One of the most crucial issues that parents face when considering or going through a separation are the arrangements that will need to be made for their children. Your first concern will of course be to the welfare of your children and you will hopefully be able to agree with your spousal partner what is in your children’s best interest.
Where you have difficulties reaching an agreement that is when you will want to look for outside help.
Mediation can be a very helpful process to enable you to discuss the arrangements and hopefully reach an agreement and a mediated agreement can be formalised in a document which will be binding if you feel that this is necessary.
The legislation which informs the law in this area is the Children Act 1989 and that places the first consideration on the welfare of the child or children. If there is a dispute between parents about what arrangements would be best for their children and this dispute cannot be resolved by alternative methods, then the courts can assist.
An application would need to be made for a Child Arrangements Order. This is a court order which sets out with home children should live and when they should see each of their parents.
The court process focuses throughout on helping parents to reach an agreement about those arrangements because you of course will know your children better than anyone else.
In helping you to come to those arrangements, the court will look at the following factors, this is known as the Welfare Check List:
- The child’s wishes and feelings, considered in light of his or her age and understanding;
- Their physical, emotional and educational needs;
- Their age, sex, background and any characteristics which the court considers relevant;
- The likely effect of any change in the child’s circumstances;
- Any harm which the child has suffered or is at risk of suffering;
- How capable each parent is of meeting the child’s needs.
The Children and Families Act 2014 introduced a presumption that parents should be involved in their child’s life unless that involvement could put the child at risk of significant harm. Involvement is described as “some kind, either direct or indirect, but not any particular division of a child’s time”. Whilst there is no presumption of shared parenting, there is a clear suggestion that both parents should be involved in a child’s life to some extent wherever possible. Before an application can be made to the court, applicants must in most circumstances have attended a Mediation, Information and Assessment meeting (MIAM) in order that they can consider with a mediator whether there is an alternative way to resolve the dispute. Once an application has been made for a Child Arrangements Order, the court will list a conciliation appointment. This is the first hearing and both parents must attend court. Before the hearing the parents will meet with a CAFCASS Officer. CAFCASS (Children and Family Court Advisory and Support Services) will often be asked within the course an application for a Child Arrangements Order to advise the court as to what arrangements should be made in circumstances where parents cannot agree and there is an element of some complexity to the application. At the conciliation appointment, CAFCASS will help parents to come to an agreement if at all possible to avoid the application continuing any further. Mediation services are usually available at the court as well to provide parents with the best opportunity of concluding the application by agreement rather than the court having to impose something on their behalf.
If any agreement is not possible or appropriate then the next steps will often be for each party to prepare a Statement in relation to the children and for a CAFCASS Officer to investigate what should be the most appropriate outcome. The application will then be listed for further directions if necessary and then a final hearing which will be before either Magistrates or a District Judge and an order will usually be made which is binding on the parties.
If you are experiencing difficulties or are concerned at all about the arrangements to be made for your children, then please do call us and make an appointment for a free initial consultation and we can help you to find a way forward in the best interests of your children.