According to the most recent figures from the Children and Family Court Advisory and Support Service (CAFCASS) there has been an increase in court applications involving living arrangement disputes and the time children should spend with the non-resident parent. Here our Family and Matrimonial solicitor, Lisa Cogger, explains the legal process involved.
Since the 1980s the courts have applied what they have called a “strong presumption” or an “assumption” that the child’s welfare is best served by remaining involved with both parents following their separation or divorce.
It is understandable that the end of a relationship for many parents is difficult. Parents are not only dealing with their own emotions but, of course, their children also need reliability and assurances of love.
Following a breakdown of a relationship there can be many causes of disagreements, from where the children should live, to the level/frequency of time which should be spent with the non-resident parent, or if a shared care arrangement between the parents serve the best interests of the child/children involved. Another common cause of disagreements is if one parent relocates and the child/children need to relocate home and, also school, which may be resisted by the other parent.
If a dispute cannot be resolved mediation must now be considered as the first legal step, and the parties involved must attend a Mediation Information Assessment Meeting (MIAM) before they can issue Court Proceedings.
Alternatively, a collaborative approach can be adopted by the solicitors involved and the couple, working together, to resolve issues and achieve an amicable resolution without recourse to the courts.
If the matter, however, proceeds to court, then the following Orders can be obtained:
A Child Arrangements Order – This sets out who a child should live with and what time they should spend with the other parent. The frequency and/or level of time that can be awarded to the non-resident parent can include everything from letters, phone calls and/or emails to routine visits and periods of overnight visits. Additional time, for example, sought during school holidays, Christmas, birthdays can also be factored into the Court Order.
A Specific Issue Order – This involves the Court making a decision on a ‘specific issue’ such as which school a child should attend or determining a religious or important health issue. For example, if a particular level of medical treatment is sought that is resisted by the other parent.
A Prohibited Steps Order – This will prevent a parent or person with responsibility for a child from doing something. For example, prohibiting them from removing the child from the country, their place of school, or care and control of the resident parent.
Effectively the process for applying to the Court for a Child Arrangements Order is summarised as follows;
- If Mediation fails, is not suitable, or is declined by one party, then the parent applying for a Child Arrangements Order files a form C100 with a fee of £215 to the court, together with a supplementary C1A if there are any welfare concerns being raised they want the court to consider;
- Next is a First Hearing Dispute Resolution Appointment (FHDRA) where a CAFCASS officer will be present at Court to speak to both parents and to ascertain if issues can be agreed or narrowed. CAFCASS will file a Schedule 2 letter in advance of the hearing taking place (i.e. a summary of their telephone conversations held with each party, the outcome of safeguarding and police checks on both parties inclusive of a short summary and recommendation guiding the court on how best to deal with the case in upholding the welfare and best interests of the child/children involved).
- If the matter cannot be agreed and welfare issues are involved the court may direct CAFCASS to do a formal report/investigation into the issues raised. Once the Report is complete this will be filed with the Court and made available to the parties that shall detail their professional recommendations to the Court as to what decision should be made in the child’s/children’s best interests.
- A Dispute Resolution Appointment will be listed, following the FHDRA Hearing and/or following receipt of any professional Reports ordered by CAFCASS or Social Services (if relevant). If issues cannot be agreed, by consent, then the Court will list the matter for a Final Hearing. It is at this final stage the Court will make a decision as to the child’s/children’s welfare. Evidence is also heard at the Final Hearing from the parties involved together with the evidence of any professionals involved that may have completed assessments during the course of the proceedings, and it is important to be aware that the decision may not go in favour of one or, both, of the parents concerned.
Between 1996 and 2016, the Office for National Statistics had reported that ‘cohabiting couple families were the fastest growing family type over the last 20 years’. Legal disputes involving ownership of property and financial provision for children born to unmarried couples are therefore likely to grow.
The Law does not presently convey an automatic right to grandparents to have access with their Grandchildren. At present Grandparents must apply to the Court for leave (permission), and if this is obtained they can apply to see their Grandchildren via a Child Arrangements Order.
Since 2013, as a result of other changes to the law, Legal Aid is no longer available for disputes involving children.
If you need further expert legal advice on any Child Arrangement disputes please do not hesitate to call Lisa Cogger today on 01538 370830 or 07814 175350. Alternatively you can email her at firstname.lastname@example.org