1.Does there have to be a Court Order regarding the children?

No. If both parents can agree the arrangements for their children (where they will live and how much time they will spend with each parent etc) the Court does not need to become involved. However, the Court will be told about the plans (in a form called the Statement of Arrangements) to check they are in the children’s best interests. It is unlikely that the Court will object provided the arrangements are reasonable and there are no child protection concerns.

2.Are there any guidelines about what constitutes a fair arrangement?

The Court’s priority is to look at what is in the child’s best interests and this should also be the parents’ main concern. Obviously this will vary according to the child’s age and the circumstances of each case. In most cases it is usually considered in the best interests of the child to spend time with both parents.

3.What happens if we cannot reach agreement?

Even if parents cannot agree matters between themselves, they may be able to reach agreement through mediation. This may well be swifter and more economical than going to Court. Another option is for each parent to consult a solicitor who is trained as a collaborative lawyer with a view to them hopefully resolving matters though the collaborative process (cross reference). Otherwise it will be necessary to make an application to Court for a decision about who a child lives with and how and when the other parent will have contact with the child. The Court also has the power to make a “Specific Issue Order” to resolve a particular disagreement (for example about which school a child should attend). In some situations an application can be made to Court to forbid a parent taking certain steps for example to prohibit the child being taken out of the country.

Even after court proceedings have been started it is still possible for parents to achieve agreement at an early stage in the process without the need for evidence to be filed or a full hearing. At the first (compulsory) informal hearing known as the Conciliation Appointment, an independent Child and Family Reporter (CAFCASS officer) will be present to help the parents and the Court identify any common ground and reach agreement if possible. It is often unnecessary for the proceedings to continue beyond this stage.

4.How will the Court reach a decision on any particular application?

Under the Children Act 1989 the child’s welfare is the paramount consideration when the Court decides any issue regarding a child. In reaching a decision the Court applies the “welfare checklist” which looks at:-

•The child’s wishes and feelings according to his or her age and understanding.
•Their physical, emotional and educational needs.
•The likely effect on the child of any change in his or her circumstances.
•Their age, sex, background and any characteristics which the Court considers relevant.
•Any harm which the child has suffered or is at risk of suffering.
•How capable each parent is of meeting the child’s needs.

As well as considering evidence from each parent the Court may ask a CAFCASS officer to meet with the family and sometimes to produce a report to assist with the decision. As soon as any application concerning a child is made to the Court special consideration is given at a very early stage as to whether the child is at risk of any potential harm.

5.What are my rights in relation to my child?

Instead of focusing on the “rights” of a parent, the emphasis in family law is given to the rights of the child. Generally, a mother will always have Parental Responsibility for her child. However the child’s father will only have Parental Responsibility if:-

•He is married to the child’s mother when the child is born (or later marries the child’s mother).
•The child was born after 1 December 2003 and he is named on the Birth Certificate when the child’s birth is registered.
•He has a Parental Responsibility Order or a Residence Order from the Court.

It is also possible for parents to enter into a formal agreement for Parental Responsibility.

6.Is it possible for a child to live with both parents?

Yes. The parents can agree this between themselves if they think it is best for the child. However if they disagree over who is to care for the child full time, the Court can make a Residence Order or a Shared Residence Order specifying that the child will live with one parent or both parents on a shared basis. A Shared Residence Order does not necessarily result in the child’s time being split equally between the parents but reflects that a child needs to spend a significant amount of time with both parents and has a home with both of them. As with any other Order concerning a child the Court will only make a shared Residence Order if it is satisfied that this is in the child’s best interests.

7.What can I do if my ex partner is difficult about me seeing our child?

You can make an application to Court for a Contact Order. It may be possible to agree the amount and times of contact after the application has been issued, for example at the first informal Hearing called the “Conciliation Appointment”. If this is not possible the Court will impose a Contact Order on you and your ex-partner. The level of contact will depend on the individual circumstances of the family and may well need to be reviewed after a period of time or if there are any changes in the circumstances. As a general principle, the Court considers that it is in a child’s best interests to have regular contact with both parents and for this reason it is very unusual for the Court to make an Order for no contact between a child and his/her parent.

If the Contact Order is breached it may well be necessary for further applications to be made to Court to enforce the Order. For example theoretically the Court could fine or in the last resort imprison the parent who is in breach (although Courts are usually reluctant to do this as it is unlikely to be in the best interests of the child). In extreme situations where there have been persistent breaches of a Contact Order the Court may transfer residence of the child from the non-compliant parent to the other parent.

8.My ex-partner will only agree to me seeing the children if my new partner is not present. Is this allowed?

If the new relationship is still at an early stage and the children are very young the Court will usually consider it appropriate for the children to be introduced gradually to a new partner once the relationship is more established. The Courts and CAFCASS Officers are accustomed to parents having new partners/spouses and providing there are no child safety concerns generally consider it is in the child’s best interests to develop a good relationship with both parents’ new partners.

9.Do other members of my family (e.g. grandparents) have a right to contact with my child?

Other members of the family, including grandparents do not automatically have any right to see the child. However, they can apply to the Court for permission to apply for a Contact Order which is likely to be given if the Court is satisfied that this would be in the child’s best interests.

10.Can I prevent my ex-partner taking my child to live abroad?

Provided that you have Parental Responsibility for your child (see question 5 above) your ex-partner will need the Court’s permission in order to relocate abroad with your child if you do not agree. As with all other applications concerning children the Court will only grant permission for the child to be relocated if it is considered to be in their best interests. These applications (known as “leave to remove” applications) are obviously very sensitive and often need the court’s involvement before they can be resolved.

A parent with Parental Responsibility is generally allowed to take the child abroad for holidays of up to 28 days without the consent of the other parent with Parental Responsibility or an Order of the Court. However if a parent permanently removes the child from the country without the other’s consent or a Court Order they will be abducting the child and international proceedings can be brought for the return of the child. If you are concerned that your ex-partner is planning to take your child to live abroad against your wishes, you can make an emergency application to Court for a Prohibited Steps Order to prevent your child being taken abroad. Please note however that this Order may trigger your ex-partner into making an application for leave to remove the child.

11.Do I have a right to be involved in my children’s upbringing even if they live with my ex-partner?

Yes. If you have Parental Responsibility you are entitled to be consulted by your ex-partner on any important issue concerning the children e.g. choice of school, consent to medical treatment or religious upbringing etc. If you cannot agree on a particular question, you can apply to the Court for a Specific Issue Order and the Court’s decision will be based on what is in the child’s best interests.

12.My partner and I are separating. Is there any guidance available to help us handle and hopefully resolve our issues concerning the children?

Resolution (a professional organisation of specialist family lawyers which is committed to the constructive resolution of family disputes) has set up an initiative called “Parenting after Parting”. The purpose of this is to help parents manage the effect of their divorce or separation for their children. For further information about this please go to www.resolution.org.uk/parentingafterparting

13.What happens in relation to child maintenance?

Usually child maintenance is dealt with by the Child Support Agency who work out a fixed sum to be paid by the “Non-Resident Parent” to the “Parent With Care” for the child. This is explained in more detail under (cross reference). Parents who live overseas do not pay child maintenance through the CSA (unless they are employed by the UK government or by a UK registered company). In those cases if agreement cannot be reached an application will be made to the Court for a child maintenance Order.

14.Does the Court ever become involved with child maintenance?

Yes, the Court may be involved where:-

•The parents reach agreement about the level of child maintenance (although either may apply to the CSA after 1 year).
•Once the child is 17 (and outside the scope of the CSA).
•If the child or one of the parents lives abroad.
•If there are school fees or other educational expenses to be covered.
•If the parent who is liable to pay child support is very wealthy.