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Disputes with Commercial Arbitration: Guidance for Businesses

The commercial world is a high pace platform where conflicts and claims are inevitable for the conduct of business.

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4 April 2024
TV Edwards Blog
Blog Commercial Litigation Dispute Resolution

The commercial world is a high pace platform where conflicts and claims are inevitable for the conduct of business. It can be a disagreement over a contract, a breach of such contract, a dispute over an international transaction… Resolving these conflicts must be done in an efficient and effective way to ensure the business relationships are not deteriorating and to safeguard the parties’ interests. One way of resolving these conflicts and such ways is the use of commercial arbitration

Definition

Commercial arbitration is a hybrid system between the codified systems and the common law sources by adopting the best of both worlds: a flexible and private out-of-court process where parties can submit their disagreement to an impartial arbitrator or panel of arbitrators.

Most states in the world have now recognised, with the growth of world trade, that 90% of commercial disputes should be settled in arbitration and not courts of law. To illustrate this view, they have allowed arbitration laws to be passed nationally, which makes it difficult for national courts to intervene.

To appeal an arbitration award is not as easy as appealing a decision from a national court. The national arbitration laws are designed in a way to discourage the courts from intervening. Arbitration is internationally accepted as the way to resolve disputes.

Unlike traditional litigation, it offers flexibility, neutrality, efficiency, and confidentiality, making it an attractive solution for businesses seeking to resolve conflict in a timely and cost-effective manner.

Advantages

  1. Neutrality: The parties can decide where to go and on which basis. They can decide what law is applicable and who will make the decision.
  2. Efficiency: Arbitration proceedings are typically quicker than traditional court litigation. Disputes are resolved faster, which means business is not interrupted or at least less than with a Court procedure.
  3. Flexibility: Arbitration allows customisation of the process to suit the parties’ needs, including selecting the arbitrator, choosing the rules, and determining the place and time or the arbitration.
  4. Deep expertise: the parties can chose who will deal with their matter and therefore can have somebody who is an expert in very niche areas to be involved. It ensures that decisions are made by people with a deep understanding of the relevant matter.
  5. Confidentiality: Court proceedings are usually public. Arbitration allows more privacy, which is attractive for businesses dealing with confidential information and savoir-faire.
  6. Enforceability: decisions are binding and enforceable like a Court judgment would be. In addition, an award is hard to challenge, giving the parties a binding and final decision.

Settings

When considering commercial arbitration, businesses should consider the following factors:

  1. Nature of the Dispute: is the dispute adequate for arbitration based on the complexity, nature of resolution and preferences of the parties?
  2. Agreement: does the contract includes a well drafted clause regarding the resolution of the dispute? Is there a valid arbitration agreement? 4 factors under the NY convention of 1958: (i) The Agreement must be in writing and signed by the parties: Since 1958 there has been an explosion in the ways that people communicate, must the agreement now be in writing and signed by the parties? No, as long as there is evidence of the agreement and the exchange of consent (ii) The arbitration agreement deals with existing or future disputes. (iii) The disputes arise in respect of a defined legal relationship, (iv)The arbitration agreement concerns a subject matter capable of settlement by arbitration.
  3. Arbitrator Selection: the parties must ensure the arbitrator dealing with their claim has the relevant expertise.
  4. Arbitration Rules: Choose appropriate arbitration rules, whether institutional or ad hoc, to govern the arbitration process. There are five laws to consider: (i) Law governing the arbitration clause, (ii)The law governing the place or seat of the arbitration, (iii)The law of the contract itself “proper law, the substantive law, the governing law, or the applicable law”, (iv) Guidelines (confidentiality, etc), (v) The law governing the recognition and enforcement of the award

How we can help?

In today’s commercial world, businesses must be aware of the necessity to deal with disputes in a fast and efficient way. Commercial arbitration offers an alternative to traditional litigation, with more flexibility and certainty. It is crucial for the commercial lawyers to understand the advantages of commercial arbitration and make informed decisions. If you would like to find more how we can help with a dispute, contact Adam Haffenden on 0203 440 8139 or email adam.haffenden@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

TV EDWARDS SOLICITORS LLP

Understanding Child Maintenance and Top Up Orders

Navigating through the complexities of child maintenance and understanding the legal framework around ‘top up’ orders can be challenging.

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3 April 2024
Anesha Pavaday
Associate Solicitor
Blog Divorce and Family Finance Family

Navigating through the complexities of child maintenance and understanding the legal framework around “top up” orders can be challenging for many parents. This article aims to provide clarity and guidance on this area.

What is Child Maintenance?

Child maintenance is financial support that helps cover a child’s living costs when their parents have separated. It helps to provide for the child’s every day needs such as food and clothing.

The payment is made to the parent who the child lives with majority of the time (“the receiving parent”) by the parent the child lives with the least (“the paying parent”). If a child does not spend any nights with one parent, that parent is still required to pay child maintenance. If the child spends an equal amount of time with both parents, then no child maintenance is payable.

Child maintenance is payable for any child under 16 or under 20 if they are in full time education.

How is Child Maintenance calculated?

The Child Maintenance Service has jurisdiction to deal with child maintenance payments if the paying parents earns up to £156,000 gross per annum/£3,000 gross per week. You cannot use the Child Maintenance Service if the paying parent lives abroad, the exception to this is if they are working abroad for certain British organisations, such as the civil service or the armed forces.
There is no obligation on parents to use the Child Maintenance Service and they can reach an agreement voluntarily; however, it is useful to have a calculation even if you do not wish to proceed with the Child Maintenance Service as an indication of what should be paid. The Child Maintenance Service is also useful if you do not want the paying parent to know your location or any personal information.

The Child Maintenance Service uses a formula that considers various factors including the paying parent’s income, how many children they have to support and the number of nights the child(ren) spends with them. You can see what you are likely to receive or have to pay by using the following calculator – https://www.gov.uk/calculate-child-maintenance.

What are Top Up Orders?

Top up orders come into play when the paying parent’s income exceeds the Child Maintenance Service threshold of £156,000 gross per annum/£3,000 gross per week. In these circumstances a “top up” order can be applied for. A “top up” order is an additional amount the court can order a high-income parent to pay over and above the standard Child Maintenance Service calculation to ensure the child(ren’s) needs are adequately met.

A parent can consider applying for a top-up order when they believe that the standard child maintenance payments are not sufficient to cover the child’s needs, especially if those needs include extraordinary expenses like private schooling, specialised medical care, or extracurricular activities that go beyond the basics.

A top up order is not automatic and must be applied for through the court. Before applying to court, a maximum assessment must first have been carried out by the Child Maintenance Service.

How is Top Up Child Maintenance payment calculated?

Historically it was widely considered by Mostyn J that the starting point to calculate a “top up” award was to simply apply the same formula used by the Child Maintenance Service to the paying parent’s income over £156,000 and up to £650,000 gross per annum. However, his approach has been criticised because: (i) it produces particularly high figures in cases with multiple children and (ii) the awards made when applying the formula, particularly to high incomes were often well in excess of awards made by the courts in cases where the Child Maintenance Service did not have jurisdiction.

With these considerations in mind in James v Seymour [2023] Mostyn J devised what he termed an Adjust Formula Methodology (or AFM) to produce a Child Support Starting Point for paying parents who earn over £156,000 up to £650,000 gross per annum. The AFM differs from the Child Maintenance Service formula as it allows for deductions of school fees and extras. Mostyn J highlighted the AFM formula will not be relevant where; there are four or more children, a payer parent’s gross income is more than £650,000, the paying parent’s income is largely unearned, or the paying parent has no income or lives on capital.

The AFM can be worked out as follows:

  • Step 1: Identify the paying parents gross income.
  • Step 2: Reduce the gross income by the number of child(ren) living in the paying parent’s household – this is 11% for one child, 14% for two children or 16% for three children.
  • Step 3: Deduct the amount of pension contributions.
  • Step 4: Gross up school fees paid by the paying parent by the amount of income tax paid by the paying parent and deduct these and any extras to produce the paying parent’s “exigible income”. School fees are grossed up by taking the figure paid for the school fees and dividing it by 0.55.
  • Step 5: Apply the Child Maintenance Service formula to the first £3,000 of the paying parent’s weekly income. For the first £800 apply 12% for one child, 16% for two children and 19% for three children. For the remaining income apply 9% for one child, 12% for two and 15% for three.
  • Step 6 : The AFM is then calculated by applying a tariff by multiplying 2.4% for a single child and 3% for each of two or three children to the remaining income.
  • Step 7 : Deduct the amount to the number of nights the child(ren) spends with the paying parent as follows:

Number of nights per year with paying parentFraction to subtract
<52Nil
52-103 nights1/7th to subtract
104-155 nights2/7ths to subtract
156- 175 nights3/7ths to subtract
176-183 nightsEqual

There is no obligation on courts to apply the AFM as Mostyn J describes it as being designed to produce a “loose starting point which a decision maker can summarily choose to accept or reject without fear of appellate review”. James v Seymour is a relatively recent decision and there is limited commentary on the judgment, but the initial response appears to be welcomed. Before applying for a “top up”, the Child Maintenance Service formula and the AFM should be applied to the paying parent’s gross income to assess whether it is beneficial to apply for a “top up”. Those who earn over £650,000 gross per annum remain subject to greater discretionary powers.

How can we help?

Given the complexity of child maintenance and the nuances of “top up” orders, seeking legal advice from a family solicitor specialising in these matters is crucial. One of our specialist family solicitors can help provide guidance tailored to your specific situation, help you navigate the legal system, and ensure that the best interests of your child/ren are always at the forefront.

We are passionate about the work do and are committed to provide exceptional client service to get you the best possible outcome in often stressful circumstances. Our family lawyers provide a kind and empathetic approach by listening to and understanding our client’s needs, and we offer straight forward and clear advice.
Contact us on 020 3440 8000 or A_FamilyReferrals@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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Housing legal aid work: Why it is a vital public service

42% of people in England and Wales do not have access to a local housing legal aid provider

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26 March 2024
Amanda Ford
Associate Solicitor
Blog Community Care

An interim report commissioned by the Law Society has found that “housing legal aid work is loss-making for most providers” and that “it’s increasingly difficult to recruit and retain talent, and housing providers are exiting the market.”

Depressingly, “Legal aid fees have not increased since 1996, and in 2011 were cut by 10%…Conversely, typical legal costs have increased 90% since 1996, and by 40% since 2011”.

The interim report states that this lack of profitability has led to, “difficulties with recruitment and retention, leading to an ageing supervisory group and a thin pipeline of talent willing to pursue a career in the area market exit – the number of housing legal aid providers has reduced by a quarter in the last five years.”

Furthermore, many people live in so called “legal aid deserts” and the Law Society’s own research has shown that, “42% of people in England and Wales did not have access to a local housing legal aid provider”.

This is a bleak state of affairs given that the backdrop to this is a surge in no-fault evictions https://bit.ly/3TxbGv6 and the fact that both mortgage and landlord possession claims in general are on the rise https://bit.ly/4986Utv

At TV Edwards LLP we have a dedicated team of solicitors with expertise in housing cases and we are committed to housing legal aid work.

To give you an insight into the type of cases we deal with, here are some of the successful outcomes in the last 12 months.

Possession Proceedings – Alleged Sub-letting

We acted for an assured tenant who had travelled abroad during the Covid-19 pandemic after a family bereavement. Unfortunately, the client was unable to fly home for almost 2 years for various reasons. The client’s landlord served the client with a Notice to Quit and Notice Seeking Possession; alleging that the client had not been using the property as his only or principal home and that he had sub-let the whole of the property. We defended the possession proceedings and ultimately settled the matter where a Suspended Possession Order was made, meaning that the client will retain his home if he complies with the terms of the order.

Homelessness – Intentionality

The local authority issued possession proceedings against a non-English speaking client living in temporary accommodation, following a negative homelessness review decision made over 3 years before we opened the client’s case. We advised the client to make a fresh homelessness application and made representations that the client was not intentionally homeless from her previous privately rented accommodation given that when she surrendered that tenancy, she was not aware that the temporary accommodation she had been provided by the local authority was for a finite period as she had not been advised of this via a professional interpreter. Ultimately a fresh homelessness application was accepted, and the main duty accepted by the local authority which means that they have a duty to continue to accommodate her.

Rent arrears possession proceedings

We acted for a tenant after his landlord issued possession proceedings based on rent arrears. We defended the possession proceedings and issued a counterclaim based on the poor housing conditions in the property including various leaks which caused damp and mould and the fact that the private landlord had failed to protect the client’s deposit. The case proceeded to trial after we obtained a default judgement after the landlord had failed to file and serve their Reply and Defence to Counterclaim on time. At trial, the court dismissed the possession claim and awarded the client damages of £49,733.42 plus costs.

Possession Proceedings – Succession

We acted for a client who was living in his late partner’s housing association tenancy. After the tenant died, the client made an application to succeed the tenancy on the basis that he was the late tenant’s cohabitee and partner and they had been living together as a couple. This application was refused, and the landlord of the property issued possession proceedings against the client. During the course of the proceedings, we obtained a number of witness statements from friends and neighbours confirming the client’s residence at the property and the nature of his relationship with the late tenant. Ultimately, the case was settled after the Housing Association agreed to grant the client an assured tenancy of his late partner’s property.

Committal following alleged breach of an Anti-Social Behaviour Injunction

We acted for a vulnerable client after his social landlord applied to commit him to prison for alleged breach of an anti-social behaviour injunction. The interim injunction had been obtained some years before the client had approached this firm and as the client had not been legally represented at the time the order was made, it had no end date. We obtained a number of witness statements from various neighbours confirming that the alleged noise nuisance was not emanating from the client’s property but from neighbouring properties. During the course of the proceedings, the client became housebound, and several final hearings had to be adjourned. We ultimately managed to settle the matter on the basis that the application for committal be adjourned generally and be dismissed if no application to restore is made within a certain period. We also agreed that the interim injunction be discharged within a certain period. This vulnerable client therefore avoided imprisonment.

Application for Re-Entry following an Eviction

We acted for a vulnerable assured tenant who was evicted from her home of over 16 years. The client only realised that she had been evicted when she returned home to find that the locks had been changed and her dog had been locked inside. The client and her mother had been in regular contact with her landlord by phone regarding the client’s mental health issues prior to her eviction, but her landlord had not confirmed the impending eviction in any of these conversations. Further, the client felt reassured by her landlord that her home was safe given that she was paying her rent. This case was ultimately settled on the basis that the client’s aunt was able to pay a lump sum to reduce the arrears and the client was able to re-enter her home and retain her tenancy despite the eviction.

The above case examples highlight why legal aid is vitally important to help occupiers enforce their rights.

How we can help

If you, or someone you know, are facing similar housing issues to the above, then you should seek urgent specialist advice.

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 to enquiries@tvedwards.com to see if we can assist.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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Protecting consumer rights: The issues of an unfair contract

Unfair contracts pose a significant threat to protecting consumers’ rights

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15 March 2024
TV Edwards Blog
Blog Dispute Resolution

The issue of unfair contracts has always been a long-standing concern. It can take many forms such as hidden fees, one-sided terms or conditions in favour of the business compared to the consumer. Indeed, consumers can find themselves in tricky situations due to incomprehensible legal jargon or uneven bargaining power. Disputes Resolution lawyer Leo Mineo explores some of the most common issues below that consumers may encounter.

Key issues of an unfair contract

1. Contractual language is obscure and complex. Many contracts are drafted with standard clauses that average people will not interpret and understand properly. This inaccessible jargon often leads to consumers agreeing with unfavourable terms, resulting in financial burdens or restricted rights. In response to this issue, there has been considerable efforts by practitioners to try to simplify the language and ensure people understand what they are agreeing to.

2. The presence itself of unfair terms in contracts. Businesses can include conditions that will, unreasonably, restrict the consumers rights or put them in a difficult and disadvantageous position. The Consumer Rights Act entered in 2015 targets these conditions by establishing that unfair terms and conditions in consumers contracts are unenforceable. However, in practice, it can be difficult to apply and enforce the Consumer Rights Act 2015, so consumers must remain aware of the above.

3. Contracts include hidden charges. We have all seen the example of the unfair terms being printed in extremely small characters at the end of the contract, which most of us ignore. It would, however, be a mistake as it puts consequential financial burden on consumers, often without them knowing about it. Regulators have sought to address this by requiring businesses to disclose financial implications of their contracts and be transparent as to the burden the consumers would face by signing them.

4. The lack of balance between the bargaining powers of the parties to a contract. Consumers often end up with less bargaining power and feel obliged to accept the conditions put forward to them by businesses. This is where education towards consumers’ rights and pushing businesses to have transparency and fairness in their processes are fundamental.

Protecting consumers

In order to protect consumers, the Competition and Markets Authority (CMA) was created by the British government. This organisation’s purpose is to enforce consumer protection laws. Indeed, the competition authority has as main goal to ensure the market is regulated, review unfair practices, take legal actions against the entities violating these rights and ultimately protect consumers.

Where an individual believes they have entered into an unfair contract, the English Court can help. Indeed, it is in their power to interpret contractual provisions and assess their fairness as well as grant compensation where needed.

How we can help?

Unfair contracts in the UK pose a significant threat to protecting consumers’ rights, despite the above-mentioned efforts put in place. Progress has been made but there is a continuous need for awareness on the consumers’ side. While consumers have rights for protection against businesses abusing their position, we know how difficult navigating within the legal system is.

At TV Edwards, we have a dedicated and expert team always available to assist and advise you on the issue of consumer rights and protection. We take a clear, practical and transparent approach and aim to get you the best possible results. If you would like to find more how we can help you, contact Adam Haffenden on 0203 440 8139 or email adam.haffenden@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

TV EDWARDS SOLICITORS LLP

How to resolve boundary disputes

Legal boundary disputes in England can be a source of significant stress for property owners.

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6 March 2024
Simon Fielding
Solicitor
Blog Dispute Resolution

Legal boundary disputes in England can be a source of significant stress for property owners, often leading to strained relationships and costly legal battles.

These disputes can arise when the exact location of property boundaries is unclear or disputed between neighbouring landowners. However, several options exist to resolve such conflicts amicably and avoid protracted legal proceedings.

Common causes of boundary disputes

Boundary disputes can arise for various reasons, such as unclear property descriptions, changes in land use over time, or simple misunderstandings between neighbours. It is crucial to establish the root cause of the dispute before pursuing any resolution method.

Common issues include:

  • Fences and Walls – Disputes can arise when there’s uncertainty about the actual boundary line, leading to disputes over fence placement or wall maintenance.
  • Overhanging Branches – When branches from a neighbour’s tree encroach onto your property, it can cause annoyance and potential damage, leading to disputes.
  • Encroachment – A common issue occurs when structures, like garages or extensions, cross the boundary line.
  • Trespassing – Neighbours or their visitors may trespass onto your land, leading to privacy and security concerns.

Options for resolution

Here are the key options to help you resolve a boundary dispute:

1. Communication and Mediation

Open and honest communication between neighbours is often the first step in resolving a boundary dispute. Engaging in a calm and constructive conversation can help identify common ground and potential solutions. If direct communication proves challenging, mediation is a non-confrontational option where a neutral third party can facilitate discussions and guide both parties toward a mutually agreeable resolution.

2. Professional Surveys

Hiring a licensed surveyor to conduct a detailed property survey is often seen as a critical step in resolving boundary disputes. A surveyor will assess historical documents, physical markers, and other relevant factors to accurately determine the precise boundary lines. The resulting surveyor’s report can assist in resolving the dispute. Professional reports from an expert can be used as evidence in court, proving the court allows it.

3. Boundary Agreements

Once the boundaries are clearly defined through a survey, the parties involved can enter into a boundary agreement. This legal document outlines the agreed property lines and any specific terms related to land use or maintenance. A boundary agreement provides a clear reference point for future reference and can help prevent future disputes.

4. Deed of Rectification

In cases where the boundary dispute arises due to errors in property deeds, a deed of rectification may be necessary. This legal document corrects any inaccuracies or omissions in the deed, ensuring that the property boundaries are accurately reflected.

Is resolving a boundary dispute difficult?

Navigating legal boundary disputes in England requires a combination of effective communication, professional expertise, and a willingness to explore various resolution options. Proactive steps, such as hiring a surveyor and entering into boundary agreements, can prevent disputes from escalating into lengthy and costly legal battles. 

Choosing amicable methods, like mediation, creates positive relationships between neighbours. Understanding the nature of the dispute and exploring collaborative solutions ensures that property owners in England can resolve boundary conflicts in a fair and efficient manner.

Find out more about our Alternative Dispute Resolution methods.

What are Easements?

An easement is a legal right that one person has to use the land of another person for a specific purpose. The person with the right is called the “beneficiary” or “dominant owner,” and the person whose land is used is called the “burdened owner” or “servient owner.”

There are different types of easements. The most common ones include:

  • Right of Way – This allows you to walk or drive through someone else’s land to get to your property or another place.
  • Right to Light – This gives you the right to receive natural light through someone else’s property, like if you have windows that need sunlight.
  • Right of Drainage – This lets you use someone else’s land to drain water or sewage away from your property.
    Easements can be created in different ways. Some may be written into the property’s deeds.

Others can be created through long-time use or by agreement between the parties involved.

While you have the right to use the easement, you must use it responsibly and not cause any harm or damage to the burdened owner’s property.

You can find out more about Easements and Covenants Disputes here.

The Access to Neighbouring Land Act 1992

The Access to Neighbouring Land Act 1992 allows property owners to access their neighbour’s land under specific circumstances, such as conducting essential repairs or maintenance.

Preliminary Considerations

  • Notification – Before accessing the neighbouring land, you must notify your neighbour in writing, explaining the purpose, date, and duration of the access required. The notice should be given at least 14 days in advance, ensuring your request reaches them in time.
  • Mediation – If your neighbour disagrees with your request, it is best to try and mediate the issue before considering further action. Mediation services can help resolve conflicts amicably without resorting to legal action.
  • Practicality – Make sure the request is reasonable and proportionate.

Should you continue or quit the process?

If the boundary issue escalates into a complicated legal battle or becomes too stressful, you may consider quitting the process. However, keep in mind that leaving the matter unresolved may lead to long-term dissatisfaction and ongoing disputes with your neighbour.

How we can help?

At TV Edwards, we have experience dealing with simple and complex boundary disputes and frequently receive excellent client feedback on the quality of our work, and our commercial and practical approach to achieve the best possible outcomes. If you would like to find more how we can help with your boundary dispute issue, contact Adam Haffenden on 0203 440 8139 or email adam.haffenden@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.


TV EDWARDS SOLICITORS LLP

Safeguarding report published into care failings in Haringey

The family hopes that the report will lead to improvements in services and better oversight of people living in care.

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6 March 2024
TV Edwards Blog
Blog Community Care

A Safeguarding Adult Review report has been published by Haringey’s Safeguarding Adults Board into the conditions endured by Paulette, a woman in her 50s who was living and died in a care home in Tottenham.

Paulette’s sister, represented by Monica Kreel, an experienced community care solicitor at TV Edwards Solicitors, pushed for a Safeguarding Adults Review under section 44 of the Care Act 2014 because she believed that Paulette suffered neglect and harm before her death. Paulette’s name has been disclosed with the consent of the family.

Paulette, who had a neurological condition, was placed in a care home by Haringey Social Services after safeguarding concerns were raised when she lived at home. However, a move that was meant to be temporary while more suitable accommodation was found ended up being permanent. Haringey failed to authorize Paulette’s deprivation of liberty, even though Paulette lacked mental capacity to decide where she lived and was confined to a care home. This meant that there was no clear process for her to challenge the decision to place her there, a process which she was entitled to under Article 5 of the European Convention on Human Rights.

Other failings of Haringey and other public bodies contributed to Paulette’s emotional and physical decline. The wheelchair service at Whittington Health NHS Trust refused to provide her with an assessment or a wheelchair because she was living in a care home. This type of blanket policy is unlawful.

There was also a delay in providing her with physiotherapy even though an immediate referral had been recommended. Her mobility declined and by the time she was offered physiotherapy she was not able to make use of it.

Haringey Council also failed to carry out a correct financial assessment of Paulette, resulting in her accruing huge rent arrears for a flat she was no longer living in. The report concluded that there was a lack of joined-up working around Paulette’s tenancy management and rent arrears.

The care home where Paulette died has a large block contract with the London Borough of Haringey. The family was concerned that Paulette was placed there without regard to her individual needs and that there were no alternative placements for her. The report has recommended that steps are taken in Haringey to look at and plug the gaps in services, so that there is a real choice of options for people like Paulette who have neurological conditions such as early onset dementia.

The Safeguarding Adult Review report also found that there should have been better multidisciplinary planning for Paulette, so that her individual care needs – including her social, cultural and emotional needs – were recognized and met.

The events described in the report happened during the pandemic, which meant less face-to-face contact with professionals and more severe staff shortages.

The family hopes that the report will lead to improvements in services and better oversight of people living in care homes in Haringey.

The family’s contribution to the Safeguarding Adult Review was welcomed by the Safeguarding Adults Board and helped to shape their recommendations

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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Child Relocation: What You Need to Know

International child relocation is a complex and sensitive legal matter which arises when one parent wishes to move their child to another country.

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1 March 2024
Pernilla Finnila
Solicitor
Blog Children Law Family

Child relocation can take two main forms: international child relocation (where one parent wishes to move their child abroad) and internal child relocation (where the move is within the UK, such as London to Birmingham). 

Both situations raise sensitive legal and emotional issues, as they directly affect the child’s welfare and the relationship with both parents. This article explains the key legal principles, the role of the courts, and what parents need to know when asking questions such as “Can I move with my child without father’s permission?” or “Can I move with my child without mother’s permission?”

International Child Relocation

International child relocation is a complex and sensitive legal matter which arises when one parent wishes to move their child to another country. This decision can have significant implications for the child’s welfare and the rights of both parents involved. Personally, having grown up outside the UK and lived in several countries, I understand what it means to have a ‘home’ in different countries. Professionally, I help clients navigate through this complex and sensitive legal issue.

Whether you’re considering relocating abroad with your child and facing objections from the other parent or are concerned about your child being taken abroad without your consent, understanding your rights and responsibilities is crucial to help you achieve the outcome you want and a resolution that best serves the interests of your child. These issues are often described as international child relocation or simply child relocation.

Do I Need Permission To Relocate Internationally?

Most likely, yes. When a parent wishes to relocate internationally with their child, they must seek either the consent of all those with Parental Responsibility (which typically means the other parent with PR) or obtain permission from the court.

Taking a child out of the country without the consent of the other parent or permission of the court is considered child abduction which is a criminal offence.

Parents often ask: Can I move with my child without the father’s permission, or can I move with my child without the mother’s permission? The answer is often no, unless you have either the other parent’s agreement or a court order, you cannot relocate abroad with your child.

Initial Steps To Relocate Internationally

If you are thinking of relocating overseas with your child, planning is key. It is helpful to initiate discussions with your co-parent well in advance of your planned relocation date and seek their consent. You should demonstrate that you have considered every aspect of what your child’s life will look like in the new country and have considered the practicalities of how your child will maintain a relationship with their other parent.

If you can’t reach an agreement, mediation may help you find a resolution to move the situation forward.

If the other parent objects or if an agreement cannot be reached, the relocating parent must apply to the court for ‘leave to remove’ the child. In England & Wales, the law governing international relocation is primarily governed by the Children Act 1989. The act prioritises welfare of the child as the paramount consideration in any decision concerning their upbringing.

How Will The Application Be Decided?

When deciding whether to grant permission for leave to remove, the court will consider a checklist of factors to assess the impact on a child’s welfare:

  • The child’s ascertainable wishes and feelings
  • The child’s physical, emotional and educational needs
  • The likely effect on them of any change in their circumstances
  • The child’s age, sex, background and any characteristics of theirs which the court considers relevant – e.g. the court may look at impact of any change in culture or language on the child in light of these characteristics
  • Any harm which the child has suffered or is at risk of suffering
  • How capable each of their parents and any other person in relation to whom the court considers the question to be relevant is of meeting their needs

The court will also take into consideration the following factual issues when deciding whether to grant leave to remove:

  • The reasons for the proposed relocation
  • Whether the country to which relocation is sought is an entirely new place or somewhere where the family has existing connections
  • How the relocation will be funded and how the relocating parent will support themselves and the child in the new country
  • The child’s relationship with both parents – The court will examine the quality of the child’s relationship with each parent and the potential impact of the relocation on maintaining those relationships
  • Practical arrangements for contact – The court will consider how the non-relocating parent will maintain a meaningful relationship with the child following the relocation
  • Whether proper consideration has been given to the child’s education, health needs, social activities, housing and support network
  • The objections from the non-relocating parent – If the non-relocating parent opposes the relocation, the court will carefully consider their objections and the reasons behind them

Child Relocation Within The UK

Child relocation does not only apply to international moves; it also arises when one parent seeks to move within the UK. Internal relocation refers to moving with a child within the country, for example from London to Birmingham.

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.

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 or 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.

Legal Considerations For Internal Relocation

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:

  • There is no meaningful difference between internal and external relocation and ultimately both depend on the best interests of the child or children.
  • The wishes, feelings and interests of both parents are important, but the welfare of the child or children will remain central to the case.
  • 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:

  • The welfare of the child is always paramount.
  • There is no presumption in favour of the applicant parents.
  • The reasonable proposals of the parent with a live with order wishing to live abroad carry great weight.
  • 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.
  • The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
  • The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
  • 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.

Internal vs International Child Relocation: Key Differences

Child relocation falls into two main categories. International child relocation involves moving abroad and requires either parental consent or a court order. Without this, taking a child out of the country could amount to child abduction. 

Internal child relocation, on the other hand, refers to moving within the UK. While it does not involve leaving the country, it may still need court approval if the move significantly disrupts existing arrangements or affects the child’s relationship with the other parent.

Despite these differences, both forms of relocation are guided by the same legal principle: the welfare of the child is paramount. Courts will look at the reasons for the proposed move, the practical impact on the child’s life, and how relationships with both parents can be preserved.

For parents, the key takeaway is that any relocation plan, whether abroad or within the UK, must be carefully considered, supported by practical details, and focused on the child’s best interests. Seeking early legal advice is vital to ensure that relocation plans are realistic, fair, and aligned with the child’s welfare.

How TV Edwards can help with child relocation

International child relocation cases and internal relocation cases can be inherently complex and emotionally charged, requiring careful consideration of the child’s welfare and the rights of both parents involved.

If you are a parent seeking to relocate, or a parent seeking to keep your child in the UK, we can help you with specialist child relocation solicitors to navigate these challenging circumstances. We provide guidance, support, and representation throughout the legal process, to increase your chances of securing the outcome you want. We can also legally advise you about what to do if you want to take your child abroad.

If you are thinking of relocating with your child, or if you are concerned about your child being taken abroad without your consent, contact us on 020 3440 8000 or A_FamilyReferrals@tvedwards.com

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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TV EDWARDS SOLICITORS LLP

Is AI the future of commercial litigation?

The integration of AI into various facets of the legal field has become both a topic of fascination and concern.

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8 February 2024
Adam Haffenden
Partner - Head of Dispute Resolution
Blog Commercial Litigation Dispute Resolution

As the legal landscape continues to evolve, the integration of artificial intelligence (AI) into various facets of the legal field has become both a topic of fascination and concern. Particularly in commercial litigation, where the stakes are high and the complexities abound, the role of AI is being increasingly scrutinized. In the UK, this scrutiny has intensified with discussions revolving around whether AI is indeed the future of commercial litigation or if its integration presents more challenges than solutions.

Recent events, such as the case involving Steven Schwartz in the USA, have underscored the potential pitfalls of relying solely on AI in legal practice. Mr Schwartz, seeking precedents for a personal injury case against an airline, utilized AI, specifically ChatGPT, to conduct research. However, the AI system provided him with fictional cases, unbeknown to Schwartz, who subsequently submitted these fictitious precedents as real evidence. This occurrence is a phenomenon termed “hallucinating” where AI generates fictional information as real, raising serious ethical and legal concerns for any legal AI optimist. This filing resulted in a hearing into the lawyers conduct ultimately leading to Mr Schwartz, fellow lawyer Peter LoDuca and his firm Levidow & Oberman each being fined $5,000 each.

In 2021 the Law Society released a report titled “Future Worlds 2050: Images of the Future Worlds Facing the Legal Profession 2020-2030” which presents a sobering perspective. The report forecasts a significant reduction in jobs within the legal profession due to the widespread adoption of AI. This report highlights that should legal professionals not consider how this technology can be integrated into their work, then they could be amongst those left behind by this innovation. This could also raise concerns about the displacement of legal professionals and the potential erosion of expertise and judgment in legal practice should solicitors and barristers fail to adapt fast enough to this technology.

Whilst Mr Schwartz’s case and this report serve as a cautionary tale, they also highlight the capabilities and limitations of AI in the legal realm. AI technologies can indeed be invaluable tools for tasks such as document review for disclosure requirements, drafting legal templates, and identifying potentially relevant legal precedents. These technologies have the capacity to streamline processes, enhance efficiency, and reduce the burden on legal professionals, as well as improving accuracy.

In the realm of commercial litigation, where nuanced interpretation of the law and strategic decision-making are paramount, the role of AI is likely to be significant. While AI can assist lawyers undertake their work particularly with large repetitive tasks such as disclosure, highlighting potentially critical information hidden underneath thousands of irrelevant documents, it cannot replace the expertise and discernment required to understand why such information is critical and how best to build a legal case with such information. Human judgment, ethical considerations, and contextual understanding are indispensable components of effective legal representation, which are unlikely to be replaced by AI.

Moreover, the risk of AI-generated hallucinations underscores the importance of human oversight and accountability. Legal professionals must remain vigilant in verifying the accuracy and authenticity of AI-generated information. Final checks and balances are essential to prevent potentially catastrophic legal consequences arising from erroneous or misleading AI outputs. This role of trust and responsibility cannot be replaced by AI and will likely continue to be a central part of a solicitor’s or barrister’s work. AI undoubtedly holds promise as a valuable tool in UK commercial litigation. Its ability to streamline processes, enhance efficiency, and provide insights can augment the capabilities of legal professionals. However, the reliance on AI must be tempered with caution, recognizing its limitations and potential pitfalls. Skilled professionals will continue to play a pivotal role in applying the law to the facts of the matter, exercising judgment, and ensuring the integrity of legal proceedings. Ultimately, the future of commercial litigation in the UK will be shaped by a symbiotic relationship between AI technology and human expertise, with both working in tandem to deliver justice effectively and ethically. While the present commercial field, still relies on effective and nuanced application of the law by a professional, to provide the best legal outcome for one’s commercial interest.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

TV EDWARDS SOLICITORS LLP

I divorced abroad – can I get a financial settlement in England?

The answer is that they may be able to do so.

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7 February 2024
Paul Read
Partner - Head of Family Law
Blog Divorce and Family Finance Family

The divorce settlement will normally be dealt with by the courts of the country where the divorce took place, but what if one party does not receive a satisfactory settlement following an overseas divorce? Can they then turn to our courts for help?

The answer is that they may be able to do so.

Obviously, the courts of one country will not usually interfere with the decisions of courts in another country. However, back in 1984 parliament was sufficiently concerned about the possibility of someone being left destitute by the failure of a foreign legal system to make financial provision for them that it enacted Part III of the Matrimonial and Family Proceedings Act 1984.

Financial relief after overseas divorce

Part III gives the courts of England and Wales the power to make financial orders following an overseas divorce, similar to the sort of orders that can be made on a divorce in England and Wales.

But the power can only be exercised if certain conditions are established.

Firstly, the divorce must be recognised as valid in England and Wales.

Secondly, the party seeking relief must not have remarried.

Thirdly, the party wishing to apply for relief must first obtain the leave of the court to make the application. The court will not grant leave unless it considers that there is substantial ground for the making of an application.

Lastly, the court will only have jurisdiction to make an order under Part III in one of three circumstances. These are essentially: where either of the parties to the marriage was domiciled in England and Wales on the date of the application; where either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the application; or where one of the parties has an interest in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties.

If the court can exercise the power under Part III it will decide upon what order to make in a similar way to how it would make that decision following a divorce here.

However, before the court makes that decision it must first be satisfied that it would be appropriate for such an order to be made by a court in England and Wales.

In considering this, the court must have particular regard to a number of matters, including: the connection which the parties have with England and Wales; the connection which the parties have with the country in which the marriage was dissolved; any financial benefit which the applicant has received in consequence of the divorce; the availability in England and Wales of any property in respect of which an order in favour of the applicant could be made; and the extent to which any order is likely to be enforceable.

It should be noted that the mere fact that the courts here may be likely to make a more generous order would not alone be sufficient to make it appropriate for an order to be made by a court in England and Wales.

Part III in action

The way that Part III may be used was demonstrated in a recently reported case that took place in the Central Family Court in London last May.

The case concerned an application under Part III by the wife, following a divorce in New Zealand.

In the course of the marriage the parties had lived in a property in England, between 2006 and 2009. The property had been owned by the husband. The judge in New Zealand held that she had no jurisdiction to make an order in respect of the property, hence the wife’s application here under Part III.

In the course of the proceedings the property was sold, with the net proceeds amounting to some £1.2 million.

Obviously, the court here had jurisdiction to entertain the wife’s application, as the property had been used as the matrimonial home.

And clearly, it would be appropriate for the court here to make an order, limited to the proceeds of sale – an order that would obviously be enforceable.

The only decision remaining, therefore, was: how should the proceeds be divided?

The judge decided the case on the basis of the wife’s needs. She found that the wife needed some £564,000, mostly to meet her housing needs, and therefore awarded her that sum. This was less than 50% of the net value of the matrimonial home, but the judge considered this to be appropriate, as it reflected both the short time lived in the property by the parties, and the fact that it was owned by the husband prior to the commencement of the relationship.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

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