Navigating child arrangements is perhaps one of the most daunting aspects of getting a divorce or separating from a partner. Even for parents who have done this before and are seeking to amend an existing child arrangements order, such an undertaking is always a challenge, and this is especially true for those who do not know what to expect.
Preparation is Key
It is important to understand the legal landscape and the way in which the Court is required to approach disputes over child arrangements. Don’t be afraid to ask your lawyer questions and to ask them to explain the Court’s overall approach which is primarily child, rather than parent, focused.
Married parents will automatically share parental responsibility for their children as will unmarried parents if both their names appeared on the child’s birth certificate.
Any fundamental issues affecting children – including whether to take them out of England and Wales on holiday, what schools they should attend, what spiritual upbringing they should have, what surname they should use – and not just the division of their time should be agreed between their parents and holders of parental responsibility if possible and, if that does not prove possible, an application can be made to the Court for a decision to be made by a Judge.
The Court has to consider whether the dispute is one in which the Court should intervene in the first place and, if the Court does intervene, the Court must consider what is in the child’s best interests by applying a statutory welfare checklist.
Sometimes Social Services may become involved if they are alerted to the need to investigate whether a particular child is at risk of suffering harm or impairment to their development. Once contacted they are placed under a duty to conclude their investigation and are often able to help parents and children to access services and support without the need for more drastic remedies. Although the involvement of Social Services is separate to the Court process any recommendations or services signposted by Social Services will be relevant to the Court process and will need to be disclosed within the proceedings.
Mediation is always available as an alternative way of resolving disputes over child arrangements except where the Court needs to determine whether something relevant to the child’s welfare happened or not or where a child is old enough to express their own wishes and feelings which need to be taken into account.
If proceedings are unavoidable the Court will appoint a Court welfare officer or an independent social worker to meet with the parents and with the child so as to determine what is in the child’s best interests.
The parties may be directed to file statements in support of their positions and any documents or evidence in support of the arrangements that have applied in the past or in support of a party’s position may be helpful to the Court provided it has been gathered in an unobtrusive way without impacting on the child.
What to Expect
The Court will always consider what arrangements are in the best interests of the child and will usually consider one of the following remedies:
- Joint lives with arrangement: When this is awarded, children split their time between both parents, travelling between their respective homes in order to divide their time between them. Even where a joint lives with arrangement applies, this does not always equate to an exact 50/50 split of time spent in each residence.
Note: This arrangement can be difficult to execute on a practical level unless both parents live near to the children’s school, have similar or complementary parenting styles and are both able to commit to facilitating the children’s day to day routine but it affords stability and familiarity for the children and frequent, even if not equal, time with both parents.
- Sole lives with order with one parent and spends time with the other parent: This determines a primary home for the children with one of their parents and regular periods of time with the non-resident parent to include overnight stays and part of the school holidays. Usually, the parent with whom the children live would be able to take the children out of England and Wales for up to 28 days without having to obtain the non-resident parent’s consent although it is still good practice to provide details of flights, destination and contact numbers.
Note: Where both parents are not equally able to commit to facilitating the children’s day to day routine this arrangement may be more suitable in affording the children a stable environment to grow in and emotional security, even if it means that they spend less overall time with the non-resident parent.
- A specific issue order: This determines an issue which cannot be agreed between the parents such as which school a child should attend or which surname they should use.
- A prohibited steps order: This stops a parent from acting in a way that is not in the child’s best interests such as preventing a parent from removing a child from school or preventing a parent from taking a child out of the country.
It is always possible to agree arrangements directly between parents and to implement them without the need to involve the Court:
- Flexible Arrangements: Separated parents co-parent with a near-completely flexible schedule centred on schooling or work-related requirements in this arrangement. The amount of time that children spend with each parent is therefore variable.
Note: This arrangement can sometimes be convenient for parents who may travel often or have varying, demanding schedules, but it can impact younger children negatively in the long term by hampering their ability to feel ‘settled’ and secure in a stable and familiar environment.
- Bird’s Nest Parenting: This arrangement is not used often but is sometimes adopted by parents of younger children on a temporary basis immediately following separation, where the child stays in the family home and the parents alternate their time in the property – they may have another home that they go to when they are not with the children.
Note: this can assist on a temporary basis but is not a long term solution.
- Co-Parenting: Co-parenting after separation reaps dividends for children. If both parents are able to collaborate with each other over the day to day arrangements and care of the children, whether in accordance with an agreement reached between them or an order of the Court, to speak positively always of the other parent in the presence of the children and to keep the other parent informed and up to speed on events in the children’s lives and their day to day development their children may feel that they have gained an additional home and two happy and separate parents rather than feeling that they have lost their family home and are in some way responsible for two angry and unhappy parents.
Neil Graham, a partner at Grayfords, comments as follows:
“Coming to terms with the separation of parents can be a traumatic time for children particularly if they are made to feel responsible for their parents’ own failings or conflicted over being caught in the middle. Shielding children from any animosity between their parents and minimising the impact of the breakdown of their parents’ relationship upon them should always be a priority whether as part of any agreed child arrangements or in accordance with a Court order. There are several organisations that can provide information and practical assistance about how to accomplish this which can be accessed via the links below.”
https://www.cafcass.gov.uk/
https://www.nspcc.org.uk/keeping-children-safe/support-for-parents/separation-and-divorce/
https://www.nfm.org.uk/separated-parents-information-programme-an-explainer/
https://www.actionforchildren.org.uk/how-we-can-help/our-local-services/find-our-services-near-you/planning-together-for children/#:~:text=Planning%20Together%20for%20Children%20is,arise%20due%20to%20parental%20conflict.
https://www.gingerbread.org.uk/find-information/managing-separation/helping-children-through-separation/
https://www.gov.uk/government/publications/guide-for-separated-parents-children-and-the-family-courts-cb7/guide-for-separated-parents-children-and-the-family-courts-cb7
https://naccc.org.uk/for-parents/
https://www.youngminds.org.uk/parent/parents-a-z-mental-health-guide/divorce/
If you are considering getting a divorce or a separation and there are children involved, then our team of expert solicitors are more than equipped to assist you in navigating all the elements detailed above and much more. At Grayfords, we understand the importance of facilitating our clients in finding a new life arrangement that meets not only their children’s needs but also theirs. Don’t hesitate to book your free consultation today if you would like to find out more about how we can help with family disputes.
