WHEN marriages break down, the law is set up to minimise impact on any children involved. Suzanne Foster (pictured above), of Parker Bullen Solicitors, explain more…
In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
Arrangements concerning children following the breakdown of a relationship should be a matter for discussion and agreement between the parents. In cases where the parents cannot agree, it may be necessary for one of them to make an application to the Court. We no longer have Orders titled Access and Custody, Contact and Residence. These have been replaced by the umbrella term of a Child Arrangements Orders (CAO).
If both parents have parental responsibility (PR) they get one vote each in decisions concerning the child. If they each vote in opposing ways, it would be a matter for the Court to have the deciding vote upon taking into consideration what is in the child’s best interest. Mother and married fathers automatically have PR for their child but an unmarried father will only have PR if he is named on the child’s birth certificate, if he is a party to a PR Agreement filed at Court or if he has the benefit of a PR Order.
Where one parent is a member of HM Forces, often greater consideration needs to be given to the practicality of caring for a child especially where the serving parent may need to undertake deployments and tours of duty.
The Court can be asked by either parent to make a decision about where the child lives and with whom and how much time they spend with the non-resident parent. The Court may also need to make Orders governing which school the child attends, what surname they should be known by and within which religion they are brought up.
Save in cases of requiring an urgent hearing, prior to the applicant parent making a Court application within the Family Court, the parent must first attend a Mediation Information Assessment Meeting (MIAM) with a mediator. If mediation is deemed suitable It may be possible for the parents to sit down with an independent mediator, discuss the issues in dispute and reach a negotiated compromised solution with which both parents can agree thereby avoiding the need for Court proceedings. If mediation is not considered an appropriate forum or if mediation is tried but breaks down with agreement being reached, the parent will need to commence a Court application for a CAO.
How much of a say do my children have in where they wish to reside?
Children should not feel the pressure of having to decide which parent they wish to live with. Some children however would like their views listened to when decisions are being made about them regarding serious issues such as with whom they reside and where.
Upon an application by a parent for a CAO the Court may order CAFCASS (Child and Family Court Advisory Support Service) to prepare a report. The report can either cover all the principals set down in the Welfare Checklist which is found in the Children Act 1989 and includes a child’s wishes and feelings or, in a case where there are no welfare concerns, the report can be limited to ascertaining wishes and feelings only.
There is no set or defined age for a child expressing their wishes and feelings to CAFCASS but their views will be considered in light of their age and understanding.
What rights do extended family members have?
Anyone with PR has the automatic right to apply to the Court for a CAO. Members of the extended family do not have PR and if it is necessary for them to apply to the Court to spend time with a child they must, in addition to applying for a CAO, first apply for permission to make the application.
Unlike with parents of a child, there is no presumption in favour of extended family members that there should be contact with the child. The Court will, in the event of a family member making an application, consider what is in the child’s best interest. Often, maintaining a relationship with either the extended maternal or paternal side of the family ensures the child has an understanding of their family roots which may include cultural traditions. Maintaining a relationship with extended family members may be considered more important in cases where the biological parent is not having contact.
Parents should be encouraged to share their child with members of their, and the other parent’s extended family, irrespective of how the parents feel about each other.
What practical considerations should parents or guardians be aware of?
Parental Responsibility is specifically defined in the Children Act 1989 as “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his/her property.”
The obligation PR bestows on a parent should never be taken lightly.
All decisions made by the parents should be based on what is in the child’s best interest. It is not about the parent and their needs and they can often lose this focus during the acrimony of a relationship breakdown when emotions are running high.
Is legal advice necessary if the split is amicable?
There is never a disadvantage to taking legal advice to ensure you fully understand your legal rights and obligations. It may not be necessary for the solicitor to take any further action and the other side need not know that legal advice has been taken.
Taking advice from friends and family, whilst well meaning, should be discouraged. Your solicitor will have no emotional involvement in the situation and can often give advice about aspects you may not have even considered. Forewarned is forearmed. Being informed will enable you to make well considered decisions which could help you to avoid getting into conflict with the other parent.
Where parents reach an agreement about the arrangements for their child there does not need to be any Court involvement or a Court Order. The legislation in this area specifically deters Court intervention with the No Order Principal which provides that the Court shall not make an Order unless it considers that doing so would be better for the child than making no order at all.