When relationships breakdown one of the most important factors to be taken into account is the welfare of any children. It is hoped that parents can between them reach an agreement about where a child will live once their parents separate, how much contact the absent parent will have with the child, and about the day to day decisions that need to be made regarding a child’s upbringing.

Sometimes it is not always possible and often legal advice has to be sought. The first consideration given would be to decide if mediation would assist. This is where the parties would attend an appointment with a mediator who is an independent person, to discuss the areas of dispute and try and resolve their differences and come to an agreement. If it is not possible then it may be the case that the only alternative is to apply to the courts. It is a requirement for obtaining public funding that mediation is attempted prior to this. If it is not successful then further legal advice will have to be taken to consider making an application to the court.

Before making any application to the court is important to decide what is required and what the respective parent’s positions are in relation to the children.

Parental Responsibility

Parental Responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child have in relation to the child. When both parents have parental responsibility they share it and have to discuss and agree between them major decisions regarding the child’s welfare, and decisions cannot be made without the other persons consent. If consent is not given then an application will have to be made to the courts, for a decision to be made by a Judge.

A mother automatically has parental responsibility for any of her children. If both parents are married and had the child prior to or subsequent to the marriage a father will automatically have parental responsibility for that child. If the parents are not married then the father can be granted parental responsibility by entering into a parental responsibility agreement with the mother or by making an application to the courts. In determining whether to grant parental responsibility to a father the courts will consider the level of contact the absent father has had, the attachment to the child and the commitment shown. Since the Adoption and Children Act 2002, all fathers who have their name on the birth certificate of any children born after 1/12/03 will automatically have parental responsibility.

Without parental responsibility fathers do not have full legal authority in respect of decisions regarding their children, this means that fathers cannot consent to medical treatment. A mother who has sole parental responsibility is entitled to make unilateral decisions regarding the child, including allowing the child’s surname to be changed, or which school the child attends. The father without parental responsibility would also not be entitled to obtain information from the child’s school, or other professionals including the GP without the mother’s consent.

Collaborative Law

Sometimes the parties decide to go through the collaborative route which is a process whereby couples are encouraged to seek shared solutions and to reach agreement.

Imagine a situation in which a client sits down together with their former partner who have both instructed solicitors and commit to sorting it out together. Both clients share their hopes, their aspirations, their expectations even their fears and the four of you work together to create an agreement which you can all concur.

The approach is called Collaborative Law. This is not an easy option and requires the right minds from everyone involved. It may not be cheaper financially and is not an approach suited to every situation.

Alison Wright is a qualified Collaborative Lawyer. Please do not hesitate to contact her to discuss any queries you may have, 01244 312306.

Mediation

Alternatively, the arrangements for your children can be discussed through a mediator. This is a process by which parties attend with a third person who is a mediator who will act neutrally and helps the parties in dispute to resolve it. The parties must negotiate a solution. The mediator will assist but will not give legal advice to either party. Each party is entitled to seek their own legal advice from their own solicitor, while the mediation process continues. There are quite a number of cases for which mediation is inappropriate and you will be advised if your solicitor or mediator feels your case is unsuitable for mediation.

If mediation is successful, the mediator records in writing the terms of the agreement. The parties are advised by the mediator to take their agreement to their own solicitor.

Alison Wright is a Mediator. If you would like to discuss our Mediation Service please do not hesitate to contact us on 01244 312306.

Court Proceedings

If all attempts at mediation and negotiations through solicitors are unsuccessful then it will be necessary to make an application to the courts to decide on the issue in dispute. As stated the courts paramount consideration in making decisions regarding children is their welfare, in determining this the courts will consider the following:-

(i) the wishes and feelings of the child concerned (in light of their age and understanding) The older the child is the more care the court will take to consider the child’s wishes and feelings and the more weight it will give to them.
(ii) their physical, emotional and educational needs
(iii) the likely effect on them of any change in circumstances
(iv) their age, sex, background and any characteristics of them which the court considers relevant
(v) any harm which the child has suffered or at risk of suffering
(vi) how capable each parent is of meeting the child’s needs
(vii) range of powers available to the court

The courts have to ensure that there is no delay in dealing with children matters due to the nature of the proceedings and also they have to consider the no-order principle, namely whether making an order in respect of a child is better than making no order at all.

Domestic Violence

The court will also take into account issues regarding domestic violence within the family.

If there are serious allegations of domestic abuse then the court may need to list the matter for a hearing to decide on a factual basis if domestic abuse has occurred. Whilst domestic abuse may not in itself prevent the court from making an order in favour of a perpetrator it may be relevant in determining what type of order to make and what conditions ought to be attached to an order. It is recognised that domestic abuse is potentially damaging to children and may cause them significant harm.

Types of Orders Available

(i) Parental Responsibility Order
(ii) Contact Order- to determine the level and type of contact the absent parent should have, whether supervised, unsupervised, overnight.
(iii) Residence Order- to determine with whom the child should live
(iv) Specific Issue Order- to determine issues that parents cannot agree on, e.g. the child’s surname, where the child should go to school, where the child should live, if there is a dispute about who the child’s father is a declaration of parentage can be sought, etc.
(v) Prohibited Steps Order- the courts can make an order preventing a person from doing something, e.g. removing a child out of the jurisdiction without the other parents consent.

First Dispute Resolution Appointment

Once either the mother or father has made an application to the court for an issue to be determined the matter will be listed for the first hearing. At this hearing the parties will have an opportunity to discuss matters with a CAFCASS (Children and Family Court Advisory Support Services) Officer. They will discuss the issues of concern with the parties together or separately (if preferred) and see if an agreement can be reached. The District Judge will then call the parties in with their legal advisers and the CAFCASS Officer and see if progress has been made. If not consideration will be given to the need for a CAFCASS Report to be prepared, where the matter will be adjourned for a period of 16 weeks so that a CAFCASS officer can carry out investigations and meet the parties and the relevant children, before being brought back to court for a further hearing. In some cases the CAFCASS may be able to do a little further work with the parties away from the Courts and prepare a short report which would only take approximately 6 weeks, showing the outcome of their investigations. At this point is often the case that parties will be required to file a statement setting out their respective positions and what they are asking the court to do.

Cafcass

Cafcass are independent from all the parties in the case. The Cafcass officer has a duty to investigate and is likely to want to see all the parties to the case and the children. It is important for parties to co operate with the cafcass officer. The cafcass officer’s responsibility is to make recommendations to the court about what is in the children’s best interests. The court will attach significant weight to the recommendation of cafcass in reaching decisions about the children. In some cases where there is particularly complex issues regarding the child/children, it may be appropriate for the child to be separately represented.

If the family has had previous or current involvement with social services then it may be appropriate for such a report to be prepared by social services instead of cafcass.

Subsequent Hearings

After the first hearing depending on the outcome of discussions and involvement of CAFCASS the matter may have to come back to court for further hearings either to review the progress of contact agreed, or for further directions from the court. Ultimately, if an agreement cannot be made between the parties then the matter will be timetabled for a final hearing and a judge will make the decision having heard evidence from the parties and other witnesses and if applicable the CAFCASS officer and any other experts who may have to have been brought in to report on certain issues.

Child Maintenance

If parties cannot agree between them the level of maintenance the absent parent should pay towards the child, then the Child Support Agency is the avenue to use for pursuing maintenance off the absent parent. They are required under the CSA to pay 15% of their net income for one child, 20% for two, and 25% for three or more. The amount can reduce where overnight contact takes place. The CSA will automatically be involved where the parent with care of the child is on benefits. Generally the courts will not get involved in child maintenance issues if the CSA can deal with it. If you agree child maintenance payable this can be recorded in a Court Order in divorce or judicial separation proceedings. An agreed child maintenance provision, in a Court Order approved after 3 March 2003, can be overturned by either parent by an application for a maintenance assessment to the Child Support Agency after a period of 12 months, following which the child maintenance provision will be discharged and replaced by the child support liability calculated in accordance with their formula.

Recently the government has announced plans to disband the CSA but they have not given a date for this or an alternative so for the foreseeable future until the government puts forward further proposals the CSA will be used for Child Maintenance.