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Internal relocation: London to Birmingham- can I relocate with my children?

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6 October 2021
Fateha Ahmed
Solicitor
Blog Children Law Family

The law allows parents with a Child Arrangements (live with) Order to take children abroad for up to 28 days at a time without requiring consent from others with Parental Responsibility. Permission may however be required where one parent seeks to relocate with the child and this move will disrupt the relationship and/or time that the child spends with the other parent. Internal relocation relates to moving within the country.

An application to the Court is required if the practical arrangements of a Child Arrangements Order (to spend time with) cannot be maintained due to the relocation. The application would be to vary (change) the existing order on in some instances to apply for a Specific Issue Order for permission to relocate. The other parent could apply for a Prohibited Steps Order to prevent the relocation.

The need for relocation can arise in many circumstances for example, a new job, new employment, new relationship, better living standards or a new relationship.

The child’s welfare remains the paramount concern of the court. In Re C [internal relocation] [2015], the Court of Appeal provided guidance on the principles to be applied in cases involving internal relocation.

The principles set out by Blake LJ are summarised as follows:

  1. There is no meaningful difference between internal and external relocation and ultimately both depend on the best interests of the child or children.
  2. The wishes, feelings and interests of both parents are important, but the welfare of the child or children will remain central to the case.
  3. The court is likely to still find the Payne v Payne considerations helpful as a checklist to help balance what is within the child’s best interests.

Payne v Payne guidelines are summarised as follows:

  1. The welfare of the child is always paramount.
  2. There is no presumption in favour of the applicant parents.
  3. The reasonable proposals of the parent with a live with order wishing to live abroad carry great weight.
  4. Consequently, the proposals have to be scrutinised with care and the court need to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
  5. The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
  6. The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
  7. The opportunity for continuing contact between the child and the parent left behind may be very significant.

Usually, an application to relocate by the parent with whom the child lives is unlikely to be refused unless there are compelling reasons to do so such as strong welfare grounds or unreasonable, unrealistic or ill thought out plans. It is possible for the other parent to argue that a move is a means of frustrating the relationship between the child and themselves and therefore not in that child’s best interests.

It is important that any application is accompanied by a detailed statement setting out the plans and reasons for the relocation including details of how the child’s relationship with the other parent and family members can be maintained.

Every case is of course dependent on its own facts. If you are considering relocating with your child or find yourself opposed to the other parent’s move, it is best to obtain legal advice in relation to your position.

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Knife Crime Prevention Orders – Tell Me More

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9 August 2021
Knife in Hand
TV Edwards Blog
Blog Criminal Defence

In the last few years we have sadly become accustomed to the spate of knife attacks that have frequently featured on our newspapers and television screens. To this effect London became the first city in England and Wales to pilot Knife Crime Prevention Orders (KCPO) in July 2021. The pilot scheme is set to run in London for 14 months before being rolled out to other forces across England and Wales.

The aim of KCPOs is to divert people who may be carrying knives, or who are at great risk of being drawn into serious violence, away from being involved in knife crime. They will also be applied to those that have been convicted of knife crime offences in order to prevent reoffending. In essence, the aim is that KCPOs will be a preventative tool.

A KCPO can be issued to any person who is aged 12 and over, and it can be issued on conviction or ‘other than on conviction’ (also known as complaint).

In relation to a KCPO upon conviction, the court must be satisfied on the balance of probabilities that the defendant has been convicted of an offence which is a relevant offence (an offence involving violence or the threat of violence, or where a bladed article was used or carried by any person in the commission of the offence), the prosecutor must apply for a KCPO and the court must be satisfied that it is necessary to make the order to protect the public from the risk of harm involving a bladed article, to protect any particular member of the public  from such risk (including the defendant) or to prevent the defendant from committing an offence involving a bladed article.

In relation to a KCPO upon complaint, the applicant must comply with the requirements of s15 of the Offensive Weapons Act 2019, the court must be satisfied on the balance of probabilities that the defendant has on at least two occasions in the relevant period (two years before the date that the order is made) had a bladed article with them in a public place, school premises or on further education premises without good reason or lawful authority, and the court must consider it necessary to make the order to protect the public or particular persons (including the defendant) from the risk of physical or psychological harm involving a bladed article, or to prevent the defendant committing an offence involving a bladed article.  The Youth Offending Team must be consulted before a KCPO is issued to someone under the age of 18.

There are a host of positive requirements that can be attached to a KCPO, which includes (but is not limited to) educational courses, drug rehabilitation programmes, anger management classes and sporting participation. An exclusion zone, non-participation with individuals or use of the internet to encourage crime are examples of restrictive requirements that can be attached to a KCPO.

It will be interesting to see the impact that KCPOs will have on knife crime and the extent to which the aim is met. If you would like detailed expert advice on KCPOs, please get in touch with our criminal lawyers at TV Edwards Solicitors.

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National Surrogacy Week

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National Surrogacy Week
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4 August 2021
National Surrogacy Week
Anest Mathias
Associate Solicitor
Blog Children Law Family Modern Parenting, Surrogacy, Fertility and Adoption

2-8 August 2021 marks National Surrogacy Week. Here is some more information about surrogacy. 

What is Surrogacy?

Surrogacy is where a woman becomes pregnant with a child and carries the child for another family. 

The woman who carries the child is referred to as the surrogate. The intended parents are those who intend to parent the child.

Traditional or genetic surrogacy is where the egg of the surrogate is used. Gestational or host surrogacy is where the surrogate has no genetic relationship to the child.

Parentage is transferred to the intended parents via a parental order.

The growth of surrogacy

Surrogacy is an increasingly popular mechanism through which people create their family. The Human Fertilisation and Embryology Authority (“HFEA”) statistics show that in 2019 there were 325 IVF treatment cycles with surrogates, an increase from 79 in 2000. In 2019, 444 parental orders were granted in England and Wales, an increase from 117 in 2011. 

Under the Human Fertilisation and Embryology Act 1990, only heterosexual married couples could apply for parental orders. They are now joined by same sex married couples, couples in a civil partnership, couples who are neither married nor civil partnered but living together in an ‘enduring family relationship’ and single people. 

In 2020 The Supreme Court held that a woman could receive damages from an NHS Trust to cover the costs of commercial surrogacy in California. The trust wrongly interpreted smear test results following which she developed cancer and treatment led to her being unable to have a child. 

Finding a surrogate

It an offence to place or publish an advertisement that a person is or may be willing to be a surrogate or that a person is looking for a surrogate.  This includes advertising on the internet. 

Commercial surrogacy is illegal in England and Wales although there is nothing to stop agencies based abroad from helping to make surrogacy arrangements on a commercial basis abroad. 

Surrogacy arrangements are unenforceable in England and Wales. 

Parenthood following surrogacy

Section 33 of the Human Fertilisation and Embryology Act 2008 defines the mother as the woman who is carrying or who has carried the child is the child’s mother.  This means that the surrogate is the legal mother of the child born through surrogacy.  

If the surrogate is married or in a civil partnership, then her spouse or civil partner will be the legal parent unless it is shown that they did not consent to “the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).” 

There has been some confusion about the wording “unless it is shown that they did not consent” Anest represented the husband in one of the leading cases about this point and is able to advise should any question arise. 

The intended parent (s) must apply for a parental order which extinguishes this parenthood and provides for the child to be treated as the child of the applicant(s).

The requirements for a parental order are strict and we would always recommend that you seek legal advice before embarking on a surrogacy arrangement, regardless of where the arrangement takes place.  

Treatment in a UK Clinic

Fertility clinics in the UK are regulated by the HFEA. 

The clinic must ensure that those involved in surrogacy arrangements have received information about legal parenthood; the parental order provisions in the Human Fertilisation and Embryology Act 2008; the requirements that the gametes of one of the intended parents must be used; that surrogacy arrangements are unenforceable. 

Clinics must be satisfied that those involved in surrogacy arrangements have received enough information and understand the legal implications of the arrangements.   We are able to advise parties and provide a letter to the clinic confirming that this advice has been given.

Clinics must advise patients intending to travel abroad for surrogacy that they are encouraged not to travel without seeking legal advice about: the legal parenthood of the prospective child; immigration status and passport arrangements; the adoption or parental order procedures in that country; the degree to which those procedures would be recognised in the part of the UK in which the patients live. 

Clinics should ensure that any person intending to begin treatment as a surrogate (and her partner) and those intending to enter a surrogacy agreement as an intended parent has discussed the implications of treatment and entering into a surrogacy arrangement. The HFEA expectation is that the discussion of implications should be delivered by a qualified counsellor with appropriate knowledge of surrogacy arrangements.  Those counsellors who are accredited by BICA are suitably qualified. 

There are additional requirements If donor gametes, such as donor eggs, are used. 

Parental Orders

Within six months of a child’s birth, the intended parents must apply for a parental order. 

The court will need to be satisfied that the conditions found in sections 54 and 54A Human Fertilisation and Embryology Act 2008 are met. Areas of difficulty tend to relate to the following requirements: 

If there are two applicants, the applicants must be husband and wife or civil partners of each other; or two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other. Difficulties have arisen when the proposed applicants have separated prior to the order being granted.

The court must be satisfied that both the woman who carried the child; and any other person who is a parent of the child but is not one of the applicants  have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.  There are times when the surrogate has refused to provide her consent to the making of the order. 

The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of making of the order, any agreement required by subsection (6) (the consent to the making of the order), the handing over of the child to the applicants; or the making of arrangements with a view to the making of the order, unless authorised by the court. These  payments are scrutinised and difficulties arise when records are not kept. 

At the time of the application and the making of the order the child’s home must be with the applicant(s); and the applicant or either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man. Domicile is not the same as residence. It is particularly important that those intended parents who were born outside the of the UK, Channel Islands or Isle of Man obtain legal advice about domicile. The court has declined to make an order where the intended parents were domiciled abroad but the court has made an order where one of the intended parents remained domiciled in the UK, but the family lived abroad. 

The court will direct that a parental order reporter prepares a report for the court. He or she will investigate whether the requirements of the Act are met. They will consider the child’s welfare and make a recommendation to the Court as to whether the order should be made. The child’s welfare throughout his or her lifetime must now be the court’s paramount consideration. 

Specific issues in international surrogacy

It is important to reiterate that intended parents will still need to apply for a parental order for their parenthood to be recognised in England and Wales, even if they are named on the birth certificate in the country where the child was born. 

Intended parents should obtain advice from a specialist immigration solicitor about nationality and possibly immigration law.  In some cases, a child may obtain a passport of the country where they were born and so travel back to the UK on that passport, although technically their entry may be breaching immigration rules.  In other cases, then British nationality will need to be obtained before a passport may be applied for. We have close working relationships with immigration solicitors. 

Anest Mathias is a senior solicitor in the Family department at TV Edwards. She has broad professional experience in relation to surrogacy and fertility cases. Contact Anest on anest.mathias@tvedwards.com  or 020 3440 8049 for advice on a related query.

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Port Alert Orders – A v B (Port Alert) [2021]

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30 July 2021
Family Street Sign
TV Edwards Blog
Blog Children Law Family

A v B (Port Alert) [2021] EWHC 1716 (Fam)

This is a recent case in which the Judge, Mr Justice Mostyn, confirmed that the Family Court can make a freestanding port alert order, and provided guidance on applications for such orders. A port alert means that UK ports hold the name of a child who is at risk of unlawful removal from the jurisdiction for 28 days, to assist the police/ authorities in identifying that child if removal is attempted. 

Background

This case concerned a 4-year-old boy, Z, who lives in London with his father, a UK national. His mother also lives in London and is a Slovakian national. Z spends supervised time only with his mother. Z’s passport is held by his father.

Z was subject to private law proceedings in 2019 when a prohibited steps order (PSO) was made prohibiting each parent from removing Z from the jurisdiction without the written consent of the other parent or an order from the court. There were also live Children Act and Family Law Act proceedings at the Central Family Court.  

Current applications in the High Court

Z’s father also applied to the High Court for Z to be made a ward of the court, for a prohibited steps order preventing the mother from withdrawing funds held in a bank account for Z’s private school fees and a port alert order. Mostyn J’s judgment relates to these applications. 

The aim of the father’s application for Wardship was to prevent the mother from taking unilateral steps in relation to Z’s education and medical treatment. This application was dismissed as it is within the power of the Family Court to regulate such steps by making a prohibited steps order and Wardship does not add any extra power in relation to those issues. 

The father’s prohibited steps order application was also dismissed. Applications to the High Court should only be made where the Family Court does not have the power to grant the relief/ order sought. It was the father’s position that he only sought the Prohibited Steps Order in the High Court as he had already secured a hearing there because of his Wardship application. While the father was permitted to issue this application in the High Court by tacking it on to the Wardship application (which has to be issued in the High Court), it was not appropriate to make the PSO as the wardship application had been dismissed. There were no exceptional circumstances in which the case needed to be dealt with by the High Court, and the application could be heard in the ongoing proceedings before the Central Family Court. 

Z’s father sought a freestanding port alert order to prevent the mother from removing Z from the jurisdiction. A port alert can be issued by the court and, when the children is under the age of 16,  by the police.

The Father asked for this to be made for longer than the usual 28 day period and for the Judge to direct that his application for a port alert order should be listed to be reconsidered at the same time as the ongoing proceedings taking place at the Central Family Court.

Mostyn J therefore explored whether the Family Court has the power to make a freestanding, discrete port alert order, and concluded that it does. 

The Judge referred to guidance issued by Reunite and to the standard template draft port alert order, which both suggest that such an order can only be made in the High Court. 

The Judge disagreed with this and distinguished between a freestanding port alert order and a Tipstaff order, the latter of which can only be made in the High Court.  There are 3 Tipstaff orders; passport orders (which allows Tipstaff to remove passports and travel documents from your child and relevant adults), location orders (which allows the court to locate your child and relevant adult) and collection order (which allows Tipstaff to attend an address where your child is known to be present and collect the child and place them the care of a designated person). These orders contain a port alert order as a supplementary term and are independent forms of relief. 

The Judge is clear that a freestanding port alert order is not a Tipstaff order. While a port alert order is made under the High Court’s powers, “it is not an independent, substantive form of relief” and it is a supplemental measure to give effect to a substantive order. The Judge likened it to an interlocutory injunction or a bench warrant. 

As to the powers of the Family Court, the Judge sets out that it  may make any order which the High Court could make. This does not permit the Family Court to exercise original or substantive jurisdiction, but it can use the High Court’s inherent jurisdiction to make supplemental orders to give effect to its decisions.

The Judge therefore determined that the Family Court has the power to make a freestanding port alert order where such an order is justified on the facts and is an incidental and supplemental order to give effect to a decision of the Family Court, for example where the court has made a prohibited steps order preventing a parent taking a child out of the jurisdiction.  The Family Court should not make such orders routinely, and only where the applicant demonstrates with clear evidence that there is a real and imminent risk that the children in question will be removed. The probability of removal is not far short of “more likely than not”.

The Judge dismissed the application before him as it should have been made to the Family Court, and as he was not satisfied that there was a real and imminent risk that the mother was going to remove Z from the jurisdiction.

The Judge sets out the correct procedure for applying for a freestanding port alert order. He acknowledges that the Applicant will likely make such an application without first giving notice to the other party in the case. The application should be made at your local family court. If there is no one available to hear the application that day, there is no reason the application could not be made at another court. The Judge expressed the view that the applications should be allocated to the circuit judge level, or, in a complex case, to a judge of High Court judge level.

If a freestanding port alert order is granted, it should last for 28 days in the first instance. The Judge considered that it is key that any extension to this time limit should only be ordered at a subsequent hearing attended by both parties. 

The Judge appended to his judgment a modified template order for use in the Family Court. 

Emma Good is a solicitor in the Family department at TV Edwards. Emma specialises in cases concerning children, particularly public law proceedings including applications for Care, Supervision, Emergency Protection, and Special Guardianship Orders. Contact Emma on emma.good@tvedwards.com or 020 3440 8045 for advice on a related query.

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“Breathing Space” – can the Government’s new debt relief scheme help you stay in your home?

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13 July 2021
TV Edwards Blog
Blog Housing

The Government has introduced a new debt relief scheme called Breathing Space. It came into effect on 4 May 2021. The aim of the scheme is to give those in debt some legal protection from creditors by providing a “breathing space” for them to resolve their money issues. Could the scheme help prevent a debtor’s eviction from their home?

The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 establish two types of moratoria on debt. One is called the breathing space moratorium (also known as the “standard” breathing space); the second is named the mental health crisis moratorium (also known as the “mental health” breathing space). 

The Government has published guidance on their website as to how the schemes work. This  states that:

A standard breathing space is available to anyone with problem debt. It gives them legal protections from creditor action for up to 60 days. The protections include pausing most enforcement action and contact from creditors and freezing most interest and charges on their debts.

A mental health crisis breathing space is only available to someone who is receiving mental health crisis treatment and it has some stronger protections. It lasts as long as the person’s mental health crisis treatment, plus 30 days (no matter how long the crisis treatment lasts).

Whilst the regulations are not aimed specifically at tenants or owner-occupiers in rent or mortgage arrears, the new scheme can be used by those facing eviction action, including court proceedings for arrears. 

If someone has rent or mortgage arrears they can seek debt advice from a debt advisor. Only a debt advice provider who is authorized by the Financial Conduct Authority (FCA) to offer debt counselling or a local authority (where they provide debt advice to residents), can start a breathing space. 

If the debtor is in a mental health crisis then other people can apply to the debt advice provider for a breathing space on the debtor’s behalf. This includes the debtor’s carer, approved mental health practitioners, care coordinators, mental health nurses, social workers, independent advocates and the debtor’s representative. 

To be eligible for the breathing space scheme the debtor must:

  • Be an individual
  • Owe a “qualifying debt” to a creditor (which includes rent or mortgage arrears)
  • Live or usually live in England or Wales
  • Not have a Debt Relief Order or an Individual Voluntary Arrangement or an Interim Order, or be an undischarged bankrupt
  • Not already have a Breathing Space, or have had a standard Breathing Space in the last 12 months

The debtor must also show that they cannot or are unlikely to be able to repay all or some of their debt, and that a breathing space is appropriate for them. 

Whilst the Breathing Space is in force, a creditor, or anyone acting on their behalf, cannot take any enforcement action against the debtor. This would include a landlord or mortgage company trying to evict an occupier for rent or mortgage arrears. . 

During the Breathing Space the debtor must continue to work with the debt advisor to try to make a plan and take action to get on top of their debts. 

Only a debt advice provider who is authorized by the Financial Conduct Authority (FCA) to offer debt counselling or a local authority (where they provide debt advice to residents), can make a decision about starting a Breathing Space. 

The Insolvency Service keeps a record of those people who are in a Breathing Space and the date a Breathing Space ended or was cancelled in the previous15 months.

A recent example of how this scheme can help tenants who are facing eviction is below:

  1. Our client approached us who had more than £14,000 rent arrears. A bailiff’s eviction date had been set for the following week;
  2. We advised our client to seek advice about  a Breathing Space. Subsequently, they applied for a standard Breathing Space through a charity called Step Change. 
  3. The debt advisor agreed to start the Breathing Space the following day. 
  4. We contacted the local authority landlord to confirm that the Breathing Space had been granted and they agreed to cancel the warrant for eviction. This means our client now has time to work with Step Change to try to come to an arrangement with her landlord to prevent her eviction.

If you are struggling with debts, including rent or mortgage arrears, you should speak to a debt advisor to see if you are eligible to apply for a Breathing Space. 

If you are facing eviction action please contact us to see if we can assist. We havea team of solicitors with expertise in housing cases. Please contact us on 0203 440 8000 or by email at a_housingreferrals@tvedwards.com .

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Restrictions on Property? Modification or Removal of Restrictive Covenants

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6 July 2021
TV Edwards Blog
Blog Dispute Resolution

Freehold owners of land may come to quite the shock when they try to carry out routine works on their property (such as building a detached dwelling or developing their garden) and their builder or architect consulted on the process reveals there are restrictive covenants on their title which would prevent them from doing so. While these restrictions may have once served a clear and apparent purpose historically they might no longer be prudent or relevant today. In this article we aim to examine the purpose of these types of restrictive covenants, some options you can pursue to have them modified and what you may consider doing with help from our commercial dispute resolution solicitors or property dispute advisors.

Restrictive Covenants – What are They and Why is my Land Subject to Them?

Covenants are agreements between parties which when referring to land restrict what users of land can and cannot do. Historically they were a solemn promise between parties. The difficulty with this is when land began to change owners more regularly these promises would be disputed. The solution for this was to contain restrictive covenants within property deeds so that it would bind the land. The agreement would always be to one party’s benefit and one parties inconvenience or burden and as they effected land would remain in existence long past the lifetimes of those who originally agreed them.

Common Types of Restrictive Covenants

  • Restrictions on development
  • Limiting land to one property of residential purpose;
  • Dictating the type of business which can be run from land;
  • Preventing activities or potential sources of nuisances;
  • Restricting certain types of alterations;

Due to restrictive covenants passing from owner to owner (and even owner to sub-owner) when a larger parcel of land is split-up these continue to apply to land – even while still being freehold! This can cause problem for owners who accidentally find themselves in breach of restrictive covenants for which neighbouring owners can force compliance sometimes with extreme consequence such as knocking down a recently built property. The party in breach could also face a large legal bill for action taken to force this compliance.

What Can be Done about Overly Burdensome Restrictive Covenants?

While situations like those referred to above may seem like you are held at the mercy of neighbouring land owners, the situation is not quite as dire. Prospective purchasers of land may find it helpful to approach the party with the benefit of the covenant to see if it can be agreed to be removed or modified. This may take some negotiation but is usually the most straight forward way at solving these types of problems. Some situations may make it difficult to find out who exactly has the benefit of a covenant – careful investigation should be employed to track the development of the land from when the covenant was entered into.

An alterative route, if you either cannot trace the owner of the benefit or if you have and they refuse, you can apply to the First-Tier Tribunal (Property Chamber) under Section 84 of the Law of Property Act 1925 to modify or discharge most restrictive covenants affecting land. The tribunal has the discretion to determine:

  • If a restriction ‘ought to be deemed to be obsolete’; or
  • If the ‘…continued existence thereof would impede the user of the land for public or private purposes, or, as the case may be, would unless modified so impede such user’ and
  • The owner of the benefitting land consents to the discharge or change; and
  • If there will be damage to the benefitting land due to the loss or change of the covenant.

How to Proceed

It is always recommended that in situations which involve old promises made which are still in force today that you carefully explore your options before deciding to potentially proceed with costly work to your land. You could choose to proceed irrespective of the covenant but doing so would have its own risks which would be best to understand. Restrictions impact the reasonable use of land and can impact your quiet enjoyment – for these reasons knowing about any which may impact your current property or your prospective purchase will help you make informed decisions.

Whether you are contemplating breaching a covenant, already in breach or wishing to contest the continuation of a covenant, guidance on the intricacies of these long-established legal devices is available from our specialist property solicitors who have experience in advising on a wide range of restrictive covenants. They will aim to fully investigate your queries, advise with specific reference to your situation and offer advice as to potential financial implications to action to seek helping you achieve the best possible outcome achievable for your given state of affairs.

TV EDWARDS SOLICITORS LLP

Stamp Duty Holiday extended & lower mortgage deposits

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5 March 2021
Rishi Sunak
TV Edwards Blog
Blog Conveyancing Housing

Rishi Sunak has delivered his budget statement to Parliament for 2021. The Chancellor confirmed that the stamp duty holiday on properties priced up to £500,000 has been extended by three months, until 30th June 2021.

The stamp duty holiday continues to apply to properties priced up to £250,000 until the end of September 2021. Buyers can save up to £2,500 in tax on purchases completed during this period.

The extension provides extra time for buyers who were unlikely to complete their transactions before the original 31st March deadline. From October 1st, the nil rate band will fall back to its original level of £125,000.

The Chancellor has also confirmed a new scheme to help first time buyers. The scheme allows for a 5% deposit on house purchases with a Government guarantee.

Mortgages of up to 95% for residential purchases of up to £600,000 will be available from next month. This policy aims to provide people who do not have a large deposit a chance to buy their own home.

If you would like more information on your property transaction and to find out how we can assist you, call us on 0203 440 8000 to speak to our Property Team.

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Seven things you could do to avoid eviction for rent arrears

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House and sand timer sat on a calendar with a circled eviction date
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16 February 2021
House and sand timer sat on a calendar with a circled eviction date
TV Edwards Blog
Blog Housing

The Coronavirus pandemic has been a particularly difficult time for renters. Many renters have lost income over the past year, either through significant periods on furlough, or losing their jobs altogether. Some self-employed people have had difficulty accessing any support at all and have had to burn through their savings to keep afloat. It is unsurprising, therefore, that the Joseph Rowntree Foundation estimates 2 ½ million people were worried about paying their rent over the winter, with 700,000 already behind on their rent.

Although the Government has stepped in to prevent evictions for rent arrears for most of the pandemic, the current rules mean that those with more than six months of rent arrears are at risk of losing their home.

If you are in rent arrears, and worried that your landlord will take you to Court to seek your eviction, here are some steps that you can take to put yourself in the best position possible to avoid losing your home.

1. Talk to your landlord about your rent

Most Landlords are reasonable people who will understand the current circumstances. Explaining your financial difficulties and trying to come to an agreement with them could stop them from issuing a claim at all. If your landlord is a Local Authority or a Housing Association, make sure you also notify them of any health issues that you have or any particular vulnerabilities you may have to COVID-19.

2. Check that you are getting the right benefits towards your rent

Maximise your income. The DWP’s own annual reports suggest that more than £15 billion in benefits that people are entitled to go unclaimed. You may be entitled to more support than you are getting. Check with agencies like the Citizens Advice Bureau or Turn 2 Us to see that you are getting all the support that you can.

3. Contact your Local Authority

Call your Council. Councils will have a fund out of which it can make Discretionary Housing Payments to tenants which could help you reduce your arrears. Councils can also take reasonable steps under their Homelessness Prevention Duty, to help people stay in their homes. What is reasonable will differ from case to case but includes things like negotiating with your landlord on your behalf or paying some of your rent arrears for you.

4. Pay something towards your rent 

If your landlord is trying to evict you using discretionary grounds, the Court will look at whether it is reasonable to make an order in your landlord’s favour.  Even if you cannot pay the full rent each month, paying whatever you can towards your rent will show a Judge that you are doing everything you can to pay your rent and reduce your debt. A Judge will likely view that in your favour and may be more persuaded to suspend any possession order.

5. Check that your Deposit, if you paid one, is protected

Check the documentation that your landlord gave you when you moved in. You should have been told under which Tenancy Deposit Scheme your deposit is protected (if indeed you paid one).  If you never received those documents, then you might be able to make a Counterclaim (see below) against your landlord and the compensation received could reduce or eliminate your rent arrears. It could also provide a defence if you receive a Section 21 notice.  

6. Disrepair

If you remember periods where you complained about a broken boiler, defective windows, mould and damp, or similar issues, and your landlord took an unreasonable amount of time to fix those issues, then you might have a Counterclaim for disrepair. If successful, a Counterclaim could reduce or eliminate your rent arrears. Check your emails and your texts and preserve any evidence you think could be useful in proving that you suffered from disrepair.

7. Contact a Solicitor 

From the moment your Landlord issues you with a Notice, your home is at risk and you could be eligible for Legal Aid (depending on your finances). When you receive a Notice, contact a Solicitor and they will be able to help you negotiate with your Landlord, or begin preparing your defence.

Even if you are not eligible for Legal Aid, you will still be able to get free advice from a duty solicitor before your first hearing (known as a review date).

Explainer

A Counterclaim is a way of responding to a claim issued by your landlord. If you believe that your landlord has failed to follow the law (e.g. by not protecting your deposit) or has breached the terms of your tenancy agreement (e.g. by ot carrying out certain repairs), a Counterclaim will allow the Court to deal with any harm those wrongs have caused at the same time as your landlord’s claim against you. 


TV Edwards has a team of solicitors with expertise in housing cases. If you are seeking legal advice relating to housing issues, then please contact us on 0203 440 8000 or by email at a_housingreferrals@tvedwards.com to see if we can assist.

Related Services:
Housing Solicitors
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Parental responsibility

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29 January 2021
Pernilla Finnila
Solicitor
Blog Children Law Family

As a result of the Covid-19 pandemic, many councils have taken the decision to postpone birth registration appointments until further notice. Normally, births have to be registered with the local council within 42 days of the child being born. Aside from practical issues such as not being able to apply for a passport, this will result in unmarried fathers not having parental responsibility for the child until the birth is registered and only then if they are named on the child’s birth certificate.

The Children Act 1998 abolished the terms of custody, care and control and access and introduced the concept of “parental responsibility” which is defined as “all the rights, duties and powers, responsibilities and authorities which by law a parent has in relation to the child and his property”. For instance, all people with parental responsibility have the right to be consulted about important decision in the child’s life such as education, medical treatment, change of name and trips abroad.

The law relating to parental rights of same-sex couples is complicated and will be different for the various ways of having a child and the family structures. As such it will not be covered in this article, however, we are planning to write further articles to cover parental rights in more detail. If you are in a same-sex relationship and have questions about parental rights, please contact us on 020 3440 8000.

The woman who carries and gives birth to the child has parental responsibility for the child unless this is removed by a Parental Order or an adoption. If the birth mother is married or in a civil partnership her civil partner or spouse will have parental responsibility.

If the birth mother is not married or in a civil partnership the child’s father will not have parental responsibility.

A father who is not married to or in a civil partnership to the birth mother can acquire parental responsibility for his child in the following ways:

  1. Being registered on the birth certificate as the child’s father;
  2. If they are not currently named on the birth certificate, by re-registering the child’s birth with the child’s mother
  3. Subsequent marriage or civil partnership to the child’s mother;
  4. By entering into a parental responsibility agreement with the parent who has parental responsibility, usually the mother; 
  5. By making an application to the court for a parental responsibility order.

Parental responsibility agreements

A parental responsibility agreement must be in a prescribed form and signed by both parties in the presence of a Justice of the Peace or a court official authorised to administer such documents. The mother must produce the full birth certificate and each parent must produce evidence of identity which bears their photograph and signature. The agreement must then be registered at court.

Once a parental responsibility agreement has been made it can only end by:

  1. An order of the court made on the application of any person who has parental responsibility for the child;
  2. By an order of the court made on the application of the child with permission of the court;
  3. When the child reaches the age of 18.

Parental responsibility order

If the father without parental responsibility wants to share parental responsibility with the birth mother and she is not willing to agree to this, the father can apply to court for a parental responsibility order. Such an order will give him joint parental responsibility with the mother. The court will take into account the principle that the interests of the child are of paramount importance. The court will also consider whether the making of an order is better for the child than making no order at all.  Beyond this there are three criteria that have been developed by judges through case law in determining applications for parental responsibility in respect of a child’s father and these are:

  1. The degree of commitment which the applicant has shown towards the child.
  2. The degree of attachment which exists between the applicant and the child.
  3. The reasons for the applicant applying for a parental responsibility order.

Where the court finds that a father’s reasons for wanting parental responsibility are ‘demonstrably improper or wrong’ or that the father intends to use parental responsibility for improper or inappropriate ends, for example, to try to interfere with and possibly undermine the mother’s care of the children, then the court retains the discretion to refuse to make an order. 

Our family team has accredited family law specialists with many years of experience advising on issues relating to children. Please contact our team if you are seeking assistance with parental responsibility on 0203 440 8000 or via our website.

Related Services:
Child Law Solicitors
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