Disputes about children
Children usually find it very difficult to deal with the breakdown of their parents’ relationship. If you’re separating or divorcing, you’ll need to find ways of dealing with the arrangements for the children. As a parent you’re responsible for the health, safety and well-being of your children. In general, the law is focused on protecting their rights and helping to ensure that they maintain a relationship with both parents – unless there is a specific reason not to, e.g. if they are at risk of harm.
Who will look after the children?
If you’re splitting up and have children, decisions will need to be made about where the children will live and how much time they will spend with the other parent. Some separating couples agree a shared care arrangement. All families are different and there’s no single right outcome. If you can’t agree the future arrangements with your partner, the court may have to make these decisions for you.
We used to refer to ‘custody’ and ‘access’ when talking about who would look after the children following divorce or separation. This was replaced with ‘residence’ and ‘contact’ by the Children Act 1989. However, in April 2014, the law changed again with the introduction of schedule II of the Children & Families Act 2014 and these issues are now determined by a single ‘child arrangements order’.
If you can agree, make a parenting plan
What is a parenting plan?
A parenting plan is a written document that sets out terms agreed between parents about their children after they separate, or in anticipation of separating. It is an excellent document to focus parents’ minds on putting their children first and avoiding conflict with the other parent. It encourages mutual support and respect on co-operative parenting after separation and can provide clarity to the arrangements that will hopefully avoid fundamental disputes arising in the future.
What do parenting plans deal with?
It is a good idea to start with topics you can agree upon and create a good working atmosphere before tackling the trickier issues.
Parenting plans typically deal with arrangements such as with whom a child will live and when they will spend time with others (which can include grandparents and other relatives), aspects of financial support, who will pay for children’s activities, their religion, education and issues about their health. Parenting plans also set out how parents intend to communicate with each other and deal with their future differences. It can set out what parenting decisions can be made without consultation and matters upon which parents agree a joint decision should first be made. It can specify how new partners might be introduced into the children’s lives and when, plus how information is shared between parents. The plan can be as detailed or concise as you both wish.
How can Graysons help?
We can help and advise you on what to include in a parenting plan and draft the document for you once the terms have been agreed.
What if we can’t agree on how to divide care for our children?
If you can’t agree on how your children should be cared for, you must now attend mediation (subject to some exemptions). This is known as a mediation information and assessment meeting (MIAM). You usually attend this alone. The mediator will explain how he/she can help and will assess the suitability of mediation for your particular case, taking into account any domestic abuse concerns and your own willingness to mediate with your ex-partner. If mediation is assessed as unsuitable, if your ex-partner declines to attend or if joint mediation sessions start but then break down, the mediator will give you a form that will enable you to apply to court for orders relating to your children. These are:
Child arrangements order
You can apply to the court for a child arrangements order that can determine with whom your children should live and how much time they should spend time with their other parent.
Prohibited steps order
A court can issue a prohibited steps order to prevent a parent from doing something that the other parent doesn’t agree with, such as taking them out of the area or country, giving them medical treatment, changing their school or associating with someone who could have an adverse influence on the children. This does not necessarily mean that a parent can’t take a child abroad on holiday, but they will need to apply to the court for permission if they do not have the consent of all persons sharing parental responsibility for the child. The exception to this rule is the holder of an order that confirms the child lives/resides with them (however this is limited to 28 days and a prohibited steps order may still be granted preventing the removal of a child).
Specific issues order
You can apply to court for a specific issues order which, as the name suggests, deals with the determination of a specific issue relating to parental responsibility such as choice of school, religion, medical treatment or whether the parent with care can take the children to live abroad.
Your right to apply for these orders depends on your relationship with the children. A parent or guardian of the child is entitled to apply, as is any person in whose favour a residence order/child arrangements ‘living with’ order is made. A step-parent, or any person with whom the child has lived for at least a 3 year period, is also entitled to apply. Other people, such as grandparents, need to first obtain permission from the court (and demonstrate their significant connection with the child) before bringing an application.
Our specialist family lawyers can help you with applying for any of these orders and will prepare the relevant documentation for you.
Children proceedings – the court process
If you can’t agree on child arrangements amongst yourselves, you can apply to the court to make an order for you. The child arrangements programme (CAP) sets out the process for dealing with applications for child arrangements orders. The process is designed to help you reach an agreement wherever possible and as quickly as possible. On lodging your papers in court, the court staff will issue your application and will send a copy of the paperwork to CAFCASS (Children and Family Court Advisory and Support Service) and we will serve a copy of the issued court papers on your ex-partner.
The early intervention team at CAFCASS will receive your application and will undertake checks on both you and your ex-partner with the police and social services. A CAFCASS officer will arrange a telephone appointment with each of you to discuss the application and to identify if there are any ‘safeguarding’ concerns. Such concerns may relate to criminal activity, domestic abuse, drug/alcohol misuse or any other inappropriate behaviour that could place a child’s welfare at risk. CAFCASS circulates the information it receives in what is called a ‘schedule II letter’ prior to the first court hearing, in which CAFCASS also gives recommendations as to how the application might best proceed.
First hearing dispute resolution appointment
The FHDRA is the preliminary hearing of your court application. The duty CAFCASS officer (usually the same person you spoke with on the telephone) will attend court to offer further assistance and guidance. The court will encourage open discussion and negotiation with a view to settlement wherever safe and possible. If all issues are resolved at the FHDRA, the court application can either be withdrawn or an order can made by consent with approval of the judge or magistrates dealing with your case. However, where agreement cannot be reached, the court will decide on how to progress the case.
How long does the court take to decide child arrangements?
Where there are significant issues, it may be necessary for a more detailed investigation to be carried out by CAFCASS. A full report usually takes around 12 weeks to complete and can consider the children’s wishes and feelings (subject to them being old enough). If a social worker is already involved with your family, the court may ask social services to prepare the report instead of CAFCASS. If domestic abuse is alleged, the court may first require a ‘finding of fact hearing’ where a judge or bench of magistrates decide whether or not they consider allegations of abuse proven. Sometimes expert evidence is needed to assist the court, for example, medical evidence, which can include drug and alcohol testing and assessment reports from psychologists or psychiatrists. Sometimes more information is needed from the police. The court will decide upon a timetable for all the relevant and necessary evidence to be shared. The court will ask you to file a statement of evidence, and possibly witness statements if relevant. Assuming matters are still not agreed by this time, there would then be a final contested hearing where the court would make a final decision regarding the future arrangements for your children.
This is set out in s.1(3) of the Children Act 1989 and remains the relevant law for the court to have regard to when an application is filed:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding).
- His/her physical, emotional and educational needs.
- The likely effect on him/her of any change in his/her circumstances.
- His/her age, sex, background and any characteristics of his/her which the court considers relevant.
- Any harm which he/she has suffered or is at risk of suffering.
- How capable each of his/her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs.
- The range of powers available to the court under this Act in the proceedings in question.
The court’s paramount consideration is always the welfare of children and the court must bear in mind that any delay in resolving the case is likely to prejudice a child’s welfare. The court must also consider whether or not it would be better for the child if no order at all were made (the ‘no order’ principle).
SPIP (Separated Parents Information Programme)
Often CAFCASS will recommend at an early stage that parents attend this programme. It is a course focused on the needs of children in families that are going through, or have been through, divorce or separation. The programme is focused on co-parenting after separation with primary attention on the needs of the children. It’s about recognising, and trying to limit, the damage that conflict on separation can cause to children. You would attend a separate programme from your ex-partner. This enables each of you to speak freely about your situation. The course itself involves either two half days or one full day, watching DVDs and engaging in group discussions. It aims to support parents in finding better ways to communicate and find ways of working together in the best interests of the children. If the court tells you to attend a SPIP within family proceedings, the course is then provided free of charge.
Bradie helped me before I was a client by advising me regarding the legal aid process. She has been very easy to talk to and helped calm my fears and anxiety as well as gaining the best outcome for my toddler.
Bradie was able to understand my case, explain the family law and represent me well. I would strongly advise anyone to use Bradie in children matters.