When parents decide to separate one of their biggest worries is likely to be the arrangements for their children; where will they live, how will they have a relationship with the other parent and what financial provision is required. 

This area is emotionally difficult and sensitive. It is usually considered in the early stages of what can be an acrimonious and difficult relationship breakdown. What needs to be remembered is that whilst the relationship between has broken down, both parties continue to be parents and that will continue until the children reach adulthood. Therefore any discussions and decisions about the arrangements for children need to be made with the children’s best interests at the forefront of all parties’ minds and with the children’s welfare being placed paramount. The best way to do this is by cooperating and negotiating what arrangements will work for your family, as every family is different. Agreements reached by parents, with the assistance of specialist family lawyers and / or mediation services, are more likely to work in the long term better than orders imposed.

If an agreement can’t be reached then either parent can ask the Court to decide the arrangements for their children. ‘Custody’ and ‘Access’ Orders are no longer made. Instead there are a number of orders that the Court can make setting out the arrangements for children. In deciding whether to make orders for children the Court will consult a list of factors, including the wishes and feelings of the child (dependent upon their age and understanding), the child’s age, sex, background, their physical, emotional and educational needs and the ability of those concerned to meet the child’s needs. The Court will also consider the impact any change in circumstances will have upon the child.

Court proceedings concerning child arrangements can be expensive and lengthy. They can also result in orders being imposed that neither parent is happy with. Court proceedings should always be the last resort after all attempts to negotiate and agree the arrangements have been exhausted.

We charge fixed fees for our legal services in respect of child arrangements which are set out on the Fixed Fee Information Sheet Child Arrangements.

Parental Responsibility

Parental responsibility enables a person to be involved in making decisions about a child’s upbringing. e.g. where the child should live, what he or she should be called, the child’s education and religion and decisions regarding the child’s health. It continues until a child is 18 although children can make more decisions for themselves as they get older.

Parents keep their parental responsibility if they separate, even if they do not live with the child. A parent will only lose parental responsibility if the child is adopted by someone else or an order is made by Court which only happens in the most extreme circumstances when the child’s welfare demands this to ensure their safety. The law encourages parents who do not live with their children to remain in touch and be involved in the child’s life.

Parents are encouraged to decide together what is best for their children. The Court will no longer make an order about the arrangements for a child unless the parents cannot agree and the Court is forced to decide for them.

Help is available from Mediation Services, the Children and Family Court Advisory and Support Service (CAFCASS) and Solicitors to promote children’s welfare by settling disputes away from Court. Court is always seen as a last resort.

Who has Parental Responsibility?

Both parents have equal parental responsibility if they were married to each other when their child was born or marry each other later. If the parents are not married, and the child was born after 1^st December 2003, the unmarried father will have parental responsibility if he was present when the birth was registered and is named upon the birth certificate.

If the father does not have parental responsibility parents can agree that the father should also have Parental Responsibility and both can complete a parental responsibility Agreement. If the mother will not agree, the father can ask the Court to let him share parental responsibility with her.

People who are not parents, like step-parents, grandparents or other relatives, do not have parental responsibility even though a child is living with them. Such people can get parental responsibility in three ways:

• They can be made guardian by a parent who has parental responsibility (see below).
• They can do so under a Child Arrangement Order from Court (see below).
• They can adopt the child.

A step-parent does not get parental responsibility just by marrying the child’s parent but can enter into a step parent parental responsibility agreement as long as all those with parental responsibility agree.

Guardians

Parents can appoint guardians to care for children if the parent dies. This does not need to be done by Will but must be in writing and be signed and dated.

A guardian will only have Parental Responsibility if all parents with Parental Responsibility are dead. If one parent with Parental Responsibility survives the guardian cannot act. The only exception is where the dead parent had a Child Arrangement Order (see below) in his or her favour. In that case, the surviving parent with Parental Responsibility will share it with the guardian. If a parent does not appoint a guardian before death, the Court may appoint one if needed.

When are court orders made?

Anyone who is concerned about a child can apply to Court for an order. The Court can make one of a range of practical orders which should be able to deal with any question about the child. The Court will decide what is best for the child and will make an order if an order only if it is needed.

The Court applies a checklist to help it decide what is best for a child. This includes the child’s wishes and feelings in the light of his or her age and understanding, the child’s age, sex and background, the

child’s physical, emotional and educational needs, the ability of those concerned to meet those needs, the likely effect of any change in circumstances.

The Court will usually be given information and an opinion on what is best for a child by a specialist from the Children and Family Court Advisory and Support Service (CAFCASS)  who will research the situation, speak with both parents and prepare a written report with recommendations for the Court.

In proceedings concerning children the Court will set timetables to avoid unnecessary delay and are expected to deal with cases more quickly.

What are the most common Child Arrangement Orders that may be made?

The most common orders are set out below:

Live with Order – decides who a child should live with. It does not remove Parental Responsibility from parents. It does affect some other matters, such as temporary removal from England and Wales, which can be done by a person with this order for up to 6 weeks without permission of those with parental responsibility.

Spend time with Order – decides about how often and for how long a child should spend time with any other person e.g. if they live with one parent, when they should see the other parent and the arrangements for this. Such time can be face-to-face, overnight or by other forms such as letters or phone calls. This order requires the parent with whom the child lives to allow the child to spend time with the other.

Specific Issue Order or Prohibited Steps Order – decide particular questions, such as schooling, medical treatment or living in another country.

The Court can make whichever order it thinks fit or can decide to make no order. The Court may also attach conditions to its orders.

What is the procedure

Stage 1 – Negotiation and Mediation

It is necessary to try and agree the arrangements for children in the first instance as the Court will only make orders if it is absolutely necessary to do so i.e. when it is not possible for parents to agree.

The first stage is to talk about the issues and try to reach an agreement that suits all parties and benefits the children. This can be done by instructing a solicitor to help you, as they will correspond with the other parent, or their solicitor, and can do so without the emotions that a parent would. If an agreement is reached, this can be drafted into an agreement than is agreed by all parties and sets out what the arrangements are for the children.

A referral will need to be made to mediation if negotiation does not result in agreement. The mediation service will arrange separate initial meetings for both parties to attend called Mediation  Information and Assessment meetings (MIAM). After this meeting the mediation service will determine whether the issues are suitable to mediate, and if so, arrange a mediation meeting. This can be a joint meeting between both parties, with a mediator present, or shuttled mediation where both parties remain in separate rooms with the mediator going between the two. The mediator will encourage negotiation and suggest ways to resolve the issues. If an agreement can be reached, the mediator will then draw up a memorandum of understanding which both parties will be asked to agree and sign. This can then be given to a solicitor who will draw this into a child arrangements agreement. There are some circumstances where mediation will be deemed unsuitable. In these circumstances the mediation service will provide a MIAM certificate confirming this.

If agreement cannot be reached following negotiation and mediation, then either party may ask the court to decide the arrangements for the children.

Stage 2 – Application to Court

Any person concerned about a child can make an application to Court. An application form is completed and sent to Court with the MIAM certificate and Court fee (unless claiming exemption). The Court will process the application and confirm a date when a Judge will consider the issues at a Children Dispute Resolution Appointment (CDRH).

In some circumstances, it is necessary for the Court to make emergency orders, e.g. to prevent a child being taken out of the country, being removed from school, or for the return of a child from one parent to the other. These emergency hearings can take place without the other party being notified of the hearing. An interim emergency order would be made to protect the immediate welfare of the child concerned, but there would then be another hearing where the other party could attend to put their position to the Court about whether the interim orders should continue or not.

The Court will usually be given information and an opinion on what is best for a child by a specialist from the Children and Family Court Advisory and Support Service (CAFCASS)  who will research the situation, speak with both parents and prepare a written report with recommendations for the Court prior to the CDRH. The CACFASS officer will attempt to speak to both parents, usually by phone, before the CDRH and carry out safeguarding checks i.e. seeing if there has been any risks to the children, police call outs or social services involvement.

At the CDRH, the parties will discuss the issues and try to agree the arrangements. If agreement is not reached and Order will be made setting out the timetable for the proceedings directing what further information is required from outside sources such as school, the police, the Local Authority, and the interim arrangements. It is possible for final orders to be made at the FDA if all parties agree the arrangements and there are no safeguarding issues identified by CAFCASS. The Court may order that statements are prepared for the next hearing and may order full reports from CACFASS or a social worker.

Stage 3 – CDRH to Issues Resolution Hearing (IRH)

If an agreement cannot be reached at the CDRH the Court will make directions which have to be complied with such as the preparation of experts’ reports, evidence from external agencies and preparation of statements. The Court can also make orders for interim arrangements about where the children will live and when they will spend time with the other parent. These arrangements and the additional evidence will be considered at the Issues Resolution Hearing (IRH). At this hearing the Judge will try and assist parties to reach an agreement about what is best for the children.

Stage 4 – Contested Hearings

If an agreement has not been reached at the CDRH or IRH, the Court will list the proceedings for a contested hearing. This could be an interim contested hearing, a Fact Find Hearing, or a Final Hearing.

An interim contested hearing may be listed when the Court needs to decide where a child will live or when they should spend time with their other parent whilst the case is still going on pending further reports and monitoring.

A Fact Find Hearing is listed when the Court needs to decide whether allegations made by one parent against the other are proved. Usually after a Fact Find Hearing the case is adjourned for further reports to be prepared before being listed for a Disposal hearing. The Disposal hearing will be heard by the Court at a later date.

A standalone Final Hearing (sometimes called a “rolled up final hearing”) will involve the Court making decisions about any factual disputes and also deciding the long term arrangements for the children. Even though the hearing is termed a final hearing, the Court may still list another review hearing afterwards to see how things are going.

Final hearings and Fact Find Hearings usually take place over a number of days.

There may be more than one contested hearing i.e. a Fact Find Hearing followed by a Disposal Hearing, or an interim contested hearing followed by a Final Hearing and a Review Hearing.

The Court will hear evidence from witnesses and make final decisions. This stage of Children Act Proceedings is expensive because of the amount of work involved in preparing for contested hearings.

Child Maintenance

Child maintenance is a regular and reliable financial payment paid by one parent to the other. The parent without the main day to day care of the child makes maintenance payments to the other parent with whom the child lives. In some cases a grandparent, other family member or guardian can be paid child maintenance if they are the child’s main carer.

As with all child arrangements, if this can be sorted out by agreement, there is no need for Court proceedings or the involvement of the Child Maintenance Service (CMS). There is a child maintenance calculator available online at www.gov.uk/calculate-child-maintenance to help work out what the required statutory maintenance payments might be. Parents can also access help and advice about child maintenance payments and setting up a private maintenance agreement via the Child Maintenance Options service through their website.

A private arrangement sets out the agreement between parents about who will make the payments, how much will be paid, how often and when this arrangement will be reviewed. In order for this to be successful full information will need to be given about earnings etc. A private arrangement is flexible but is not legally binding. This means that if it breaks down, it cannot be enforced.

If a private arrangement breaks down, or is not possible to agree, the options are then to ask the Child Maintenance Service (CMS) to take over, or ask a solicitor to assist you. CMS is the government’s statutory child maintenance service. They calculate and can collect maintenance payments due, but do charge for this service. They can trace and find the other parent, collect and enforce payments, and protect parent’s privacy if they don’t want contact with the other.

A binding child maintenance can be reached with the help of a solicitor. Both parties would need to be clear that they were entering into an arrangement that would be legally binding and this would be recorded on the agreement. Then if the agreement was properly entered into and both parties took legal advice, there would be the option to enforce it via the smalls claims court.

There are some cases where the Court can help with child maintenance for example, if the parent who pays lives overseas, is a very high earner, or if there are school fees to pay. Also if the parents are already involved in court proceedings concerning financial resolution as a result of their separation, then the Court can be asked to include the arrangements for child maintenance in any financial order made in those proceedings.

February 2020

NOTE: The above is intended as a general overview for your information. It is NOT intended to replace proper legal advice. Each case is different and advice cannot be given without a proper analysis of your own circumstances.