Children and Divorce: FAQs When Making Childcare Arrangements

Do we need to involve the court in reaching an agreement about what happens to our children?

In reaching an agreement over the arrangements for your children you don’t necessarily need to involve the court. The court has a no order principle as it’s believed that an agreement reached between the parties is more likely to be successful. The court used to review the arrangements for children as part of the divorce process but this changed on the 22nd of April 2014.

What happens if you cannot reach an agreement?

If an agreement cannot be reached over any issues relating to the care or welfare of a child, a court application can be made. That said, the parties should always consider the various options available to them to help them reach an agreement. And in the majority of cases, we’ll need to consider mediation before making an application.

What is a Child Arrangement Order?

Since the 22nd of April 2014, the court is no longer creating Residence and Contact Orders but Child Arrangements Orders, setting out with whom the child is to live, spend time or otherwise have contact and when the child is to live, spend time or otherwise have contact with any person. It’s hoped that this will help parents focus on the practical issues of day to day care of the child. Where issues arise over schooling, moving household areas, medication, holidays or otherwise, a court application can be made to address specific issues.

What is parental responsibility and do you need it?

Parental responsibility was created to shift away from the notion of parents having rights over their children. It’s 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. It gives the parent responsibility for making decisions for and in relation to the child. Mothers have parental responsibility automatically. Fathers will have parental responsibility automatically if they are married to the mother at the time of the child’s birth, or they married following the birth. They can also obtain parental responsibility by being

• registered on the child’s birth certificate,
• entering into a parental responsibility agreement,
• applying to the court for a parental responsibility order,
• being appointed as a guardian to the child or
• obtaining a child arrangements order from the court.

If you don’t have parental responsibility, you may require the court’s permission to bring an application. However, that’s not always the case, for example, if the child has lived with you for three or more years, you wouldn’t require the court’s permission to bring an application for child arrangements order.

How will the court deal with an application order?

Once the children act application has been filed, the court will list a First Hearing Dispute Resolution appointment. At that hearing the court will encourage you to discuss your differences and try to reach an agreement. Sometimes there will also be a Mediator Court to assist. Where agreement isn’t possible, the court will provide directions to a further hearing. The number of hearings required will vary in each individual case and sadly the most contested cases often return to court on a regular basis throughout the child’s infancy. CAFCASS, the Children and Family Court Advisory and Support Service will carry out their safety checks in advance of the first hearing and if necessary the court can order further reports on a child’s welfare and best interest to be prepared. Where appropriate, parents may also wish to consider obtaining independent evidence such as a child psychologist report.

In considering any application before it, the Court’s paramount consideration will be the child’s welfare. And the legislation directs the Court to consider:

• the child’s wishes and feelings, giving consideration to their age and understanding,
• the child’s physical, emotional and educational needs,
• the possible effects of any changes on the child,
• the relevant characteristics of the child such as their age, any harm that has been or may be suffered by the child, the capabilities of those meeting the child’s needs, and finally
• the options and powers that are available to the court.

If you would like to discuss any aspect of family law, are considering divorce proceedings or a trial separation, or want to draw up a pre or post-nuptial agreement, speak to one of family law and divorce lawyers in absolute confidence on 01494 790058 or 01494 790047. Alternatively, email us at familylaw@ibblaw.co.uk.