Children
When parents separate it is important to consider the future arrangements for the care of any children and to attempt to resolve any dispute that arises as quickly as possible and in a child focused manner. There is no right or wrong answer. It will very much depend on the children and their wishes, feelings and needs, and the individual circumstances of the family generally.
The Process
There are various options open to separating couples when dealing with the arrangements for the care of any children, such as:
In person discussions between parents
Mediation
Negotiations through solicitors, and
Court
It is always preferable for parents to reach an agreement without resulting to court proceedings, however in circumstances where agreement cannot be reached the parents may need to approach the court to help make that decision.
The Law
Since the implementation of the Children and Family Act 2014 the court has refined its process and approach to disputes over children. Whilst the fundamental principles of the Children Act 1989 remain the same, the emphasis underpinning the changes are more on meeting the needs of the child and less of the rights of the parents. The law creates a presumption of "continued parental involvement" . Therefore, a presumption that both parents should have a continued involvement in the child's upbringing subject to any welfare concerns or risks.
Arrangements for children are now defined in a “Child Arrangements Order ". The Order is designed to take away the terms contact and residence and as a consequence promote the idea of continued parental involvement when determining the arrangements for the children.
The law also provides the court with the ability to make other decisions regarding a child’s upbringing, including but not limited to the school they attend and whether they can leave the jurisdiction with the other parent whether for a holiday or more permanently.
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Court
In circumstances where parents have reached an agreement regarding the arrangements for the care of their children an application can be made to court to confirm those arrangements in a Child Arrangements Order. This would be an application by consent. However, as outlined above the court process can also be used where parents cannot reach an agreement and they require the court’s intervention to guide their discussions and negotiations or to decide the arrangements for them.
Prior to making an application to court it will be necessary for the majority of applicants to attend mediation. There are certain exemptions to this requirement, including where domestic abuse has been an issue in the relationship or post separation. Our solicitors can advise on the exemptions and if necessary, make the referral to mediation on your behalf.
Once the court process has commenced, our solicitors will guide you through each stage and will attend court with you to represent your interests, whilst also working to ensure the children’s needs are at the forefront.
When a court is asked to make a decision regarding any question with respect to the upbringing of a child, the welfare of the child will be paramount. The court shall have regard to the ‘Welfare Checklist’ which requires the court to consider the following:
The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
His physical, emotional and educational needs;
The likely effect on him of any change in his circumstances;
His age, sex, background and any characteristics of his which the court considers relevant;
Any harm which he has suffered or is at risk of suffering;
How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
The range of powers available to the court under this Act in the proceedings in question.
*Joanne Vernon associate solicitor
With so much to consider, you need to have the best legal expertise on your side. Our solicitors have decades of experience and are also members of Resolution, which means we are committed to promoting a constructive approach to family issues that considers the needs of the whole family. We offer a personal service, ensuring you are supported every step of the way.
