Thoughts turn to who will provide the main care for the children, how the children’s time will be split between parents, and, if an agreement cannot be reached, how the arrangements will be determined.
Non-court dispute resolution
There are various options, known as ‘non-court dispute resolution‘ (NCDR) to try and reach an agreement without making an application to court. These include:
Negotiations through solicitors
The parents communicate through their respective solicitors to exchange proposals about the children via letter/email. If considered that it would be productive, the solicitors could arrange a ’roundtable meeting’ where both parents attend with their solicitor to discuss, and hopefully agree, on all the necessary details.
A parenting plan can then be drafted and signed by both parties to confirm the agreement that has been reached.
Mediation
Mediation is where both parties work with a mediator to see if an agreement can be reached. The mediator will be independent and will help the parents together. They will not give either parent advice separately.
Mediation can take place with only the parents present, or solicitors can be present too (which is known as ‘hybrid-mediation’). If you attend mediation without a solicitor, we can work with you alongside mediation to give you advice on the discussions that are taking place so that you have a strategy for each session.
Some mediators are able to speak to the child in an age-appropriate, confidential and neutral forum to gain an understanding of their wishes. If the child agrees, their wishes can be fed back to both parents with the aim of narrowing the issues or reaching an overall agreement that is child-focused.
Again, if an agreement is reached then a parenting plan can be drafted and signed.
It is compulsory for parties to attend a mediation information and assessment meeting (MIAM) with a mediator to consider the suitability of family mediation if a party wishes to make a court application. The mediator’s fee for the MIAM is in the region of £120 (for each party) for this meeting.
Early neutral evaluation
A mutually agreed barrister or former judge is instructed via the parents’ solicitors and an agreed summary of the background and the issues in dispute are provided to them. This is read by the barrister, and they respond to the solicitors (in writing) with their professional view of the issues, a suggestion as to how any impasse can be overcome and how they would expect a reasonable judge to rule on the matter if the case was within court proceedings.
The cost of the appointed barrister is shared equally between the parties, and they each pay for their own legal fees. The barrister’s role is not to give a ruling, but to steer the parents towards an agreement.
This can be a quicker process than using the court, and it has the benefit of being a more comfortable experience and less stressful than attending court. However, the parents are not required to follow the advice of the barrister, and so in the absence of an agreement then arbitration or court proceedings would then be necessary.
Arbitration
Like with an early neutral evaluation, an experienced barrister or former judge is the agreed ‘arbitrator’ and whose cost is shared equally between the parents. Arbitration is a similar process to court proceedings, and the same rules are observed but the case is conducted in a private forum. Evidence can be heard from the parents, and also any agreed experts. The difference from other forms of NCDR is that the arbitrator hearing the case will make a binding decision which is then registered at the court.
The benefits of arbitration are that the case is scheduled at the parents’ convenience (often much quicker than court), the chosen arbitrator will be children law specialist, plus the fact that a final decision will be made is useful in cases which are complex and/or where a deadlock has been reached on a particular point and a decision is required.
Ultimately, if no agreement can be reached and/or NCDR is not a suitable route, an application can be made to the Court for a child arrangements order.
What is a child arrangements order?
A child arrangements order is a court order that defines the arrangements for children, including with whom a child is to live and/or spend time with. It can specify that a child is to live with one or both parents, and it defines the time the child spends with each parent in each household by listing days of the week and times. These orders can cover regular day-to-day arrangements as well as specific periods such as school holidays, birthdays, special occasions and Christmas/other religious holidays.
How does the court determine a disagreement between the parents?
If no agreement can be reached, and the court is tasked with making a decision as to which set of arrangements proposed by the parents should proceed, the child’s welfare will be the court’s paramount consideration when determining the issue.
Under the new Child Focused Court process, CAFCASS (Children and Family Court Advisory Support Service) are involved from the outset of the proceedings to speak to both parents, the child, their nursery/school and any other important agencies who are involved with the family. CAFCASS provide a recommendation to the Court as to how the issue in dispute can be resolved, and their report is sent to the Judge before the parents attend Court. It is therefore important for parents to obtain independent legal advice ahead of their meeting/discussion with CAFCASS so that they are fully versed on all of the points to raise with CAFCASS. If both parents agree with the CAFCASS recommendations then the court order will be made by the Judge without the parents attending court, and the proceedings then conclude. However if one or both of the parents do not agree with the recommendation then a Decision Hearing is scheduled, where the Judge will aim to resolve matters. As a last resort, a Final Hearing is scheduled where the Judge hears evidence and the Judge imposes an outcome on the parents.
CAFCASS and the court will have particular regard to the following, known as ‘the welfare checklist’:
- The ascertainable wishes and feelings of the child, considered in light of their age and understanding;
- The child’s physical, emotional and educational needs;
- The likely effect on the child of any change in circumstances;
- The child’s age, sex, background, and any other relevant characteristics;
- Any harm which he has suffered or is at risk of suffering; and
- The capability of the parents in meeting the child’s needs.
The court will make a decision after considering all of the circumstances of the case, based on what it considers to be in the child’s best interests.
A child arrangements order confirming the child’s living arrangements lasts until the child is 18 years old. Where the order defines the time that a child spends with a parent, that will last until the child is 16 years age, unless the order specifies otherwise.
Specific Issue Order
A parent can make an application to the Court asking it to determine a specific issue about the child’s wellbeing or lifestyle. For example, separated parents may struggle to agree on key issues such as the choice of school, the child’s surname, medical treatment, or religious upbringing. Parents may also find themselves wanting to relocate, whether domestically or internationally, for various reasons. The application would follow the Child Focused Court process as set out above.
Prohibited Steps Order
The court also has the power to restrain or restrict a parent from taking a step or making a decision in relation to the child’s upbringing. A parent can apply to the court for a prohibited steps order (PSO) as a preventative measure where there is a risk that one parent will make a unilateral decision and/or one that is against the other parent’s wishes. Examples of a PSO are to prevent a parent from retaining a child in their care after an agreed date/time, an order preventing a form of medical treatment and removing the child from nursery/school. Where there is a risk to the child’s welfare it may be possible to obtain a PSO on an urgent basis, and then the overall case is then considered by CAFCASS and the Judge under the Child Focused Court process.
Domestic abuse and its impact on child arrangements
The court has had to grapple with the need for children to know and see both parents following a relationship breakdown, while ensuring that children are not exposed to harm where domestic abuse has been an issue between the parents. In considering whether to make an order, the court must consider any harm that the child has suffered or is at risk of suffering.
Domestic abuse can take many forms and includes any incident of the following behaviour:
- Physical or sexual abuse;
- Violent or threatening behaviour;
- Controlling or coercive behaviour;
- Economic or financial abuse; and
- Psychological, emotional or other abuse.
Harm in relation to a child means ill-treatment or the impairment of health or development. A child can suffer harm if they are subjected to domestic abuse, directly or indirectly. If domestic abuse is a feature of a parental dispute that results in a court application concerning children, the Court will determine whether the alleged conduct is such that it would have an impact on the longer-term arrangements. The Court will only make an order if it is satisfied that the child concerned, and the survivor parent, will be safe and free from harm or domestic abuse before, during, and after any child arrangements.
Do I need legal advice?
The children are understandably the priority for many clients following the breakdown of their relationship, and it is important that you have a trusting and understanding solicitor to discuss matters openly with. Our family solicitors at Ward Hadaway have a wealth of experience in complex children matters, as well as difficult and acrimonious court proceedings. We can support you from the initial consultation, and can consider what route would be best for you and your child.