Our family team is experienced in advising on the children issues that arise in the event of divorce, separation, or the dissolution of a civil partnership. We will work with you to find the best solution to any dispute.
Below we outline some of the most common issues that arise and the methods used to resolve them.
Child Arrangement Orders
Child Arrangement Orders are an umbrella term which covers what used to be called ‘child custody’ (a phrase no longer used in legal circles). In circumstances where a non-resident parent is not having the desired level of contact with their child/children, or there is a dispute as to whom the child should live with, an application for a Child Arrangement Order is the appropriate step to take.
Specific issue orders
Disagreements can arise on other matters, such as educational or medical issues, the name by which a child is known, whether the child will be brought up in a particular religion, etc. In these circumstances, an application for a specific issue order is the way forward.
Prohibited steps orders
Where a separated parent has a vigorous objection to a course of action that the other parent proposes in respect of a child (eg, relocating to a different town or part of the country), then an application for a prohibited steps order is the appropriate move.
A parent who wishes to relocate with their child to a different country must apply for leave to remove the child if the other parent opposes this.
How do Courts decide?
The overriding concern of the Court in any application for orders under the Children Act 1989 is the child’s welfare. The Family Court determines this question by considering and applying a range of factors known as the “welfare checklist” to reach a balanced conclusion:
- a) The ascertainable wishes and feelings of the child concerned, considered in light of his/her age and understanding
- b) The child’s physical, emotional and educational needs.
- c) The likely effect on the child of any change in his or her circumstances.
- d) The child’s age, sex, background and any characteristics that he or she has which the Court considers relevant.
- e) Any harm which the child has suffered or is at risk of suffering. This includes emotional, as well as physical, harm.
- f) How capable each of the child’s parents, and any other person in relation to whom the Court considers the question to be relevant, is of meeting the child’s needs.
- g) The range of powers available to the Court.
Before proceedings are issued
Before an application concerning a child can be commenced in the Family Court, the Court will wish to be satisfied that agreement cannot be reached through mediation: consequently, attendance at a Mediation Information Assessment Meeting (MIAM) is required, save for certain circumstances where the parties are exempt. The most common exemption will be where there are allegations of domestic violence or harassment.
The Court process
Once an application to the Family Court has commenced, the Court will aim to list the matter for the First Hearing Dispute Resolution Appointment (FHDRA) 4-5 weeks after receipt of the application. The Court and a CAFCASS officer (who will be present at the Family Court) will consider with the parties involved whether agreement is possible. (CAFCASS is the Children and Family Court Advisory and Support Service, a body set up to promote the welfare of children and families involved in Family Court.)
If agreement is possible, then such an agreement would be embodied in a Court Order, probably made by consent.
In the alternative where there is disagreement and additional concerns about the child, the Court will specify steps for the future conduct of the matter. This may involve directing the CAFCASS officer to report to the Court on specific issues; for example, the child’s ascertainable wishes.
The Court manages each case according to its individual characteristics: for example, if a non-resident parent is having interim contact with their child/children, there may be a review hearing to assess whether this is progressing. Hearings must have a purpose, be consistent with a timetable for the child and must serve the child’s interests.
There are other interim hearings which may take place before a final hearing if the facts of a case suggest that this is necessary; for example, fact finding hearings or a Dispute Resolution Appointment if a report on the child has been necessarily prepared.
Our family team treat each case individually, meaning that there is careful consideration of the most appropriate way of resolving any dispute. If a Child Arrangement Order clearly is the way to resolve your dispute, we pursue this solution with sensitivity and vigour and either represent clients ourselves in the Family Court or arrange appropriate representation.