Children and Family Law

Arrangements for Children

In any separation it can be the children who are most affected. Barnes Clark Family Law recognises this and will work sympathetically with both parents to avoid any unnecessary upset for the children involved. Arrangements for Children after Divorce or Separation.

Following separation, one of the main things you will be concerned about are the arrangements for your children, such as who they will live and when they are to spend time with their other parent.

Upon separation, it is preferable for parents to try and agree child arrangements between yourselves, as this can assist in developing an effective co-parenting relationship – which is essential.

If as parents you are struggling to agree matters direct then the following options are available:-

  1. Family Mediation. The process of family mediation involves you sitting with a specially trained and accredited family mediator whose role is to help you to try to come to an agreement on key issues regarding arrangements for your children. Family Mediation is a future focused and child centred approach to help you resolve outstanding issues. It is also a very cost effective option. For more information as to how we can assist as family mediators click here.
  1. Negotiations through solicitors. We can assist you in trying to agree child arrangements with your ex-partner and will ensure that matters are handled with care needed and the avoidance of any conflict, where necessary to keep your relationship amicable for the benefit of your children.
  1. Court proceedings. This is the process of last resort. However there are occasions where urgent issues arise and a Court application is necessary. An example of this is when there are Safeguarding Concerns. If you issue Court proceedings then the Court follows the procedure known as the Child Arrangements Programme. If you unable to resolve matters with the assistance of specially trained CAFCASS officers, mediators and/or negotiations then ultimately, the Judge may determine the arrangements for your children. The arrangements will then be set out in a Child Arrangements Order. Such an order is legally binding and there are legal consequences if the terms of the Order are not complied with.

It must be noted that mediation is a pre requisite to making an application to the Court and issuing proceedings is seen as a last resort.  There are various exceptions to having to attend mediation, for example if there has been domestic abuse, if there are welfare concerns in respect of a child and delay would cause prejudice, urgency, and where mediation is seen as being inappropriate by a mediator.  This is not an exhaustive list.

Where matters are agreed without the need to enter into Court proceedings, agreements will not necessarily be made into a formal document – given that as children grow and develop needs and arrangements for their care may change and it is always preferable to resolve matters by agreement. You may wish however to enter into a Parenting Plan. Further information and a copies of blank parenting plans can be found at https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-plan/.

What is fundamentally important is that children are kept out of any conflict. All discussions must be child focused and any arrangements are to be in their best interest – not focused upon the best interest of either parent or other adults.

Children Act 1989

This is the main piece of legislation which helps the Court reach a decision. It comes that the welfare of the child(ren) is paramount when deciding upon child arrangements/ making any other order. The act also sets out what is called ‘welfare checklist’ which is considered by the Court too.  The welfare checklist and the welfare of the children well always be taken into consideration during negotiations and mediation as well.

Broadly speaking, the Orders available to the Court can be split into 4 categories.

  • Living With (formally known as Residence) – determining where a child should live;
  • Spending Time With (formally known as Contact) – when the non- resident parent sees the child;
  • Specific Issue Order – an Order dealing with a specific issue, eg  parental responsibility or choice of school;
  • Prohibited Steps Order – an order prohibiting a party from doing something, eg removing a child from the jurisdiction.

CAFCASS

Where Court proceedings are initiated, an independent Children and Family Court Advisor (CAFCASS) will become involved to carry out safeguarding checks and make initial recommendations to the Court about what steps should be taken. They may be asked to help you resolve the dispute or to help the Court decide. If Social Services have been involved in your dispute then they may be asked to prepare this report instead of CAFCASS.

If no agreement can be reached, even with the assistance of CAFCASS, then the Court may have to list the matter for a “final hearing”. This is where both parties give evidence outlining their position and the Court makes a decision as to what will happen. This is not ideal as the Court does not know your children and has only the CAFCASS officer and the evidence to rely on. Although final hearings are sometimes unavoidable, it is much better for all concerned if an agreement can be reached before this stage.

Separated Parents Information Programme

Save for urgent applications most parents within Court proceedings are directed by the Court to attend a Separated Parents Information Programme  - known as a SPIP. Parents attend separately. The courses are group courses which last half a day and gives parents the opportunity of speaking to other parents going through similar issues and the emphasis of the programme is to focus parents on the rights and needs of children and children can be severely impacted by parental conflict.

What is a "No Order" Principle

The Court works on what is known as the “no order” principle. In other words the Court will not make an Order unless they feel it is absolutely necessary.

Domestic Abuse & Children

In cases where there are allegations of domestic abuse then the Court should be informed at the earliest opportunity of any incidents to be considered. Domestic abuse is not an automatic bar to contact with children but is a factor to be considered seriously by the Court when making a decision.

There is a specific procedure to be followed in cases where there are serious allegations of Domestic Violence or concerns regarding Child Protection. The Court may direct a Fact Finding Hearing that takes place prior to any substantive decisions regarding the care of children. It is imperative that you seek specialist legal advice.

Change of Surname

It is the view of the Court that a child should retain the name it has on its birth certificate unless there are exceptional circumstances. Unless the non-resident parent therefore agrees to a name change in writing it is unlikely that a Court will consider such an application. Case law on this issue is clear that this applies to parents whether they have parental responsibility or not.

Child Abduction

If you have a serious fear your child may be abducted then you should tell us as soon as possible. There are a number of preventative measures available such as obtaining child arrangements orders, only allowing supervised contact and prohibited steps orders (to prevent that step being taken). You should think about where your child’s passport is, what links the other party may have to other countries, or perhaps they may a history of not complying with orders.

Again, if you believe your child has been abducted you should inform the police and ourselves immediately. There are options available to us such as port alert systems, remedies under the Hague Convention amongst others which can assist in having your child safely returned.

Websites and contacts providing assistance on this issue:


What is Parental Responsibility?

Parental Responsibility is not about ‘rights’ but about ‘responsibility’ for a child. Whilst any party with Parental Responsibility should be involved in decision making, it does not automatically mean that day to day decisions of the parent with care of the child should be interfered with.

All parties with Parental Responsibility should be involved in important life decisions, such as education, religion, medical treatment and in respect of the child’s name – i.e. one parent cannot just change the child’s name without the consent of the other parent, in they have Parental Responsibility.

Who Has Parental Responsibility?

Mothers automatically have Parental Responsibility for their child. This is not the case in relation to Fathers. Fathers automatically acquire Parental Responsibility upon marriage to the Mother.

If a child was born prior to 1st December 2003 and the parents are not married, the Father does not have Parental Responsibility. If born after that date, the Father can acquire Parental Responsibility, but only if they are listed as the child’s father on the birth certificate.

How Do I Get Parental Responsibility?

Parental Responsibility can be acquired as follows:

  1. By the Father being registered on the birth certificate.
  2. By agreement with the Mother. A form will then need to be completed as necessary and then sent to the Principal Registry of the Family Division in London.
  3. By an application to Court. Usually the Father will make an application to court for a Child Arrangements Order and this will include that he has obtained PR.

How Long Does Parental Responsibility Last?

Generally speaking, once Parental Responsibility is acquired, it cannot be taken away. However, it does lapse when the child reaches the age of 18.

For further information, or to arrange an appointment please contact us 01274 861 096 (Liversedge) or 01423 637 272 (Harrogate) or email enquiries@barnesclarkfamily.law. Please note that we offer a free half an hour consultation.

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