A recent ruling by the High Court may have established a precedent that could lead to the courts taking a less generous approach when dealing with spousal maintenance in divorce settlements. The ruling was made in the case of Waggott v Waggott. Mrs....
Children/ Parenting Issues
Arrangements for Children on Separation
Our experience tells us that sometimes the disagreements about what should happen to children when parents separate can greatly impact upon their wellbeing.
We understand how sensitive and difficult it can be managing arrangements for children. Just knowing what to tell your children about the situation and how to say it can be a minefield and is often very worrying for parents.
If you need help managing arrangements for your children, our pragmatic and constructive solicitors can assist you throughout the process. We are committed to achieving an amicable resolution for you wherever possible and we will always take a firm, effective and fair approach.
There can be many reasons why parents cannot reach agreement such as: a dispute as to who children shall live with; the times and dates children will spend time with each parent; specific issues as to a child’s schooling or even disputes relating to international child relocation.
We strive to resolve such issues as early on as possible and encourage parents to try to reach an amicable agreement, we can do this by negotiating with the other parent, either directly or through their solicitor, we offer a family mediation service to help parents talk about issues concerning their children with a view to reaching agreement between them. If an agreement cannot be reached directly we can issue an application to court on your behalf and will guide and support you through the process
Court Proceedings concerning children
The court has an overriding principle of non-intervention when dealing with children. This means that a court will only make an order if it thinks that making an order is better for the child than not making one at all. Within divorce or civil partnership proceedings, the court will not normally make orders in respect of any relevant children. Parents whether married, unmarried or in a civil partnership will need to issue a separate application specifically concerning their children.
Understandably the most important person within the proceedings will be your child. The court usually considers that parents are generally the best people to reach agreements about their children because in the long term, it is the parents who are going to have to make orders made by the court work. Throughout the case there will be an underlying presumption that parties should be able to reach a solution and they will be encouraged to do so.
The main orders a court can make are:-
a) Child Arrangements Order
This is an Order which:
(i) Settles with whom a child is to live; and
(ii) With whom a child is to spend time with.
Where a child arrangements order sets out with whom a child is to live, two other parental rights are affected. Firstly, once such an order is in force, no person can cause the child to be known by a new surname without either the written consent of every other person who has parental responsibility or permission of the court. Secondly, no person may remove the child from the United Kingdom without the written consent of every other person who has parental responsibility or the permission of the Court. However, the person with whom the child is to live may take the child out of the jurisdiction for less than one month without such consent. This provision is meant to cover holidays.
The order can impose conditions which must be complied with by specific persons such as school attendance. In addition, an interim order can be made at any stage in proceedings.
A child arrangements order ends automatically if the parents live together for a continuing period of 6 months.
b) Prohibited Steps Order
This is an order providing that certain steps specified by the court cannot be taken by the parent in meeting parental responsibility. These steps shall not be taken by any person without the consent of the Court. This type of order can be used against anyone, not just a parent, and can be used to prevent abduction, to prevent a change of name, or be used to forbid contact with a child.
c) Specific Issue Order
This is an order giving directions for the purpose of determining a specific question which has arisen, or which may arise in connection with any aspect of parental responsibility for a child. The aim is not to give one parent a general right to make decisions about a particular parental responsibility, but to settle a specific dispute. The most common uses are orders to settle a dispute about schooling or to settle a dispute about medical treatment.
d) Parental Responsibility Order
Parental responsibility is defined as all rights, duties and responsibilities that a parent has in relation to a child. Birth mothers automatically have parental responsibility for a child from the moment of birth, as do fathers, where the parents are married. Whether unmarried fathers have parental responsibility will depend upon the child’s date of birth and whether he is named on the child’s birth certificate.
Where a child's birth is registered on or after 1st December 2003 by both parents together and the father's name is on the birth certificate, then the father will automatically gain parental responsibility. If the birth was registered prior to 1st December 2003 or where it was registered after that date but by the mother alone, then the father will not have automatic parental responsibility.
Fathers without parental responsibility can obtain it entering into a formal agreement with the mother or by an order through the courts. It is now also possible for to have parental responsibility please see our dedicated step-parent’s rights page for more details. We can assist you by drafting a formal agreement with the child's mother and father (if he has parental responsibility) or alternatively by making an application to court on your behalf
What helps the Court reach its decision when dealing with children's matters?
When the Court is asked to consider a matter affecting a child, the child’s welfare is of paramount consideration and the Court will have regard to the following:-
- The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding);
- The child’s physical, emotional and educational needs;
- The likely effect on the child of any change in his/her circumstances;
- The child’s age, sex, background and any characteristics which the Court considers relevant.
- Any harm which the child has suffered, or is at risk of suffering;
- How capable are each of its parents and any other parent in question to whom the Court considers the question to be relevant, is of meeting his/her needs;
- The range of powers available to the Court.
What Actually Happens At Court?
If you are the Applicant then we will complete the relevant application forms with you. The form must set out information such as who the Applicant is, who the child is, who the parents are, the Orders being applied for and importantly the reason the application has become necessary.
Issuing the Application
Once we have finalised the forms and you have approved the forms these are sent to the Court with the appropriate Court fee. The Court will issue the papers; return them with a Notice of First Appointment for us to serve on the other party known as the Respondent. We will then send the papers out to the Respondent and complete a Statement of Service, which is filed at Court as evidence that this has been done. The hearing is usually fixed for between 6-8 weeks from the date of your application unless we have had to make an emergency application.
Where necessary we will instruct a barrister to represent you at the Court hearing and ensure that the barrister instructed is also a specialist in the area of children’s law.
First Directions Appointment
At the first appointment you and the Respondent will be invited to meet together with a CAFASS officer (Court & Family Assistance & Support Service) to see if there is any way matters can be resolved between you both or to narrow down the areas of dispute. Any agreement reached is usually recorded and they will prepare a short report for the District Judge.
Following the meeting with the CAFCASS officer there will be a short appointment before a District Judge. They will set out a timetable as to how maters will progress.
If an agreement has been reached it is often necessary to have these reviewed after 3 or 4 months to see how things are working and in which case the Judge will simply fix a review date. This reviewing of progress can be repeated until either you are both able to deal with issue between yourselves or if matters are not progressing as everyone had expected the Court set down a date for a final hearing.
Also, if it has not been possible to reach an agreement then the Judge will timetable the gathering of further evidence including the filing of written statements, and the filing of a CAFCASS report. They will also fix a review hearing once all this evidence has been gathered to see what additional work needs to be done before the actual final hearing.
We will assist you with the drafting, the gathering up of all the relevant evidence and all the preparation that is required. This is your opportunity to set out either why you are applying for the orders or why you are opposing them. The documents are then filed at Court and served on the other party in accordance with the timetable set by the Court.
The CAFCASS officer is in effect the “eyes & ears of the Court”. They will meet you, the children, and the other party; make enquiries of the schools, Social Services or any other body they feel is relevant. They can require you to attend their office or they may want to see you at home. They may want to do both. They may want to see the children with both parents and on their own. Their role is to provide the Court with an independent overview and make recommendations about the orders the Court can make and why. Their report is very important to the judge making the final Orders.
Final Directions Hearing
Once all the evidence has been gathered and both parties have had the opportunity of considering the matter the Court will list a pre-hearing review to check that everything is in place, that in the light of any report filed further information is not required and check the time estimate for a final hearing. If, at this stage Orders have been agreed the Judge can make final Order by consent.
At the final hearing each party will give oral evidence to the Court. Each of you will be asked questions by their legal representative, by the other party’s legal representative and possibly even by the Judge. The CAFCASS officer who prepared the report may also been asked to attend and be questioned by both sides. After hearing all the evidence the Judge will then decide and make the Orders they feel are necessary and explain how they came to that decision.
It is difficult to give clear indications as to how long matters will take as you will appreciate there are a number of variables. From issuing the Application to the First Appointment is usually around 6 - 8 weeks or so.
A CAFCASS report if ordered usually takes between 16 – 20 weeks to be available as it depends upon their timetable. Usually a pre-hearing review is listed 2 weeks after the CAFCASS report has been ordered to be filed.
The time before a final hearing will depend on anticipated length the final hearing will be and the Court and Judge availability.
Why we are different
We will expertly guide and advise you at each stage of the process, whether you are applying for an order or responding to an application. We recognise that the arrangements for your children are of paramount importance to you. You can be certain that we will listen to your concerns and act appropriately to ensure a satisfactory outcome for you and your family.
Your Next Step
For more information, call us today on 0208 882 9850