When a couple separate, it is never straightforward and matters can quickly become contentious, even if you are both trying to keep things as amicable as possible. However, it is important that when making child arrangements, they are sorted as swiftly as possible in order to provide children with stability and security. It is not always the case that an application to the Court has to be made for child arrangements to be put in place. There are several options that can be considered before a Court order is necessary.
If you and your partner agree
When considering future child arrangements, there is no need to formally invoke any child arrangement process. If parental responsibility holders agree on the arrangements for a child, it is not necessary to apply to Court for a Child Arrangements Order setting out the terms of that agreement. Indeed, even an informal, written record of the agreement is not required from a legal perspective. However, some form of written document setting out the arrangements can be helpful to ensure that both parties understand the arrangements clearly and to help eliminate the possibility of a dispute or misunderstanding over arrangements at a later date.
Write a Parenting Plan
As part of a parent’s strategy to having a clear understanding of the future child arrangements, many parents engage in preparing a parenting plan following separation. The content of a parenting plan is bespoke and reflects the needs and circumstances of an individual child. Many plans contain agreements between parents over the child’s future living arrangements and details of agreed contact, alongside other plans for routine arrangements for holidays, birthdays etc. But often, parenting plans are used by parents to document and record their wider, shared views on a child’s upbringing. This may include addressing relationships with other family members, e.g. grandparents, consideration of schools to attend in the future, decisions about religious observance or details of any family based arrangement for maintenance etc.
As with general child arrangements, there is no need to rely upon a formal structure for a parenting plan, although a document that is clearly structured and laid out can help parents ensure all important matters are covered.
The content of a parenting plan is not automatically legally binding upon the Court in the event of a dispute between the parents. When considering disputes, the Court has a broad discretion to make orders in the best interest of children and in doing so, can consider the content of the plan, in order to assess what weight it may wish to attach to the parties’ recorded plan. For this reason, it is important that any parenting plan is regularly revisited and prospective changes are discussed between the parents on a frequent basis.
If you and your partner don’t agree
If the parties are unable to agree child arrangements or have some other form of dispute regarding the children, consideration should be given to trying to resolve the dispute without the Court’s involvement if possible.
There are a number of alternative dispute resolution (ADR) mechanisms, including arbitration, mediation or collaborative law. Court proceedings are frequently slow, cumbersome and emotionally challenging for all concerned, particularly the children at the centre of a dispute, and should be avoided if possible. There are occasions when Court proceedings present the only avenue to resolve a dispute.
Before submitting an application to Court, it is important that alternative dispute resolution has been considered. The Court will expect a prospective applicant to illustrate that they have given some consideration to alternative dispute resolution methods by attending a Mediation Information Assessment Meeting (MIAM) with a Mediator.
Contacting a Mediator
Before an application for a Child Arrangements Order is made to Court, a prospective applicant should contact a Mediator that specialises in family disputes and is familiar with the Court process, such as a Mediator who is also qualified as a solicitor.
What does a Mediator do?
During the course of a MIAM appointment, the Mediator will discuss the Court process involved in making an application for child arrangements, together with the advantages and disadvantages of the various forms of alternative dispute resolution. The Mediator can then assist the parties in mediation, if required.
If the Mediator believes that mediation will not assist in resolving the parents’ dispute regarding the child, they will issue a certificate to be presented to the Court when making the application for a Child Arrangements Order, which illustrates that the applicant parent has considered alternative dispute resolution before issuing Court proceedings.
There are limited circumstances in which a referral to a MIAM is unsuitable, such as urgent applications to the Court or a history of domestic abuse between the parties.
How to prepare for child custody mediation
As with any form of alternative dispute resolution or Court proceedings, it is important that you thoroughly prepare for each mediation session.
This preparation will vary depending upon the issue in dispute, but it is important to ensure that your thoughts on the point in dispute are clearly set out, the way in which you have given consideration to the welfare checklist, and why your position is in the best interests of the child etc.
Perhaps just as importantly, is the need to be prepared to listen to opposing views. To understand that compromise might be needed and that with some flexibility, a negotiated outcome can usually be found.
Contact a lawyer
If mediation or other form of alternative dispute resolution either fails or simply does not seem suitable for a particular dispute, it is important to obtain independent legal advice from a specialist child solicitor at an early stage.
What does a family solicitor do?
Your family law solicitor or lawyer will be able to guide you on the Court process, addressing both the procedural aspects of an application but also the relevant law too. Additionally, your lawyer will be able to discuss the strengths and weaknesses in the parties’ positions and propose methods for trying to settle the dispute at the earliest opportunity, thereby reducing cost, animosity and delay in ensuring that the best possible arrangements are in place for children as soon as possible.
Going to Court for a Child Arrangement Order hearing
Applications for Child Arrangement Orders are initiated on Form C100, together with a MIAM “certificate”. When accessing the Court system, it may be appropriate to also complete Form C1A in circumstances where there are allegations of domestic abuse. If a matter is particularly sensitive, it may be necessary to ensure a parties’ contact details are not shared with another party, in which case Form C8 should also be submitted.
Once the application is processed by the Court, the Court will write to both parties with details of the first Court hearing – known as a First Hearing Dispute Resolution Appointment (FHDRA). Both parties would be expected to attend this hearing in person.
Prior to the FHDRA, the Court’s advisory service – CAFCASS – will contact both parties to discuss any immediate safeguarding or welfare concerns they may have. CAFCASS’ safeguarding report will be made available to the parties and the Court shortly before the FHDRA.
At the FHDRA itself, having considered CAFCASS’ safeguarding report, the Court will determine the points in dispute between the parents and set out what steps (directions) it wants each of them to complete before the next hearing. This may include sharing medical records or obtain reports on mental health, undertaking alcohol hair-strand analysis testing etc. Additionally, it is usual for the Court to also determine child arrangements on an interim basis, to be reviewed further at any subsequent Court hearing.
More information about what to expect when going to Court for a Child Arrangements Order can be found here.
Hawkins Family Law are a family law specialists, which means we have years of experience with cases regarding child arrangements, family matters and more. If you are looking for reliable and accredited legal advice regarding child arrangements, speak to one of our team today.
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