When you separate or divorce, it is a distressing and emotional time. If you have a child this can be even more stressful, and can regretfully lead to a ‘tug of war’ for the emotions of your child. Children can all to often be the silent sufferers especially when their parents do not consider their needs as a priority.
Some issues that may arise as a consequence of the separation are:
With who the children live with.
Contact arrangements with the children being prevented, or purely on one parents terms.
One parent wishes the child/children’s name to be changed.
One parent wishes the school to be changed.
One parent wishes to move away to another area, even abroad.
Issues over medical treatment.
Maybe you are unhappy about a new person who has recently come into the child/children’s life.
Grandparents may be worried about contact stopping.
If you are unable to come to an agreement about the best interests of your children with their other parent then unfortunately the family court may need to be asked to make the decisions.
The type of orders the family court can grant are:
A child arrangement order (to decide with whom the child shall live and contact with the other parent)
A specific issue order (dealing with, for example, the child’s change of name, or which school the child will attend)
A prohibitive steps order (e.g. preventing a parent from taking the children abroad)
If you cannot agree
If you and your ex-partner cannot agree about the best interests of your child or children and you decide to apply for a court order before you go to court, you must first attend a mediation meeting. There are some exemptions for the need to attempt mediation, where there has been domestic abuse for example, but we can explain more, please contact us for further information about possible exemptions.
You may have to attend a court appointment and go to a number of court hearings.
The different court orders in more detail.
The type of court order you need depends on what you’ve been unable to agree on. You can apply for more than one court order.
Arrangements for your child
A ‘child arrangements order’ decides:
where your child lives
when your child spends time with each parent
when and what other types of contact take place (phone calls, for example)
Child arrangements orders now replace previous orders such as residence or custody and contact orders.
When it comes to issues about your child’s upbringing
A ‘specific issue order’ is used to look at a specific question about how the child is being brought up, for example:
what school they go to
if they should have a religious education
You can also apply for a ‘prohibited steps order’ to stop the other parent from making a decision about the child’s upbringing.
Who can apply?
You, as your child’s mother or father, can apply for a child arrangement order because you will have parental responsibility, indeed anyone that has parental responsibility can an apply.
Other people, like grandparents, can apply for these court orders, but they’ll need to get permission from the courts first.
Child arrangement orders
Alternatively, you can apply to the Family Court to have a Child Arrangement Order put in place. Whilst this may appear a daunting prospect, it can provide an element of certainty to everyone as it sets out in the form of an order of the court all aspects regarding child care arrangements. They help you to reach an agreement that is focused on your children’s best interests.
When the court makes a child arrangement order it uses the Welfare checklist to make an arrangement that will be in the best interests of your child.
The Welfare Checklist Criteria
1. THE ASCERTAINABLE WISHES AND FEELINGS OF THE CHILD CONCERNED (CONSIDERED IN THE LIGHT OF HIS AGE AND UNDERSTANDING);
The court are required to take the wishes and feelings of the child into consideration. It is not defined in law at which age the court will begin to listen to the child, but the court will tend to place more weight on a child’s wishes and feelings from the age of 11 or 12 onwards. However, it does depend on the individual circumstances of the child in question; The court will assess their maturity and understanding of the situation.
Ordinarily it will be the role of CAFCASS to speak to the child and ascertain their wishes and feelings. In exceptional circumstances the Judge may speak to the child themselves. It is important for the court to be satisfied that these are indeed the true wishes and feelings of the child and they are not mirroring the views of a parent. It is important to be aware that the wishes and feelings of the child are viewed in conjunction with other factors and will not wholly dictate the outcome.
2. HIS PHYSICAL, EMOTIONAL AND EDUCATIONAL NEEDS;
The court are required to consider your child’s short term and long term physical, emotional and educational needs. They will consider which parent is best placed to provide these and this will usually be based on evidence that has been submitted to the court. Physical needs tend to be straightforward whereas emotional needs may require more investigation. A child’s needs will change as they become older and therefore the court must be satisfied that the parents can manage these changes and provide stability for the child at the same time.
3. THE LIKELY EFFECT ON HIM OF ANY CHANGE IN HIS CIRCUMSTANCES;
The court are required to consider the potential impact of any change in circumstances on the child. The court will often take a decision that will cause the least disruption to a child’s life. An example of this may be where the non-resident parent applies for residence of the child. The court will need to consider the potential impact that the change in residence would cause, i.e. change of school, change of social environment.
4. HIS AGE, SEX, BACKGROUND AND ANY CHARACTERISTICS OF HIS WHICH THE COURT CONSIDERS RELEVANT;
The court are required to consider the child’s age, cultural and religious background and other characteristics which are specific to the child and the wider family.
5. ANY HARM WHICH HE HAS SUFFERED OR IS AT RISK OF SUFFERING;
The court will examine harm that the child has suffered and harm that the child is at risk of suffering in the future. Harm is defined as ‘‘ill treatment or the impairment of health or development”. The court will weigh up the potential risk to the child and issue an order which is reflective of this. The order could feasibly contain protective measures which are aimed at safeguarding the child. This particular criterion will require the court to examine allegations of domestic abuse.
6. HOW CAPABLE EACH OF HIS PARENTS, AND ANY OTHER PERSON IN RELATION TO WHOM THE COURT CONSIDERS THE QUESTION TO BE RELEVANT, IS OF MEETING HIS NEEDS;
The court will want to ensure that both parents are putting the child first and are able to meet all the child's needs. The criterion will therefore require the court to consider the respective accommodation that both parents are able to provide and the extent to which both parents can meet the child's need. This will be case specific and therefore it will depend on the specific needs of the child and the abilities of the parent. There is no assumption that a mother is better placed to meet a child's needs compared to the father.
7. THE RANGE OF POWERS AVAILABLE TO THE COURT UNDER THIS ACT IN THE PROCEEDINGS IN QUESTION.
The court will consider every option and can make a wide range of orders, even if they have not been applied for. For example, there may be a case determining contact but it emerges that the resident parent intends to go abroad on a permanent basis with the child without seeking the consent of the other parent with Parental Responsibility. The court may therefore think it is appropriate to grant a prohibited steps order preventing the moving parent from leaving the jurisdiction.
Contact us to arrange a consultation with a family law solicitor; if requested the first 20 mins will be free of charge.