Do you have rights for the children you’re looking after?

Do you have rights for the children you’re looking after?

Many children are raised by carers or relatives who are not their parents – for example, step-parents, grandparents, aunts or uncles. However if this is you, you may not have legal rights and authority in respect of the child. This is because you do not have Parental Responsibility (‘PR’).  Consequently there can be legal and practical difficulties, for example schooling, medical treatment and other decisions which need to be made in respect of the child.

Relatives who do not have Parental Responsibility are not able to give authority to organisations such as schools, doctors and government departments to make decisions about a child or give authority for a child to e.g engage in an activity. Happily this legal problem can be overcome by the relative obtaining those legal rights, specifically ‘Parental Responsibility’ through a number of methods as explained below.

What is PR?

Parental Responsibility is all the rights duties and obligations which a parent has towards a child. In short it is the legal power of a parent to make decisions about a child. Parental Responsibility gives parents authority to make decisions when raising a child; such as taking a child to the GP or signing a school trip permission form, where that child should go to school, or should they follow a certain religion and where should they live. Every person who has Parental Responsibility holds this equally, no one person has more Parental Responsibility than another, regardless of who the child spends more time with.

Who automatically has PR?

This is always held by the child’s mother.

The child’s father will have Parental Responsibility if:

  • they are named on the child’s birth certificate; or
  • they were married to the mother at the time of the child’s birth; or
  • they have obtained Parental Responsibility by agreement with the mother or by applying to court.

How can I get PR for a child I am raising?

There are 4 methods

1. You can ask anyone who has Parental Responsibility to agree that you can also have Parental Responsibility. If everyone is in agreement, a form can be completed and sent to the court showing everyone’s agreement and the courts will likely approve this and make an order granting Parental Responsibility.

2. If not everyone who has Parental Responsibility agrees, you can ask the court to order that you should have Parental Responsibility. You would make an application to the court. The court will then look at the reasons for the application alongside the child’s welfare and decide if this is what is best for the child.

3. You can also apply to the court for a ‘Child Arrangements Order’ that the child ‘lives with’ you which automatically also grants you Parental Responsibility.

4. You can apply for a ‘Special Guardianship’ Order (SGO).

SGOs give an enhanced Parental Responsibility to the guardian. The holder of the Special Guardianship Order has the ‘final say’ over decisions relating to the child. They can also take a child out of the country for up to three months without the permission of any other people with Parental Responsibility.

SGO can also come with further support from the local authority. This can include financial support, counselling or respite support for the guardian(s).

If you are interested in applying for an SGO this will involve notifying the local authority as they will need to be involved and prepare a report. This report will look into the life of the child and your role as the proposed guardian and make recommendations. The courts will consider the child’s welfare when making their decision.

The specialist family team at FM Family Law are experienced in representing carers who do not hold PR. Please get in contact for further advice and assistance.

 

Caitlin Levins

Solicitor

Not to be reproduced without permission.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.

£400,000 damages for lack of duty of care

£400,000 damages for lack of duty of care

A firm of solicitors has been ordered to pay £400,000 in damages to a former divorce client after being found negligent by failing to advise about her pension sharing entitlement during her divorce.

This important court case reinforces the importance of a lawyer’s duty of care which cannot always be discharged with a disclaimer.

In 2014 the wife instructed her lawyers that she had reached an agreement with her husband directly. The effect of the agreement is that after a 21 year marriage, she would be left with £62,000 cash, a clean break, without a pension share. The parties reached an agreement between themselves without the assistance of solicitors or other resolution methods such as mediation. The wife asked the firm to obtain the Consent Order, which is the legal document setting out the financial settlement. The firm confirmed they could obtain the Consent Order on her behalf but would be unable to provide any legal advice on the terms themselves without financial disclosure. During the process of negotiating divorce settlements, it is usual for both parties to share financial information, known as financial disclosure, so that both have a clear picture of the overall financial situation before making decisions about a settlement.

Financial disclosure did not take place in this case but it was known that the husband had had a long career with the police and that he had a police pension. The lawyers did not provide advice about the wife’s entitlement to pension sharing, citing that they could not comment upon whether the terms agreed amounted to a fair and reasonable settlement without financial disclosure.  Despite warnings from the lawyers about the lack of financial information, the wife wanted to proceed. In order to protect themselves from any future negligence claims given the lack of financial disclosure, the firm asked the wife to sign a disclaimer. The wife did so acknowledging that she had not received any legal advice prior to her signing the Consent Order. The firm presumed that the disclaimer would be sufficient to discharge their duty of care entirely. Unfortunately this was wrong since 6 years later the wife later brought a negligence claim for breach of their professional duty of care.

The wife argued that the settlement she reached was ‘so obviously unfair’ regardless of whether or not there had been financial disclosure, and she therefore should have been advised to seek a pension sharing order. In her view, it was wrong for her solicitors to say they could not advise on the settlement without full financial disclosure given how large the pension assets were. She argued that the firm were also aware that she was particularly vulnerable at the time – she was suffering with depression and felt intimidated and bullied by her husband to accept his offer.

The law firm counter argued that they did advise the wife that the starting point when dividing matrimonial assets (for example the family home, pension assets or savings accrued during the marriage) was 50-50 and that a pension sharing order could be considered as part of the overall settlement.  They also suggested that they advised her that proposed settlement was unlikely to be a good deal for her.  The solicitors did not accept they were aware that the client was vulnerable at the time.

Her Honour Judge Coe KC, sitting as a High Court Judge, made findings in her determination. She found  that despite there being no financial disclosure, there was a ‘clear’ breach of duty as the law firm did have enough information to advise, even if in general terms. The Judge found that notwithstanding the lack of financial disclosure the law firm should have advised the wife that she should seek a pension sharing order as the husband’s police pension which was the largest asset of the marriage and one to which she would have been entitled to receive a considerable share. The Judge also found that it was not enough to say a pension sharing order is a possible order, or to inform the client of the existence of pension sharing orders or to say that the husband’s offers were unlikely to be fair.  The client needed “clear advice about what she could reasonably hope to achieve”.

The Judge also held that the likelihood was “so strong” that the client would have achieved a pension sharing order had the case been at Court, that she should have been advised “in the clearest possible terms that that was the course she should pursue”.

This case is a sobering lesson for lawyers faced with a client wanting to wrap things up without financial disclosure. A disclaimer may not be enough. Lawyers need to be cautious that, even if they are not instructed to undertake full financial disclosure, if they are aware of certain assets in a case (or the facts are such that they should be aware), those assets need to be explored, even if only generally.  It is not always enough to say they cannot advise without financial disclosure especially when there is such a significant disparity between certain assets.

It is interesting that the Judge who approved the Consent Order in 2014, did not query at the time why the wife was not getting a pension share.  This reinforces the position that generally when an order is submitted by consent, the Courts do try to respect the autonomy of the parties to strike their own terms. In the majority of cases, is good news. In this case one has to question why the Judge did not refer the order back to the parties.

The lesson learned in this case is to evaluate the disclaimer in the light of the information you know. Do not consider this will protect you if for example there a lack of information or a lack of a PODE report or quite simply your client is going against your advice.

Laura Tuddenham

Family Law Executive (MCILEX)

Not to be reproduced without permission