WHEN marriages break down, the law is set up to minimise impact on any children involved. Belinda Hunter (pictured above), of Wills Chandler Solicitors, explain more…

In the event of a break-up, who decides which parent is awarded custody and the terms of any visitation rights?
Following the breakdown of a marriage or relationship, the parents may decide between themselves the children’s living arrangements and the time (contact) they will have with each parent.

If you have agreed the arrangements in relation to the children you should consider completing a Parenting Plan.  A Parenting Plan can help you and your ex work out arrangements for your children after you split up. It helps you to put the best interests of your children first and to set out a shared commitment to your children.

Your Plan will help you work out the practical decisions about children’s care in areas such as communication, living arrangements, money, religion, education, health care, and emotional well-being.

Negotiating your own agreement can be the cheapest and easiest way to reach a settlement following separation.  This option isn’t suitable for everybody but it can work if you have mutually agreed to separate, remain on good terms and generally agree on issues relating to the children.

If the parents do not agree on the arrangements, there are various options they can consider to help them reach an agreement such as medication, arbitration or the collaborative process. If those processes are not for you, your solicitor can negotiate an agreement.

In the event an agreement cannot be reached either can apply to the court under section 8 of the Children Act 1989 for a Child Arrangements Order to determine issues such as where the children are to live and how much contact they are to have with the other parent.   

How much of a say do my children have in where they wish to reside?
If you are getting a divorce or are separating and you have children, you and your husband/wife will need to work out who the children are going to live with.  You can allow your child to make this decision for themselves. This is your choice as a parent; there’s no set age that determines when a child is allowed to say where he/she wants to live.  It is up to individual parents to decide at what age they allow the child to make the decision about where they wish to live. Where parents are making the decision about where a child is to live they are able to choose whether the parent or the child makes the decision.

For some families the decision will be clear. It may be that one person agrees to move out, leaving the other parent and the children in the family home. This way, the children’s lives will be disrupted as little as possible.

For some families, there will be some dispute as to where a child should live, and how much contact each parent should have. If so, you should get legal advice from a Family Lawyer as soon as possible. There are various options open to you, including Mediation and negotiations through solicitors before Court proceedings.

If the question of who the child is to live with has to be resolved through court proceedings, then the courts will start to place weight on a child’s wishes when they are considered competent to understand the situation. What that age that is varies on the circumstances.  If an application to the Court is necessary to decide where a child is to live, the wishes and feelings of the child are just one of the considerations that the court has to take into consideration.

What rights do extended family members have?
Taking the matter to Court should normally be the last resort for anyone seeking contact with a child or grandchild: it can be costly, time consuming, emotionally stressful and puts a lot of strain on family relationships.

Initially it is advisable for those family members to try to reach an agreement with the parents times when they can see the children.  This may involve arranging to spend time with the child where the parent themselves no longer has contact, or where they want contact independently of the arrangement between the parent and the child.

In most cases, before the application can be made to court, you will be required to attend a Mediation Information and Assessment Meeting to learn about family mediation and other forms of alternative dispute resolution. If, having attended this meeting with the person who is preventing you from having contact with the child and it has not been successful, or where that person has refused to engage with any suggested form of mediation or dispute resolution then you can proceed with your application to the court.

The family court recognises that it is usually in the best interests of a child to have contact with extended family members such as grandparents, aunts and uncles and cousins.  In certain situations, members of a child’s wider family may need to get their own legal advice on children issues.

The family member would apply to the court for a Child Arrangements Order which is made by the Court under Section 8 of the Children Act 1989. Often, the family member doesn’t have an automatic right to make an application to the court.  In these situations, the family member would need to make a preliminary application for the court’s permission to apply for the Child Arrangements Order to see the child/ren.

What practical considerations should parents or guardians be aware of?
When couples separate, relocation of the children can sometimes become an issue, for example the parent with whom the children are to live may want to return to live near their family after separation.  If the other parent does not agree to such a move then an application will need to be made to the Family Court.

If the proposed move is within the UK then the application would be for a “specific issue order” under section 8 of the Children Act 1989.  Only in exceptions circumstances and further when it would not be in the child’s best interests is the court unlikely to make the order that the applicant would be allowed to relocate a child within the UK.  

There is case law stating that by doing so would have an adverse effect on the welfare of the child by denying the primary carer reasonable freedom of choice.   Courts are likely to be resistant to preventing a parent from exercising their choice about where to live in the UK unless the child’s welfare requires it.

In relocation cases, whether within the UK or external, the court considers the practicalities of the child spending time with the other parent or, with seeing if there is a way in which the move can be made to work.  Courts are therefore looking after the interests not only of the child but also of both parents. Only where it cannot, and the child’s welfare requires that the move is prevented, does that happen.  The court considers the interests of the parents but, if it is not possible to accommodate everyone’s wishes, the best interests of the child dictate the outcome.

In an application to relocate the parent making the application would need to provide a statement to the court confirming at least the following:-

  •      Full history of the parties’ relationship
  •      Explain the proposed move including practicalities such as where the applicant will live with the child/ren.
  •      Show the research undertaken into schools and explain which school has been chosen and why
  •      Give details of the motivation for the move e.g. new employment etc.
  •      Explain plans for contact with the other parent following relocation
  •      Outline the effect of a refusal will be e.g. the emotional effect

Is legal advice necessary if the split is amicable?
The family justice system, at first glance, can seem confusing and overwhelming. However there are ways that you can minimise conflict during your separation and reduce the stress and pain for yourself, your former
partner and any children you have. You don’t have to go to court for an order to be made in respect of the children.

Negotiating your own agreement can be the cheapest and easiest way to reach a settlement following separation.  This option isn’t suitable for everybody but it can work if you have mutually agreed to separate, remain on good terms and generally agree on issues relating to the children.

If you and your former partner want to resolve matters you have many options available to you, including mediation, collaborative practice and arbitration, together with solicitor negotiation. These processes support you and your former partner to work together to decide what happens to your children after your separation, and how money and assets such as the family home will be divided between you. This can be quick and cost effective, giving you more control and enabling you to resolve your dispute and move on with your life. Minimising conflict during your separation can also reduce the emotional trauma on children.

You may have heard of the “no order principle” in relation to children.  This is a really important principle that the court must always consider. The court must start from the position that no order shall be made unless the court ‘considers that doing so would be better for the child than making no order at all’.  Therefore if you are able to agree matters relating to the children, there is no need for an order from the court to determine where they are to live or how often they will see the other parent. Of course each case will always depend on its own facts.

If the split is amicable and you are able to agree issues in relation to the children then it is not always necessary to seek legal advice with regard to the children.  However by obtaining that advice, it will help you to understand the legal process, how to take the first steps and where to get the support you need to help you make the right decision.

If you have agreed issues in relation to the children you should consider completing a Parenting Plan.  The Parenting Plan is a written plan worked out between parents after they separate and it covers the practical issues of parenting.

The Plan can help clarify the arrangements you need to put in place to care for your children after separation, without having to go to court. It can help you in dealings with your children’s other parent or carer, and it asks parents to put the best interests of their children first. There are many benefits of making a Parenting Plan:

  • it will help everyone involved know what is expected of them;
  • it acts as a valuable reference to go back to; and
  • it sets out practical decisions about the children, such as living arrangements, education and health care.

About The Author


Related Posts