Arrangements for Children
Inevitably on divorce and marriage breakdown the first concern will probably be where will the children live and how will they keep in contact with both of you. Just because you divorce or separate does not mean that you are no longer parents.
There is no magic formula as to how best a family will function after separation or divorce. We would encourage you and your child/ren’s other parent, with our assistance, to try and find a formula that works for your individual family. There are no rules as to what is right or wrong but if it is possible to achieve something by agreement then it is far more likely to work.
In the event that agreement cannot be reached then it is possible to make applications to the Court under the Children Act 1989. Old fashioned custody and access have been replaced with the concept of residence and contact but fundamentally are the same thing. The Court is obliged to consider the children’s welfare as the paramount consideration with any decision that it makes in connection with a child’s upbringing and therefore the Court will want to understand:
- the wishes and feelings of the child in the light of his/her age and understanding
- the child’s physical, emotional and educational needs
- the child’s age, sex, background and any characteristics the Court considers relevant
- the likely effect of any change in the child’s circumstances
- the harm which the child has suffered, or is at risk of suffering
- how capable each parent is of meeting the child’s needs
Sometimes the Court will appoint an independent child and family reporter, or CAFCASS Officer, who will meet the family and talk about ways forward. The Court will consider what the CAFCASS Officer has to say and the CAFCASS Officer will act as the ears and eyes of the Court.
The sort of Orders that it is possible to obtain under the Children Act broadly are:
- Residence Order
- Contact Order
- Specific Issue Order – where you might want a specific point clarified
- Prohibited Steps Order – this is the opposite of a Specific Issue Order where you want something prevented
Inevitably going to Court is extremely traumatic, both for parents and children, and is not something to be entered into lightly. It may well be that working through issues in children matters could be better resolved within the mediation or collaborative law forum
The contents of this fact sheet are general principles and do not constitute legal advice. Every case is different and you should seek independent legal advice in relation to your specific circumstances.