Disputes Involving Children
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Disputes Involving Children
As a parent you will have to make difficult decisions about your children whilst you go through a divorce or separation, and afterwards. Often it is difficult to agree on the best way forward with your partner. We are sensitive to these issues, and have considerable experience in helping parents to resolve their disputes in the best possible interests of the children.
Where children live and contact with parents
These are often the biggest issues facing parents who separate. If you and your ex-partner cannot agree which of you your children should live with, or how often each of you should see the children, or how parental responsibility should be exercised, then either parent may apply to the court for a decision.
The court prefers that the child’s parents agree between themselves where the child should live and how often the other parent spent time with them.
Ideally, separating couples should put the needs of the children foremost and be able to put their own differences aside to agree where they should live, etc.It often assists matters if arrangements for the children can be agreed at the outset, either directly between you and your former partner, at mediation or via solicitors.
Children are remarkably resilient, but the separation of their parents will inevitably be an emotional time for them. Both parents should aim to minimise animosity for the sake of the children and to cause as little disruption to the children’s lives as possible. It is usual to try and keep the children settled in the family home wherever possible to minimise the disruption to their daily lives. Account does need to be taken of the accommodation of both parents though to ensure the children are in safe, secure and suitable surroundings when they are with either of their parents.
There is no general rule that children should reside with one particular parent.Each case is judged on its own set of circumstances. The court no longer makes residence or contact orders.The court now makes Child Arrangements Orders specifying how much time each child should spend with each parent.
Does the court have to become involved?
The short answer to this is no. The court generally prefers separating parents to agree between themselves the arrangements for the children.There is no need for agreed arrangements, whether agreed between the parents, at mediation or via solicitors to be recorded in a court order.However any arrangements not specified in a court order are not legally binding or enforceable. In the event of a dispute, either parent (and certain other people with the Court’s permission, e.g. Grandparents) may make an application to the Court.
How does the court know what is best for my child?
If an agreement concerning arrangements for the children cannot be reached, either parent may apply to the court for one of the above orders.Unless there has been an element of domestic violence or abuse, they will first need to attend a Mediation, Assessment and Information Meeting (MIAM) with a mediator to see whether the arrangements can be agreed at mediation.The MIAM can be attended virtually, as can any follow-up mediation sessions.If mediation does not result in an agreement, either parent (and other individuals with the court’s permission, e.g. grandparents) can apply to the court for an order. In order to establish what is best for your child(ren) the court is likely to appoint a CAFCASS Officer to prepare a report.
CAFCASS officers are similar to social workers, instructed by the court to investigate the various factors set out in the welfare checklist including the wishes and feelings of the child. It is the CAFCASS officer’s role to make recommendations to the Judge concerning the arrangements that he or she considers to be in the best interests of the child. The CAFCASS officer may even meet with the child’s teachers, GP and various other professionals when conducting his or her investigations.
The Judge will, in most circumstances, be guided by the recommendations of the CAFCASS officer when making his or her final decision. It is therefore extremely important that you co-operate fully with the CAFCASS officer throughout your case. The child’s wishes and feelings will be taken into account, but only in light of their age and understanding. The Judge will aim to make an order that is in the best interests of the child.
What powers does the court have?
In all cases, the child(ren)’s welfare is the court’s paramount consideration. The court must also consider the welfare checklist.
The Welfare Checklist
1. The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
The court is required to take the wishes and feelings of the child(ren) into consideration.How much consideration the court gives to the child’s wishes and feelings depends upon the particular child’s age and understanding.
The Children and Family Court Advisory Service (CAFCASS) may be appointed by the court to ascertain the child(ren)’s wishes and feelings.Although rare, the Judge may speak to the child(ren) themselves.CAFCASS Officers and Judges are extremely experienced and recognise how important it is to establish that the child is expressing their true wishes and feelings and that they are not (knowingly or subconsciously) reflecting the views of a parent.They are also mindful of the fact that child’s wishes and feelings may not reflect what is in their best interests.This is an important factor but is not sufficient in itself to determine the outcome.
2. The child’s physical, emotional and educational needs
The court will consider to which degree each parent is able to meet each child’s physical, emotional and educational needs. Again CAFCASS may be appointed to investigate and report back to the court with recommendations.
3. The likely effect on the child of any change in circumstances
It is not uncommon for the court to opt for the least disruption to a child’s life, particularly during the early stages of the Children Act proceedings whilst investigations are ongoing by CAFCASS. Throughout the proceedings, the court will consider the potential impact that a change in arrangements would cause, i.e. change of school, access to extended family and social circles.
4. The child’s age, sex, background and any characteristics which the court considers relevant
As well as considering the child’s age and gender, the court takes into consideration the child’s cultural and religious background and other characteristics which are specific to the child and their family.
5. Any harm which the child has suffered or is at risk of suffering.
It goes without saying that the court will take into account harm the child has suffered and/or is at risk of suffering in the future.Harm can be physical or emotional.Witnessing domestic violence is an example of harm. CAFCASS may be appointed to investigate this and if the situation is sufficiently serious, the Local Authority (if not already involved) may be asked to prepare a s7 or s37 report for the court. The court can order protective measures aimed at safeguarding the child.
6. How capable each of the child’s parents, and any other relevant person, is of meeting their needs
The parents may have the best of intentions when it comes to meeting the child(ren)’s needs but the court must consider how capable each parent is of doing so. The court will consider each parent’s physical, emotional and financial (amongst other factors) ability to meet each child’s needs. This will include considering each parent’s accommodation, working hours, childcare arrangements, extended family connections and their ability to allow the child access to healthcare and education.
7. The range of powers available to the court.
The court has the power to make a wide range of orders.Indeed, the court can make orders of its own volition, whether that particular order has been applied for or not.
What factors will the court take into account?
Under the Children Act 1989, if court proceedings are necessary because an agreement cannot be reached, the court has the power to order the following:
- A Child Arrangements Order setting out how much time the child(ren) spend with each of their parents and where a child should live.Further details can be included regarding telephone calls, day visits, overnight stays, weekends or holidays.
- A Prohibited Steps Order may be necessary when one parent objects to something that the other parent is doing concerning their child. That parent can apply to the court for the other person to stop doing it.
- A Specific Issue Order may be made by the court if parents are unable to agree on a specific aspect of their child’s upbringing, eg schooling.