Relationship breakdowns are difficult for all involved and become even more stressful when arrangements for your children are factored in.
Our Family Law team has a wealth of knowledge and experience in helping families work out the most appropriate solution to ensure the best interests of the children are maintained.
As members of Resolution (an association for family lawyers) and MSI (an international network of lawyers), we are in a great position to help you with UK or international family matters. Our MSI membership enables us to access specialist legal advice in a variety of countries around the world.
The Resolution website is a valuable resource for tips to consider when telling your children about your divorce or separation and tips on managing your relationship with your ex. You’ll also find advice on how to manage activities and events out of two homes, advice for coping with difficult situations such as domestic abuse, addiction and parental alienation. There’s also recommended reading, online resources, legal facts and a glossary, as well as details of Resolution’s new parent workshops to help parents manage the impact of their divorce or separation for their children.
Another useful online resource is the CAFCASS website, which offers practical advice and an interactive document to help you create a parenting plan for your children.
Top tips to keep kids’ best interests first during divorce or separation
Disputes about arrangements for children: what the court assesses
If a dispute is referred to the court to resolve through issuing proceedings then the court will need to consider all the circumstances of the case. The Children Act 1989 lists various matters which the court must always take into account (‘the welfare checklist’). Your child’s welfare is the court’s paramount consideration.
The court has to pay particular attention to:
- The ascertainable wishes and feelings of your child (considered in the light of his or her age and understanding)
- Your child’s physical, emotional and educational needs
- The likely effect on your child of any changes in circumstances
- Your child’s age, sex, background and any characteristics which the court considers relevant
- Any harm which your child has suffered or is at risk of suffering
- How capable each of you are as a parent (or any other person the court considers relevant) in meeting your child’s needs
- The range of powers available to the court in the proceedings
Other principles the court must apply include:
- The court should only make an order if it is better for your child if the court intervenes than not
- The court should be mindful that delay is likely to prejudice your child’s best interests
- There is also a presumption in favour of both of you as parents being involved in the upbringing of your child
However, every case is unique and decided on its own facts, taking into account the decisions made by the court in previous cases.
Disputes about arrangements for children: the court process
To apply for a court order you must first fill in the relevant court form and send it to the family court. You’ll need Form C100 to apply for a child arrangements order, prohibited steps order or specific issue order.
Once the application is received by the court, it will be issued (stamped and given a case number). It will be returned to the party making the application (the applicant), who must serve a copy on the other party (the respondent). The respondent should then file an acknowledgement of service indicating his or her position.
The application should be made to the local family court who will then decide on the seniority of judge who should hear your case.
Generally it’s not possible to apply directly to the High Court as this tends to focus on highly complex cases. It’s usually a judge in a lower level court who decides whether your case is appropriate to be heard by a High Court judge.
The case will be listed for a hearing once your application and response has been received and the necessary safeguarding checks have been carried out. This is called a First Hearing Dispute Resolution Appointment (FHDRA) where the court will encourage you and the other party involved to resolve your issues. A CAFCASS officer is usually present to help you with any discussions.
If you’re unable to reach a settlement, the court will make an order giving directions on what will happen next.
This might include the following:
- You and the other party involved file statements explaining the facts and your positions
- Further independent investigations be carried out by CAFCASS and/or social services
- Expert evidence be obtained (for example medical or psychiatric reports)
- The case be transferred to a different court (perhaps a more appropriate local court, or the High Court)
- Your child be joined as a party to the proceedings (this means that your child will have someone to speak for them and their own lawyer, usually state-funded)
- Further interim hearings be listed to deal with some of the issues in dispute or to decide on disputed areas of fact
It’s not uncommon for there to be several hearings in children proceedings and for some issues to be decided at interim hearings during the process. The issues and progress of every case is different. Some cases settle during the proceedings in which case the judge will be asked to approve the agreed order. Other cases don’t settle and require a final hearing at which the court will hear evidence from both the applicant and the respondent before the judge reaches a decision and imposes an order on all parties involved.
The role of CAFCASS in children disputes
The government body, CAFCASS, also known as the Child and Family Court Advisory and Support Service, is part of the family court system. It provides independent assessment and reporting which assists judges hearing children cases. Also known as family court reporters, reporting officers, court welfare officers or welfare officers, CAFCASS officers are qualified to work with children and often have a social work background.
Their role is to:
- Investigate and report to the court on issues concerning the welfare of children
- Assist separated parents to resolve disputes concerning arrangements for their children, if possible during the course of their enquiries
- Act as a children’s guardian (also known as a guardian ad litem) where the child is a party to the proceedings
The initial safeguarding checks on all parties involved in your case are carried out by CAFCASS when you apply for a court order. This enables them to identify whether anyone involved is already known to social services and if there are concerns regarding safety, such as allegations of abuse or domestic violence.
Where appropriate, CAFCASS officers have direct contact with your child to establish his or her wishes and feelings.
- Read any and all social services files concerning your child
- Interview members of your child’s family
- Speak to the school or nursery and anyone else considered relevant
- Make a professional assessment of your child’s welfare, sometimes with the assistance of reports from experts
The CAFCASS officer will then prepare a report which includes details of their investigation and their recommendations concerning your child’s best interests. Although the judge is not obliged to follow the CAFCASS officer’s recommendations, the reports often carry significant weight in the proceedings and the judge will need to be persuaded why he should not follow such expert advice.
Parental Responsibility (PR)
What is Parental Responsibility?
Parental Responsibility is defined as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.
In other words, if you have parental responsibility you have the right to be consulted in key decisions about your child’s upbringing, such as medical treatment and education.
It does not, however, give the parent who does not have day to day care of your child a right to interfere in routine daily issues. It is solely for the interests of your child and not you as the parents.
Who has Parental Responsibility?
- A woman who gives birth to a child, automatically has Parental Responsibility. She is usually the child’s mother, but not always, for example in some surrogacy arrangements
- A father will automatically have Parental Responsibility if he was married to the mother either at the time of the child’s birth or subsequently
- A father who is not married to the mother will only have Parental Responsibility automatically if the child was born after December 2003 and he is named on the birth certificate
- In all other circumstances, a father will not automatically have Parental Responsibility and he must obtain it by one of the methods described below
- In some families, people other than a child’s parents will have Parental Responsibility; such as stepparents, grandparents, uncles and aunts. The ways in which people other than a child’s parents can get Parental Responsibility are explained below
How a father can obtain Parental Responsibility
- Parental Responsibility Agreements – it is possible to obtain parental responsibility by agreement with all others who already have it. A Parental Responsibility Agreement is a standard form which has to be completed and signed by you and all those with parental responsibility. Once signed and witnessed the form has to be lodged with the court. Once a Parental Responsibility Agreement has been made and lodged with the court it can only end if ordered by the court
- Parental Responsibility Orders – if no agreement can be reached then you will need to make an application to the court
Can anyone else have Parental Responsibility?
Only a mother or a father (in the circumstances described above) automatically has parental responsibility.
Other people can obtain parental responsibility in the following ways:
- By applying to the court for a Child Arrangements Order that the child should live with them
- By being appointed Guardian by a parent with parental responsibility
- By adopting the child
- By applying for a Special Guardianship Order
What about Step-Parents?
Regardless of how much you contribute financially or otherwise to the upbringing of your partner’s children, as a step-parent, you can’t automatically obtain parental responsibility.
However, there are very specific circumstances when you can acquire parental responsibility, which include:
- When the court makes a Child Arrangements Order that the child lives with you either on their own or with another person. These types of ‘step parent’ orders are uncommon
- When you adopt a child which puts you in the same position as a birth parent
- Through the signing of a Step Parent Parental Responsibility Agreement to which all other people with Parental Responsibility consent. This is a formal document which needs to be signed by all the parties and then registered at court
- When the court has made a Parental Responsibility Order following an application by you
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