Deciding on arrangements for children following on from the breakdown of a relationship can be a very tough and stressful time, as emotions can often run high and therefore decisions may not be made in the best interests of the children.
There is no hard and fast rule as to what is “usual” or “normal” in terms of arrangements. The general approach is to look at all the circumstances, and considering carefully what is in the best interests of the children.
Ideally an agreement as to what the arrangements look like in real/practical terms should be agreed between the parents. It can be very helpful for parents to keep an open mind, as arrangements may need to adapt and change to suit the developments and needs of the children. For example, it might be appropriate for there to be a high frequency of time spent with both parents before a child starts attending school. Once they start at school, the arrangements may perhaps need to move to less frequent (less during the week) and more quality time at weekends and school holidays to accommodate schoolwork and extracurricular activities.
If it has not been possible for parents to come to an agreement, in the first instance, then parties are expected to attempt to attend mediation to try to resolve matters. Going to court is usually considered a last resort.
An application for a Child Arrangements Order can be made to the Family Court, to determine who should be responsible for and provide care for the children. Such orders include:
- “Lives With” – with provides where and with whom a child should live as their primary residence,
- “Spending Time” – whether a child should spend time and the arrangements for that with the other parent.
- “Shared Care” – stating that a child lives with both parents, which does not need to be in exact equal shares of time.
- “Specific Issue” – such as deciding on schools or whether one parent can take the children on a holiday or to decide a medical issue.
- “Prohibited Steps”– this is an order which prevents something from happening. Or stops someone from doing something.
Unless there are reasons not to, such as allegations of domestic abuse, parents will be expected to try to agree matters. It may be helpful to record any agreement reached in a Parenting Plan. These are not binding or enforceable but may assist in setting out clear arrangements if this can avoid having to go to court. If this is not possible, then mediation, if appropriate, may assist with discussions to try and reach a resolution.. If, having attended a MIAM (Mediation, Intake, Assessment, Meeting), the mediator finds that the matter is not possible or appropriate to mediate, or mediation breaks down, the last resort is to refer the matter to the Court. Some mediators are now qualified to be able to mediate and meet with the children themselves, if considered suitable.
If the matter has to be referred to the court, it is necessary for a formal application to be made.
For all decisions that the Family Courts are asked to make regarding children in private proceedings, they must have regard to the child’s welfare which is the court’s paramount concern. S.1 of the Children Act 1989 sets out the Welfare Checklist the court will need to consider:
- the child’s ascertainable wishes and feelings in light of their age and understanding
- a child’s physical, emotional and educational needs
- the likely effect on the child of any change in their circumstances
- the child’s age, sex, background and any characteristics the court considers relevant
- any harm that the child has suffered or is at risk of suffering
- how capable each of the parents are at meeting the child’s needs
- the range of powers available to the court
Ultimately, the court will consider what is in the best interests of the children. This may not necessarily be reflective of a child’s ascertainable wishes and feelings, which are considered in conjunction with the other factors in the Welfare Checklist.
Our specialist team of Family solicitors would be happy to meet with you to discuss any questions about the process that you may have and assist you in applying for orders, should they be necessary.
If you would like our advice, please contact us to arrange an initial fixed fee consultation, with one of our specialist and highly experienced lawyers.
