WHEN marriages break down, the law is set up to minimise impact on any children involved. Lin Cumberlin (pictured above), of Batt Broadbent Solicitors, explains more…

In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
A relationship break-up is hard for everyone involved, not least the children who are likely to experience a wide range of emotions. The break-up of a family unit can cause a significant sense of grief to parents and children who will be affected by the change in their lives and the feeling of loss. It can also be a very difficult time for the grieving parent to cope with their own emotions never mind those of their children.

Ideally, the parents will have considered and agreed where their child(ren) will live (formerly referred to as residence/custody) and how often they will see and spend time with each parent (formerly referred to as contact/access). This is known as making “child arrangements” and, where possible, the courts expect parents to try to reach agreement between themselves about their children outside of the court arena.

If the parents are able to agree the arrangements for their children, there is no need for any formal documentation to be drawn up but it can be useful and helpful to have the details of the child arrangements schedule written down into a Parenting Plan so that the parents and the child(ren) know the dates and times that they are spending with each other. You can find more details about a Parenting Plan on the Resolution website at http://www.resolution.org.uk/separationsupport/#plan

If the parents are unable to agree on all of the arrangements, the next step, prior to making an application to court, would be to consider consulting a Mediator to help resolve any outstanding issues. Any parent wishing to make an application for a Child Arrangements Order (CAO) must show that they have attended a Mediation Information and Assessment Meeting (MIAM) with a mediator prior to making an application to court unless they can demonstrate that they are exempt from attending the MIAM.

The mediator may be able to help you reach an agreement together to avoid any applications having to be made to the court. This is a cheaper and easier way of dealing with matters and you can go back to mediation at any time if any further disagreements arise over the child arrangements.

If agreement simply cannot be reached and a referral to court becomes necessary this could result in you having to attend several court hearings before a final decision is made. A small number of cases will proceed to a Final Hearing where the court will consider all the evidence, including oral evidence, and make a decision on the issues in dispute. Both parties will then be bound by the court’s decision which is likely to result in one parent being aggrieved at having to adhere to the terms of an Order that they would not readily have agreed to.

How much of a say do my children have in where they wish to reside?
This will depend upon the child’s age and levels of maturity.

In 2014, the Government made a commitment that, from the age of 10, children and young people involved in all family court hearings in England and Wales would have access to judges to make their views and feelings known.

By law: “Children and young people must have their views heard before decisions are made about their future and where decisions are made that will impact them” – Family Justice Minister Simon Hughes.

Since 2014, children and young people from the age of 10 have been given access to the judge, usually via the Court Welfare Officer (also known as a Children and Family Court Advisory and Support Service (CAFCASS) officer). The CAFCASS officer will engage with the child to ascertain their wishes and feelings which are then recorded in the CAFCASS report which is provided to the court and to the parents. This gives children the opportunity to make their views clear.

Giving children involved in a family dispute the chance to speak to a judge and make clear their views means that children are not only seen in family courts but also have the opportunity to be heard.

Giving children a voice either in a court room, via a CAFCASS report or via mediation can help influence the outcome of their future and should enable their separating parents to focus on what their children want.

It can, however, be extremely difficult for children to be open and honest, especially if the child feels uncomfortable and/or unwilling to voice their feelings for fear of offending or upsetting their parent(s).

If the children are aged 10 or over, it might be beneficial to consider “child inclusive mediation”. The child or young person will only be invited to talk to the mediator alone and in confidence if the parents agree that to do so would be beneficial to the child. There are many benefits to child inclusive mediation; it can help the parents to focus and be clear in their discussions concerning the needs of their children. Knowing that both parents are willing to listen to what the child has to say can also have a huge impact on the child’s relationship with both parents. A child should never be placed in a position where they feel under any pressure to choose between their parents. Just having the opportunity to confide in someone like a mediator can be comforting and reassuring to the child.

As was decided in the recent case of Madonna and Guy Ritchie’s 15-year-old son Rocco, a child can be made a party to proceedings involving his parents if the court considers that it is in the best interests of the child to do so.

What rights do extended family members have?
Ordinarily, parents, whether separated or not, will ensure that their family and wider family members maintain a close relationship with their children.  If a relative is being refused contact with a child, the relative does not automatically have legal rights to contact and will have to seek the court’s permission to make an application for a child arrangements order (CAO).  

Under the Children Act 1989, a “relative” is defined as a grandparent, brother, sister, aunt, uncle or step-parent.

If a child has been living with a relative, ie grandma or aunt, for one year and a situation arises where the grandma/aunt needs to make an application for a CAO regarding the child’s living arrangements, the grandma/aunt does not need to apply for permission because the child is already living with them. However, if grandma/aunt needed to apply for permission for any other type of CAO such as an order regulating with whom and when the child can spend time or otherwise have contact with any person, they would need to obtain the court’s permission first.

In a situation where a child has been living with a prospective applicant, who is not defined as a relative under the Children Act, for at least three years, the prospective applicant does not need permission to apply for a CAO because of the length of time the child has been living with him/her but would need the court’s permission to apply for a Specific Issue Order (to make a decision on a particular point) or a Prohibited Steps Order (to prevent a person from taking certain actions in the exercise of their Parental Responsibility).

If more than three months have passed since the child stopped living with either a relative or non-relative, the court’s permission would be required for them to apply for a CAO.

Any applicant in private law proceedings must first attend mediation. An application for permission to apply is a separate application and the person applying for permission does not need to attend mediation before making that application but, once permission to apply has been granted, the applicant would then need to attend mediation (unless exemption applies) before submitting the CAO application to the court.

What practical considerations should parents or guardians be aware of?
Parental responsibility (PR) gives parents/guardians all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to that child and his property by law. A person with PR can make decisions about the child’s accommodation, education and medical treatment.

A mother will always have PR for a child.  If the child’s parents are married when the child is born then both parents will automatically have PR. If the parents are not married when the child is born, only the mother will automatically have PR but the father can get PR if he:

  •    marries the mother;
  •    enters into a PR agreement with the mother;
  •    obtains a PR order through the court;
  •    is named as the person with whom the child lives in a CAO;
  •    is registered as the child’s father on a register of births in the UK with the mother’s consent and the child was born on or after 1 December 2003;
  •    becomes the child’s guardian; or
  •    adopts the child.

PR can also be acquired by two female parents, step-parents and certain others. More than one person can have PR at the same time.

Each person with PR can act alone in meeting their responsibilities and parents who share PR will be expected to ensure that the other parent’s rights are respected. Parents with PR are expected to be the primary decision makers for determining and delivering the upbringing that the welfare of the child requires and, ultimately, the burden for resolving parental disputes rests with the parents who share PR.

Parents/guardians with PR are expected to consult with the other holders of PR on matters concerning:

  •    the child’s schooling;
  •    applications for authorised absence from school;
  •    where the child is to live and the contact arrangements during school holidays;
  •    planned but not routine medical/dental treatment;
  •    immunisation of childhood diseases;
  •    whether and at what age the child should be able to watch videos recommended for children over the ages of 12 and 18;
  •    changing the child’s surname;
  •    relocating the child either to another part of the country or abroad;

The presumption of shared parenting was introduced in 2014 but its meaning is unclear and, to some extent, the meaning has become distorted since it was introduced. Shared parenting does not mean shared or equal care of a child. Nowadays, the courts prefer parents to co-parent and to share parental duties, rights and responsibilities for their children. However, as we know only too well, not all parents are able to co-parent and situations do arise where parents cannot and do not consult or communicate with each other but simply make decisions about their children which can have serious implications and affect not only the child but also their relationship with a parent.

If parents/guardians cannot resolve an issue relating to the exercise of PR, an application can be made to court for an order to decide the issue (known as a Specific Issue Order (SIO)) or to prevent a person from taking certain actions in the exercise of their PR (known as a Prohibited Steps Order (PSO)).

It is not unusual for parents to become involved in bitter disputes about their children’s education, housing etc.  Parents/guardians with PR can make some decisions without notifying or consulting others who have PR. These decisions usually relate to day to day, routine matters such as the child’s activities, routine discipline, personal care etc.  They can also make decisions in respect of things like taking the child out of the country on holiday, changes in living arrangements and emergency medical treatment but would be required to notify others who have PR .

If a parent/guardian with PR wants to send their child to a particular school, take the child to live in a different location or move abroad either permanently or temporarily and the other person with PR objects, the only way to resolve the dispute would be to apply for an SIO.

PSOs are usually made to stop a person from taking certain steps while exercising their PR.  They are used to prevent change of a child’s school or the child’s name, relocation to another part of the country or abroad, decisions on religious instruction and choosing a particular course of medicine.

Disputes which lead to applications for PSOs and/or SIOs can flare up pretty quickly and applications of these types of orders are usually made urgently and without the other party being informed (a without notice application).

Armed forces personnel can often find themselves in a situation where, following the breakdown of their relationship/marriage, their former partner/spouse wants to move back to be near family/friends and wishes to take the children of the family with her/him.  This can sometimes result in a relocation to another part of the country or abroad. The parent who wishes to relocate should first consult with the other parent and try to reach an agreement. Serious consideration will need to be given regarding the child’s relationship with the other parent and how often they currently see and spend time with that parent and how that relationship will be affected/maintained if the relocation goes ahead.  If the other parent objects to the relocation the parent wanting to relocate will need to make an application for an SIO to the court for the court’s permission to move. Alternatively, the parent objecting to the relocation may make an application for a PSO to prevent the move.

If the parents/guardians cannot resolve any dispute on a PR issue they should initially consider attempting mediation to try to resolve the dispute and will need to do so before any application can be made to court in any event.

Is legal advice necessary if the split is amicable?
Yes, I would always recommend that parents/guardians seek legal advice. Even if they have agreed on all arrangements relating to their children, it is important that this is properly recorded in the form of an agreement/parenting plan in case a dispute arises at any time in the future. The legal advisers can simply draw up the terms of the agreement/parenting plan which sets out what the parents (and, where appropriate, the children) have agreed. Occasionally, the agreement can be useful, particularly within the Armed Forces, as proof of the fact that the serving member is having his/her children to stay overnight regularly in terms of provision of accommodation.

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