What happens if I cannot agree child arrangements with my ex-partner?

Any important decisions relating to a child should be made with the agreement of both parents, assuming they have parental responsibility for the child(ren). You might be able to resolve matters directly with the other parent, but if you cannot agree child arrangements then there are a number of options available to you which do not involve attending court.

You could consider attending mediation, which is a voluntary process within which an independent mediator will assist you and your ex-partner in reaching an agreement. Mediation is a less confrontational, more cost-effective approach to resolving matters relating to child arrangements and you can find out more about mediation ont the CAFCASS or the Resolution websites.

It is not necessary to have a court order in place if you agree the arrangements for your child(ren). However, you might consider putting your agreement in writing so that there is clarity, and one way of doing so is to create a Parenting Plan.

If it is not possible to reach an agreement via the above methods, a solicitor could write to your ex-partner/their solicitor on your behalf to try to resolve matters. You may also wish to explore the collaborative process.

If you still cannot agree child arrangements, it might be necessary to consider issuing court proceedings. The court can make the following orders in private children proceedings:

• A Child Arrangements Order – known as ‘spend time with’ and ‘live with’ orders. There is now no such thing as ‘custody’ within the Family Court.
• Prohibited Steps Order – this will prevent a parent from doing something, e.g. from taking their child out of the country.
• Specific Issue Order – this will determine a particular issue, e.g. which school a child will attend.

When a court is making a decision about the upbringing of a child, the child’s welfare is the paramount consideration. The court must consider a range of factors known as the Welfare Checklist:

1. The ascertainable wishes and feelings of the child concerned considered in the light of his or her age and understanding.
2. His or her physical, emotional and educational needs.
3. The likely effect on him or her of any change in circumstances.
4. His or her age, sex, background and any characteristics which the court considers relevant.
5. Any harm which the child has suffered or is at risk of suffering including violence and, for example, impairment suffered from seeing or hearing the ill-treatment of another child or parent.
6. How capable each of the parents and any other person in relation to who the court considers the question to be relevant, is, of meeting the child’s needs.

The court will not make an order in respect of a child unless it is in the interests of the child to have the order, which is known as the ‘no order’ principle.

It is easy to become distracted by irrelevant issues and get caught up in the emotional fall-out of separation. However, wherever possible do try and stay focussed on your child(ren) and what is in their best interests, and how you can work together to ensure that the arrangement works for them. Listen to their wishes and feelings and remember that no family is the same and therefore what works for somebody else may not necessarily be the best arrangement for you.

If you reach agreement outside of the court process, it may be possible to reflect this within a Child Arrangements Order which is submitted to the court for approval. However, the ‘no order’ principle will apply and it may be preferable to record your agreement within a parenting plan instead of seeking a court order.

Another alternative to the court process is arbitration, whereby an arbitrator (who will be appointed by you and your ex-partner) will provide a binding decision, known as an ‘award’. Arbitration is increasingly popular as a more flexible and efficient alternative to the court process.

If you cannot agree child arrangements with your ex-partner and would like advice or assistance, please do not hesitate to contact us.

Victoria Brown is a Senior Associate Solicitor in the Family team, who practices in all areas of private family law, including divorce, dissolution, financial and children arrangements. If you would like to discuss these issues please contact her at vgb@anthonygold.co.uk or on 020 7940 4060

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