Category: CHILDREN

What is family mediation?

For divorcing couples, family mediation can help sort out disputes without the need to go to court.

Mediation is a more informal way to resolve the conflicts and issues that can arise in divorce. The process is less stressful and quicker than going to court and therefore can also save money.

An independent, professionally trained mediator helps separating couples work out arrangements for children and finances following separation. Crucially these arrangements have to be acceptable to both parties.

Most arrangements need some give and take on both sides. Even so an agreed outcome is almost always preferable to the imposition of a solution by a judge.

Registered mediators can provide general legal information, but they cannot provide legal advice for your situation. For example, they can tell you what the law states about financial settlements on divorce in general, but they cannot apply that to your particular circumstances.

We recommend that legal advice is still taken as it can turn the written agreement into a legally binding document. You can consult your family law solicitor at any point in the process. Often it is best to do this both during the process and on any proposals that are agreed.

Family mediation vouchers

We’ve worked with many excellent mediators over the years, though it’s important to stress that every divorce is distinctive and not all are suitable for this approach.

Mediation is in the news right now as the Government has put funding in to support more divorce cases being resolved in this way.

Since being launched last March, separating couples have used 4,400 £500 Government vouchers to help fund their mediation.

This week the Government announced an extra £1.27 million is being invested in the scheme. That’s after research found  77 per cent of cases reached full or partial agreements away from the family courts.

Lord Chancellor and Secretary of State for Justice, Dominic Raab, said: “I want to see children and their parents spared the stress and conflict of the courtroom as much as possible, and I’m delighted that thousands more will now have the opportunity to resolve their disputes in a less combative way.

“At the same time, it will free up vital capacity in the family courts to ensure the system can recover quickly from the pandemic.”

Want to know more and to see whether mediation is suitable for you? Call our free phoneline on 0800 285 1413 or email

→ We spoke with mediator Maura McKibbin previously about helping separated parents make new plans for holiday periods.

Surrogacy now
an option for single parents

The number of parents using surrogates in the UK is rising thanks to high-profile celebrities, changing public attitudes, and corresponding law reforms. Barrister Jennifer Lee told Merrick Life the latest law change is most welcome.


Just over a year ago the government published its first ever guidance on how to start a family using a surrogate.

The publication was recognition that surrogacy rates are increasing. That’s in part due to a relaxation in the law that allowed same sex couples the same rights as heterosexual couples to apply for parental orders, which confers legal parenthood for a child born through surrogacy on the intended parents. Parental orders are ‘transformative’ and last for the child’s entire life.

In 2016, 368 parental orders were awarded – that’s up from 194 in 2012.

And in January this year, after a prolonged legal fight, the law was further changed to extend the same right to single people wishing to have a family this way. To apply, single parents must have a genetic link to the child born through surrogacy.

For Jennifer Lee, the changes reflect shifting views on an often-controversial area.

She said: “The law allows more people to apply and reflects the fact that society has moved on.

Surrogacy for single parents

“It ends the discriminatory bar against single parents from applying to become the legal parents of children born through surrogacy. The reform will pave the way for a wider group of people to apply to become parents via the surrogacy route, whether they be single fathers or single mothers, including older women who are increasingly seeing surrogacy as a viable route to starting a family.

“I think we will see more people resorting to surrogacy. I would expect an increase in applications from single people; just as we saw more same sex couples applying after the law was changed in 2008 to allow those couples to apply.

“Also, celebrities such as Tom Daley and Elton John (who have both had children through surrogate mothers) have raised awareness about surrogacy in general.

“It has huge relevance for modern people’s lives. Advances in science now allow older women to conceive, or to have a child through a surrogate if they wish.

“A lot of women are freezing embryos. It’s becoming a feature of modern life.  When you are slightly older, you may be more ready financially and mentally to have a child. But biologically, you might no longer be at a stage where you can carry a child yourself.

“With the recent advances in technology and the increasing number of women choosing to freeze their eggs, surrogacy is becoming an increasingly attractive option.”

Ms Lee said that while the latest law change has been widely accepted, there are still issues to be addressed.


“There are still a lot of misconceptions among the general public about the legal position under English law. I would certainly urge anyone considering surrogacy to seek specialist legal advice at the outset, before embarking on that journey.”

The now retired former president of the Family Court, Sir James Munby, has suggested we reconsider the current restrictions on paying surrogates anything more than “reasonable” expenses. And that we draw upon the model used in other countries – such as the United States and Canada. In those countries highly-regulated, commercial surrogacy systems are in operation, supported by surrogacy-friendly laws.

Ms Lee explained: “Because surrogacy arrangements are enforceable in certain states in the United States, and in Canada, that framework minimises the risks for all concerned. It ameliorates the risk of the surrogate mother changing her mind, and indeed the risk of the commissioning parents changing their minds.

“At the moment, under English law, those scenarios are entirely possible and we know it happens. That’s why pursuing surrogacy abroad, in countries where such arrangements are supported by surrogacy-friendly laws, can be an appealing option.

“In England, surrogacy agreements are entirely unenforceable. Surrogacy is legal, but advertising for a surrogate, or entering into a surrogacy arrangement for profit, is not. We are years behind places like California.

“Sir James Munby has called for better regulation and a more transparent system, which provides safeguards for all concerned.

Altruistic surrogacy

“This ensures that surrogate mothers are protected, not exploited, and are properly paid for their trouble. And that if someone changes their mind down the line you have a contract in place to fall back on.

“There is an argument that surrogacy done out of goodwill with no commercial element, in other words altruistic surrogacy, has worked well here for the past 30/40 years.

“However, because surrogacy arrangements are not enforceable, it is not an airtight system. Issues do arise for both the surrogate and the intended parents.

“So, for instance, a surrogate may decide to retain the child. And there have been cases where the intended parents have had to bring their surrogate to court.

“A system of informal arrangements is not entirely in keeping with the increasing numbers of people who are looking at surrogacy as a way of starting their family. There is uncertainty built in, which has led to increasing calls for the advanced system we see in California and Canada, for example, being replicated here. You would have to adapt these systems to suit the UK context but, in my view, a more watertight, legally-binding arrangement would provide certainty for everyone concerned.”

Ms Lee thinks there is still some way to go before we are ready to accept that carrying a child for another should involve contracts, with the threat of court sanction.


“The move to a California type system is controversial. It has been the longstanding position here that commercial surrogacy is a criminal offence. It will take time for people to find such a concept palatable, but it is certainly gaining ground.”

Ms Lee said there are valid concerns that such an arrangement would incentivise vulnerable women to become surrogates.

However, provided there are robust safeguards to ensure that potential surrogates understand the risks involved, and are not being pressured into an arrangement, her view is that it might well be a model that works.

Right now, she argues, it is most important there is greater public awareness of what the law actually means.

“There are children in this country born through surrogacy who are living with parents who are not in fact their legal parents because no parental order was ever made. Many people do not realise that, under English law, the surrogate (and her partner if she has one) will be the legal parent(s) until and unless a parental order (or an adoption order) is made.

Legal advice

“Real problems can arise. For example, if there’s a dispute about the child’s upbringing between the surrogate and intended parents, or if one of the parents dies. Not being the legal child of that parent might have real ramifications when it comes to inheritance.

“It is also not uncommon to see intended parents entering into a surrogacy arrangement without first obtaining specialist legal advice.  The intended parents may have decided to embark on a surrogacy arrangement, paid a lot of money to an agency overseas, but rather left the taking of legal advice until the very end.

“You might be faced with the baby’s due date being a month away and the parents realising at that stage that they’ll have to apply for a parental order upon their return to this jurisdiction, and leaving themselves very little time.

“Some parents may not realise that they need to apply for a parental order in this jurisdiction, so as to secure legal parenthood for their child born through surrogacy.

“Those are the sorts of cases that can become tricky.”


Jennifer Lee is a specialist family law practitioner at Pump Court Chambers in London.
She has a thriving practice in matrimonial finance, and wide experience of complex children cases. She has developed a niche practice in surrogacy and modern families, having acted for commissioning parents in Human Fertilisation and Embryology Act cases. Jennifer also acts in Court of Protection matters. She is ranked as a “leading junior” in The Legal 500, and in Chambers & Partners.

Never a bad day to seek legal advice

The start of a new year is often a time for review and reassessment.

The break from the regular routine over the festive period gives many the time to ponder their life and their priorities. Spending long uninterrupted periods with family can unfortunately bring to the fore issues that remain hidden at other times of the year.

And some in failing relationships resolve to act.

As such, the first working Monday of the new year has become labelled ‘divorce day’ by the media. Many in the legal profession are keen to distance themselves from the negative connotations of this.

Our view is quite simple. If your relationship is in trouble, whether it’s the first day of a new year or the last day of the old one, there’s never a bad time to seek out professional legal advice.

Amanda Merrick said for an individual contemplating divorce or just wanting to know what their options might be – it is important they empower themselves with information and take legal advice as soon as possible.

She said many clients attend a first appointment having mistakenly pre-determined that separation will leave them homeless, financially adrift or never able to see their children.

In most cases none of these propositions bear any resemblance to what actually happens.

Primary concerns

Put simply – having enough money to live and the future of any children are primary concerns in most break ups.

Amanda said: “It can be worth considering some form of counselling. Or, if there is a specific issue, another dispute resolution service, such as mediation.

“Relate is, perhaps, the best-known provider of counselling services for couples. But the NHS offers a similar service if one – or both partners – has a mental health problem, such as depression, that is affecting the relationship.”

But Amanda also urges people to prepare themselves if the relationship is beyond this point.

She said: “It’s never easy trying to establish a co-parenting relationship whilst in the throes of a separation. But if you have children that’s what you must strive to achieve for their benefit as soon as possible.

“The family court has wide-ranging powers to deal with children issues, but it cannot resolve any emotional stuff between the two of you caused by the relationship breakdown. Try not to lose sight of the real objective – damage limitation for your children.

“Whatever forum you use to resolve any financial issues, a full and frank exchange of information is likely to be required going back at least 12 months.

“Draw up as soon as possible a list of everything you know about your other half’s financial circumstances. Also making a start on getting all your relevant paperwork together helps to ground you in the facts.

“This can be particularly helpful should emotions subsequently take over and cloud your recollections.”

Want to know more about how Merrick can help? Click here.




Without divorce support I could have lost my child

One mum’s divorce process experience and how she was helped by Merrick’s #AccessUs initiative which makes legal advice affordable for those on limited incomes

“I’d never been in a position where I could afford a solicitor, which is why four years on from separating I’d not actually started the divorce.

“I’d taken on the house and debts so there was very little extra cash at the end of the month.

Divorce solicitor

“I had spoken to a solicitor locally and been charged £80 for a basic 20-minute consultation and I thought after ‘how am I going to be able to afford this?’

“But things were getting pretty contentious. I needed to get a resolution.

“I needed to be able to stand up for myself and I finally did and that was only with the support of Merrick, I wouldn’t have to been able to do it otherwise.

“It was my boss who recommended I talk to Amanda. She was very personable, very friendly but super professional. She went through everything on the phone and said Merrick had an initiative for which I qualified and where the charges would be in line with legal aid rates.

“That was music to my ears. I knew I could manage that.

Eventually I would have backed down

“Without this I would have been in the position where I was backed into a corner and gone along with what was said. I get quite emotional about it all and I think eventually I would have backed down.

“I don’t think I could have represented myself, I find the whole process quite intimidating. I’ve had to go to court and it really makes me anxious. Without representation I don’t think I would have done it.

“I could have been in a position where – as dramatic as it sounds – I could have lost my child.

“I would have had to give in because without #AccessUs financially I couldn’t have fought it and I can’t represent myself in that kind of situation.

“You still get access to proper legal advice from a qualified divorce solicitor. It’s been amazing to have that.

“To go into that court situation where I felt immediately intimidated and terrified and to have someone sat there speaking for me was just an absolute godsend. I couldn’t have got through it without them.

“It’s like having a friend on the end of the phone. They have really helped me through.

“I don’t know how people represent themselves now there is such limited access to Legal Aid. How you would go through this without some access to legal support?

I couldn’t have seen a future

“I just look at what it could have been like. Things could have been completely different and so much worse. We are coming out of it now and things are normalising.

“I couldn’t have seen a future without the support Amanda and Gabrielle have given me, so I’m very grateful for everything they’ve done. I’ve not got any fear of the process now because I’ve got good people on my side and I can manage it.”

“If you leave it to hang over you, it’s never going to get resolved. It’s just always that issue that you can never move on from.

“I’ve moved forward a hell of a lot. I feel a lot more confident in myself and a lot happier with the direction things are going. The future doesn’t look so bleak to me.”

Read more about #AccessUs

Can we help you? Contact us on (0161) 838 5410 or email

Family law reform in spotlight at Supreme Court

Court 1, The Supreme Court - Family law reform

Two cases with potentially far-reaching consequences for family law reform will be heard at the Supreme Court this week.

The hearings could shape the future look of divorce and civil partnerships.

Owens v Owens

The case of Owens v Owens underlines the need for no-fault divorce to finally be adopted in England and Wales.

Tini Owens claims she’s “locked in” to her marriage with farmer Hugh Owens which broke down after she had an affair. She filed for divorce, but Mr Owens represented himself and opposed the petition. Her request was denied.

Her appeal was rejected by the High Court and then the Court of Appeal. She was, however, given leave to appeal to the Supreme Court and this is due to be heard on Thursday.

Family lawyers group Resolution has been given permission to make representations, given the importance of the likely ruling.

Family law reform?

As the law stands, the requirement to allege adultery or unreasonable behaviour provokes unnecessary conflict. Reducing that hostility must be a better way forward and would assist in making divorce law fit for purpose.

Previously we looked at this from the all-important perspective of a child.

Currently, Mrs Owens is forced to stay in a marriage that she no longer wants to be in. She’s having to appeal to the highest court in the land to grant her wish.

Whether this case will lead to direct reform, only time will tell.

At the Court of Appeal, Sir James Munby ruled: “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, although some people may say it should be.”

Baroness Hale, President of the Supreme Court: Family law reform

Baroness Hale, President of the Supreme Court


And the President of the Supreme Court, Baroness Hale, said only last month: “It is not the job of the courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us.”

Hence, all eyes will be on the Supreme Court on Thursday.

That will follow a case at the start of the week with potentially far-reaching consequences for civil partnerships and co-habitees.


Same-sex couples have had the right to enter into a civil partnership since 2005 and to marry since 2014. No such right to civil partnership exists for opposite-sex couples.

This omission has been challenged by Rebecca Steinfeld and Charles Keidan, a couple in a long-term relationship. They wish to formalise their arrangement but have an ideological objection to marriage, based on what they consider to be its patriarchal nature.

The couple sought a judicial review of the government’s decision not to offer civil partnerships to opposite-sex couples. Both the High Court and Court of Appeal ruled against them.

While the government has been looking at whether a change in the law is required, the couple are now to have their case heard by the Supreme Court.

At the heart of this is the truth that some co-habitees want a legally binding relationship other than marriage that affords protection in the event of a relationship breakdown or death.

Previously we explained the lack of legal protection for co-habitees and some of the myths surrounding their ‘rights’.

There are more than three million co-habiting couple families in the UK. Surely it is right that they have the option to choose a legal status right for their beliefs?

Court 1 of the Supreme Court will be the testing ground for reform.


Baroness Hale: By University of Salford Press Office [CC BY 2.0 (], via Wikimedia Commons


A primary concern for any parent divorcing or separating is the effect this has on any children in the relationship.
It’s clearly an unsettling time for all concerned but possibly more so for those witnessing the breakdown of their parents’ relationship. With more than 100,000 couples filing for divorce each year, one in three children is likely to experience parental separation before the age of 16, according to the Family Mediators Association.
Going to court can sometimes polarise parents creating additional tensions. Children inevitably feel these. Mediation is a more informal way to resolve the conflicts and disputes that can arise.
In particular it can be a very useful forum to address issues relating to children. These are so often driven by emotional factors, which the Family Court is unable to resolve.
Due to the communication involved in the mediation process relationships are often better preserved. This gives an opportunity for separating parents to continue to work together in the future for the benefit of their children.
At Merrick, our focus is on resolving disputes as quickly and cheaply as possible.
Most agreements need some give and take from both sides. Even so an agreed outcome is almost always preferable to the imposition of a solution by a judge.
Our job is to empower our clients, so they understand the impact of any compromises and are on an equal footing with their ex, when they need it most.
We strongly recommend that legal advice is obtained before entering mediation to give it the best chance of success.
We certainly would not advise anybody to enter such a difficult and far-reaching process on an uninformed basis. Believing that mediation is a quick-fix, cheap option to end a relationship without understanding the legal ramifications is not helpful and can often have unintended consequences.
Each individual set of circumstances are different. Only after listening and understanding those circumstances will we advise a client whether or not their case is suitable for mediation. If it is, and mediation is their preferred option, we will make the appropriate referral.
Here are some important points about the mediation process:
Mediation is voluntary for both parties.
If both parties agree to it, the impartial mediator facilitates negotiation and has no vested interest in the outcome.
Whilst being flexible to the needs of each party, the mediator is in charge of the process ensuring that sessions have focus and the whole process is going somewhere.
Mediation is confidential, except where there are any concerns of risk of harm to a child or vulnerable adult. Details of the mediation will not be referred to in evidence in any court proceedings about the same issues.
Typically, more than one session is needed to reach an outcome to stand the test of time and deal with underlying issues of conflict.
The decision-making rests with the participants. If an agreement is reached it is presented to the court for approval. This isn’t simply for rubber-stamping. The judge will consider the reasonableness of the terms proposed in all the relevant circumstances.
If, unfortunately, a negotiated settlement does not prove possible, we will support clients through the court process.
Family law is complex and each set of circumstances unique. Whether you are fact finding or have already made a decision, do seek properly informed legal advice.
More from Merrick about children in divorce here. Useful information from the Family Mediation Council here.



A Child’s Perspective

Most of us won’t know when it was that we first started to verbalise our many thoughts, though it’s fairly inconceivable that it would have been before the age of 6 months. This is the age when the first ‘mama’ or ‘dada’ is often gurgled out, much to parents’ delight. Recent evidence has shown however that babies can understand the meaning of words from the age of 6 months. So it is then, listening to rowing parents, that children learn to normalise arguing before they learn how to ask their parents to stop. If, as has often been suggested, the policy behind refusing no-fault divorces is to preserve the sanctity of family, what thought has been given to preserving children’s innocence?

Children are very aware of what is going on between parents and understand the nuances of their behaviour far more than we might expect; indeed, no doubt by school age they already comprehend the notorious “I’m fine”. Children are generally sensitive to parents’ feelings and it’s possible they understand how unhappy mum or dad is before they do themselves. Experiencing their parents’ relationship, children develop their first perception of married life.  It goes without saying then that if parents are happy and caring of one another this will be a positive perception. In cases of unhappy marriages though, children endure rather than enjoy their parents’ relationship. Surely, this cannot be the intention behind the desire to preserve marriage and family?

A parent might decide it is better to wait until children have grown up in the belief they are doing what is best for them. Within this vacuum the thoughtless spouse can become accustomed to their behaviour being accepted and take this for granted such that when the other spouse finally makes the decision to seek a divorce it is likely to be met with astonishment. Indeed, the decisions to date in the case of Owens v Owens, would suggest an unhappy spouse in these circumstances may not be so entitled.

As is already well-known, in this case the husband argues that the allegations of behaviour set out in the wife’s petition are simply the ‘stuff of everyday married life’, and not serious enough to prove an irretrievable breakdown of the marriage.  Thus far the courts have agreed with him, refusing Mrs Owens a divorce.

The reality is, the end of a relationship cannot always be pinpointed to one event or series of recent events. It often happens slowly, over many years, when the devotion once felt is chipped away until one of the parties reaches the conclusion that they just don’t love the other anymore. In such a case, why should freedom be denied, and what effect does this have an any children in the meantime? The Owens’ children are now adults but their parents’ situation is not confined to marriages of long duration.

What is clear is that the case of Owens underlines the urgent need for no-fault divorce to be allowed in the law of England and Wales, bringing us in line with many other countries around the world. Indeed, the legislation permitting this was drafted up in the Family Law Act as long ago as 1996, but has since never been enacted. A No-Fault Divorce Bill was introduced in 2015 but after being delayed, the end of the parliamentary session resulted in it making no further progress.

In a modern world where relationships, family units and even gender are being redefined what should prevent this reform? And what of any children?  Perhaps at the top of the list of reasons in favour of it should be a concern for their unnecessary exposure to a negative experience of marriage. Better still the enabling of their parents to avoid the need for mud-slinging and thus preserve what remains of their relationship to assist future co-parenting.

Mrs Owens has now been granted permission to appeal to the Supreme Court. Time will tell what, if any, the changes to this area of the law their decision will bring but a child-focused approach would surely promote much needed reform.

If any of the issues in this blog effect you contact our specialist divorce team on 0161 838 5410 and we’ll be happy to help you.

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