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The welfare of the children of the family must be handled sensitively by family members when a marriage or relationship breaks down. You may have an existing arrangement in place but have concerns as to the suitability of those arrangements for your children. If you believe it is in the best interests of the child for these to be changed, or if an initial arrangement needs to be made on separation, we can assist you to achieve this amicably with the other parent. You are best advised to deal with any dispute relating to the children amicably and responsibly either between yourselves, or if this is not possible, through solicitors, mediators or collaborative lawyers.
Understanding how the Court would approach your matter can help to focus minds and plan for the future. Think about what your child’s needs are, physical, emotional and developmental; what is in their best interest and have their wishes been considered? Consider then how those needs can be provided for both practically and financially and what problems might be encountered along the way to focus on how those may be overcome.
It is not always possible to reach agreement in respect of these matters in which case you may need to issue proceedings, we will strive to provide a service which fosters positive and respectful relationships between parties wherever possible, to reduce the animosity and the negative effects this can have on all involved. This can be a very difficult time for you and particularly for children, we have the expertise to support you and can provide a wealth of advice on how to minimise the impact this has on the children and preserve their sense of security and stability within the family unit.
The court will only become involved if there is a dispute that cannot be resolved and will only make orders if they are considered necessary and in the best interests of the children.
We can assist you by using one (or more) of the following processes:
We can deal with the following issues for you:
Parental responsibility is the legal term describing your rights and responsibilities as a parent. Mothers automatically have parental responsibility for children, but fathers only acquire it if they are:
Step-parents can acquire parental responsibility for a child by agreement with the parent(s) with parental responsibility or by court order. This gives them the ability to share parental responsibility for a child with their new spouse and does not remove existing parental responsibility. In addition, parental responsibility can be delegated.
Parental responsibility provides an adult with the right to make decisions affecting your child's welfare including choosing schools and authorising medical treatment. If there is a conflict as to how parental responsibility should be exercised then the conflict can be resolved by an application to the court for a prohibited steps order or specific issue order.
This is an order that something must not happen in respect of a child e.g. one parent must not take a child to another country or change its name.
This is an order that something must happen in exercise of parental responsibility e.g. that a child should have medical treatment or attend a specific school. Only parents, guardians or persons with a residence order can apply for these orders. Other connected persons such as extended family members may be able to apply for these orders with permission from the court.
A Child Arrangements Order (CAO) specifies with whom the child will live, spend time and otherwise have contact with, and when they will live, spend time or otherwise have contact with that person. A CAO may specify that the child live with one parent or share their time living with each parent at specified times, this is commonly referred to as a “residence order” or a “lives with” order.
A CAO specifying with whom the child should spend time or otherwise have contact is more commonly referred to as a “contact order”. A contact order requires one parent to make the child available to spend periods of time with a specified person. This can be supervised or unsupervised, overnight or for a day or holiday, direct or indirect such as by letter, email or telephone. The court can set out the frequency, duration and type of contact and other specifications that are necessary to make contact workable. Only a parent, guardian, special guardian or person named in a CAO as a person with whom a child lives can apply for these orders. Extended family members are not automatically entitled to make these applications and need the permission of the court to do so.
It is undoubtedly better for your children if arrangements can be made amicably without the conflict caused by court proceedings which can polarise family disputes. The collaborative process and mediation can assist with providing a supported forum to facilitate problem solving. However if agreement cannot be reached, an application to the court will be necessary. Further opportunities to mediate may be available through the court process.
In all children matters, the welfare of the child is the Court’s paramount consideration
Court resources are limited and proceedings can therefore be long drawn out and delayed. In usual circumstances, the court will list a first hearing within a few weeks of issuing an application. Applications can be made on an emergency (ex parte) basis if the facts merit this. At the first court appointment, you are likely to be given the opportunity to reach an agreement with the other party with the help of a cafcass officer or other mediator. If agreement is reached, the district judge will invite the parties to draw up an order for approval, perhaps to accommodate a review at a later date. If agreement is not reached, the case will be listed for a further directions hearing and the court may order the preparation of evidence, perhaps statements from the parties or a cafcass report prepared by a cafcass officer appointed by the court. If a cafcass report is ordered, the cafcass officer will interview relevant adults and the child if appropriate. The cafcass officer prepares an impartial report for the court and considerable weight will be given to its findings. If statements are required they should be factual and precise. Neither statements or reports should be shared with third parties or the child. There may be several short appointments at court before a final hearing is allocated. At a final hearing the court will hear all the evidence and make a decision. The length of the hearing will depend on the complexity of your case. All efforts should be made in children proceedings to resolve matters amicably, unless of course there is an emergency issue involving the need to protect a child from harm or abduction.
It is recognised that grandparents may provide significant childcare and often have strong bonds with children which can be very important to a child, particularly when their parents are separating. We can assist you if you are a grandparent and have concerns that your important bond with a grandchild is in jeopardy following parental separation.
Joanne Houston is also a Resolution accredited specialist in international family law and has vast experience of dealing with the international aspects of the law relating to children and in particular the removal of children from England and Wales by resident and non-resident parents.
As well as advising clients currently resident in the UK, our international practice has allowed us to help families where one or both parents are living abroad and wish to agree child arrangements in preparation for a return to the UK.
For further information and support please visit the resolution.org.uk website where helpful information is provided on how to communicate and support your child in a sensitive and child-centred way through the divorce process.
For more information download our divorce and children fact sheet.
If you have concerns for the immediate safety of your child call the police and your local Children’s Services department. If you think a child is suffering abuse - report it.
Hampshire Children’s Services - phone 0300 555 1384
Childline - phone 0800 1111
NSPCC - phone 0808 800 5000
Police non-emergency – 101
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