Children

Whilst children are a blessing in any relationship, they can be the most emotionally difficult aspect of separation.

Arguments about where children live, how often they see their absent parents and how they are maintained can be particularly upsetting.

We have vast experience of handling such disputes in a child- focused way, putting, as the legal system does, the interest of the child first.

As a parent you are in the best position to judge what is in your child's interests and we would represent you strongly to achieve that.

We will steer you through issues such as where will the children live? How often will they see their father? Where will they be educated and will they keep the same name?

The Children Act

Most legal matters relating to children are now governed by the Children Act 1989, including “Section 8“ orders being Residence (which used to be called custody) , Contact (which used to be called access), Prohibited Steps Order (like an injunction) or a specific issue order (where the Court rules upon a decision like changing name, medical treatment etc) and Parental Responsibility (see Below)

The Act encourages parties to reach agreement on as many matters as possible relating to the children without the need to make an application to the Court, therefore, whenever possible and whenever appropriate, we shall advise you on the various agencies available to assist with conciliation or mediation, in the hope that an agreement can be reached without the need to make an application to the Court.

PLEASE NOTE THAT THE PHILOSOPHY OF THE COURT IS TO NOT MAKE ANY ORDER AT ALL UNLESS IT IS STRICTLY NECESSARY AND THEREFORE IN MOST CASES IF RESIDENCE I.E. CUSTODY AND CONTACT (I.E. ACCESS) CAN BE AGREED THE COURT WILL NOT GET INVOLVED. If you are divorcing however, you will have the option to put in writing the agreed arrangements in the form called the Statement of Arrangements for Children.

Court Proceedings

If an application relating to children comes before the appropriate Court, then the paramount consideration is the welfare of the children and what is in each child's best interests.  The Court will only make an Order relating to contact and residence if it feels it is better in the interest of the child for an Order to be made, than no Order. 

The court, under the Children Act 1989, when making a decision will look at the "welfare checklist " , which includes the following relevant factors they take into account –

1. The ascertainable wishes and feelings of the child considered in the light of their age and understanding - the older the child the more weight  the court will give to their wishes, which are usually ascertained via a CAFCASS report, the CAFCASS officer will however look into the matter deeply to see the reason for the wishes the child is expressing.

2. the child's physical  emotional and educational needs - basically how they are being cared for and performing at home and at school.

3. the likely effect on the child of any change in the child circumstances - the general presumption is that arrangements should be left as they are, unless there is a good reason to change them.

4. the child's age, sex background and any characteristics which the court considers relevant.

5. range of powers available to the court under this act in the proceedings in question - the court can apply any section 8 order even if it is not applied for, and they also have to consider not making any order

The Court will look to see whether every attempt has been made to ensure that the absent parent is still involved in the child's upbringing and this will involve a sharing of what is known legally as 'parental responsibility'.

It is difficult to predict how long proceedings would last, but taking into account the philosophy of the Court that Children’s proceedings should be resolved as quickly as possible, we would ordinarily expect the proceedings to last in the region of three to six months. However, this could be longer if a CAFCASS report (see below) has to be prepared, because this itself can take 14 weeks. Further, if there are a series of adjournments to see how a trial period of contact is working then the case can take longer.

Parental Responsibility

This is the legal term which describes the right of a parent to have an influence over the way in which his or her child is brought up and imposes a responsibility upon that parent for the child's upbringing.  It allows you to be consulted about major issues such as changing names, religion, school, residence, moving abroad, medical treatment and the involvement of professionals etc. Mothers automatically have parental responsibility, fathers will have parental responsibility if they were married to the other parent or, since the first of December 2003,  they are registered as the father, failing which you would have to apply for a court order, unless the other parent agrees to a parental responsibility agreement. The court will make a decision regarding parental responsibility based upon the interest of the child and the amount of your previous involvement, commitment and attachment, and the purpose for which you seek it .

As its name suggests, parental responsibility gives you responsibilities as well as rights.  You should consult the other parent regarding major decisions as above.  If agreement cannot be reached the court will make a decision that could be undesirable for both of you.

Applying to the Court

We will firstly try to find a negotiated settlement with the other parent.  Once an application on an issue relating to children is made to the Court, then the Court will encourage the parties to try and reach an agreement.  If these attempts fail, then the Court may decide to ask for a Court Welfare Officer (now called a CAFCASS officer) to investigate the circumstances of the case and prepare a report.  The report is confidential and is intended to assist the Court in reaching a decision.  The CAFCASS officer, who is independent of all parties, will interview the children if they are old enough to be interviewed and speak to all the relevant parties, including any relevant doctors and teachers if needed. They are likely to want to see both parties and the Child at their home. The CAFCASS officer can be involved sometimes from the first court hearing or subsequently to prepare interim or final reports upon limited or comprehensive issues  Please note that if a CAFCASS report is forwarded to you then its contents are confidential.

Please note that generally the Court follow the recommendations of the CAFCASS officer although they are not bound to do so in every case. Obviously therefore it is in your interest to co-operate with them.  If you have older children then their wishes will be paramount and given significant weight.  Occasionally there are cases where a child may need separate representation.

There can be further involvement by social services if a section 7 report is required, but we will discuss this with you if it becomes necessary, it is usually only when there are more serious concerns.

Usually, when you apply to Court they initially list the Residence or Contact application for what is known as a directions hearing. This is a short 20 minutes procedural hearing when usually no decisions are made unless it is with your consent. The Court will then either see whether a negotiated settlement can take place for a trial period or fix directions as to what will happen next, for example exchange of witness statements, CAFCASS Report etc. some courts initially list the case for what is called a “conciliation appointment” which is strictly speaking not a court hearing, to try to find a settlement, often with the assistance of a CAFCASS officer as well as the judge.

You should attend that hearing although the children should not unless we advise to the contrary. The hearings are usually in either the Magistrates’ Court or the County Court if divorce proceedings are taking place and are in private. If the case is in the Magistrates’ Court then it will usually take place before a clerk only at the directions stage or the full bench of magistrates. If the case is in the County Court it will be heard by a District Judge who has greater power to make an interim order. Please note that any order can be revisited and amended if circumstances change and therefore you should let us know in the future in the event that any agreement has to be altered.

We will consult you in relation to any offers that are made in relation to residence or contact.

Interim Orders

As it may take some time for the Court to reach a decision, the Court has the power to make an interim Order if appropriate.  For example, if you are being denied contact with your children, it is important you discuss the possibility of asking the Court for an interim Order so that you may see the child once the application to the Court is being considered.

Abduction - if you have concerns regarding the risk of abduction it may be necessary for contact to be supervised or suspended, a prohibited steps or residence order may assist you, together with injunctions under the family Law act 1996.  There are also remedies involving financial bonds/surities in a case where Leave is given to remove the child and if there is a risk they will go abroad, control of passports and the port alert system.

Financial provision - If you have a child to a person, it may be possible to apply under schedule 1 of the children act 1989 for financial provision above and beyond what would apply with the Child support agency, but you would have to show specific need for the Child, it can include items such as top up financial provision for school fees etc. Subject to that, Child support assessed by the Child support agency is presently 15% of net income of absent parent for one child, 20% for two children and 25% for three or above. Under the Children Act the court can also order a parent to provide funds for a roof over the head of the Child, but not usually to actually purchase a property for the child or the other parent.  Please bear in mind the only obligations under these provisions are to the child not to the other parent like in a divorce.

Mediation                                      

If there are any children’s issues to be resolved, then we shall endeavour to come to an amicable settlement with your spouse providing it is also in your interest and you consent.  However, it is important to understand that various mediation and counselling agencies may be able to assist with your negotiations, although the Court will retain an overall jurisdiction to decide outstanding issues.

It is obviously preferable that settlement can be achieved through negotiation, rather than a Court Order from the point of view of stress, delay and costs.  The Mediation Service is offered privately through Family Mediation Service or via the CAFCASS Service who are very experienced in dealing with these matters.  They are patient, sympathetic and give advice which is positive and constructive.  If you wish to consider using these agencies, then we can make the necessary referral. 

Mediation usually takes place at the offices of the agency concerned and is informal by nature.  It will involve meetings with the advisor and your opponent when all your concerns will be fully discussed.  Hopefully, a settlement will be achieved and we can advise and assist you in relation to any legal implications.  You may have to discuss the case face to face with your spouse in the presence of a conciliator and any agreement is only binding if it is later approved by the Court.  Please note that mediation is entirely voluntary and we would not advise you to embark upon any procedure, which you do not feel prepared to undertake.

Please note if you wish to have Community Legal Service funding, i.e. legal aid, it may be a condition of this that you first of all attend an intake meeting to see if the case is suitable for mediation.

Maidments offers specialist advice on all aspects of family law to private clients throughout the Northwest of England. We have particular expertise in divorce, separation, financial, children issues and domestic violence. Please note we only offer legal aid in serious child protection cases.