Disputes involving children can be difficult and stressful, both for parents and for the children involved. Our solicitors have extensive experience in resolving these issues sensitively and constructively. You may currently be thinking about a divorce or in the process of one. Many worrying questions may be running through your mind such as: Who is my child going to live with? Who is going to pay for the mortgage and how will this affect my child? How much contact will I have with my child?
We understand that this is a very sensitive area for you to deal with. That’s why, where possible, we try and solve these issues with a conflict-free, amicable approach through negotiation.
The children of a divorcing couple will be equally cherished by both parents. Each parent will be liable to fulfil the responsibilities of the children equally even if the children were originally living with one parent with periodic visits to the other parent’s place. Additionally, other aspects will be considered including the time children spend with each parent. All these decisions about children’s provisions are at the discretion of parents and the court does not take self-notice of this situation unless approached for help in case of a conflict.
Disputes about with which parent children should live and how they spend time with their other parent are not limited to the time of a relationship breakdown. Difficulties can occur at any point until your children become adults. Sometimes therefore it may be necessary to issue a court application to determine matters of disagreement.
The Children Act 1989 describes the legal framework regarding the intervention of a court in matters associated with the children arrangement. The Children Act 1989 provides the court with the authority to present the Children Arrangement Order entailing a single or multiple orders to be followed by parents for children below 16 years of age.
There are three main Orders available through the court under the Children Act 1989 to deal with disputes about children:
CHILD ARRANGEMENTS ORDER
A Child Arrangements Order deals with the issues which previously used to be called Residence and Custody. The Order sets out:
PROHIBITED STEPS ORDERS
A Prohibited Steps Order is used to restrict parents from carrying out specific actions during children upbringing. Examples of such actions include travelling overseas with the child or shifting his/her school or preventing a child from being removed from their school or being taken abroad. Once a Prohibited Steps Order is made the other parent is prevented from taking that step without the consent of the court.
SPECIFIC ISSUE ORDER
If you can’t agree on a decision relating to your child’s care, aside from contact and who they live with, you will have to issue an application for a Specific Issue Order.
These applications can deal with issues including:
When making any decision, the court’s paramount consideration is the welfare of the child.
The court will always give the following three principles the highest priority:
The court will also have regard to the following criteria, which is called the Welfare Checklist:
If all or any of the children is over 9 years of age, the court may call them to obtain their consent on decisions regarding their custody and other related aspects. Before the hearing, someone will contact you and your ex-partner from an organisation called the Children and Family Court Advisory and Support Service (CAFCASS). CAFCASS work with families and the court to help decide what should happen in cases that involve children. The person from CAFCASS will also speak to your children before the hearing.
In case of a conflict between the parents regarding Children Arrangement matters, a CAFCASS officer will be involved to obtain the views of children and draft a report to be presented before the court. The court may give the final determination after considering this report.
A grandparent has no automatic legal ‘right’ to see their grandchildren. However, if you have been unable to agree on arrangements to see your grandchildren with either of their parents, it is possible to apply to the court for help. The process will first involve making an application to the court for ‘leave’ or permission to apply for an Order. If ‘leave’ is granted it is only then can the grandparent’s application proceed.
In England and Wales, there are certain circumstances where a grandparent does not need the court’s permission (‘leave’) to apply for a child arrangements order. These include where the grandparent already has a ‘lives with’ or ‘residence order’ in respect of the child, or for example, the child has been living with the grandparent for more than three years.
We have experience in successfully representing grandparents applying to court, whether for a Child Arrangement Order or Special Guardianship. We can help grandparents, and other members of the extended family, explore their options.
If parents cannot agree on arrangements to take their children on holiday, it is important to check out the legal implications of going away, or blocking a holiday, particularly abroad or out of the jurisdiction. We can help you explore the options and consider court applications, whether for a Specific Issue order or Prohibited Steps Order. Even if a holiday is by agreement, a Letter of Consent may be required by the relevant immigration authorities.
If you’re thinking of making a move to live abroad with a child (sometimes called ‘leave to remove’ cases) or are concerned that your ex-partner is considering to do so, early advice is recommended. Likewise, if you are planning to move a distance away from your child’s other parent within England and Wales, or elsewhere in the UK. Such cases can be complex, and require careful planning. We have extensive experience of both succeeding in, and defending, these cases.
Parents, and anyone with parental responsibility, have a right to be consulted about their child being taken abroad. If one parent takes a child abroad without the permission of the other parent, this is known as a wrongful removal and considered to be child abduction- even if this is your own children.
If you had permission to take a child abroad for a period of time for a holiday or to visit family, but overstayed that period, retaining the child abroad at the end of the agreed period, this is known as a wrongful retention and also considered to be child abduction.
We can advise you if you are worried about the risk of, or non-return of your children or if you may be accused of child abduction.
Every parent is financially responsible for their child. If you are not married, you cannot claim maintenance from your ex for your own needs, but you can make financial claims on behalf of your child or children. A non-resident parent (meaning a parent who spends less than half of the time with their child) is obliged to pay for the care and upkeep of their child by way of maintenance payments to the parent with day to day care.
When a couple separates, the absent parent will be required to pay child support in accordance with Child Support Agency (CSA) guidelines. You may wish to consider whether you are able to reach agreement in respect of this or whether an application to the CSA is necessary. We will advise you on your options and what you might expect to pay or receive for your child depending on your circumstances.
In England and Wales, if your income exceeds a limit specified by the CSA, it is possible for a further claim to be made against you for ‘top up maintenance’ under Schedule 1 Children Act 1989.
Significant emphasis is given from a long time to revise the legislation pertaining to provision for unmarried parents with children to bring some relief to them. Even the Law Commission report stressed on this matter; however, important revisions have neither been made nor expected to be made in this regard by the present government.
In case of a dissolution of an agreement in an unmarried couple, Schedule 1 of the Children Act 1989 allows parents to request for financial provision of children. Schedule 1 claims on behalf of children can be critical for unmarried parents or former cohabitants for whom divorce settlement remedies are not available.
The court can order for any or all of the following:
The court must consider a number of factors while determining the appropriate level of financial provision for child- including all of the following:
Parents have to disclose their financial status which will be used by the court to anticipate the financial capacity of parents to provide for children. The financial information demanded includes capital and income of each parent.
Parental responsibility is defined in the Children Act 1989 as “all the rights, duties, powers and responsibilities and authority that, by law, a parent of a child has in relation to the child and their property.”
In practice, a person with parental responsibility is entitled to have a say in key decisions about a child’s life, such as:
Married parents have joint parental responsibility. However, if you are not married, only the mother automatically has parental responsibility. An unmarried father can, however, obtain parental responsibility in a number of ways, the most common of which is being named on the child’s birth certificate (for children born after 1 December 2003).
Before a court application can be made, save in urgent situations, you must attend a Mediation Information and Assessment Meeting, a ‘MIAM’. This is to explore first whether mediation can assist in your circumstances, and if appropriate, the parent(s) of the children may be prepared to attend mediation to try to reach an amicable agreement.
If mediation does not work you will need to complete an application form setting out what order you wish to apply for and brief details of the issues. You will have to pay a court fee. Once the application is issued by the court, it will have to be served on the other parent/party so that they know about the court hearing and the application that you have made.
Cafcass will undertake safeguarding checks with the relevant agencies before the first court hearing which is called a First Hearing Dispute Resolution Appointment (FHDRA). You will need to attend that hearing personally with your legal representative.
At this hearing, the Judge and a Cafcass officer will consider your case and try to assist you in reaching a compromise. If this is not successful, the Judge will consider what further information is required in order to reach a solution and may order you to prepare a statement setting out your case or that the Cafcass officer visits you and your children in order to prepare a report on what might be the best outcome for the child.
The court may also require additional expert evidence such as a psychologist’s report or a drug or alcohol test depending on the individual circumstances of the case.
Once all the information has been obtained a Dispute Resolution Hearing will be listed by the court to consider the case. If agreement is still not possible, another court hearing will be listed. The Judge will make a decision at the final hearing, usually after hearing evidence from all concerned.
A special guardianship order is an order appointing one or more individuals to be a child’s ‘special guardian’. It is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement.
It is a more secure order than a ‘lives with’ or ‘residence’ order because a parent cannot apply to discharge it unless they have the permission of the court to do so. It gives parental responsibility to the applicant which gives them responsibility for day to day decisions relating to a child’s care and upbringing. The local authority will be involved in the process, preparing a report for the court’s consideration.
Mediation may assist in resolving matters without recourse to court proceedings.
Other methods of non-court dispute resolution are also available, including collaborative family law and arbitration.
Collaborative law involves a series of roundtable meetings between clients and their lawyers to reach an agreement on approach and solution to deal with their children on separation. All parties sign a participation agreement, agreeing not to go to court and so encouraging everyone to invest their efforts on reaching a negotiated solution.
Arbitration is a privately funded court process in which the clients agree to appoint an independent lawyer/arbitrator who will hear their case and make a decision which is then enforceable in the Family Court. The process can be tailored to the needs of the clients and is usually much quicker than the usual court process.
Financial support for your children is governed by the Child Support Agency for their maintenance claims.
If you are married, your children’s property and financial needs are usually dealt with in a financial remedy application on divorce, by consent or by court application if necessary.
If you are unmarried, your children’s needs including property, lump sums and school fees, can be addressed in a Schedule 1 Children Act application in England and Wales. In Scotland, this can be addressed in an aliment action or action under the cohabitant legislation.