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Covid-19 Vaccination for Children: Parental Disputes

Despite the success of the Covid-19 vaccination programme in the UK and the clear evidence that it has prevented thousands of adults becoming seriously ill with Covid-19, some adults still feel that it is a difficult decision to make when considering whether to be vaccinated. Of course, as adults we have the freedom and choice to make these decisions ourselves. However, in a situation where both parents disagree as to whether to vaccinate their child, it then becomes a lot more difficult.

Current vaccination guidance from the Joint Committee on Vaccination and Immunisation recommends that every child over the age of 12 and some children, aged 5-11, are vaccinated with 2 doses of the Covid-vaccine. Whilst scientific evidence demonstrates the safety of the Covid-19 vaccines, some people, including parents, continue to, for their own reasons, oppose the Covid-19 vaccines. For parents in particular, this can potentially lead to arguments and difficulties. If you are currently in disagreement about whether your child should receive the Covid-19 vaccine, you may wonder what does the law state?

In order for a person to make a significant decision in respect of a child (to include whether or not to vaccinate), they must have Parental Responsibility for the child in question. Parental Responsibility is a legal status in a child’s life, acquired in different circumstances and is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” (S3, Children Act 1989)

A birth mother will automatically be deemed to have Parental Responsibility for her child. For fathers, the situation is slightly different. By way of example, if the father is named on the child’s birth certificate or is married / in a civil partnership with the mother at the time the child was born, he will also have parental responsibility for the child. There are other circumstances in which an individual can acquire Parental Responsibility which include via parental responsibility agreement with the mother, a Court Order, and the civil partner or wife of a woman who conceived a child through artificial insemination after 6th April 2009.

Where more than one person has Parental Responsibility for a child, they are not legally able to act alone and without the others. This can cause an issue if one parent believes it to be in the child’s best interests to have the vaccine, whilst the other does not. In these circumstances, the vaccine cannot be administered without the consent of both parents.

What happens if both parents have Parental Responsibility and disagree over the Covid-19 vaccine for their child?

In the first instance, both parents would be strongly encouraged and expected to attempt to reach an agreement that is in the best interests of the child. This can be via direct discussions, communications via solicitors and/or mediation. However, if they are unable to agree, ultimately an application would need to be made to the Court for either a Specific Issue Order or a Prohibited Steps Order.

What is a Specific Issue Order?

With a Specific Issue Order, a parent (or another person with parental responsibility) can apply to the Court to make an Order that determines a specific question / issue in relation to

the child. For example, whether the child should receive the Covid-19 vaccine. If successful, the parent applying for this Order can proceed with vaccinating the child, despite opposition from any other person with Parental Responsibility. A copy of the Order can be produced to the relevant medical authority. In making its decision, the Court will consider the best interests of the child and will have regard to the welfare of the child in question. Based on recent case law (explained below), it is highly likely that the Court would determine that administering the Covid-19 vaccine is in the child’s best interests, although each individual case will turn to its own facts.

What is a Prohibited Steps Order?

With a Prohibited Steps Order (PSO), a parent can apply to the Court to prevent the other parent from making a particular decision in respect of the child. For example, to prevent one parent from allowing the child to receive the Covid-19 vaccine. Although it should be noted that a PSO is unlikely needed in these circumstances as it would be unlawful for one parent to act alone where there is more than one person with Parental Responsibility for a child. If you have concerns about another parent acting unilaterally, steps should be immediately taken to place the child’s school and GP surgery on notice of your objections and withheld consent. Steps should then be taken to make an application to Court. In making its decision, as with a Specific Issue Order, the Court will consider the best interests and welfare of the child/children in question.

Recent Case Law

M v H (private law vaccination) [2020] EWFC 93

In this case, the parents disagreed as to whether their two children (P & T, aged 4 & 6) should receive vaccines under the NHS vaccination schedule (e.g. MMR vaccine). The father wished for his children to receive the vaccines and therefore applied for a Specific Issue Order. The mother strongly disagreed. The father also attempted to include vaccinations in relation to Covid-19.

The Judge granted a Specific Issue Order which directed that the children should receive the vaccines under the NHS vaccination schedule, as it was “in the best interests of both P and T.” (Judgment – Paragraph 42) The Judge did not make a decision in respect of the Covid-19 vaccine but commented that it is “very difficult now to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19 would not be endorsed by the court as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the vaccine or a well evidenced contraindication specific to that subject child.” (Judgment – Paragraph 52)

C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam)

In this case, the first of its kind, the 12-year-old child was cared for by the local authority under a care order and wanted to receive both the winter flu and Covid-19 vaccinations. Whilst the local authority and the child’s father supported the child’s wishes, the mother strongly objected, and the local authority therefore had to issue court proceedings.

In his judgment, the Judge held that the local authority could arrange and allow for the child to be vaccinated, despite the mother’s objections. The judge was also reluctant to consider the merits of the Covid-19 vaccination programme. “I do not consider it appropriate for this court to embark on an investigation into the merits of any competing theses as to whether national programmes of vaccination of 12-15 year olds for Covid-19 or for children in school years 7-11 for the flu virus, are justified as being generally in the best interests of children in those age ranges.” (Judgment – Paragraph 19) The Judge also commented in relation to children that are Gillick competent and held that, “the view of a Gillick competent, looked after child of C’s age deserves due respect when considering any question of their best interests.” (Judgment – Paragraph 22)

The above case law therefore highlights that the Court is highly likely to rule in favour of a child receiving the Covid-19 vaccine, or indeed any other medically approved vaccine under an NHS vaccination programme. However, it is important to consider each case individually as there could be factors that would sway the Court’s decision e.g. any other relevant medical conditions from which a child might suffer or perhaps allergies to any specific component of the intended vaccine.

If you require any assistance in relation to a parental dispute regarding childhood vaccination or require any other family-related advice and assistance, please contact either Cassie Greville or Nia Thomas for a free 30-minute consultation.

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Business Valuation in Divorce

People often find that one of the most difficult aspect of going their separate ways is deciding how best to divide the marital assets and finances. Dividing one pot into two, whilst trying to ensure that each of your future housing and income needs are met, is by no means a straightforward task.

There are often several factors that need to be considered when looking at how best to fairly distribute your assets post separation/divorce. Our family solicitors have a wealth of experience in dealing with each aspect but for the remainder of this article, we will focus on one issue which often crops up and can be one of the most complex issues to deal with. This is how to fairly apply a business interest in divorce.

There might be a situation where there is a family business where both spouses are involved in its day to day running. This of course brings with it several practical difficulties as well as how to deal with the value of the business itself. Alternatively, one party might own a business, the income from which meets the majority of the family expenses. Whatever the circumstances, it is important that a business interest is fully considered during the early stages of financial disclosure and negotiations.

There are two main ways that a business interest can be approached in divorce. The first involves seeking to capitalise the value of the business in the assets whilst the second attempts to utilize the future business earnings.

Attributing a capital value to a business interest is often appropriate and necessary, but not always the correct approach. A business vale should be capable of realisation and not some unattainable figure to include in negotiations. Attributing a capital value to a business would be wholly unrealistic in circumstances where the value lies predominantly in the income it will provide. The delay and costs of instructing an expert to value the business in these circumstances would be wholly disproportionate. In these circumstances, the Court can instead Order that the income produced by the business should be utilised to continue to meet each of your future income needs for a time. This is dependent upon several factors to include but not limited to, the nature of the business, it’s available working capital and other available assets to meet capital needs.

If the business has a capital value that is capable of realisation, it might be necessary for an expert to be instructed to provide an opinion on the value of the business interest. This will usually be undertaken by an accountant instructed by both parties. Their valuation will be objective and impartial and will need to take into account a number of variables, to include the current economic climate and its unknown long-term impact upon businesses and their profitability.

It is vital that the instructions to any appointed expert make clear from the outset certain factors that need to be considered. This is paramount particularly in light of the uncertainties surrounding today’s economic climate. Your appointed expert should be asked to comment specifically on assumptions surrounding the potential long-term impact of Covid-19 as well as a no deal Brexit. There will also need to be careful consideration given to tax implications specifically surrounding Capital Gains Tax surrounding a sale or transfer and possible withdrawal of a lump sum from the business as well as other available options. You and your Solicitor should work closely together to ensure that the expert understands the business in question and that all relevant factors are advised upon within the report.

Business valuation in divorce can be complicated and if not dealt with properly can result in unnecessary delay and costs. Our family team at Morgan LaRoche Solicitors have a wealth of experience in dealing with complex business structures including but not limited to private limited companies and quasi partnerships ranging in value from very little to million-pound corporations.

All of our family solicitors are also members of Resolution and subscribe to a code of conduct committed to promoting a constructive approach to divorce and the division of matrimonial assets in a non-inflammatory manner. Our experienced team of family solicitors always aim to empower individuals during one of the most difficult times of their lives whilst always looking for the most constructive result in a cost-effective manner.

If you require any further advice or assistance on divorce or family matters, please contact either Cassie Greville or Nia Thomas for a free initial consultation of up to 30 minutes.

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Divorce, Dissolution and Separation Act 2020 (No Fault Divorce)

Separation is never easy and relationships can often turn acrimonious very quickly with each party attempting to blame each other. On the 6th of April 2022, divorce laws in England and Wales are set to significantly change with the introduction of the highly anticipated Divorce, Dissolution and Separation Act 2020. This is the most significant reform to divorce legislation since 1973.

Many family solicitors are of the view that the current law fails to reflect modern society, and that it forces couples to apportion blame at a time where emotions are already running high. Blame will often cause further hurt and anger which are not necessarily helpful emotions when looking at reaching agreement about what might be in the best interests of any children of the family or how best to deal with the division of marital assets. Under the current divorce regime, parties must show that their marriage has irretrievably broken down and to demonstrate this, they must rely on one of five facts, namely – adultery; unreasonable behaviour; desertion; five years’ separation or two years’ separation with consent. As it stands, separating couples, at best must wait two years to be able to formally divorce without having to attribute blame to one person. As the majority of people do not wish to place their lives on hold for that amount of time, they are often forced to look to the fault-based facts to evidence that the marriage has broken down irretrievably. This however, will all change with the introduction of the long awaited ‘no fault’ Divorce.

What does this new Act mean?

  • From 6th April 2022, couples separating will no longer have to apportion blame. The no-fault based divorce process will see the removal of the requirement to meet one of five facts and instead, parties will simply be required to provide a statement to confirm that their marriage has irretrievably broken down. This statement can either be made solely by one party or by way of a joint statement. This means that if both parties are in agreement, they will now have the option of making a joint application.
  • The new Act will remove the ability for one party to defend the decision to divorce. It is hoped that this change will help victims of domestic abuse.
  • There will also be changes in respect of timescales. Under the new Act, there will be a 20-week period from the start of the proceedings to the point when the Applicant(s) can apply for a ‘Conditional Order.’ The Conditional Order will replace what has been previously referred to as the Decree Nisi. There will then be a 6-week until the ‘Final

Order’ can be granted (previously referred to as the Decree Absolute). The Government believes this will “ensure that there is a period of reflection, and where divorce is inevitable, provides a greater opportunity for couples to agree the practical arrangements for the future.” (Ministry of Justice Information Pack, ‘Divorce, Dissolution and Separation Act 2020’)

For couples who wish to divorce under the current procedure, an application must be submitted, at the latest, by 4pm 31st March 2022. There will then be a transitionary period of 5 days before the Act comes into force. During this time, divorce applications will not be considered unless urgent.

This new Act is set to significantly change the divorce process, arguably for the better. It is hoped that the new procedure will encourage couples to work together to resolve the issues which arise upon separation.

If you would like to receive advice or assistance in relation to a potential divorce or any other family-related matter, please contact either Cassie Greville or Nia Thomas for a free initial consultation of up to 30 minutes.

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Dementia Action Week: Cure the care system (17 – 23 May 2021)

Dementia Action Week (17 – 23 May), hosted by Alzheimer’s Society, is urging Government to fix the broken care system and provide support and care needed and deserved by people with dementia and their family.

There are nearly one million people with dementia in the UK and the pandemic has exposed decades of underfunding and neglect like never before. It’s highlighted that the care system is hard to access, expensive and inadequate.
As a solicitor specialising in supporting older and vulnerable people, I see this first-hand. I stand with Alzheimer’s Society in calling for change.
More needs to be done to fix this crisis and help families already dealing with an extremely cruel illness. The Government must recognise the need for reform.
Alzheimer’s Society is asking people to sign the petition to cure the care system. They are calling for publication of a clear, budgeted plan with milestones and reform and to ensure reforms improve the quality-of-care people receive. 
You can sign the petition on the Alzheimer’s Society website: www.alzheimers.org.uk
 
Janelle Carter-Jones Solicitor at Morgan LaRoche Solicitors, Swansea and Carmarthen, and member of SFE (Solicitors for the Elderly), the membership organisation for specialist solicitors who support older and vulnerable people.

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Publication of the Draft Domestic Abuse Bill

The Government published its draft Domestic Abuse Bill on 21st January 2019. The Bill will prohibit a domestic abuser from cross-examining their former victim in Family Courts. The proposed legal changes will also seek to ensure that abusers are forced to engage in rehabilitation schemes, that there is adequate safeguarding in place for victims in criminal trials, and to set up a national “domestic abuse commissioner” to improve the support for victims accessing public services.

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Common Law Marriage

Almost half of the people in England and Wales believe that Common law marriage exists

The British Social Attitudes Survey carried out by The National Centre for Social Research has revealed that 46% of the public believe that cohabiting couples form a common law marriage. This percentage is increased with people believing that it is more likely when children are put in to the equation.

The rapid increase in cohabiting couples and the lack of any legal status for such couples in England and Wales means that there is often severe financial hardship for a vulnerable party upon separation.

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Should the current system of fault-based Divorce be abolished?

In July 2018, the Supreme Court in the case of Owens v Owens [2018] UKSC 41, ordered a wife to remain married to her husband of 40 years after he denied that he had behaved unreasonably.

Currently, any individual wishing to obtain a Divorce without a spouse’s consent, has to prove that the marriage has broken down irretrievably due to adultery, unreasonable behaviour, desertion or that they have lived apart for five years. Following the judgement, the Ministry of Justice said that it would consider changing the law because the current system “creates unnecessary antagonism”. It has also been acknowledged by the Law Commission that the fault-based Divorce rules provoked unnecessary hostility and made things worse for children by exacerbating parental conflict.

In the same month as this Supreme Court decision, the Government published the Divorce (etc.) Law Review Bill which could lead to the first major changes to Divorce laws in 50 years and it is hoped, positive changes.

Latest News

Interim maintenance – pound for pound orders

In the case of LKH v TQA AL Z [2018] EWHC 2436 (Fam) in July 2018, the court granted an injunction preventing a husband from paying any further monies to any firm of solicitors instructed by him practicing in England and Wales unless he paid an equal amount to the wife’s solicitors to discharge arrears under an earlier order of the Court.

The Court had previously directed that the husband pay the wife interim maintenance at £29,500 per month and a costs allowance of £40,000 per month. The husband had not complied and there were arrears amounting to £230,000.

The Judge noted that it was “intolerable and an affront to justice that in the last month this man had paid £95,000 to his new solicitors at the very time he was already in arrears and getting further into arrears with his wife”.