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24.06.22

Family law: child arrangements FAQs

My child’s other parent and I were never married, is that a problem?

No, the law treats the parent-parent and the parent-child relationship just the same regardless of whether the parents were ever married. Your rights to spend time with your child and to help make decisions for them are no different regardless of whether you are cohabiting, ex-partners who never lived together, a divorced couple, or even a married couple who disagree on key parenting issues. The relevant term here is whether you are a parent with ‘parental responsibility’ and that can be affected by marital status in some circumstances.

 

What does ‘parental responsibility’ mean?

Parental responsibility refers to a person (usually, but not always, a biological parent) who has the responsibility for the welfare of, and the decision-making power required to look after, a child, which goes hand in hand with spending time with a child. It confers the ability to decide things such as what medical treatment a child should have, or whether they are taken on holidays abroad. Relatively minor decisions can usually be made without reference to anyone else with parental responsibility, but decisions with longer lasting impacts (such as where a child should live, and what school they go to) will require people with parental responsibility to be in agreement.

People with parental responsibility will typically be biological and/or birth parents, but others such as grandparents, step-parents etc can obtain parental responsibility through a number of routes. Those routes include: being named as a person with whom the child is to live (even if only some of the time) in a child arrangements order made by the court, being named as the adoptive parent or legal guardian of a child by court order etc.

In some circumstances it is possible for parental responsibility to be removed, but such cases are rare and will usually involve more than just bad behaviour, poor judgment, or absence on the part of the person in question.

 

We have joint custody but my ex won’t let me see my child – what should I do?

In the UK, a relationship with both parents is encouraged by the courts (unless there are very serious safeguarding issues) and both parents have a right to spend time with the child unless a court has ordered otherwise. That said, your child’s other parent might effectively prevent you from seeing the child purely by refusing to allow you to collect them from the house, or the school might (misguidedly) accept instructions from one parent not to let the other do school pick-ups etc. If you cannot settle the disagreement between you, and professionally assisted methods of dispute resolution have failed, you can apply to the court for something called a child arrangements order, which will set out who the child is going to spend time with and when. The court will only make an order setting out those specifics where it thinks an order is necessary, and disputes over relatively minor differences of opinion may be better resolved with the benefit of legal advice outside of court.

 

My child’s other parent wants to move house and move schools and we disagree – what should I do?

If you cannot settle the disagreement between you, and professionally assisted methods of dispute resolution have failed, you can apply to the court for something called a prohibited steps order. You should do this before the change takes place, as it is generally harder to undo a change in a child’s life than it is to prevent it happening in the first place. Conversely, the other parent might apply for a specific issue order, where they would ask the court to rule that the change in circumstances they propose should take place.

 

If I go to court, how will the court make a decision?

In overview:

  • Once an application has been issued, the court’s own social workers (CAFCASS) will likely phone you and the other parent for an initial conversation, after which they will give an initial opinion to the court. This is likely to focus on the urgency of the matter, and whether CAFCASS have any immediate safeguarding concerns.
  • There will usually be a series of three hearings. The first will focus on housekeeping (the court will decide what evidence may need to be gathered, and will set out a timetable), the second will focus on encouraging the parents to agree an outcome based on a preliminary view from a judge, and at the third a judge will make a binding decision. CAFCASS will usually be asked to prepare a more in-depth report and may want to meet with you or observe interactions between you and your child before they write this.
  • In some cases, there may also be a stand-alone fact-finding hearing listed, where the court will hear evidence on a particular historical issue which needs to be decided before the court can weigh this up along with all the other factors.

The court will weigh up the arguments on either side and will decide what it thinks is in the best interests of the child. Under s1 Children Act 1989, the court will take into account a number of factors in this exercise, such as:

  • Wishes and feelings of the child – if they are mature enough to make this clear
  • Physical, emotional and educational needs of the child
  • Likely impact of the change in circumstances on the child
  • Child’s age, sex or any other characteristic the court thinks is relevant
  • Any harm which poses a risk and/or needs to be avoided
  • Capability of each parent to meet the child’s needs

The court is bound to keep the best interests of the child (not of the parents or other members of the family) at the heart of the decision.

Generally speaking, once it has made a decision on the main issue, the court will order that each party bears their own costs of the proceedings (i.e. that no money changes hands at the end of proceedings). In exceptional cases however, usually where one party’s conduct in the litigation has been particularly unreasonable and led to an unnecessary build-up of legal fees or has harmed the child, the court may order one parent to reimburse the other for some of their legal costs. Unlike in civil cases, where the loser often has to pay the winner’s costs, the family court doesn’t want the threat of large costs orders to discourage people from bringing claims that genuinely require the court’s input for the benefit of the child.

 

What options are there to help us avoid court?

There are many options available to help you resolve differences outside of court, such as:

  • Direct negotiations, negotiations supervised by a mediator, or negotiations between solicitors, which may result in an agreement that can be recorded in writing or even converted into a binding court order ‘by consent’
  • Arbitration
  • Use of contact centres to make sure that your child sees their other parent/extended relatives in a safe and secure environment
  • Instruction of an independent social worker to facilitate supervised contact (often in a public place like a park or museum) or carry out handovers so that parents do not have to see each other, or to produce a report and make co-parenting recommendations
  • Use of co-parenting apps which can help restrict communications between parents to one platform, and keep track of agreed dates, tasks etc
  • Attending a Separated Parents Information Programme (facilitated by CAFCASS)

Reaching a resolution outside of court is often faster, cheaper, and gives you more control in comparison to going to court. For more information, you may want to check out the ‘Parenting Through Separation’ guide produced by Resolution, a cross-disciplinary group of family law professionals committed to dealing with relationship breakdown in a constructive way.

 

What about money to look after my child?

Each parent has a responsibility to provide financially for their child’s needs. In most cases, this is dealt with by the Child Maintenance Service, a government organisation designed to be used by parents directly, without input from lawyers.

You can carry out an informal calculation using their formula online, and use this to aid in negotiations. Alternatively, you can apply to them for a formal assessment to be made, which will result in a clearly set out financial obligation which the organisation can enforce if the paying parent cuts off support. The formula assumes that the parent with whom the child is spending more nights per week (i.e. living with) is providing for most of the child’s needs than the other (such as food and utility bills, or trips out) and attempts to even that out. The parent with whom the child spends less time will be responsible for making payments to the other, based on a proportion of their declared income. Generally speaking, the figure generated is not a realistic representation of the sums parents want or need to spend on raising their child, and it is common to agree a higher figure.

If the paying parent is a particularly high earner, child maintenance may be capable of being dealt with by way of a decision from a judge in the family court. We can advise you if this is the case. In addition, you may be able to make a claim for provision of capital by the other parent for the benefit of the child (e.g. funds to buy a car for transportation between school and home) under Schedule 1 of the Children Act 1989.

If you are divorcing or dissolving a civil partnership, and you have wider financial claims, it is wise to deal with any financial issues affecting your ability to care for a child/children within that dispute. The courts, and family law professionals generally, will do their utmost to keep discussions about money and discussions about how much time a child spends with a particular parent or in a specific place separate from one another (with the best interests of the child being the cornerstone of any decision making).

 

If you require assistance with the above matters send us an emailcomplete our online enquiry form or call us on 020 3627 5739.

Please note that we operate a private children law practice, but not a public children law practice, nor do we offer public funding. This means that if social services are investigating you, your local authority has made an application against you in the family court or you require public funding, we unfortunately cannot assist.


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Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.