Does there have to be a Court Order regarding the children?

No and it is unusual. If both parents can agree the arrangements for their children including where they will live and the time they will spend with each parent, the Court does not need to become involved. There is a policy that the Court will not intervene and make an order unless it can be shown that there is a positive need and benefit to the child in doing so.

Are there any guidelines about what constitutes a fair arrangement? 

The child’s best interests and welfare are Court’s paramount concern in deciding any issues concerning not only their upbringing but also the administration of matrimonial property and this should also be the parents’ main concern.

Obviously, this will vary according to the child’s age and the circumstances of each case. In most cases it is usually considered in the best interests of the child to spend time with both parents.

The Children Act 1989 sets out factors that the court must pay particular attention to when applying the welfare principle in care orders and these are a good guide:

1. The ascertainable wishes and feelings of the child involved (considered considering age and understanding). There are many ways in which a child’s wishes and feelings can be made known. The court will place great importance on the welfare report prepared by the children and family reporter, which will consider the child’s wishes as well as the maturity of the child and the extent to which the parents may have exerted influence over the child forming views. In very difficult and disputed cases the child may need separate legal representation.
2. The child’s physical, emotional and educational needs. This will focus on accommodation, medical needs and education. The court will very rarely separate siblings. The court will not equate welfare with material advantages and the fact that one parent has more is irrelevant as the party with a lower income could compensated with a financial order.
3. The likely effect of a child of any change in circumstances. This means that if the current arrangements are working the court would be reluctant to change the status quo.
4. The child’s age, sex, background and other characteristics the court considers relevant. Age is important as very young babies may need to live with their mother whereas a 15 year old could cope with either parent, and age will have an influence on the importance attached to their wishes. However, there is no presumption of law that a child of any age should be with one parent or the other.
5. Any harm that the child has suffered or is at risk of suffering. This is a very broad term and will cover both physical and psychological harm. The court can also consider the harm to the child in not seeing both parents.
6. How capable each of the child’s parents is in meeting the child’s needs. The parents conduct will be relevant to the extent that it may affect their suitability as parents. Where a parent is proposing to share care with a new partner or spouse that person’s capabilities may be considered.

What happens if we cannot reach agreement?

Even if parents cannot agree matters between themselves, they may be able to reach agreement through mediation. This may well be swifter and more economical than going to Court. Another option is for each parent to consult a solicitor who is trained as a collaborative lawyer with a view to them hopefully resolving matters though the collaborative process (http://www.resolution.org.uk/collaborative_process/).

If no agreement can be reached, it is possible to make an application to Court for a Child Arrangements Order where the Court will consider:

1. a) With whom a child is to live, spend time or otherwise have contact;
2. b) When a child is to live, spend time or otherwise have contact with any person.

The Court also has the power to make a “Specific Issue Order” to resolve a disagreement (for example about which school a child should attend).

If the parties do proceed to court proceedings the Child Arrangements Programme will apply. It is designed to try to facilitate and encourage the resolution of disputes outside of the court system and, where not possible, swift resolution of the dispute through the court system. All those who wish to proceed must first engage in a Mediation Information and Assessment Meeting (unless the matter qualifies as an emergency or an exemption). Only if pre-proceedings resolution is not achievable can an application to the Court be made.

Once an application is made the matter will be listed for a First Hearing Dispute Resolution Appointment (FHDRA). This offers an opportunity for the parties to be helped to understand the issues that divide them and to reach agreement. An independent Child and Family Reporter (CAFCASS officer) will be present to help the parents and the Court identify any common ground and reach agreement if possible. If agreement is reached the court will be able to make an order, in many cases the final order, reflecting that agreement. The court will assist the parties, so far as it is able, in putting into effect the agreement/order in a co-operative way.

If agreement cannot be reached, remaining issues will be identified, the CAFCASS officer will advise the court of any recommended means of resolving the issues, and directions will be given to deal with evidence. The matter will then be listed for a ‘fact-finding’ hearing to deal with any serious allegations made. Following this a Dispute Resolution Appointment (DRA) is listed to allow the Court, with the assistance of expert reports, to identify the key issues to be determined and whether these can be resolved/narrowed. Evidence may be heard to resolve or narrow the issues. Often the DRA can be used as final hearing and the matter can be resolved at this stage. If the case cannot be concluded, the court will consider what evidence should be heard to resolve the outstanding issues at the final hearing and final case management directions will be given for the final hearing.

However, it is still possible for parents to achieve agreement at any stage in the process without the need for evidence to be filed or a full hearing. It is often unnecessary for the proceedings to continue beyond the first FHDRA, and it is rare for a matter to proceed to a final hearing.

What are my rights in relation to my child?

Instead of focusing on the “rights” of a parent, the emphasis in family law is given to the rights of the child. Generally, a mother will always have Parental Responsibility for her child. However the child’s father will also have Parental Responsibility if:-

• He is married to the child’s mother when the child is born (or later marries the child’s mother).
• The child was born after 1 December 2003 and he is named on the Birth Certificate when the child’s birth is registered.
• He has a Parental Responsibility Order or a Residence Order from the Court.

It is also possible for parents to enter into a formal agreement for Parental Responsibility.

Is it possible for a child to live with both parents?

Yes. The parents can agree this between themselves if they think it is best for the child. However, if they disagree over who is to care for the child full time, the Court can make a Child Arrangements Order, specifying that the child will live with one parent or both parents on an equal or unequal basis.

As with any other Order concerning a child, the Court will only an Order if it is satisfied that this is in the child’s best interest.

What can I do if my ex-partner is difficult about me seeing our child?

You can make an application to Court for a Child Arrangements Order. It may be possible to agree the amount and time you spend with your child(ren) after the application has been issued, for example at the FHDRA described above. If this is not possible the Court can make an Order for the children to spend time with you. The level of such time will depend on the individual circumstances of the family and may well need to be reviewed after a period or if there are any changes in the circumstances. As a general principle, the Court considers that it is in a child’s best interest to have regular meaningful time with both parents and for this reason it is very unusual for the Court to refuse contact between a child and one of his/her parents.

If the Court Order is breached it may well be necessary for further applications to be made to enforce the Order. For example, theoretically the Court could fine or in the last resort imprison the parent who is in breach (although the Courts are usually reluctant to do this as it is unlikely to be in the best interest of the child). In extreme circumstances, where there have been persistent breaches, the Court may transfer the child’s place of residence to the other parent.

My ex-partner will only agree to me seeing the children if my new partner is not present. Is this allowed?

If the new relationship is still at an early stage and the children are very young the Court will usually consider it appropriate for the children to be introduced gradually to a new partner once the relationship is more established. The Courts and CAFCASS Officers are accustomed to parents having new partners/spouses and providing there are no child safety concerns generally consider it is in the child’s best interests to develop a good relationship with both parents’ new partners.

Do I have a right to be involved in my children’s upbringing even if they live with my ex-partner?

Yes. If you have Parental Responsibility you are entitled to be consulted by your ex-partner on any important issue concerning the children e.g. choice of school, consent to medical treatment or religious upbringing etc. If you cannot agree on a particular question, you can apply to the Court for an Order and the Court’s decision will be based on what is in the child’s best interests.

 Do other members of my family (e.g. grandparents) have a right to contact with my child?

Other members of the family, including grandparents do not automatically have any right to see the child. However, they can apply to the Court for permission to spend time with the child which is likely to be given if the Court is satisfied that this would be in the child’s best interest.

Can I prevent my ex-partner taking my child to live abroad?

Provided that you have Parental Responsibility for your child (see question 4 above) your ex-partner will need the Court’s permission in order to relocate abroad with your child if you do not agree. As with all other applications concerning children the Court will only grant permission for the child to be relocated if it is considered to be in their best interests. These applications (known as “leave to remove” applications) are obviously very sensitive and often need the court’s involvement before they can be resolved.

If a parent permanently removes the child from the country without the other’s consent or a Court Order, they will be abducting the child and international proceedings can be brought for the return of the child. If you are concerned that your ex-partner is planning to take your child to live abroad against your wishes, you can make an emergency application to Court to prevent your child being taken abroad. Please note, however, that this Order may trigger your ex-partner into making an application for leave to remove the child.

My partner and I are separating. Is there any guidance available to help us handle and hopefully resolve our issues concerning the children?

Resolution (a professional organisation of specialist family lawyers which is committed to the constructive resolution of family disputes) has set up an initiative called “Parenting after Parting”. The purpose of this is to help parents manage the effect of their divorce or separation for their children. For further information about this please go to www.resolution.org.uk/parentingafterparting.

What happens in relation to child maintenance?

Child maintenance is money that the parent without the main day-to-day care of a child(ren) pays to the other parent and is usually agreed between the parties under a family-based arrangement. Basic child maintenance is dealt with by the Child Maintenance Service (CMS) who work out a fixed sum to be paid. The sum paid is based on the income, and various other factors, of the paying party and can be calculated via the CMS calculator. This is explained in more detail under https://www.gov.uk/child-maintenance/overview . The fact that the parties share the care of the child(ren), and/or the parent without main care buys things directly for them, can also be included in family-based arrangement.

Parents who live overseas do not pay child maintenance through the CMS (unless they are employed by the UK government or by a UK registered company). In those cases, if agreement cannot be reached an application will be made to the Court for a Child Maintenance Order.

 Does the Court ever become involved with child maintenance?

Yes, the Court may be involved where:-

• The parents cannot reach agreement about the level of child maintenance (although either may apply to the CMS after 1 year).
• Once the child is 19 (and outside the scope of the CMS).
• If the child or one of the parents lives abroad.
• If there are school fees or other educational expenses to be covered.
• If the parent who is liable to pay child support is very wealthy.