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SEPARATION AND CHILDREN – 10 POINTS TO KEEP IN MIND

Posted on May 7, 2014

If you are separating and you have children you may want to keep these 10 points in mind.

1. Do not criticise the other parent and do not involve children in the argument.

2. Bear in mind the needs of the other parent.

3. Allowing the child to contact the other parent e.g. by telephone when they are not with them and being able to talk openly when they miss the other parent.

4. Before during and after the separation keep in mind that the child may feel confused and have contradictory feelings.

5. Take on board what the child is thinking and listen to what the child wants to discuss but do not hold the child out to make the decision.

6. Acknowledge that the children have their own friends and activities that need to be considered when arranging contact.

7. Remember that each parent may have different parenting styles and the different styles of parenting can complement each other if not dismissed by the other parent.

8. If a regular pattern for contact is agreed stick to this so that the child does not feel upset for a contact being cancelled.

9. As the child gets older remember to be adaptable to their needs which may change.

10. Let the children know that even though you have decided to separate both parents and everyone involved still loves the children and that living in 2 separate households can work.

Austin Chessell and Massy Ellesmere are Family Mediators at FAMIA.

Austin Chessell is also a Collaborative Family Solicitor at Feltons Solicitors

Email: austin.chessell@famia.co.uk

Phone: 07920 445832

Twitter: @FamilyLawLondon

» Filed Under Changes through divorce and seperation, Children in Divorce, Christmas Tips, Contact Matters, Dealing with Financial changes, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Mother's day tips for separated Mums and Dads, Relationship, Surviving Divorce, Therapy, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce | Leave a Comment

Collaborative Law In A Nutshell

Posted on May 7, 2014

What is Collaborative Law?

Each person who has decided to separate or divorce in the Collaborative Law process has their own solicitor where meetings take place in the same room with the aim of resolving everything face to face. I find this works better than correspondence and allows the process to cover a lot more ground rather than waiting for a response to a letter. Each person and the lawyers sign an agreement with one of the important things being that a financial application will not be made to court. Common matters can include children, finances, relocation or all of these matters.

How does Collaborative Law Work?

Once each person has instructed a Collaborative Layer there will usually be around 4-5 meetings to discuss the issues ‘around the table.’

Legal advice can be given to the parties during this process.

For Collaborative Law to work everyone needs to work towards reaching an agreement on the matters that have been raised and also agree for court proceedings not to be issued.

If an agreement is reached this can be drafted into a court order.

What can you discuss in Collaborative Law?

• How to separate in a dignified way that will not destroy the family;
• When to tell the children about the separation;
• Your views on the separation and the other persons view;
• Aim to rebuild communication that make have broken down;
• Legal and financial concerns;
• Emotions – In this situation a Family Consultant would usually be part of the meetings;
• Is the family home to be sold or will someone and the children remain there;
• Relocation internal and abroad;
• Who and when each parent will care for the children and how to co-parent even though the family is separating;
• Agreeing a financial outcome that looks at the families interests rather than focussing on positions;

Other Collaborative Experts

In some cases other professionals work with me. I commonly work with other Mediators, Accountants, Independent Financial Advisors and Divorce Coaches at the Divorce Survival Experts http://www.divorcesurvivalexperts.co.uk/our-team/ where clients feel this will help the Collaborative Process.

Does Collaborative Law Work?

Yes Collaborative Law has a high success rate when separating couples come to the meetings when they discuss possible options and outcomes by being prepared to express and listen to the other persons views in an open and free forum.

Austin Chessell and Massy Ellesmere are Family Mediators at FAMIA.

Austin Chessell is also a Collaborative Family Solicitor at Feltons Solicitors

Email: austin.chessell@famia.co.uk

Phone: 07920 445832

Twitter: @FamilyLawLondon

» Filed Under Changes through divorce and seperation, Children in Divorce, Christmas Tips, Contact Matters, Dealing with Financial changes, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Mother's day tips for separated Mums and Dads, Relationship, Surviving Divorce, Therapy, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce, Uncategorized | Leave a Comment

Mediating with family mediation clients who are very emotional and have detailed matters they would like to resolve

Posted on May 7, 2014

In this blog I will talk about mediation with highly emotional clients, how to deal with emotional clients and some reasons why clients may be emotional.

It has been a real learning experience working with couples over the past four years as a family mediator where there are strong emotions between the clients. It is very different to acting for one client as a solicitor.

The hardest part about arranging the mediation can be obtaining the willingness of the person who did not propose the mediation as mediation is a voluntary process. Explaining to that person what mediation can achieve for them helps persuade them to try mediation.

As mediators we help:-

1. Turn around family disputes;
2. Resolve family differences;
3. Give children a voice if the parents would like their children to be part of the mediation process;
4. Save clients’ money by avoiding the fees they would incur if the matter went to court;
5. Keep the dispute out of court;
6. Work in conjunction with solicitors if clients need advice during mediation and if they need a solicitor to prepare any mediation agreement into a legal document.

A lot of mediation clients want to resolve their family dispute and save face at the same time. Mediation allows this to happen.

It may have been many months or years since the couple have seen each other. Sometimes in the joint sessions I provide a sandwich or fruit for the couple to eat as it may have been a while since they have sat round the table to have a discussion at a meal. It can help to calm the atmosphere in the room if there is silence while both of the couple are eating before setting the agenda items.

Examples

One client I mediated with explained to me in the intake session that this may be the last time she was likely to see the husband again as there were no children from the relationship and part of her moving on would be not to see the husband again. The client was upset that the husband had found another partner and wanted to vent her feelings about this in the joint session. As a mediator I would not allow one client to be abusive towards the other but this seemed to help to clear the tension from the wife who was then more ready to engage in the financial mediation session.

Relocation mediations where there are children can be very difficult for the parent who is remaining behind even with generous holiday contact and travel details agreed. In a lot of these cases the parents have their own solicitors, travel to the session separately and there is no communication between them outside of the sessions. In some sessions one client can stand up raging and pacing round the room and the mediator has to calmly ask the client to sit down. When asked by the client why do I care about what happens to the children I have to give a response that remains impartial. It is often easier for the mediator to focus the clients when there are children being talked about to ensure that both parents change their mind set from that of a warring separating couple to one who both want to be parents who the children see are both continuing to follow their caring responsibilities for the children.

In family mediation there tend to be 3-5 joint sessions if children and financial matters are being dealt with. For clients who have a lot of history and deeply entrenched emotions there are several ways of dealing with this. I work closely with counsellors who have seen clients outside and also been part of the mediation itself. Also if the clients want to discuss the past before looking to resolve the issues then there can be more sessions working on a therapeutic mediation model. However it is made clear to the clients that mediation is a future focussed process and as mediators we are not trained to act as a counsellor or therapist.

A lot of cases are referred to me just days before a final hearing. Family Mediation cases do tend to be done in 90 minute sessions over several dates but there have been some family mediation cases which have been resolved in one day.

Where clients are highly emotional it can be better for them to have time to reflect in between sessions rather than agree to something when time is of the essence which they may regret later. Also if the case is complex it allows time for the clients to obtain legal advice, tax advice and or pension advice if this is required by them.

Shuttle mediation can be useful where clients find it unhelpful to sit in the same room. There have been cases where the clients started mediation in different rooms and agreed on several issues and then came together in the same room for the final joint sessions. I am happy to work with the shuttle mediation model however it does slow the process down. I can convey the message of the client but I cannot replicate the emotion and also the clients cannot see each other’s body language. Also if the couple have children they are going to need to continue to communicate with each other after the mediation, attend graduations and weddings of the children which is why if the couple mediate in the same room it can be positive for the children.

Dealing with highly emotional clients

I explain at the start of the joint sessions that when one person is talking they should not interrupt the other person and ask them to agree to this. If emotions do become vocalised during the session it is useful to remind them not to speak while the other person is talking.
If the tone of the conversation does become heated it is sometime necessary to stand up and ask the clients to focus on the issues that they have raised.

Sometimes it just needs someone to tell the clients to be mindful about what they are saying and not to take verbal swipes at each other. If they have children they would not like their children to see them behaving in this way.

We use a flip chart to document what is discussed in mediation. On one occasion the client wanted to get out how he felt before discussing settlement options so I let the client write on the flipchart his feelings and then also allowed the other client to do this too. We had a short break and then returned to discuss settlement options.

As mediators we are not there to keep secrets so it is best for the joint sessions to see the clients in the same room. However, with some clients if the tension becomes high in the room I have asked to see clients separately for example 10 minutes each and then asked them to continue together. This can help to get the clients to talk again more constructively.

Some reasons why clients are emotional

Every case is different but clients can be very emotional if one client has found a new partner and the other person in the mediation sessions has not.

The clients can also become very emotional if they feel that there is not much trust between them.

Clients may feel that emotions and the difficulty of the issues may mean that mediation is not appropriate. This is rarely the case but the mediator will carefully assess this at the Mediation Information Assessment Meeting. I would not want to start a mediation if I did not feel confident it would work. There is always the option to co-mediate the case. I am from a family law background and my business partner, Massy Ellesmere at FAMIA, is from a couple counselling background. I have found it really helpful to mediate with someone from a different professional background especially in high emotion cases.

By trying mediation the client may have options available that do not present themselves at court. I have worked with clients where their parents or relatives have offered a lump sum payment to settle a financial mediation which the Judge would not direct at court.

The couple if they got married planned their marriage together; they know their personal circumstances and routine better than anyone else so it makes sense to attempt to resolve the separation together too.

Mediation clients have commented that they feel that they have achieved more in a 90 minute joint session than one year of litigating through the courts which has been an expensive and stressful experience for them. I rarely see mediation clients return to me once an agreement is reached whereas legal clients if they are not happy with a court decision may decide to return to court so there is no closure on the matter.

Often the clients have a lot of the mediation points agreed which they do not realise so as a mediator it is important to summarise and reframe key points that the other client may not have acknowledged or taken on board to ensure the clients keep talking to each other.

The Children and Families Bill being considered by Parliament at the moment is looking to change the law so that Applicants looking to make an application to the family courts for a dispute concerning children or finances must consider mediation first at a Mediation Information Assessment Meeting. A line by line examination of the bill took place on the 7th January 2014 and a fourth day of the report stage has been set for the 29th January 2014.

Austin Chessell and Massy Ellesmere are Family Mediators at FAMIA (www.famia.co.uk).

Austin Chessell is also a Collaborative Family Solicitor at Feltons Solicitors.

Email: austin.chessell@famia.co.uk

Phone: 07920 445832

Twitter: @FamilyLawLondon

» Filed Under Changes through divorce and seperation, Children in Divorce, Christmas Tips, Contact Matters, Dealing with Financial changes, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Mother's day tips for separated Mums and Dads, Relationship, Surviving Divorce, Therapy, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce | Leave a Comment

Austin Chessell looks at some of the main principles of the law on International Relocation and discusses how parents can use them in family mediation as an alternative to going to court to help them shape their own agreement on whether relocation with children should take place

Posted on May 7, 2014

With the growth in cheap flights and increasing employment prospects arising from globalisation it is becoming more common for separated parents to consider permanently relocating abroad and wanting to take their children with them. Consent needs to be given by the non-relocating parent for the relocation to take place which is rarely easy to obtain as it inevitably creates further tension between the parents and re-opens the pain experienced during the initial post separation childcare discussions. The non-relocating parent often fears losing all contact with the child if relocation happens. Where relocation is contested, it is worth considering what the main legal principles are which determine whether the relocation should take place and whether consent is best obtained through the courts or by mediation. In my experience, mediation is often more successful where parents have a good understanding of these legal principles and can then use them to shape their own relocation agreements.

The leading cases which parents need to be aware of are:

Payne v Payne [2001] EWCA Civ 166

This was an unsuccessful appeal by a father against an order allowing the mother (who significantly was the main carer) to remove the child to New Zealand. The guidance in this case is known as the ‘Payne Test.’

The test means that the court must consider if the proposed relocation:

• derives from a genuine desire to start a new life abroad (i.e. not being selfishly motivated to cut one parent out of the child’s life)
• has been well thought out and researched having regard to the practicalities of the situation.
If the application to relocate is deemed to be genuine and realistic, the court must then weigh up:
• if the opposing parent’s reasons are based on a genuine concern for the future child’s welfare, or if there is an ulterior motive.
• what effect the relocation would have on the relationship between the parent who is not relocating and the child. The court will also need to consider the extent to which this would be balanced by any new relationships that the child would form in the relocation country.
• what the impact would be on the parent who proposed the move if the application was refused.

While taking the guidance into account, the court’s paramount concern will always be the child’s welfare.

However, in Re K [2011] EWCA Civ 793 the Court of Appeal ruled that the only point of law from the Payne case was that the child’s best interests must be the paramount consideration of the court. In this case, (unlike Payne) care was shared between the parents. The court decided that in shared care cases the application should be decided on the facts of each case, the welfare of the child and the statutory considerations which are set out in s.1(3) of the Children Act 1989, often referred to as the ‘Welfare Checklist’.

In Re K a father brought a successful appeal against an order which gave the mother permission to leave and take the children to Canada. The court confirmed that in the circumstances of this case the approach followed in Payne v Payne was not appropriate because care was shared between the parents which require a deeper analysis of the impact of the relocation on the child. As a result of this case a lot of parents may now find it harder to persuade the court that the relocation should take place where there is a shared care arrangement in place.

Payne is only applicable where the relocating parent is the main carer. The approach in Payne should not be followed where the parents share the caring of the children in more or less equal proportions. Consideration must be given to all of the facts.

Key findings from relocation case law are:

- The welfare of the child is the paramount consideration and all other criteria should feed into this.
- In deciding which solution will best meet the child’s welfare, consideration should be given to the guidance set out in the Welfare Checklist where care is shared and to the Payne Test where there is a main carer for the child.
- Leave to remove applications must be made in a way which does not obstruct contact nor weaken the child’s relationship with the non-relocating parent.
- The relocating parent must have planned the move having regard to the practicalities e.g. it is better if the move is at the end of the school year rather than in the middle of the school term, having good access to healthcare, immigration laws not being a major obstacle and the non-relocating parent still being able to still have good contact with the child.
- The court will have regard to the impact which a refusal of the application will have on the relocating parent where s/he is the primary carer e.g. the primary carer feeling isolated and lonely if the move is not granted.
- It is important in every case to consider what the effect of the reduction in contact time with the parent who is not relocating will be on the child.
- If the child is an older child then its wishes, views and feelings will carry more weight in the relocation decision.

As a mediator my role is different to when I am acting as a solicitor in that in mediation I can only share the above legal information with mediation clients but cannot advise them. Parents can then use that information and seek legal advice from solicitors where appropriate to make joint decisions on the relocation through mediation.

In August 2013, Dr Rob George from Oxford University found in a report called Relocation Disputes in England and Wales: First Findings from the 2012 Study that one third of all requests for relocation are not permitted by the family courts. In the current economic climate parents are questioning why they should spend potentially tens of thousands of pounds on a relocation case involving several hearings when the case can be mediated in a quicker and more cost effective way (especially where a relocation allowance has not been provided by an employer) and, in light of Dr George’s report, may stand a higher chance of success.
Every mediation case is unique based on the client’s circumstances, but the following are issues that commonly arise in international relocation cases which parents (and mediators) need to consider:

• Childcare time – when should the contact take place and where?
• Who is booking and paying for the international travel?
• If the child is young how will they travel? Will relatives need to be involved to ensure travel can take place.
• Will contact between the child and the non-relocating parent take place during term time and in what form. e.g. face to face, email, phone or Skype?
• Making decisions for future education, after school activities and medical treatments – it may be that the parent who is not relocating wants to visit the school abroad or neighbourhood before any schooling decisions are made.
• Being provided with copies of future medical records and school reports.
• If an order is prepared after mediation, will this need to be mirrored abroad? The clients will need to liaise with their legal advisors here and abroad to get this confirmed.
• If the order is not followed, should the relocating parent provide a legal costs allowance for the parent who is not relocating? There may not be funds for this but in some cases there may be.
• Will the parent not relocating have more contact prior to the move?
• Will the parent agree for the relocation to be for a defined time before returning?
• Will the children return in the future for their university education? If the children are old enough and the parents agree, the mediator can meet with the children to find out their wishes and feelings on this and then pass agreed information back to the parents before a decision is made.
• How will extended family members remain involved with the children?
• Will the relocation take place in a way that is not disruptive to the child?

I have worked on relocation cases through the courts as a solicitor and through mediation as a family mediator. In my experience parents communicate better in mediation than they do in litigation as the focus is on collective interests not fixed positions. If a parent is unhappy with a court decision, litigation will most likely continue with appeals being made, but, in mediation, parents tend to respect what was agreed and rarely look to amend a Memorandum of Understanding.

With Mediation Information Assessment Meetings (MIAMs) likely to become compulsory for all applicants if the Children and Families Bill 2012-2013 is enacted, it would not be surprising if more international relocation cases are resolved through mediation rather than through the court system.

Austin Chessell and Massy Ellesmere are Family Mediators at FAMIA (www.famia.co.uk).

Austin Chessell is also a Collaborative Family Solicitor at Feltons Solicitors.

Email: austin.chessell@famia.co.uk

Phone: 07920 445832

Twitter: @FamilyLawLondon

» Filed Under Changes through divorce and seperation, Children in Divorce, Christmas Tips, Contact Matters, Dealing with Financial changes, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Mother's day tips for separated Mums and Dads, Relationship, Surviving Divorce, Therapy, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce, Uncategorized | Leave a Comment

10 Questions To Consider When Deciding If The Collaborative Law Process May Be Right For You And Your Former Partner

Posted on May 7, 2014

1. Has the relationship totally broken down? If it has not you may want to consider couple counselling with an organisation like Relate to see if any communication difficulties or other matters that have arisen can be resolved without ending the relationship.

2. Has an agreement been made as to how the finances can be divided and how the childcare arrangements will work e.g. during the week, weekends and over the holidays?

3. Would you prefer to decide what is going to happen to the family yourself or would you prefer for the Judge to make the decision for you? In my experience the separating couple knows what works for them. A judge will be provided with your background situation but what is ordered may not suit either of you.

4. How quickly do you want to resolve things between you? A court hearing can take around 6-8 weeks to get listed while Collaborative Law can work at a much quicker pace.

5. Do you want to keep the discussions about the separation private?

6. Do you want the views of the children to play a part in the discussions. Some Collaborative professionals are training to work with children. They need to complete direct consultation with children training, had a CRB check and obtain the written consent of both parents. If you go down the Court route it may be a Cafcass officer is appointed to work on the case and there can be several meetings which may not suit everyone’s schedule and it can take several weeks to receive the Cafcass report.

7. There are the legal issues to resolve but also one should not forget the emotional impact the separation can have. Do you want to address the emotional issues too? Collaborative practitioners can work with Family Consultants who can meet you before and take part during the joint meetings to ensure that any hopes and concerns are kept at the forefront of discussions while the Collaborative Solicitors look to aid you with the legal issues.

8. If an agreement is reached would you like to call on the opinion of a financial expert or barrister? This is possible in the collaborative process. It may be one client does not have the same financial or legal understanding as the other client and wants to meet a financial expert or barrister to ensure they are up to speed with what has been agreed and also discuss financial projections or legal implications for the future to check that what has been agreed will work in the long term.

9. Do you want to resolve everything out of court? This is possible with Collaborative Law. It is one of the main principles of this process that you will not make an application to court and if you do then your solicitor would need to stop acting for you. Court can encourage positional stances which may not achieve a good outcome for everyone.

10. Do you want to reality check what has been agreed with your former partner and ensure that it meets the needs of everyone? With children matters this can be important. Even though it may be agreed to separate and live in different households you are still going to need to liaise with each other for future childcare arrangements. Making sure what has been agreed will work can only aid building communication between you which is best for your child.

The above should give you an indication if Collaborative Law may work and be the right process to follow for you and your former partner if you decide to separate. If you are unsure you can always speak to a Collaboratively trained Family Solicitor who can provide more details about how Collaborative Law works in practice.

Austin Chessell and Massy Ellesmere are Family Mediators at FAMIA (www.famia.co.uk).

Austin Chessell is also a Collaborative Family Solicitor at Feltons Solicitors.

Email: austin.chessell@famia.co.uk

Phone: 07920 445832

Twitter: @FamilyLawLondon

» Filed Under Changes through divorce and seperation, Children in Divorce, Christmas Tips, Contact Matters, Dealing with Financial changes, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Mother's day tips for separated Mums and Dads, Relationship, Surviving Divorce, Therapy, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce | Leave a Comment

Working with other Collaborative Law Experts during the Collaborative Law Process

Posted on May 7, 2014

When I started working in Family Law in 2005 I would regularly go to court four to five times a week. I thought that there must be a better way to achieve family outcomes as a lot of the clients who obtained a court order were not happy with the order and wanted to return to court to appeal the decision sometimes.

I trained as a Family Mediator in 2009 and as a Collaborative Family Solicitor in 2013. The majority of the clients I act for now go through the Collaborative Law or Family Mediation process and tend to be more satisfied with these outcomes over court as they have helped to shape the decisions themselves rather than have a court decision imposed upon them.

You have to choose the right process for you but if you want an outcome that focuses on interests rather than fixed positions you may want to use Collaborative Law or Family Mediation.

Clients consult Collaborative Solicitors for legal advice and solutions to their legal problems.

Collaborative Law can also involve a range of professionals who are experts in their specialism who can be part of the four way meetings with the two clients and the two collaborative solicitors to address the issue that has been raised. Further actions or outcomes can then be discussed in subsequent four way meetings with the other professional being present to share their expertise. An order can be prepared if an agreement is then reached in the final sessions.

Involving other professionals does not have to mean costs will escalate. If the other professional can tackle the problem and solve it, it can often mean that matters can be resolved quicker and more amicably.

For instance:

• Couple Therapists: it may be the case that you are looking to make the marriage work. In the event that meetings with the couple therapist do not work then the door is always open to return to Collaborative Law.

• Family Consultants: they can work either one on one or with both clients. It may be that you want to explore how the co-parenting will work during the Collaborative process and after the separation. Family Consultants can also help explore any hopes and anxieties you may have during the Collaborative and post Collaborative process.

• Child Specialists. it is important for the voice of the child to be heard over how childcare arrangements will work. Some mediators do further training so that they can meet with the child (Direct Consultation With Children) where both parents consent to this and it can be very useful in providing details of what the children want the parents to know to help shape current and future childcare arrangements and how holiday childcare arrangements will work.

• Independent Financial Advisors. If the financial settlement is to provide a lump sum it may be useful to consult an Independent Financial Advisor to discuss investments or if the main asset is the pension to discuss how pension planning will work.

• Accountants. I have worked with accountants in the past where it has been necessary to value business assets during a divorce. The valuations can provide accurate and useful information to the clients when discussing settlement options.

Working with Collaborative professionals can be done at a timescale that works for you rather than having to follow a court timetable as Collaborative Law meetings take place outside of court.

It can take time to have to prepare a joint letter of instruction through solicitors if you are not using the Collaborative process while any instructions for the experts in Collaborative Law can be discussed in an open forum during the four-five way meetings.

If you want to know more about Collaborative Law you should speak to a trained Collaborative Family Solicitor.

Austin Chessell and Massy Ellesmere are Family Mediators who are trained to mediate with Children at FAMIA.

Austin is also a Collaborative Family Solicitor at Feltons Solicitors.

Email: austin.chessell@famia.co.uk

Phone: 07920 445832

Twitter: @FamilyLawLondon

» Filed Under Changes through divorce and seperation, Children in Divorce, Christmas Tips, Contact Matters, Dealing with Financial changes, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Mother's day tips for separated Mums and Dads, Relationship, Surviving Divorce, Therapy, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce, Uncategorized | Leave a Comment

Children and Families Bill Update

Posted on May 7, 2014

Austin Chessell discusses the main purposes of the Children and Families Bill that were debated at the House of Lords on Tuesday 2nd July 2013. The Bill takes forward the Government’s pledge to provide improved services for vulnerable children and to support strong families irrespective of parental circumstances.

He highlights some of the recommendations that have been made by the association Resolution(of which he is a member) and what suggestions the charity Families Need Fathers(‘FNF’) (of which he is a Trustee) has made for the Bill.

He then considers how the mediation profession is likely to benefitfrom the Bill if it passes into law and how mediation can achieve outcomes that the Court cannot always offer.
Key family law and shared parenting measures proposed by the Bill:

• Attendance at a Mediation Information Assessment Meeting (MIAM)as a statutory prerequisite where parents are in dispute before court proceedings are commenced. This will be welcomed by couples who would by their nature want to sit down and collaborate together to work through their problems with the assistance of a mediator but may not be ideal for cases where couples need a lot of legal advice or are intent on taking their matter to court.

• Legal advisors at the Family Court to process uncontested divorces to free up judicial time rather than require a Judge to consider each and every divorce petition.

• Making the law more robust to make sure that children have a relationship with both parents after separation where it is safe and in the best interests of the child. The Government believes that this will encourage more parents who are separated to settle their differences away from court and agree care arrangements that include both parents fully.

• Introduce a new ‘child arrangement order’ to replace ‘residence’ and ‘contact’ orders which are set out in section 8 of the Children Act 1989. The new form of order will be introduced to make practical arrangements for the upbringing of children.

Resolution Recommendations

Resolutionreleased an official response to the draft Bill in February 2013. As an organisation witha membership of over 6,500 lawyers, mediators, collaborative practitioners and other family professionals who are committed to a constructive, non-adversarial approach to the resolution of family disputes and family law, Resolution is well placed to comment on how the Bill can meet its objectives.

Resolution has recommendedimproving the Bill torenaming MIAMs as‘Assessment and Information Meetings’ as the out of court options available to couples are not limited to mediation and include:

• Couples reaching their own agreement without solicitors.

• ‘Collaborative Law’ where couples instruct their own collaborative lawyer and sign an Agreement not to go down the court route.

• ‘Arbitration’ where the Arbitrator can make a decision which can then be drafted into a court order.

Resolution’s leaflet ‘Choosing the right process for you’details all of the options available.

Resolution also expressed reservation about the introduction of a legal presumption in favour of shared parenting. They are concerned about how separating parents will understand the measure.

It seems to be a valid reservation as due to the removal of legal aid there is going to be a big increase in litigants in person who will not have access to legal advice and may therefore not understand the measure.

Families Need Fathers (FNF) involvement in the Bill

The charity FNF have also been active in the progress of the Bill.

FNF seeks to obtain, for the children, the best possible blend of both parents in the lives of children; enough for children to realise that both parents are fully involved in their lives. FNF believes that the law should provide that parents should be of equal status.

FNF gave evidence at the Family Justice Review in March 2011 advocating that the Children Act 1989 should be amended to include a presumption of shared parenting. The panel of the Family Justice Review was appointed to review all of the family justice system in England and Wales and consider all parts of the system from court decisions on childcare to disagreements over contact for children when parents separate.

FNF were pleased to see that the terms ‘contact’ and ‘residence’ from private family law cases was to be removed to take away the ‘winner takes all’ approach to parenting arrangements in which the ‘contact’ parent is merely a visitor in the child’s day to day life, rather than a fully involved parent.

FNFconsiders that a presumption of shared parenting is the best-suited option to meet the Government’s objectives for family law, and that it fleshes out, rather than competes with, the paramountcy principle that the child’s welfare is paramount.

Its recommendations were therefore that:

• Shared parenting does not mean an equal split of time;

• The child’s welfare, through the ‘paramountcy’ principle overrides everything;

• Parents should have a substantial involvement in all aspects of the child’s life.

FNF’s recommendation that the terms ‘contact’ and ‘residence’ to be removed is likely to take place.

The next stage of the Children and Families Bill will be the Committee stage; a line by line examination of the Bill which will begin on the 9th October 2013. If the Bill is passed it will come into effect in England and Wales in 2014.

If enacted will the Bill mean more work for Mediators?

National Family Mediation found that 83% of people go to a lawyer first when a couple decide to separate. It will be interesting if this percentage continuesif the Bill becomes law. With Legal Aid now removed for most family law matters since April 2013 and the Bill requiring MIAMs before proceedings are issued, it is likely that Mediators will become filters for the courts. This is no bad idea as mediation is cheaper, quicker and provides long term solutions which are more likely to be respected, and preferable to long protracted court proceedings.

However, Mediators cannot provide legal advice, so parents will still need to seeklegal advice before, during and after the mediation process. So Family Solicitors still remain integral to reaching a sustainable mediation agreement by enabling the parties to understand the legal context in which their differences are being settled.

Ultimately, with one of its main purposes being to encourage separating parents to settle their differences away from court, it seems inevitable that the Bill favours Mediators in the long run, especially when the other key purposes of the Bill are already common outcomes in mediation.

Examples of how mediation can achieve outcomes that the court cannot offer are:

1. The court does notreally provide a forum for parents to decide how to tell their children that a separation is taking place, but mediation facilitates this.

2. The court will not be present to ensure the moving children from one household to two households will work. Mediation allows for dialogue to take place and for the parents to discuss what items need to be duplicated or taken for the child at the other household.

3. Court orders will not consider the change in parents’ daily lives that require flexibility and compromise which mediation encourages. If a contact session is missed a Judge is not going to want to see the matter go straight to court for enforcement. Mediation gives couplesflexibility to explore why contact did not happen and a forum to disucss when the contact can be rescheduled.

4. Mediation can devote time to discussing the introduction of new partners to children, which religion to follow if the parents want the child to follow different faiths, and which future school should be selected.

5. Mediation allows the separation to be resolved at a pace that suits everyone as the children aspect is only one element. There may also be divorce and financial issues to resolve too. It is important to remember a court application is likely to take 6-8 weeks to be listed. In this time it is in many cases possible to resolve all issues using mediation.

6. Children can also be part of the mediation process if the Mediator is trained to mediate and both parents agree to this. The children can put forward their wishes and feelings which can help to shape a more collaborative outcome for the family. Experience proves that children have even come up with very practical outcomes that neither of the parents had considered!

7. For parents who cannot bear to be in the same room there is also the option for the mediation to take place by way of‘shuttle mediation’ where the parents sit in separate rooms and the Mediator goes from room to room to see if an agreement can be reached. This is anobviously a lot slower, but can still be an effective way to reach an agreement outside of court.

Cynics may argue that the Bill is a politically motivated vehicle devised to ease the burden on the family court and save money for the Treasury. Family Solicitors will also rightly be concerned about yet another potential reduction in their caseload, but the Government’s continued drive towards alternative dispute resolution it to be commended. With a lot of children growing up with separated parents, the proposed Family Law changes that assist co-parentingis a welcome step.

This article was first published by Solicitors Journal on 13 August 2013, and is reproduced by kind permission.

Austin Chessell and Massy Ellesmere are Family Mediators at FAMIA (www.famia.co.uk).

Austin Chessell is also a Collaborative Family Solicitor at Feltons Solicitors.

Email: austin.chessell@famia.co.uk

Phone: 07920 445832

Twitter: @FamilyLawLondon

» Filed Under Changes through divorce and seperation, Children in Divorce, Christmas Tips, Contact Matters, Dealing with Financial changes, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Mother's day tips for separated Mums and Dads, Relationship, Surviving Divorce, Therapy, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce | Leave a Comment

What steps can I take to preserve my marriage and if I decide to divorce what are my options?

Posted on May 7, 2014

If you are undecided whether to commence divorce proceedings you may want to meet with a counsellor of therapist for example Relate (http://www.relate.org.uk/home/index.html) who can diagnose why arguments or differences may have come to light and help you plan to overcome this.

Deciding to divorce can have deep impacts on the couple, children and wider family and needs to be thought through carefully. It may be you want to see a solicitor for an initial consultation. Divorce in a lot of situations leads to an initial drop of your standard of living as finances are more stretched.

A family solicitor can provide you with advice on how best to move things forward but it is important you see the right people do deal with the emotional side of things so that you can think clearly if you decide to divorce. Contested divorce and final hearings are rare in my experience and are less likely to happen if you can negotiate rationally with your spouse.

There are several ways you can look to reach an agreed outcome that works for everyone.

1. DIY round table meeting. A lot of couples are able to agree how to divide finances and where the children will live between themselves. They then see a solicitor at the end of their discussions to get advice on whether everything has been considered and if they want to formalise their agreement into a legal document.

2. Family Mediation. Couples see the mediator individually to explain what the key issues are and give the mediator an idea of the current situation. The mediator screens the clients to ensure mediation is appropriate before having joint session(s) to look to reach an agreement. The mediator can prepare a document called a Memorandum of Understanding which details the agreement. Clients then can decide if they want to formalise this into a legal document. Children can also be part of the mediation process if both parents agree to this and the mediator deems that the child is old enough to share their wishes and feelings.

3. Collaborative Law. Each client instructs a solicitor to have a series of 4 way meetings. Clients sign an agreement not to go to court. There are no court hearings in the process and this option allows for an agreement to be reached in an amicable and private manner.

4. Court. This really should be the last option if you can avoid this. My case load has shifted since I trained as a mediator in 2009. Only a very small amount of my cases litigate through court now. In some cases court is necessary e.g. supervised contact where sexual allegations have been made or child abduction where court protection is needed. However, in most children and financial matters I deal with the clients I represent choose Mediation or Collaborative Law which look to achieve a shared outcome rather than a positional one which the court environment may encourage. The Government is really backing family mediation too so if you decide to separate remember court should not be your first consideration in most situations.

Austin Chessell and Massy Ellesmere are Family Mediators at FAMIA.

Austin Chessell is also a Collaborative Family Solicitor at Feltons Solicitors

Email: austin.chessell@famia.co.uk

Phone: 07920 445832

Twitter: @FamilyLawLondon

» Filed Under Changes through divorce and seperation, Children in Divorce, Christmas Tips, Contact Matters, Dealing with Financial changes, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Mother's day tips for separated Mums and Dads, Relationship, Surviving Divorce, Therapy, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce, Uncategorized | Leave a Comment

New resources and services available to children whose parents are separating and when should children be involved in the family mediation process?

Posted on April 1, 2013

In a recent joint family mediation session I held with parents to three children, the parents had agreed to separate but were unsure how to tell the children that they would be divorcing shortly.
Parent One wanted to tell the children with both parents present while the other parent (Parent Two) initially did not want to be present. Parent Two then took some time to reflect during the joint mediation session and agreed that both parents should be present when they spoke to the children. It was agreed that a unified front would be best for the three children to see even though the parents would be living separately. Both parents also wanted to show that they could still communicate to each other so agreed to plan in advance what would be told to the children. It would be an impossible scenario to plan the reaction of the children but they would also think through what questions they may be asked. Exams were going on for the next week so it was agreed that they would both speak to the children after this stressful period when everyone would be calmer.
The parents left the session together talking about what resources and people their children may consult once they had discussed the divorce which prompted me to look into what is currently available.
Resources and Services
The children’s TV programme ‘Sesame Street’ has explored the sensitive topic of divorce in December 2012 for the first time and has posted online videos for its viewers. In one of the videos the scene shows drawings held up by the Sesame Street characters:

“This one is where I live with my mommy. And this is the one where I live with my daddy,” says the Muppet character about the two houses. ‘But, Abby why don’t you all live in one house together?’ ask Elmo. ‘Well, because my parents are divorced,’ says Abby. ‘Divorced? What does divorced mean?’ Elmo asks. Abby then explains to her friends what divorce means.

In contact centre cases I have worked on at Welcare it is not unusual for one child to ask the parent during a session why do the parents no longer live together. By Sesame Street posing these questions for young children this could in some way help.

Also a short film has been created in America called ‘Split: Children’s journey through divorce’ which is available online. The children filmed are aged between 6-12 years old. The film aims to get children talking to each other, to their parents and to other adults in their lives to encourage children to say what they need and want as their family environment changes through divorce.
Children And Family Court Advisory And Support Service ‘CAFCASS’ has used social media through Twitter in January 2013 for young people to voice parental separations impact on Kids. Someone tweeted “I was worried, but it was ok because I went through it with my brother. It was confusing at first, but it slowly made sense.”
‘A Kidspace’ in London has been formed by an experienced drama therapist and counsellor. They run a support programme for children going through family breakdown. I have been fortunate to meet one of the founders twice and she speaks very passionately and knowledgeably about how their programme helps children to cope, manage changes and come to terms with the separation of their parents. A parent has provided feedback on the service on the ‘A Kidspace’ website ‘When my children arrived at your door they had no ‘points of reference’ and absolutely no ‘coping mechanisms’ in place for what was happening to them, and indeed for anything that might be going to happen to them. Within the safety of ‘A Kidspace’ they were able to be quiet, to be angry, to play, draw, listen and talk…..if they wanted to. I know that each of my three girls got something different from the experience’.
When I arrange supervised contact sessions CAFCASS often ask how will the children be prepared when there has been a long gap since the child had contact with one parent so I am pleased to see ‘A Kidspace’ offering this valuable service to children.
Direct Consultation With Children in Mediation
Since training to be a family mediator three years ago, several of my children issue mediation cases have led to the parents deciding that they would like to involve their children as part of the mediation process.
A training course needs to be undertaken to carry out Direct Consultations with Children (DCC) and have an enhanced Criminal Records Bureau carried out before you can mediate with children.
How does a DCC work?
During a DCC, the children have a session with a qualified Direct Child Consultant where the parents are not present and the children are given the time and space in a safe and confidential place to discuss what they would like, their wishes, and feelings for the future to be.
The wishes and thoughts of the children are then passed on to the parents in a separate meeting so that the desires of the children can then be taken into account when making decisions for the child arrangements for the future.
It is important before arranging a DCC session that the parents sign a consent form agreeing for the children to take part in the session.

When might involving children in the mediation process be appropriate?
Both parents may feel that their children should be given the chance to have a voice in the future family structure and can play a part in how new arrangements are going to operate. This may help to allay some of the fears that children have about the parents separating.
Children can be asked to have a session with the mediator at different points of the mediation process.
I have been involved in a case when the father relocated to Japan and the three teenage children and mother remained in London. The three teenage children wanted to find out why the parents’ relationship had broken down as this had not been explained to them. The three children had only been having contact through email and wanted to use the session to arrange when they could have direct contact with their father.
In other mediation cases the parents had previously been litigating in court to decide which A-level school the child should attend. When the child attended the direct consultation a school was proposed that neither parent had considered which helped to decide which school should be applied for and avoided further litigation.
It can also be useful to discuss the children’s on-going relationships with the wider family.
Involving children in mediation will not always be the best option but from my experience of working with children at a contact centre for over ten years most children like to be given the chance to be heard in person.
Parents will be informed before the mediation session with the child that:-
• The children will not be asked to make the decisions and choices;
• The mediators respect their parents’ authority;
• A child will not be seen without both parents’ consent;
• Parents will be briefed clearly how the mediation session with the child works and the purpose of the meeting before asking if the child would like to be part of the process.
The mediator has to respect the confidentially of the information the child shares with the mediator unless there is a risk of harm.
I often get asked at what age children should be mediating. I personally would find it hard to mediate with a child younger than 8 years old. This really is down to the parents’ view on the child’s capacity to use and understand the opportunity. I have not experienced a situation where a child has refused to be part of the mediation process yet.
For cases that have complex issues I would look to co-mediate the children session.
Some children have preferred to come straight after school while other children have expressed a preference to mediate at the weekend. It is also discussed with the children who will bring them to their session and where the person collecting them should wait. The children are also told when the feedback will be given to the parents and what format the feedback will take.
Meeting with the children will not resolve all of the issues but from my experience has in several cases aided communication at a difficult time. The childrens’ needs are given paramount consideration in the process. A lot of children have liked the session with the mediator as they know the mediator is independent from the family and will not take sides to their expressed views.
The child mediation sessions are not therapy as the mediators are not trained for this but children have commented to me that the mediation session helped them to understand the changes that were about to take place, find their own way to cope with the separation when they may feel that they have to take sides and to express their feelings about the separation. It is important to acknowledge how the child feels and have soft drinks available along with time for short breaks if the child wants this.
If the child wants to have support from people other than their family it can be explored if there is someone at the child’s school or a school counselling service who may be of assistance.
I believe that where it is appropriate children should be given the opportunity to be part of the mediation process. From my experience children do not want to be involved in any conflict arising from separation but would like to help shape their future arrangements particularly on shared parenting issues by voicing their views.
Austin Chessell is a Family Mediator at FAMIA www.famia.co.uk and Family Solicitor at Shortlands Solicitors.

» Filed Under Changes through divorce and seperation, Children in Divorce, Contact Matters, Dealing With Step Families, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Surviving Divorce, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce | Leave a Comment

Shared parenting presumptions are set to be introduced by the Government in the Children Act 1989

Posted on January 27, 2013

Proposed Clause
The Department for Education announced on 6th November 2012 that it proposes to introduce amendments to The Children Act 1989 to allow for a presumption of shared parenting. There will be a new section 1 (2A) inserted into the Act as follows:
“(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.”
The restrictions upon the presumption will be elaborated in new sub-sections (6) and (7) as follows:
“(6) In subsection (2A) “parent” means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned -
(a) is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and
(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.
(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother).”
In simplified terms this would mean that the courts’ starting position would be that both parents should be involved in the raising of the child and that there would need to be a clear reason to have one of them not involved, e.g. the risk of harm to the child.
The legal changes are likely to come into effect in 2013.
Courts will continue to apply the welfare principle and the general ‘checklist’ of factors will not change.
Explanatory Note
The draft clause also has an explanatory note:
‘The purpose of this amendment is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe, and in the child’s best interests. The effect of this amendment is to require the court, in making decisions on contested section 8 orders, the contested variation or discharge of such orders, or the award or removal of parental responsibility, to presume that a child’s welfare will be furthered by the involvement of each of the child’s parents in his or her life, unless it can be shown such involvement would not in fact further the child’s welfare’’.
Examples of where I have encountered risk of harm to the child on contact cases
I have encountered this as a solicitor and even in this situation some form of contact was ordered by the court. A mother was threatening to physically attack the father and the child so it was ordered that contact should be indirect through letters three to four times a year where the letter was checked for suitability before being passed to the child.
I do volunteer work at a contact centre and have recently interviewed a mother. It was ordered at court that the father has supervised contact at a contact centre as there was a concern that the father may poison the child’s food. In this case contact was supervised with no food being allowed to be given to the son from the father during contact.
Burden of Proof
With the new changes it will no longer be necessary for one of the parents to prove why contact and residence is in the child’s best interests and the burden of proof will now be on the opposing parent to the application to detail reasons to rebut the presumption.
From my experience, shortly after separation emotions can run very high which may account for a parent to look to rebut the burden of proof, but, over time, both parents reach a business-like relationship for contact and residence arrangements so hopefully this new burden of proof will not create further litigation between the parties. If the separating parents work together this really can play a big part in the child’s future positive development. I give each of my mediation clients a copy of the leaflet ‘Kids In The Middle’ which helps to explain this approach.
Other options or services to resolve contact and residence disputes
With legal aid in family law matters likely to be withdrawn next year for contact and residence matters, it is important that where both parents are minded to go to court and who may now be forced to act in person, do not feel that before they get to court it will be a case of ‘’winners and losers’’.
If parents are properly advised before they go to court that there is now a presumption of shared parenting, this should encourage more couples to attempt family mediation to reach a balanced arrangement to decide where the children will live and how contact will work. I find these agreements are less likely to fall apart as the parents know their own commitments and the child’s commitments and can then shape contact accordingly to suit these factors.
Also, if parents attend the Separated Parents Information Programme at the start of their separation rather than being ordered to attend the course at the end of a final hearing this may help them to agree contact and residence arrangements at an early stage rather than having a long and contested court hearing.
Contact time
The proposed changes do not state how much time the child should spend with each parent. This will be for the court to decide.
From the couples I work with in mediation sessions it is very rare to get an actual split of 50/50 contact time.
For cases where the baby is only a few months old the non-resident parent tends to have frequent and regular contact for a few hours as the baby needs to sleep and be fed but there are some examples where both parents live in close proximity and overnight contacts do happen for 3-4 nights a week where both parents are accustomed to caring for the child’s daily and overnight needs.
When we are arranging contact for teenagers this is often done with children being part of the process (Direct Consultation with Children) as the teenagers are keen for parents to be aware that they sometimes want to be with their friends at the weekend or do sports activities to mix with their peers.
Where there is not a 50/50 split of contact time in the week, or where one parent lives abroad, then the non-resident parent tends to have more generous holiday contact time so that there is a nice balance in contact time.
Skype is no substitute for direct contact, but this is increasingly forming part of contact arrangements where one parent lives abroad.
Other Jurisdictions who have introduced shared parenting
Shared Parenting schemes have been introduced in Australia and Denmark but there are question marks as to how successful they have been. The Scottish legal system has a more modern approach which sets out a declaration of parental rights. Hopefully we can learn from what has worked and not worked in other jurisdictions when the new changes come in to force.
Other views to the proposed changes
There are mixed views to the proposed changes being introduced.
The Law Society: ‘’The Welfare of children must always come before the rights of parents and no legislation should create or point to a perception that there is an assumed parental right to substantially shared or equal time for both parents. While the government’s intention to promote co-operative parenting is welcomed, legislation to promote shared parenting is not needed. Current legislation adequately provided the right framework for securing a child’s welfare.’’
Ken Sanderson, Chief Executive Office of Families Need Fathers has welcomed the announcement: ‘’This is a very positive move, and will help to ensure that as many children as possible can continue to benefit from a meaningful relationship with both parents following separation and divorce’’.
Final thoughts
The ‘shared parenting’ provision appears to be in line with what YouGov surveyed in June 2012. 84% responded that both parents deserve equal custody rights and 85% said fathers are instrumental to a child’s life.
Shared care will now be a regular reminder to parents that the children were created by both parents and should not be brainwashed against a parent or be used to win points against their former partner.
It is hard to predict if this change will result in fewer children disagreements proceeding to court but it is hoped that parents will recognise and take on board the new presumptions and if disagreements do arise they will be settled by incurring fewer costs and using other options such as mediation which can generally offer a quicker timeframe to the court timetable. Listing a matter at court from my experience can be around 6 weeks. Most mediation clients I see who reach agreement do this within a 6 week period.

Austin Chessell is a Family Mediator at FAMIA and a Family Solicitor at Shortlands Solicitors.

» Filed Under Changes through divorce and seperation, Children in Divorce, Contact Matters, Divorce, Divorce Tips, Effect of divorce on children, Family Mediation, Helping children through divorce & seperation, Legal Updates, Surviving Divorce, Tips on dealing with children, Tips on dealing with separation and Divorce, Tips on parenting, Tools helping you through seperation / divorce | 10 Comments

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