WHEN marriages break down, the law is set up to minimise impact on any children involved. Allen Bailey (pictured above), of Scotts Wright Solicitors, explain more…

In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
The words “custody” and “access or visitation rights” although still sometimes heard have been updated and replaced by what is known as a ”Child Arrangements Order” so we now talk about which parent the child or children shall live with and how much time they shall spend with the other parent.

In most cases the court does not need to be involved as the parents are able to agree themselves what will happen when they separate. They may, for example agree that the children live with one of them and spend time with the other on a frequent and regular basis or that the children split the time with each of them more equally.

Parents do however need to remember that any arrangements they may agree on need to be flexible and may change over time such as a change in working hours or the children changing schools.

The agreement can be put in writing. This is known as a Parenting Plan which sets out how the care of the children is going to be managed. A Parenting Plan template is available online and can be downloaded for completion.

In some cases especially if the separation is acrimonious parents may not be able to agree who the children will live with or how much time they should spend with the other. In such a situation mediation may assist. A mediator is an impartial 3rd party who can help negotiate between the two parents.  Obviously, this approach needs both parents to agree and participate.

If no agreement can be reached, then there is little alternative other than to go to court to have a Judge decide. The court’s decision will be based on the child’s welfare, they will take into account a variety of factors including

  • The child’s wishes and feelings
  • The physical and emotional needs of the child
  • The effect a change in circumstance might have
  • The age and background of the child
  • If the child at risk of or suffered harm
  • The parents capabilities

A court will only make a child arrangements order if it better for there to be an order than no order at all. This is known as the “no order” principle and means that the court needs to be certain the making an order is in the best interest of the child.

How much of a say do my children have in where they wish to reside?
If parents cannot agree on arrangements for their children following a separation the court will have to decide.

The amount of weight that a court will attach to the views of a child will depend on their age, maturity and understanding of the circumstances.   Less weight will be given to the wishes of a young child compared to an older child, say a teenager. When a child reaches 16 they can decide where they want to live.   A court must have regard to a child’s welfare, even if this may be in conflict with the child’s wishes.

The Children and Family Court Advisory and Support Service (CAFCASS) will usually become involved when one parent takes the other parent to court.

If a parent believes the children’s views should be taken into account either as to where they should live or how much time they should spend with the other parent, the court may direct CAFCASS to undertake a “Wishes and Feelings” assessment of the child or children.

CAFCASS can see and speak with a child of almost any age as their wishes and feelings are always assessed against the background of their age and understanding.

There are a number of “tools” or techniques a CAFCASS Officer can use to assist in ascertaining a childs wishes and feelings.

These include cards with faces on that are happy, sad, worried and angry. The child is asked to put the cards next to each person in their life. They can also have a drawing with three islands called happy sad and peace where the child is asked who he would like to live on each island.

In some cases a child will be able to write a letter to the judge.

What rights do extended family members have?
Following a break up the most obvious steps a Grandparent, Aunt or Uncle can take to see the child is to communicate and reach an agreement with both parents.  If the child has had regular contact with Grandparents, aunts and uncles then it will be beneficial for that this continues. All parties should have the best interest of the child at the forefront of their mind.  A child will benefit from stability following a breakup.

It is not always possible for an agreement to be reached following a breakup, given the emotional upset that follows a breakup.  If an agreement cannot be reached, then you could attempt mediation and try to establish contact this way.

Failing this, the only other option would be to apply for a child arrangement order.  The Mother, Father or person with Parental Responsibility can apply for such an order without permission of the court (referred to as leave of the court).  A Grandparent or Aunty or Uncle will require the permission of the court to apply for an order. The court will then list a hearing to consider granting permission.

A court will usually want to hear from the parents and will notify them of the hearing.  When considering weather to grant permission to apply the court will give thought to the nature of the application, the connection of the applicant with the child and if there is a risk of disruption to the child.  If the court grants permission, then an application for a child arrangement order can be made. The hearing for permission and the hearing for the order can be on the same day.

Permission to apply is not a guarantee that you will be successful in obtaining a child arrangement order.  More than one hearing may be required and the parties will be encouraged to try and reach an agreement between themselves with regards to the contact.

A court will only grant an order if it is in the child’s best interest and the welfare of the child will be the primary concern of the court.  If a court order is obtained but you still have trouble exercising the contact, then the courts do have powers to enforce the order.

What practical considerations should parents or guardians be aware of?
Following a break up there are a number of matters which parents or guardians must consider in relation to the child.  It is not possible to give an exhaustive list of issues parents will need to consider.

The most obvious are were the child will live and where will they go to school.  In a perfect world the child will remain in the family home and attend the school they have been going too, but this is not always possible.  It may be that the child is yet to start school or that both parents will have to move. Who is available to take the child to school and to collect them?  Is family available to help or will a child care provider be used or after school club, if so is this in the best interest of the child. Do the parents agree on which school the child should go to.

Deciding where the child will live and with who is a huge decision and though sometimes parents can agree other times they can’t and it will be for the court to decide.  Where the parents remain in the same place, shared residency may work well.

If this is not the case, then how contact for the parent the child does not reside with needs to be considered.  How frequent should contact be, where should it take place. If there is a lot of traveling involved would it be easier for contact to be nearer the child over a weekend.  What about school holidays and Christmas. The child’s wider family such as Grandparents may also want contact. Parents may want to consider making the child available for video calling or conversations on the telephone.

If both parents have parental responsibility, then considering how to make decisions for the child in day to day live should be considered.  Talk about the types of decisions that you feel will need both of your input.

Modern life is busy and each family is different so there is not one approach which will suit all.  The practical workings of your family will need to be considered and most agreements will need to be flexible.  Circumstances can change and new matters can emerge which require further consideration.

Is legal advice necessary if the split is amicable?
Parents are always encouraged to try and resolve issues themselves.  If a separation has been amicable and the parents can agree on who the child will reside with then this is beneficial to all.  A parent may still want to seek advice to ensure that agreement is in their best interest. There may also be factors that the parents have not considered and an experienced solicitor offer guidance on the issues that need to considered.  

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