When a relationship breaks down it creates a whole new set of circumstances for you and your children. There will often be questions about where the children will live and how much time they will spend with the other parent. The most important thing is that your children need reassurance from you both. They are likely to react very differently depending on their age and stage of development. Deciding how to best look after any children should be one of the overriding priorities for any separating parents. It is very important that the needs of the children come first and you are able to put your own differences aside for the benefit of the children.
We have agreed what we think are the best arrangements for the children, do we need a court order?
- No, not normally. If an agreement is reached between parents then the Court will not normally interfere with those arrangements and no order is required. There may be some circumstances where it is important to obtain an order despite the agreement between the parents, for example to remove a child permanently from the UK jurisdiction. If you think that you may fall into one of these rare categories then please contact us and we can discuss in detail the circumstances of your case.
What if we can’t agree about the children?
- There are some circumstances where, despite your very best efforts, you simply cannot agree about what is in the best interests for your children.
- If you are married then the starting point is that both of you will have parental responsibility for your children and you are both entitled to be involved in the important decisions about them; such as where they live, schooling, medical issues etc.
- If you are not married then only the birth mother automatically has parental responsibility. A father may have parental responsibility depending on when the child was born and if his name is on the birth certificate. If a father does not have parental responsibility then he can acquire this either by a formal written agreement with the mother or by court order.
- Whether or not you are married you are entitled to make an application to the Court for an order relating to your child. The most common orders up to 22nd April 2014 are:
- Specific Issue Order – this can determine particular issues about which parents cannot agree, i.e. which school the children should attend.
- Prohibited Steps Order – an order to prevent a specific event from occurring, i.e. to stop the removal of a child from school.
- Parental Responsibility Order – for parents and step-parent who do not automatically share parental responsibility and want to be more involved in the major decisions in a child’s life.
What is a Child Arrangements Order
- From the 22nd April 2014 Residence Orders and Contact Orders will be replaced for all new cases by a ‘Child Arrangements Order’. This is response to a developing case law and strong view that it is important that children have an ongoing relationship with both their parents after family separation. The changes were designed to deal with the impression that a Residence Order and Contact Order create a hierarchy of parental ‘rights’.
- After the 22nd April 2014 any order will state with whom and when a child is to live, spend time or otherwise have contact.
- Existing Residence Orders and Contact Orders already made will remain in place unless they are amended.
What do the Courts take into account when deciding about our children?
- As a starter the Court will look at what is in your child’s best interests. To help them decide this they may ask for a CAFCASS Officer (www.cafcass.gov.uk) to prepare a report making recommendations specific to your family. The CAFCASS Officer may interview both parents, the children and in some circumstances other members of the family such as grandparents or new partners. Any recommendations take into account the following:
- The ascertainable wishes and feelings of the child concerned (bearing in mind age and understanding);
- Physical, emotional and/or educational needs;
- The likely effect of any change in circumstances;
- 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 of meeting the child’s needs are each of his parents and any other relevant person
How will the judge reach a decision?
- If, after the CAFCASS Officer has made recommendations you still cannot agree upon what is in your children’s best interests, the matter will have to be dealt with at a full court hearing before a Judge or a Family Magistrate. The Judge, taking all of the information into account, will make an order to be imposed upon you based on what he, with the assistance of the CAFCASS Officer’s recommendations, believes to be in the best interests of your children. The order that he or she makes may well be not what either of you would have wished for at the outset. Agreement is, if possible, always preferable to a contested hearing as it is inevitable that at least one of you is going to be unhappy with the judge’s decision, if not both of you!
What if the court order is breached?
- The breach of a court order without reasonable excuse can be a very serious matter. A warning notice will be included in all Orders since 8 December 2008 which says that if the order is breached without any reasonable excuse then the court can make an enforcement order which requires the parent in breach to do 40-200 hours of community service. If there is a financial loss ( i.e. a missed holiday) the court may make an order that compensation is paid by the defaulting party. The court can also attach a penal notice which means that any further breach is contempt of court for which the parent in breach can be fined and/or imprisoned. In extreme cases the Court can consider a change of where the child lives if there is a persistent breach by the parent against when a child arrangements order is made.
What rights do grandparents have?
- When a relationship breaks down it is often the case that grandparents lose contact with their grandchildren. This can cause great heartbreak for grandparents who, particularly in today’s modern society, have provided a caring and/or supportive role for their grandchildren. This often happens as a result of the children moving to a new area or as a result of strained relationships after a family breakdown.
- If as a grandparent you can maintain a relationship with the parent who lives with your grandchild it will be easier to negotiate contact, either directly, by using the local mediation services or through solicitors.
- There are occasions where informal approaches are not appropriate or are unsuccessful, and in those cases you can make an application to the Court. Going to Court however should be considered to be the last resort, but in this event if you can get either of your grandchild’s parents to agree to support your application it may make it easier for you.
- There is no presumption of contact between you and your grandchild(ren). You will have to apply to the Court for permission to make an application to see your grandchild. This is the first step and you may be asked to provide evidence that you have a meaningful and ongoing relationship with him or her and that it is in the best interests of your grandchild for this relationship to continue. If permission is granted by the Court then your application for a child arrangements order will be considered in full. It is likely that a CAFCASS Officer will be appointed. If the Court feels that contact is in your grandchild’s best interests then a Child Arrangements Order for contact will be made and enforced in the same way as if it related to a parent. Please contact us if you have any queries regarding an application for grandparents contact (also see www.grandparents-association.org.uk).
What rights do I have as a step-parent?
- You will not as a step-parent automatically obtain parental responsibility for a child living with you, even if you are highly involved in the care of that child, perhaps during school holidays or even on a day-to-day basis. So what happens if, for example, you are looking after a child during a holiday and they have an accident needing urgent medical treatment? As a step-parent you cannot give permission for this treatment to be carried out. This can only be given by a person who has parental responsibility.
- You can acquire parental responsibility through a Parental Responsibility Agreement signed by all persons who have parental responsibility or by making an application to the Court for an order. You will need permission from not only your spouse but also the child’s other parent before an agreement can be made. Any decisions made by the Court about a child is based upon what is in the best interests of him/her.
- The position is the same in respect of same sex partners in a registered civil partnership where parental responsibility can be acquired by agreement or in default of agreement by court order.
- An unmarried partner is not a step-parent of the child and therefore would have to apply for a Child Arrangements Order or apply to adopt the child in order to acquire parental responsibility.
- It is important to note that the acquisition of parental responsibility by another person does not affect the rights and responsibilities of the others who share parental responsibility. The emphasis is strictly upon all parents continuing to share the responsibility of bringing up that child and having a major say in the decisions affecting that child.
How do I get child maintenance for my children?
- If you are not able to agree the level of child maintenance then this will be dealt with by CMS, the Child Maintenance Service. Either parent can make an application to CMS for an assessment of child maintenance which depends upon your income, the number of children and how often your child/children regularly stay overnight with the non-resident parent.
- If you and your spouse can reach an agreement as to the level of child maintenance the Courts have limited powers to make orders. The courts can make top-up orders in high income cases or make orders to meet the costs of disability, education or training.
- CMS has jurisdiction where all parties reside in the UK. If one of the parents of the child is living abroad then an application can be made to the Court for maintenance. The CMS website provides more detail in respect of these matters, including an online calculator that you might find helpful. You can find this at www.cmoptions.org
- For more details see Children – financial applications
Can I take my child outside of the UK jurisdiction?
- If you have a child arrangements order in your favour which states that the child is to live with you then it is possible for you to take your child out of the United Kingdom (England, Northern Ireland, Scotland and Wales) for a period of up to 28 days without the formal consent of anyone else with parental responsibility. It is of course still sensible however to agree your plans in advance with the other parent. If you do not have a child arrangements order that confirms the child lives with you in your favour then you cannot take a child out of the United Kingdom without the consent of all others who have parental responsibility for your child, or an order of the court. To do so may be a criminal offence under the Child Abduction Act 1984.
- It is always important to discuss your holiday plans with the other parent to enable times and dates to be agreed between yourselves. If a reasonable request for a holiday is refused then it is possible for you to make an application to the Court for a Specific Issue Order. It is generally viewed that holidays are reasonable and likely to be in your child’s best interests. Such an application is therefore likely to be successful.
What if I want to move permanently abroad with the child, or my former spouse wants to take my child to live abroad?
- It is a priority that discussions start as soon as possible. It is important that you or your former spouse have specific plans in place to ensure that your child will be able to have an ongoing relationship with the other parent and will prevent any last minute disruption of the move.
- If you or the other parent objects to the child’s move then court proceedings may be necessary for the Court to decide what should happen. The Court will particularly have regard to:
- The welfare of the child
- The specific plans of the parent wishing to live abroad, including practical considerations and whether there is a genuine reason for the move.
- The effect of the refusal of permission upon the parent wishing to move
- The effect of the reduction of contact between your child and the parent who will be remaining
- How contact can be maintained between the child and the parent who will be left behind.
- There is no presumption that permission will be given automatically. Plans will need to be well thought through, with genuine motives and be reasonable to be successful.