When it comes to family law, few topics are as sensitive and complex as those involving children. Whether you’re navigating parenting arrangements, understanding your legal responsibilities, or simply trying to put your child’s best interests first, the process can feel overwhelming. In part one of this Back to Basics guide, I'll be breaking down the essentials of children matters in family law.
What is Parental Responsibility?
Parental responsibility refers to the legal rights and duties that a parent has over their child. Mothers obtain parental responsibility automatically at birth. Fathers obtain parental responsibility if they are married to the mother at the time of birth, or if they are named on the birth certificate.
When a parent has parental responsibility, they have the right to make decisions regarding the child’s welfare, education, health. This means that even post separation, it is important that both parents are involved in such decisions surrounding the children.
What is a 'Child Arrangement Order'?
Child Arrangement Orders are governed by Section 8 of the Children Act 1989. There are various orders that can be made under this legislation.
- Child Arrangements Order
An Order to determine where a child lives and how they spend time with the other parent.
- Prohibited Steps Order
An Order which prevents a person from taking a specific step related to a child's upbringing, such as changing their school or surname, or taking them out of the country.
- Specific Issue Order
An Order that resolves a dispute between parents or carers about a specific aspect of a child's upbringing such as education or medical matters.
Does there have to be a court order in place regarding the children following separation?
No, there is no legal requirement to have a court order in place to set out the child arrangements of separated families, in the event that parents are able to agree between them how the children’s time with each parent will look following separation.
However, it is advised that you consider implementing the agreement by means of a Child Arrangements Consent Order. The agreement between the parents will be recorded in a Court sealed Order and offers protection to each parent regarding the arrangements decided between them, in the event that one parent does not stick to such arrangements. The consent order can always be prefaced with a paragraph stating “and any other arrangements agreed between the parents” so as to ensure the possibility of flexibility remains.
What if my ex partner and I cannot agree to arrangements for the children?
Separated couples are always encouraged to try and agree child arrangements between them and through the use of non-court dispute resolution initially.
Non-Court Dispute Resolution methods include:
- Mediation
An independent third party, known as a mediator, facilitates negotiation between parties. Shuttle mediation is available where required or requested whereby the mediator moves between parties in separate rooms.
- Arbitration
A qualified arbitrator acts as a Judge to make a legally binding agreement having reviewed documents and evidence presented to them. Parties can be represented at the arbitration should they wish.
- Solicitor negotiations
Solicitors can assist in negotiating either directly with the other party, or preferably with the other party’s legal representation, in attempts to settle disputes surrounding child arrangements. This can help avoid direct contact and meetings with the other party.
However, we know this is not always possible and so the option remains open to file a Child Arrangements Order application to the Court closest where the child/children live. This will mean the parents enter contested Child Arrangements Proceedings.
Who are CAFCASS?
Cafcass (the Children and Family Court Advisory and Support Service) are a body that aims to represent children and their voices and feelings in Court proceedings and advise the Court as to what is in the best interest of the children. If appropriate, they speak to the children directly to ascertain their wishes and feelings during proceedings.
What happens in contested children proceedings?
To make an application for a Child Arrangements Order, the party making the application must obtain a MIAM (Mediation Information & Assessment Meeting) certificate to accompany the application.
One party will make an application to the Court for Child Arrangement Proceedings via a Form C100. This party is known as the Applicant. The other party is known as the Respondent. The application must be brought in the Court closest to where the children live. The application will be issued and listed for an initial hearing and the matter will progress as below. Parties can agree matters between them and file a consent order to legalise the agreement at any stage during the proceedings.
- First Hearing Dispute Resolution Hearing (FHDRA)
The first hearing in proceedings which is used to set out directions of the case. Prior to this hearing, Cafcass will contact both parties in order to produce a safeguarding letter for the Court to review prior to the hearing to assist the Court in determining interim arrangements for the children if this is disputed between the parties. The Court will likely direct Cafcass to produce a Section 7 Report to afford the Court a deeper dive into the matter, and the wishes and feelings of the children. Directions for a finding of fact hearing may be made in cases where there are allegations of harm and domestic abuse.
- Dispute Resolution Appointment
This hearing takes place following receipt of the Cafcass Section 7 report and the recommendations made by Cafcass, and the aim of the hearing is for the Court to review the matter in light of the available information, provide an indication as to what may be ordered at a Final Hearing and for parties to negotiate and agree arrangements to avoid the listing of a Final Hearing.
- Final Hearing
The final hearing which is reserved for when parties cannot agree matters between themselves. At this hearing, the parties give evidence and are cross examined, with the Judge making the final decision as to how the Child Arrangements look. The parties have at this stage, lost control and the matter is down to the Judge. We are keen to avoid this as much as possible.
Can a child live with both parents?
Yes, a child/ren can live with both parents. Under a Court Order, this is called a “shared care arrangement” whereby the child/ren spend equal amounts of time with each parent.
In the event that a child/ren spends more time with one parent than the other, within a Court Order, the parent they spend most nights with tends to have a “live with order” and becomes the primary caregiver, with the other parent having a “spend time with order” to determine how the child spends time with this parent.
Thanks for reading this instalment of our Back to Basics series. Be sure to check back for Part 2, where we’ll tackle some of the most common questions parents face, including: Can I prevent my ex-partner from taking the children abroad? Do grandparents have the right to spend time with the children? What should I do if I’m worried about parental alienation? - and much more.