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Divorce and children – Private Law


Divorce and Children. Separation and divorce is often a very difficult time for all concerned, but more often than not, children are often caught in the middle of any separation. When a relationship ends, decisions will have to be made about who will look after the children of the relationship and what time they will spend with the other parent. It is important that you remember that although you may not be living together, you will both always be the children’s parents and that their welfare is paramount.

It may be helpful that when considering the divorce and children and that once you have decided to separate you consider some of the options below when discussing the separation with the children:

  • If possible, try and inform the children jointly of any decision to separate.
  • Tell them that it is not their fault and that both parents love them equally.
  • Make sure that they realise that they are free to still love each parent just as they have done so and do not bring your feelings about how you feel into the equation.

Sorting out arrangements for the Children

You can mutually agree the arrangements for the divorce and children and therefore you do not need a Court Order. In most cases, parents are able to make arrangements amicably between themselves about where the children will live and about visiting the other parents.

If you are struggling to agree arrangements, or there is some slight disagreement or the other parent is not communicating, another option available is family mediation which can often assist with divorcing/separating couples to try and resolve matters by agreement. It is designed to get the parties to discuss issues between them and to prevent disputes from intensifying. Mediators are trained professionals, they are not legal advisors, and they act in a mutual capacity to ensure that each party’s view point is heard and dealt with fairly. Mediation is often suitable for a large number of cases but there will always be those that simply cannot reach agreement.

There are then the occasions when parties cannot reach agreement on their own or with the assistance of mediation and there is therefore no alternative other than to make an application to the Court. A Court application is always a last resort when other options have failed.

The Children Act 1989

The Children Act 1989 is based upon the belief that children are best looked after within the family with both parents playing a full role in the children’s lives. The principles of the Children Act are that the welfare of the children is the paramount consideration and there is also the presumption of “no Order”. If the parents can agree the arrangements for a child with each other then the Court will not become involved and therefore no Court Order will be made. An Order will only be made if the Court believes it is in the children’s best interests than making no Order at all.

When making any decisions in relation to the children, the Court have to consider the welfare checklist and the following has to be considered:

  • The wishes and feelings of a child in light of their undertaking.
  • The physical and educational needs of the child.
  • The likely effect of any change in the child’s circumstances.
  • The child’s age, sex, background and any other characteristics that the Court consider relevant.
  • Any harm the child is suffering or is at risk of suffering.
  • How capable each parent is of meeting the needs of the child.

What Orders are available under Section 8 of the Children Act

The following are the most common Orders that would be relevant to most cases:

  1. Child Arrangements Order. This states with whom the child is to live, spend time or otherwise have contact with. Contact may be direct contact between the child and the person named in the Order, overnight staying contact, holidays etc, supervised contact or indirect contact by way of letter or cards.A Court can order that there is no contact, but this would in very rare circumstances and the presumption is that the child or children has a right to a relationship with both parents.An Order that provides for a child to spent time with both parents does not necessarily mean that the child’s time will be equally spent between their parents. All cases are different and it will depend on the dynamics of the family such as work commitments etc.
  2. Prohibitive Steps Order

This prevents a parent from doing something such as removing a child from the UK, preventing a child from having a change of name, or removing to another school or area of the UK.

3. Specific Issue Order

This is where a decision regarding the child’s welfare is in question e.g. if the parents are in dispute as to what school the child should attend or if there is a dispute between parents about whether a child should undergo medical treatment.

Section 3 (i) Children Act 1989 – Parental Responsibility

The term “Parental Responsibility” covers all rights, duties, powers and responsibilities which a parent has for a child. This includes providing a home, feeding and clothing, providing protection and security, and ensuring that the child receives a satisfactory education or allows a parent to make fundamental decisions for a child such as health treatments, education etc. If both parties are married at the time of the child’s birth or if both parties subsequently married following the child’s birth, both parents will automatically have parental responsibility.

If the parents were not married at the time of the birth of the child, and have not subsequently married, the father does not have parental responsibility unless he acquired it as follows:

  • He registered the birth jointly with the mother after December 2003; or
  • He and the mother made a formal Parental Responsibility Agreement; or
  • The Court granted the father legal Parental Responsibility; or
  • He was appointed as a Guardian

What is the procedure to take the case to Court?

Under new procedures, there is a requirement for all parties to attend a meeting with a mediator to see whether mediation might be suitable to settle and reach an agreement rather than using the Court process.

An application has to be made to the Court on form C100 (unless it is for Parental Responsibility) giving brief details about the background of the case and then this is issued with the fee of £215 (at the time of writing).

The Court will then fix an initial hearing to give directions on how the case should progress forward. Most proceedings are issued before Tier 1 Judges (also known as Magistrates). They will try very hard to get the parties to reach an agreement. It is possible to reach agreement at the initial hearing.

Prior to the initial hearing the parties will be contacted by Cafcass, normally by telephone to take some preliminary details in order for them to undertake safeguarding checks. They will then a few days prior to the first appointment, send the parties a letter called a Schedule II letter setting out the background and the results of safeguarding. They will also normally have some recommendations to the Court as to how the case should progress.

At Court, there will also be the opportunity for both parents to discuss their differences with the Cafcass Officer unless recommendations have been made in the Schedule II letter and Cafcass do not feel the need to meet with the parties at Court.

If no agreement can be reached at the initial hearing, the Court will usually order that a Cafcass Officer prepare a report. The Cafcass Officer’s task is to establish the wishes of the children and to make recommendations as to what Order the Court should make having regard to what is in the best interests of the children. This is known as a Section 7 Welfare Report. The parties will also be required in most cases to prepare a Statement setting out their positions. If a Cafcass Officer is asked to prepare a report then he or she will arrange to meet with the parties separately and will usually meet with the children both alone and often with the parties separately, before preparing their final report.

The Court can make interim orders about the children to regulate arrangements until the final hearing takes place, and will do this only where appropriate.

Both parents must attend Court. Children should not be brought to Court.

Any aspect of the Court proceedings, including reports, statements or negotiations, should not be discussed with the child or any third party outside of the proceedings. Children Act proceedings are private and therefore there can often be a breach of the Court Order if certain information is divulged to third parties outside of the proceedings.

For help and more information when considering a divorce and children contact Yasmin Govan or call us on 01273 662 750 or use our enquiry form.