What will happen if we can’t agree? The court process
In the event that all avenues such as Collaborative Law and Mediation have been exhausted and parties are unable to agree on the arrangements surrounding children, the most usual course of action will be a court application.
The court application should be issued in the local court where the child(ren) reside and will be allocated to the appropriate level of court. Cases will usually be heard in the first instance by a legal advisor or lay justices, unless there is an element of complexity which will see it heard before a District Judge. The paramount consideration of the Court when dealing with any application relating to children will be the welfare of the children. This means that whenever making a decision, the court must first consider whether that decision would be within the best interests of the children.
The Children and Family Court Advisory and Support Service (CAFCASS) is a public body for England and the Welsh equivalent is CAFCASS Cymru. This has been set up to safeguard and promote the welfare of children. CAFCASS are initially involved in all Children Act applications carrying out safeguarding enquiries and drafting a report to contain their findings. This is known as the ‘Safeguarding Report’. This report will highlight any identified issues of risk or harm. This report is provided to the court and may be provided to the parties prior to the first hearing. This report will include any Level 1 Police National Computer entries and any involvement of the child and/or the parties with the Local Authority.
At the First Hearing Dispute Resolution Appointment (FHDRA) the parties will engage in a conciliation meeting if appropriate, prior to the hearing which is in effect a Mediation session with the CAFCASS officer. This sometimes does not go ahead when there are risk related issues (such as allegations of domestic violence). The reason for the meeting is to identify and hopefully narrow the issues that exist and provide the parties with an opportunity to agree without the matter proceeding any further.
If the matter does proceed further the court will consider what directions (i.e. timetable for filing and serving evidence) should be made to progress the matter. The court must also at this stage determine whether there are any ‘welfare issues’ i.e. any suggestions that the court’s decision could affect the welfare of the children. If so, the court may order the involvement of a CAFCASS officer to prepare a Child Impact Analysis Report. If there has been any Social Services involvement, they can prepare the report instead of a CAFCASS officer. The report will include observations and investigations following meetings with the parties and children together with a recommendation on how the issue should be resolved.
If the parties are still unable to reach an agreement after the CAFCASS officer has been involved and prepared their Child Impact Analysis report, a Final Hearing will be listed. The parties then have the opportunity to file and serve their statements of evidence, and verbal evidence will be given at the Final hearing. Once the evidence has been heard, the court will then give judgement and may depart from the advice of the CAFCASS officer. The court will always try and deal with matters swiftly however it must be accepted that the court process can take months to resolve unless an agreement is reached.
What if there is a dispute over how to bring up children?
It can sometimes be difficult for parents who are together to agree on how children should be brought up. Parents who are separated can find it even more difficult to agree on a whole range of issues such as:
- Schooling
- Religion
- Where the children should live
- Whether the children should live abroad
- Medical Treatment
- Change of Name
Sometimes these disputes require urgent action particularly if the child’s welfare is at risk unless immediate action is not taken.
A ‘Specific Issue’ application is an application for the court to determine a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
A ‘Prohibited Steps Order’ is a court order preventing either parent from carrying out certain acts (such as changing the child’s surname) or making specific trips with their children without the express permission of the other parent.
It is always better for parents to find consensus on how children are to be brought up which can either be reached through lawyers, in mediation, during the collaborative Law process or independently of anyone else. However, if this is not possible or if there is an emergency situation requiring immediate action, a Court application will be necessary. When dealing with any such applications the Court will always first consider the welfare of the children.
Who should the children live with and how much contact should each parent have?
It is sometimes difficult to agree following separation as to how and where the children should live and how much time each parent should spend with their children. There are only 7 days in a week and when parents separate, both go from spending every day with their children to seeing them less which is probably the most difficult aspect of separation.
It is always better for both parents to agree without the need for the Court’s intervention, but where all avenues such as mediation or collaborative Law have been exhausted, determining the issue of how much time each parent should have with a child is matter for the Court. Under Section 8 of the Children Act 1989 the Court has the power to make a ‘Child Arrangements Order’. This is a new single order introduced in April 2014 replacing what were previously known as a ‘contact order’ and ‘residence order’. A Child Arrangements Order can determine who and when a child is to live, spend time or otherwise have contact with a parent.
The most important consideration of the Court is the welfare of the Children and this is considered above all else.
Traditionally, courts have tended to favour children living with the mother as it was usually the case that the mothers assumed the role of the ‘primary carer’ and fathers were seen as the ‘breadwinners’. In modern society the roles of parents are not so clearly defined and consequently the courts have had to change to accommodate the changing landscape.
The courts now tend to look at the current ‘status quo’ when they are asked as to where the children should live. The courts loathe disrupting the children any more than has already been done by the separation itself and if there is evidence that the children are settled, the courts are anxious to ensure that this is not disrupted. How much contact the ‘non-resident’ parent should have entirely depends upon the circumstances and there is no ‘one size fits all’ answer.
The courts have traditionally favoured an approach where one parent is the primary carer and the other is the ‘non-resident’ parent who will inevitable spend less time with the children. There has been a shift in this approach in recent years where there is no longer such a presumption and the courts are more willing for children to spend roughly equal time with each parent. The Court can make an order for ‘shared care’ of the children, even where the division of time between the two is not exactly down the middle. In any decision of the court it must be stressed that it is always the welfare of the child that will be of paramount consideration and not the wishes and feelings of the parents.
What is parental responsibility?
Parental Responsibility (or PR as it is known) is a legal status that is automatically conferred upon mothers and usually on fathers providing that dad was at some time either married to mum or is named on the birth certificate and the child was born after 1st December 2003.
Parental responsibility means that the holder of PR has all rights, duties, powers and responsibilities of a parent and the holder of PR has the authority to act as parent.
Whilst in normal circumstances only parents and step parents can acquire parental responsibility either by agreement or by court Order (called a Parental Responsibility Order).You can also acquire PR if you have Child Arrangements Order, stipulating a child lives with you.