A Guide to Disputes Involving Children
In a family dispute the focus is always on the needs of the children
In a family dispute the focus is always on the needs of the children. Whether you are married or not, you may need advice when you split up about Parental Responsibility for your children.
These days the Courts will not interfere in your arrangements for your children unless you are unable to agree. Custody and access are now referred to as Child Arrangements.
It is now common for parties to agree to share the care of the children and enter into Shared Child Arrangements.
What if you cannot agree?
If you cannot agree where the children are to live then one or both parents can apply to the Court for a Child Arrangements Order. It is important to remember that this is not a “best parent” contest. The Court is only concerned with what is in the best interests of the children. It is much better for the children if you can agree.
Even if you are able to agree where the children are to live, you still may not be able to agree how much time the children should spend with the other parent. Until recently a Court would typically grant the parent who does not have the children living with them a minimum of staying contact every other weekend and up to half the school holidays, however these days sharing the care of the children is encouraged.
sharing the care of the children is encouraged.
The Court can also decide other disputes such as schools, changing the children’s surname and other major disputes. These are called Specific Issues and Prohibited Steps Orders.
What is Parental Responsibility?
This gives parents a legal status and a right to participate in the important decisions concerning their children.
Unmarried Fathers who are named on the Birth Certificate have it. Married Fathers, like all Mothers, automatically have Parental Responsibility towards their children.
Mothers can grant Parental Responsibility to the un-named Father, who does not have automatic Parental Responsibility, by an agreement. This needs to be sent to the Principal Registry of the Family Division in London. If the Mother will not agree, then the Court can grant Parental Responsibility. In the vast majority of cases the Courts will grant Parental Responsibility on a Father’s application.
Going to Court
Your Solicitor will help you to negotiate an agreement without the need to go to Court but if this proves impossible, the Courts can decide. Applications are made to the Family Court. The Court charges a fee of £215. Child Arrangement Applications can be expensive so they should not be issued lightly.
In most cases you will be required to attend a Mediation Intake Session to ascertain whether mediation could help you reach an agreement without going to Court.
Once an application has been issued, a first hearing date is normally fixed called a Directions or Allocations hearing. Prior to that checks will be made with the Police and possibly Social Services. The application is served on the other parent and both parents must attend Court. In the Lincoln Family Court a Court Officer, called a CAFCASS Officer, is often available at Court to see if he/she can assist.
If an agreement is reached, this will be the end of the Court proceedings. Even at this stage the Court will only make an Order if it is better to do so than not. This is called the “No Order” principle.
If agreement is not possible, then the Court can direct that a CAFCASS Officer meet the children to ascertain their wishes and feelings, and/or direct both parents to make Statements in support of their case. Also a CAFCASS Officer can be asked to make a report after visiting both parents and the children. The Court sometimes directs both parents to attend a Parenting Information Programme. The Court will fix a date for the actual hearing before a Circuit Judge.
How long does it take?
Contested Child Arrangement Applications usually take about six months although many do take longer. If the case is urgent then the Court can act quickly.
It is very difficult to appeal a decision about children, although it is possible to ask the Court to vary the Order if the arrangements are not working. Always remember if you go to Court there is always a risk neither of you will like the result. It is always much better to agree if you can.
Costs in Children Cases?
In children cases, both private and public law, case law has established the proposition that it is unusual to order costs. A number of reasons are advanced for the practice of no order for costs in children cases. In all family proceedings, an order for costs inevitably diminishes the funds available to meet the needs of the family. Proceedings to determine the future of a child are partly inquisitorial and the focus is the best interests of the child. The Court does not wish the prospects of a Costs Order to discourage those with a proper interest from participating reasonably in the proceedings and the debate.
In children matters the Court retains the jurisdiction and the discretion to award costs in suitable cases. All circumstances must be considered in relation to the exercise of the Court’s discretion. Examples of circumstances in which costs may be awarded in children cases include those where one party has been guilty of unreasonable conduct in relation to the litigation and where there is a marked disparity in the means of the parties.