18, looking after parents or grandparents, as well as parents who are looking after disabled children. The Care Act provides the carer’s legal rights to support and assessment of the needs of the people that they are looking after. Young Carers needs can be assessed under Child Law.
What is the aim of the Care Act?
It acknowledges the need for local authorities to take on the responsibility of accessing the need of the carer and the person they are supporting, and helping them to access the support that is available locally. Not all local authorities provide or have access to the same support mechanisms or specialised support.
Any assessment needs to take into consideration the needs of the carer, such as whether they want to work, study or have time to socialise. Socialisation is very important as providing high level intensive care around the clock can be very isolating. It is usual for the carer and the person they care for to have their needs assessed simultaneously.
What happens after a Carer’s Assessment?
Criteria for eligibility for Carer’s support from the local authority:
- The person they are caring for lives in the area of the local authority.
- The person they are caring for must meet the requirements for support from the carer.
If the criteria are met by the assessment then the local authority will agree a care plan. The Care Plan could include help with house work or buying a laptop to keep in touch with family and friends. Sometimes the most effective care plan may be to directly support the person who is being cared for. There may be some charges for direct support if so, the local authority will have to do a financial assessment of the carer to see if they can meet the costs.
The Care Act does not cover the assessment if young people (under the age of 18) who are carers. Their needs are supported under the Children and Families Act which gives them the right to assessment of their needs and protects them against taking on caring responsibilities that are beyond their abilities.
However the Adult Services will be involved in supporting the child in their role as a carer once they reach 18.
Parental care for disabled children
This is not covered by the Care Act, but the needs of the child and the parent can be undertaken through Children’s Services.
Useful Links: NHS – Carers rights and the Care Act
People who are vulnerable, such as elderly persons, lack the ability to make appropriate choices may have dementia; a learning disability; brain injury including stroke; mental health difficulty (may have been sectioned under the Mental Health Act), may not be able to decide on complex financial but they can do their shopping.
The Mental Capacity Act protects people of all ages over 16 who do not have the capacity to make their own decisions about care, treatment and finance. The Act has been formulated not to take away their choices but to empower them through support.
In reality capacity for decision making may change over time, in some cases it can improve and at other times it may decline. The Mental Capacity Act has the understanding that capacity is not a fixed variable.
What are the outlines of the Mental Capacity Act?
- Everyone has the right to make their own decisions but sometimes they need help to make that decision. The help may be in the form of explaining information in a different format, in much the same way as a teacher will employ a different tactic when a child has difficulty in understanding a new concept. Sometimes just by getting a different person to explain an issue may result in success.
- Healthcare professionals should always assume that a person has the capacity to make their own decisions unless they are told otherwise. If a patient lacks capacity to make decisions about their treatment then they should still be afforded basic rights and freedoms as everyone else. Their treatment should not be compromised in any way.
- If the Court of Protection judges a person to lack the capacity to make specific decisions, then the decision can only be made on the person’s behalf if it is in the person’s best interests.
- The Act also allows people to appoint a trusted person (which could be their solicitor) to act on their behalf. They should also have access to an independent advocate who can support their decisions.
- Advice is that the person’s views, wishes and aspirations (both past and present), feelings, beliefs and values should be taken into consideration. It should also be noted that the Act does not support any discrimination on the basis of age, appearance, condition or behaviour.
Who can provide information to enable a person to be supported under the Mental Capacity Act?
Anyone who is named by or has supported the person can provide information. This can include close relatives, friends, and an attorney who has been appointed under a Lasting Power of Attorney or a deputy appointed by the Court of Protection.
Useful Links: NHS – What is the Mental Capacity Act?
Legal rights and duties
The Equality Act and Elderly Law
The Equality Act of 2010 protects people against forms of discrimination such as ageism. The Act is actually a protection, making sure that you are not disadvantaged or unfairly treated because of your age. The Equality Act includes:
- Getting fair treatment when receiving goods or services
- Getting fair treatment by educational establishments, clubs, associations and unions.
The Act also includes other protected characteristics, such as disability, race, belief and sex.
What sorts of discrimination are there?
There are two sorts of discrimination
Direct discrimination: this is where you are treated less favourably because of a ‘protected characteristic’ e.g. your employer actively says that they will not promote you because you are too old.
Indirect discrimination: an advertisement for a job, states that they want ‘recent graduates’, this immediately excludes the majority of older people. The employer can be asked to justify the way they have worded their advertisement.
Other behaviours that are covered by the Act
The Act covers all areas including public bodies such as local authorities, social services and doctors and includes action against discrimination, harassment and victimisation and ensuring that people with protected characteristics including older people have equal opportunities.
It is against the Act to be subjected to intimidation, humiliation or degradation on the grounds of age of any of the other protected characteristics. Inappropriate behaviour includes making offensive jokes about people’s age,
This includes being unfairly treated after making a complaint about discrimination or when supporting someone else making a complaint.
It is possible that an employer can justify not promoting someone on the grounds of their age but they will not be ale to justify harassment or victimisation. Since October 2011 Employers can no longer insist that people retire at 65, unless they can provide clear justification for this. If you retired at age 65 on your employers insistence you can claim for unfair dismissal.
Useful Links: Age UK – The Equality Act – what it means for you
What are the concerns?
As people age, their housing needs may change. They may live on their own and need support to enable them to continue to live in the houses that may have been their home for decades. This is further confounded if they need to have adaptations made to the homes because of disability (stair lifts, walk in showers etc).
What are the solutions?
The Government will provide housing support for older people and those with disabilities who would prefer to stay in their own home. They can do this through:
- Providing people with advice through ‘First Stop’, which can offer advice on a local level of availability of services and grants for home improvements and local handyman services.
- Providing support for people who feel that they would prefer to move into specialised housing such as residential care or warden supported housing.
The Care Act 2014, is the basis for the principles of adult safeguarding work that covers the services that local authority social services, housing and health agencies should be providing, especially for vulnerable people in the community.
If there is a difficulty
- Check on the services that are available locally though ‘First Stop.
- Visit the Citizens Advice Bureau.
- Discuss you concerns or difficulties with a Solicitor that specialises in community law.
What is it?
Residential may be the best option when a person not necessarily just elderly people cannot be cared for in their own home. This may be because they do not family who live close by or their needs are far greater than can be supported by part-time carers. They may also need nursing care.
Problems that can arise during residential care
Negative aspects of residential care often hit the news headlines. It is important to understand that these incidences are not as common place as we are led to believe. All residential care homes are inspected on a regular basis by the CQC. This body is known for making surprise inspections and they pride their ability to quickly follow up complaints made by residents, family or friends of residents and also complaints by staff. This does not mean that issues of neglect and abuse do not exist.
But there are also cases where people in residential care have suffered abuse or neglect and one of the biggest problems is gaining concrete evidence.
What support is there?
The Care Act defines the responsibilities for local authorities in their support of people who are in residential care. The expectations are:
- Support and promotion of a sense of well being in physical, emotional and mental health. Provide suitable living accommodation.
- Treating residents with respect and actively protecting them from abuse and neglect.
- Allowing the resident to have control over their daily life, by allowing them to choose what they wear, what they eat etc.
- Encouragement to participate in domestic, family and personal relationships. If possible encourage them to participate in activities.
How problems can arise
Care workers in residential care sometimes have to provide intimate personal care and that care is not intended to be sexual. It is against the law (The Sexual Offences Act, 2003) for any sexual activity between a care worker and the person they are caring for even if the ‘victim’ appears to consent.
Other forms of abuse can take the form of stealing from a resident, asking for money, treating them with contempt, roughness either physically or verbally. Embedded in this is also the fine line that exists between teasing and bullying.
It is the responsibility of the care home, CQC and the local authority to employ suitable staff who will not neglect or ill treat a person in residential care, in fact it is a criminal offence to do so. It is also an offence to hit or administer sedatives to keep people quiet. Neglect is the failure to administer correct medication or taking someone to hospital if they have an injury.
What do you do if you think there is a problem?
If the person in care has a Deputy under the Court of Protection, or an attorney under the Lasting Power of Attorney, bring any situation that concerns you to their attention.
Keep a diary of any incidents that you suspect are inappropriate. Seek advice from a solicitor that has experience of working with elderly people and their needs. They will advice you on your course of action, which may be to make a formal complaint to the manager of the care home and notify the CQC.
Useful Links: Dignity in Care
Health Care and the Elderly
What are the issues?
There has been concern that there are covert decisions being made that result in patients being denied medical procedures on the grounds of their age which is resulting in elderly people suffering immobility, pain and possibly an early death. In this section we can also include preventative treatments and screening.
Data has revealed by the Royal College of Surgeons that there are large areas of the UK that no patients over the age of 75 are receiving surgery for breast cancer or routine operations such as gall bladder removal or knee replacements, They also feel that for some patients there is a ‘post code lottery’ which also had an impact on any treatment that they may be offered.
There is also concern that some GP’s do not refer an older patient to a specialist as some of the symptoms that the patient is experiencing can be due to the aches and pains of ageing as opposed to something more serious.
What are the changes?
The Age Discrimination Law, supports people who are denied medical procedures of the grounds of their age. Doctors should be assessing patients for their need for treatment, their fitness for a procedure and the benefits of particular treatments.
As well as changes to the Law, there are some major differences in the ageing process and social changes. The majority of people will work beyond retirement age, for several reasons:
- The age 60 is the new 50. Many people over the age of 60 are far more active than their parents and grandparents were at that age.
- People may decide to retire later because they want to continue to invest in their retirement fund.
What can you do?
If you if you feel that you or a relative have not had equal access to an available treatment on the basis of age, or you have not been correctly assessed on clinical need and personal choice, you will need to make a formal complaint.
Making a formal complaint can sometimes take a lot of time and effort. The concern is always that your complaint will end up in a pile of papers on someone’s desk and may be dealt with when it is too late.
You can insist on a second opinion, or ask the doctor to reassess the situation. Request that they put the reasons for their declensions in a written report for you. This is a reasonable request as many people find it difficult to remember everything that a doctor tells them as they tend to give a lot of information in short space of time.
Discuss your situation with a solicitor. If you are able to give the solicitor as much information as possible they can help you decide if you wish to pursue the case further. If you are acting on behalf of a relative through Lasting Powers of Attorney, the solicitor can also advise you of the legalities and the possibility of involving the Court of Protection.
Challenging the Authorities
It is always difficult to be in a position to challenge any authorities, even more so if you have age related illnesses such as dementia or memory loss. In cases like this the onus falls on the children to take up the issues on behalf of their parents.
If a parent has been taken into residential care, there may be concerns about the level and appropriateness of care, and likewise if a parent is receiving a pension or benefit and that has been stopped for some reason, it is the children who need identify and correct the situation.
It is difficult to see a parent who has been conned out of their savings because they were being kind to a stranger who came to their door with the intention of signing elderly people up for one of the latest scams.
If the parent has not been diagnosed with Alzheimers or for example Parkinsons disease they may be considered to be mentally competent and there may be little that can be done by an individual to correct the situation.
In cases like this it is always a good idea to seek legal advice which may point in the direction of getting Power or Attorney (which will mean that you can legally sort out your parent/s finances) or consider the Court of Protection as an alternative (but is can be more complex).
What is Community Care?
The term Community Care is used to refer to services that are provided by both Social Services and the NHS. The care package is designed to help both adults and children with heath and social care needs. Part of the care can be through care at home, respite care, organising adaptations to property in response to changing needs (e.g. the addition of hand rails or showers to make the home safer after injury, discharge from hospital or due to ageing). The important thing is that Community Care is that it provides the right environment, funding and support for long-term care needs and allows a person to continue to live in their own home.
Community Care Law
The Community Care Law is used to confront decisions made by Social Services and the NHS. A few examples of complaints that may be made about Community Care decisions may include:
- Challenge unfair of loss of funding of a care package.
- Inappropriate Care packages
- The unnecessary sale of a home to fund their care.
It also covers any decision to evict a carer from their home when the person they care for goes into residential care. The Community Care Law will also assist the resolution of family disputes regarding funding and care for their relative.
How to make a complaint
This can be complex. There is a procedure or complaints that can be dealt with internally through the Social Services and the NHS. It is sometimes difficult to confront the issues of a complaint to the people you want to complain about especially as the situations is probably at crises point when you need to make your feelings known.
Discuss the issues with a Solicitor that has a speciality in Community Law, with the aim of getting a review of the complaint within the Court system. A solicitor can also advise on the powers of attorney and Court of Protection.
Useful Links: Martin Searle Solicitors – Community Care Law
What is Family Mediation?
When a divorcing or separating, couples will often benefit from help through family mediation. It’s a form of resolution intervention.
- Help to sort out and acknowledge difficulties with joint property, finance and children.
- Help to make vital decisions about the future.
- Help to maintain a civil relationship with the ex-partner, and communicate well with the children to make sure that their needs are met.
Why is it important?
Mediation is important because it not only supports the couple that is separating or divorcing it also helps, Children, Grandparents, Family and Friends.
- Children. They will want to know how their parents splitting up will affect them and what they can do.
- Family and Friends. They often struggle to know how best to support a friend or relative who is going through a divorce so meeting with a family mediator is helpful.
- They worry that the relationship with their Grandchildren may come to an end because of the divorce.
Family Mediation can help:
- Resolve disputes
- Legal Advice
- In Court Mediation
- Consult directly with children
- Confidentiality. A mediator will only break a confidence if someone’s safety is at risk.
- Freedom to opt out. A mediator will not pressurise anyone into making a decision or agreement.
- Impartiality. Their aim is to get people to constructively negotiate with each other.
- All solutions will be fair and in the framework of the law.
- Joint decision Help with making suitable mutually acceptable solutions.
- The support is available to all. Not everyone will feel that Mediation is the best way forward.
- Child Centred Advice. Family Mediation will focus on the views and needs of the children.
The Cost of Family Mediation.
Using Family Mediation is less expensive compared to the cost of a solicitor or using the litigation process but not everyone is open to using Family Mediation as a process to solve family issues. Some issues are complex and need to support of the Court system to enable a decision that is fair and lawful.
Useful Links: National Family Mediation
Court appeals if you do not agree with the original outcome
If you disagree with the outcome of a Family Court decision you have the right to appeal. If the original hearing was in the Magistrates Court then the case will be heard by an appeal Judge.
If the Family Court was presided over by a Judge then the appeal will be hear by another Judge or be taken to a higher Court.
This means that the losing party or the party that disagrees with the original ruling can have their grievances reviewed by an independent judge.
Appeals are not always successful. The main function of an appeal court is to identify any errors that were made in the original outcome and there may not have been errors.
Accountability of an Appeal Court
- To be accountable to the people who have requested the appeal.
- To be accountable to the public and the law. This function includes correcting any errors that were made in the decisions of the first hearing.
- In a criminal case a defendant an appeal against the length of their sentence.
- n a Family Law case, an appeal can be made against a judge’s decision to put a child in care or grant custody of a child to one parent rather than another.
- In a divorce case to appeal against the division of the matrimonial assets.
Useful Links: Courts and Tribunals Judiciary – The right to appeal
Wills, Trusts and Probate
What do Wills, Trusts and Probate involve?
The Will outlines how the deceased wants their possessions and property divided up between family and friends with the possibility of some bequests to charities.
In a Will the person who carries out the task of dividing up the assists can be named. This person is the executor, and is usually a close relative or solicitor.
The executor can claim against the will for any reasonable out of pocket expenses whilst carrying out their tasks.
What is an Executor? What is an administrator?
The term ‘executor’ is used when there is a Will; the term ‘administrator’ is used when there is not a Will.
- The Executor of the Will is legally responsible to deal with all of the property and belongings.
- The executor is not necessarily a beneficiary of the Will.
- If a person is named in a will as being a beneficiary, it does not mean that they will actually get anything. If there are outstanding debts, then items such as jewellery or a vehicle they will need to be sold to meet any debts.
What if there is no Will?
If there is no Will then the Law decides who inherits the property and belongings. This is called Probate or ‘grant of representation’.
- In the UK if there is no Will and a husband or wife dies, as long as all of the property is in both their names the surviving spouse will automatically inherit.
- The estate of the deceased will only go to probate if their personal property amounts to more than five thousand pounds.
- Sometimes even if the Will is clear cut, there may be a dispute over the belongings, in that case the estate will then go to probate for the law to decide on who gets what.
What is probate?
Probate is the process of administering the property, money and belongings of the person who has died. Probate is a very complex area of the law and most executors will choose to get professional help and representation from a solicitor.
There can be some confusion with the term ‘probate’, as some people think that it is not a legal process but the process of finding out what the deceased has left behind.
Probate can take upwards from 6 months to complete. The usual time frame is 6-9 months with some cases extending into years. Not all estates need to go to probate.
Going to probate will depend on the value of the estate, if there is money owing to a bank or building society they can insist that the estate goes to probate if over £5,000 is owed.
- There are legal formalities that are necessary in order to administer an estate. The executor of the Will can hire a professional representative to deal with the property and financial affairs.
- Some appointed executors will be determined to see this process through on their own as they feel that it is very important to carry out this final task for their loved one.
- The fees that are incurred by using the professional representative will be deducted from the estate in the same way that other final bills are paid from the estate of the deceased.
- A Grant of Probate Order is needed to allow the executor or their legal representative to pay funeral costs, utility bills or other immediate essential bills that are due.
- The property of the deceased cannot be sold until the Grant of Probate order is received either by the executor or the solicitor that is acting on behalf of executor.
When all of the property has been sold and any outstanding taxes have been paid then the beneficiaries can get their inheritance.
Inheritance Tax and Trusts
What is it?
In the UK, Inheritance Tax must be paid on a person’s estate which includes property, money and possessions if the total value is currently over £325,000 when they die. If this is the case then there may be advantages in starting trusts so the beneficiaries gain the maximum from their inheritances. If this is an option it is wise to seek legal advice in order to draw up documents so that they meet with UK law.
There are complex laws that determine the rates of Inheritance Tax on an estate:
- Any estate that is larger than £325,000 attracts a rate of tax that is currently at 40%.
- If the deceased has made a Will and in that will 10% or more of the estate is left to a charity then the rate if tax is reduced to 36%
The inheritance tax is paid by the executor of the Will or the ‘administrator’ from the funds of the estate.
- Generally if you receive an inheritance you don’t pay inheritance tax as it will already have been paid, but you are still liable to pay other taxes.
- But you may be required to pay inheritance tax if the person gave you a sizeable gift when they were alive.
What are Living Wills?
A living will is made by a person giving a directive on how they wish to be treated in the event of a medical emergency where they would not be able to communicate their wishes at that time.
An example may be a person who has been suffering with a long standing chronic illness that has adversely affected their quality of life may decide in the event of a need for resuscitation that it is withheld at their request.
An advance statement can outline your likes and dislikes and how you would like to be cared for if you ever become unable to communicate of make the decisions for yourself. This is very much like the care plans used in residential care homes, support plans for children who have learning disabilities and Hospital Passports that help hospital staff support people with communication difficulties such as Aspergers syndrome.
An advance statement can include information about:
- foods preferences
- clothes and fabric preferences
- things that upset you and how you cope.
- who you want to be consulted about your care
However it is important to know that advance statements are not legally binding.
An advance decision needs to be in writing and you must tell people about your decision especially your family and your GP. You can change you mind at any time about your decisions, but make sure that you let people know about any changes preferably in writing and get someone to witness your signature.
Your Doctor or Solicitor could be witness to this because they need to provide information that you were in sound mind when you made the decision and were not coerced in any way especially if you were considering an Advance decision to refuse life-saving treatment (or end of life preference).
There are legal requirements that need to be acknowledged in order to make advance decision to refuse life saving treatment which is commonly known as a DNR (do not resituate) directive or not to use a feeding tube to sustain life. The DNR needs to be in writing, and needs to be signed preferably by you. The signature must be witnessed and also signed by the witness.
It is possible to have both an Advance Decision and Lasting Powers of Attorney (LPA) directives but the law is complex as the outcome of the directives will depend on the order in which you direct them. For example if you make an LPA, after your advance decision then whoever has your power of attorney will not be able to override your DNR directive, but if you make your LPA then do an advance decision the person with power of attorney can override your decision. Because of the complexity of this situation it is always a good idea to talk over the situation and alternatives with your solicitor.
Useful Links: Living Wills – advance decisions and advance statements