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Family Law

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Mental health

Mental health

A person’s mental capacity can be an interesting area for Family Lawyers Guildford within the context of family law. You will sometimes need to ascertain where there is a line between someone sane who is making silly decisions and has full legal capacity and those made by someone with diminished mental capability and therefore no legal capacity to make them.

They are both at opposite ends of the spectrum and quite clearly very different. Most people are mentally fully functioning and have the full legal capacity to make their own decisions. At the other end you have persons who have suffered damage to the brain, or who suffer from a diagnosed mental illness and who are clearly lacking the mental capacity to make decisions themselves, who may have had another person appointed to look after their interests. In brief, an adult does not have the mental capacity to make a legal decision if, they cannot understand the information given to them, cannot retain that information long enough to be able to make a decision, cannot weigh up the information available to make a decision, or cannot communicate their decision.

Unfortunately allegations of mental health can often appear in family law proceedings. They are far more likely in parenting proceedings, where one parent may have concerns for the other parent’s care of the children, due to the impact of a mental health issue.  However the Courts have made quite clear that mental health is not relevant in proceedings. This is unless it has had, or will have, any impact on one of the requirements that the Court is to consider. An example here is if a parent suspects that the other parent has a serious mental illness, or if they have already been diagnosed with one, then the Court will not consider it, or take it into account, unless there is any evidence to show it has resulted in, or has a potential to result in, any injury to the child or have any negative impact on them. As Family Lawyers Guildford Surrey we can help you with any questions you may have on this issue.

The below are just some of the factors they will look at:

  1. How does the alleged mental health issue present itself? i.e. anger, aggression, anxiety etc
  2. How does this behaviour impact on the care of the children in that parents care? i.e. has there been violence shown or periods of neglect.
  3. Have the children themselves commented on this behaviour, without being provoked to do so, or behaved differently as a result of experiencing it?
  4. What has been done previously, by the other parent, to address these issues?

It is very important here to note that the law does not presume that any parent is incapable of being a responsible and fit parent because they suffer from a mental illness. In the same vein there is also no presumption that a parent with no mental illness is considered to be a responsible parent purely because they don’t suffer from a mental illness. The main consideration will always be for any parenting arrangements to be in the child's best interests. Therefore whether or not a parent has a mental illness will only ever be considered to be relevant if it is found to affect their capacity as a parent.

If a parent does indeed suffer from a mental illness which affects their capacity to parent a child safely and provide adequate care, or there is an unacceptable risk that the child will be exposed to either, emotional, physical or psychological harm, then the Court has power to do one of the following:

  1. 1. Limit the child’s time spent with that parent.
    2. Alter the way the child spends time with that parent. i.e. supervised visits.
    3. Add conditions on the children spending time with that parent. i.e. the parent is required to receive treatment.

The Courts priority will always be to attempt to enable the children to continue a meaningful relationship with both their parents, even those suffering from a mental illness. However, if contact with a parent suffering from a mental illness has a negative effect on the child's welfare, then the Court is likely to change parenting arrangements to ensure the child's best interests are the priority.

As Gregorian Emerson Family Lawyers Guildford Surrey, we are experts in all areas of family law and are best placed to give you advice on your own particular issue.

Contact our Family Law Solicitors in Guildford and Cobham, Surrey and Central London

Based in Guildford and Cobham, Surrey and Central London, we can help you. If you have a family dispute that needs resolving, we are here and look forward to your call. Please contact us on 01483 826 470

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