If you are separating from a spouse or partner, you may understandably be worried about what will happen to your children and what the implications are going forward. You will want to know what your rights are and understand what factors the Court will consider in deciding any dispute.
We used to talk about ‘residency’, or worse ‘custody’ of children, what archaic terms! Children are not possessions and should not be viewed as such. The child has a right to have a relationship and/or live with both parents in event of separation and subject to any safeguards meaning this would be unsafe, this is the starting point for the Court. These days a common situation is that the children divide their time between both parents. If the arrangements involve equal time with each parent, it is generally referred to as a joint ‘lives with’ order. If this works, it can be a good solution, but what if it is not possible? The Court looks at and can dictate the ‘arrangements’ for the child/ren to spend time with each parent. This article will help you understand considerations of the court when being asked to look at what those arrangements, and what they actually look like on the ground for the family, and most importantly the child, and what options you have as a parent.
The information is for general purposes only, and you should obtain professional advice relevant to your individual circumstances. Staffordshire Family Law can assist with all aspects of child arrangements in event of your separation assisting you to achieve and outcome that is both palatable to you as parent, and in the best interests of your child.
What is the Court’s starting point?
There are many variations on how child arrangements could be handled and agreed, and deciding what should happen to your children is not always straightforward. Given the nature of Family Law there are no hard a fast rules or norms of arrangements and each case will turn on its own facts mindful of the individual needs of the family and the children. The Children Act 1989 is the relevant legislation and the Act states that the child’s welfare is the paramount concern for the Court.
If the parents of a child are unable to decide this issue between them, mediation is a good first option, indeed it is a pre requisite to bringing any application to the Court. In limited circumstances the court will permit an application without a referral to mediation, however you should seek legal advice as to whether this exemption applies to you as there is a risk that the Court will reject your application if incorrectly or falsely claimed. Only when mediation has been attempted, and has been unsuccessful in enabling the parents to achieve any agreement, can you progress to make an application to Court.
Family mediation
A mediator is a neutral third party who can help you and your ex-partner to discuss the issues and priorities for your family and to reach a workable solution about child care arrangements. They will not impose a decision on you or take sides but they will work with you to conclude the optimal solution for all parties.
Mediation has the advantage that it is much quicker and cheaper than going to court and allows both parents to participate in the decision-making, rather than the Court imposing an agreement on the adults. Often it is about the parties compromising rather than one party winning while the other loses, as is often the case in court. If an agreement cannot be reached in mediation, then it will be necessary for the court to become involved and either party can make an application for a Child Arrangements Order.
Disputes in court
Court cases can be hostile and emotional and are not really suitable places for children, so if you do end up taking the matter to court it is a good idea to try and shield your children as much as possible from the stress the court case may cause.
The court will not automatically favour one parent over the other. The law does not specify that a child should live with their mother or father. Instead, the court will consider what is in the child’s best interests and each parent’s circumstances individually. The Court is assisted in the first instance by the preparation of a safeguarding letter prepared by CAFCASS. The purpose of this is to highlight to the court any safeguarding issues which may affect the arrangements for the child and any risk pose to them by the application being considered. This will involve a telephone interview and necessary background checks being undertaken, including police and social services, in respect of the adults involved. Should the initial advise to the court be that there is no safeguarding risk, the Court would seek for the parents to agree the arrangements between them and in the event they cannot the Court will decide what the arrangements will look like for the family.
In the event safeguarding concerns are raised, the court will direct a full investigation to be undertaken to fully explore these. This is known as a Section 7 report and this can be undertaken by either CAFCASS or the Local Authority, if the children are already known to social services. Such a report will look in detail at the parenting capacity of both mother and father. The assessment will look at things such as the wider family and environmental factors like housing and employment. It will also consider whether a parent can meet the child’s development needs. The report will fully explore any safeguards raised which may include partners of the parents or wider family and as such is a far reaching investigation.
The Court may direct evidence to assist with assessing risk, such as police disclosure or drug or alcohol testing. There is costs to such evidence being obtained and these cost are normally paid equally between each party. When raising safeguarding concern, ensure therefore that these are genuine not mere suspicion or worse malicious, as proving an allegation either way, may have significant costs implications.
During the course of such an investigation, the court officer will speak in detail to all relevant adults, speak with other key professionals such as school and of course, speak with the child/ren directly normally in a neutral environment such as school. The conclusion of the report will make substantial recommendations to the Court as to the safe and suitable arrangements for the child/ren to spend time with each parent. Having considered the report, the parties may be able to reach an agreement in line with the recommendations. However if this is not possible, again, the court will be asked to determine the arrangements. It’s important to keep in mind that such determination may be imposed upon the family and a compromise that both parents can live with is usually preferable.
The court will require you and the other parent to come to the hearings, the subject child/ren should never be bought to a hearing without permission of the Court, which is only given in very rare circumstances. It is a good idea to have a lawyer assist you in preparing for your case and to support you in court. Aswell as acting as your advocate in court, a family lawyer can advise on which order to seek, what forms need to be completed and the timeframe for the whole process.
Conclusion
Family situations can sometimes get tricky particularly during a separation or divorce. When emotions are running high, making decisions with an ex sometimes seems impossible. Your children deserve to have sound decisions made about their future. It is important to know how a court would approach the decision. Staffordshire Family Law can explain your rights and options.
If you or someone you know wants more information or needs help or advice, please contact us on 01785 336617 or email family@sflsolicitors.co.uk.