How can I see my child without going to court?
For most people the last year has been challenging. Sadly, the pandemic has caused a rise in divorce and separation[1]. Relationship breakdowns are tough, and they are especially complicated when child arrangements are involved.
Lockdowns have meant that couples have spent more time together which has strained many relationships. Break-ups always tend to peak when families spend longer together such as over Christmas and during school holidays. Financial worries are also causing stress as people find themselves worrying about job security and enduring pay cuts, furlough or unemployment.
For children, life in lockdown has been unsettling at best. They have been unable to see their friends, schools have closed, and their regular clubs have stopped and started at intervals. Those who have also witnessed their parents’ unhappiness have had an especially difficult year.
Children’s welfare is always paramount. When parents are separating it is best if they put their children’s interests first by agreeing arrangements for children as amicably and efficiently as they can. Going to court should always be a last resort.
Agreeing child arrangements amicably
Those with parental responsibility have a shared legal duty to make every effort to agree how to bring their children up and to decide arrangements for children together.
If you are separating from your partner, it is best if you can both sit down and agree:
- How much time the children will spend with each of you
- Where the children will live
- Whether they will stay in the same school
- How they will travel to and from school
- How you will care for the children during school holidays
- Whether or not you can both take them away on holiday
All birth mothers have parental responsibility and so do fathers who were married to their child’s mother when the child was born. Unmarried fathers hold parental responsibility if they are named on their child’s birth certificate.
If you are a father who does not hold parental responsibility and you cannot agree child contact with the mother, speak to one of our experienced family solicitors.
Legally binding agreements
If you and your ex-partner agree child arrangements, then you do not need any official paperwork. Instead, you can record what you have agreed in a Parenting Plan which is available from Cafcass.[2]
For peace of mind, you may choose to make your agreement legally binding – a family solicitor will be able to draw up the paperwork for you. This legally binding agreement is called a ‘Consent Order’.
The Consent Order will include all the arrangements for your children including where they live, when they will spend time with each of you and what other types of contact will take place (video calls etc).
Once you and your ex-partner have signed the Consent Order your family solicitor will get it approved by the court. If the judge believes the arrangements you have agreed are in your children’s best interests, they will approve the Consent Order without a court hearing.
No-fault divorce
In Autumn 2021 the Divorce, Dissolution and Separation Act, which received Royal assent on 25th June 2020, is expected to come into force. This means that couples who divorce will not feel they have to cite ‘unreasonable behaviour’ or separate for two years before they can divorce.
The ‘no fault divorce’ system will benefit children because it will mean their parents are more likely to have separated amicable terms. Currently, the act of having to list each other’s faults can mean stirring up avoidable resentment and turning minor annoyances into bigger issues.
For the time being, it is still a case of ‘waiting’ or ‘blaming’ before you can divorce. However, an experienced family solicitor can advise you how to mimimise ill-feeling and bitterness in the best interests of the whole family. You could, for example, agree what you will write on the divorce application and cite less inflammatory examples of unreasonable behaviour.
If you cannot agree child arrangements
Mediation
Your family solicitor can arrange mediation for you. Family law mediators are qualified professionals who are approachable, unbiassed and separate from the court service. It is their role to facilitate communication between you and your ex-partner to help you to agree child arrangements.
If you cannot agree and you later decide to go to court, you will need to prove that you have both attended a Mediation Information & Assessment Meeting (MIAM). There are exceptions to this including domestic violence – a full list of exceptions can be found on the Family Mediation Council’s website.[3]
The MIAM is the first mediation session in which you find out what mediation is and how it can help your family. Your family law mediator can manage MIAMS paperwork for you.
Here are the benefits of mediation:
- You and your ex-partner agree child arrangements rather than having a judge make the decisions for you.
- Mediation is quicker, cheaper and less stressful than resolving disputes in court.
- It is easier for you and your ex-partner to review and change arrangements if you need to do so. When child arrangements are made by a judge you have to reapply to court to make changes.
- Mediation can help you and your ex-partner to communicate more easily which will make it easier for you to make decisions together in future.
During the coronavirus pandemic, mediation sessions are still expected to take place face-to-face which can include video calling. Where video calls are not possible telephone conversations are permitted.[4]
Legal Aid is available for mediation services.
Separated Parents Information Programme (SPIP)
Currently running online, the Separated Parents Information Programme (SPIP)[5] is a four-hour course delivered on behalf of the Children and Family Court Advisory and Support Service (Cafcass). It helps separated parents to understand what their children need most from them, and to learn practical ways to manage conflict.
Any parents can choose to take part. Sometimes a court will order parents to attend the programme. It is important that both parents attend SPIP. Separated couples do not attend the same course.
The course helps parents when:
- Ongoing conflict means there are problems focusing on children’s needs.
- There are difficulties communicating with children as a result of the emotional impact of the separation.
- Communication between parents is strained.
If the court directs you to attend SPIP then it is free of charge. If you choose to take part in the programme, then you may have to pay. You can attend SPIP before mediation or at the same time.
Child Arrangements Order
If you are unable to agree child arrangements with your ex-partner then you will need to apply to the court for a Child Arrangements Order (which is a type of Court Order). It is important to fill in the paperwork correctly to avoid unnecessary delays. A family solicitor can apply for a Court Order on your behalf and complete the necessary paperwork.
Amongst other practical arrangements, the Child Arrangements Order will detail child contact: where your children will live, when your children will spend time with each of you, and when and what other types of contact will take place (eg. video calls).
Every child has a legal right to contact with both parents. The Child Arrangements Order regulates child contact, taking into account practicalities such as the geographical distance between both parents and each child’s age.
Once the court receives your application for a Child Arrangements Order it will set a date for a First Hearing Dispute Resolution Appointment (FHDRA). Before you attend the FHDRA you will be contacted by an officer from Children and Family Court Advisory and Support Service (Cafcass). It is their job to find out as much information as possible about your children’s wellbeing so they can brief the judge before the court hearing.
The officer will carry out criminal record and social service checks on you and your ex-partner. Sometimes they contact other family members, teachers and health workers for information.
The judge’s decision on child arrangements will be largely based on the Cafcass report.[6]
How court hearings work during the pandemic
During the pandemic court hearings can happen in person, over the phone, by video phone, or a mixture of these. If you go to court in person you will have to wear a face mask unless you are exempt for reasons listed on the government’s online guidance, What to expect coming to a court or tribunal.[5]
If you are going to appear in court in person or virtually, the government’s guidance explains how you need to prepare, what to expect, and how the courts are working to keep everybody safe.
Legal experts in arrangements for children
QualitySolicitors has extensive experience in family law. Our legal experts share parents’ priority to agree arrangements that put their children’s welfare first.
Making child arrangements following separation or divorce can be complex and emotionally fraught, and we understand that emotions are just as important as practical issues.
Our mediation service helps parents to avoid court by deciding fair and practical child arrangements themselves. All our mediators are accredited by the Family Mediation Council and they are experienced and approachable. We also provide peace of mind for parents by drawing up legally binding agreements for child arrangements.
Talk to our family solicitors today for an initial, free, over-the-phone advice so you can start planning a happier future for your family.
[1] Cafcass, Parenting Plan, https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/parenting-plan/
[2] Family Mediation Council, MIAMs Exemptions, https://www.familymediationcouncil.org.uk/family-mediation/assessment-meeting-miam/miams-exemptions/
[3] Family Mediation Council, FMSB Guidance on Information and Assessment Meetings During Coronavirus Social Distancing Period, https://www.familymediationcouncil.org.uk/wp-content/uploads/2020/03/FMSB-Guidance-on-Information-and-Assessment-Meetings-During-Coronavirus-Social-Distancing-Period-19.03.20.pdf
[4] CAFCASS, Separated Parents Information Programme (SPIP), https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/separated-parents-information-programme/
[5] Gov.uk, Going to court, https://helpwithchildarrangements.service.justice.gov.uk/going-to-court#c_video_player
[6] Gov UK, What to expect coming to a court or tribunal, https://www.gov.uk/guidance/what-to-expect-coming-to-a-court-or-tribunal#wear-a-face-covering