Divorce and the children

 

Often when parents separate their biggest worries relate to their children: their children’s future and well-being, and the parents future relationship with the children.

In this section we will try to answer some of the questions most frequently asked by parents and step parents. There is a later page for grandparents.

Will I still have the same Parental Rights and Duties towards my child?

Parental rights and duties are recognised in law and together are called “Parental Responsibility”. This term includes “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.

In practical terms,Parental Responsibility grants to you the legal right to:-

(i) be informed about your child (for example by the School, Social Services, Doctors, Dentist),and

(ii) to access information concerning your child (from School, Social Services, Doctors, Dentist),and

(iii) to make or participate in making decisions for your child.

The law relating to Parental Responsibility changed in 2003.  For children born before 2nd December 2003, if the birth parents of the child were married to each other at the time of the child’s birth, or afterwards, they will both have Parental Responsibility. If divorced prior to the child’s birth, the Mother would automatically have Parental Responsibility, but the Father would not.  For children born after the 2nd December 2003, the father will have Parental Responsibility if he is named on the child’s birth certificate.

Parental Responsibility for a child may also be held or acquired if either:-

(i) parental responsibility has been granted to the Father by the child’s Mother (in a special “Parental Responsibility Agreement” which has then been correctly registered), or

(ii) the Court has granted you Parental Responsibility of your child, or

(iii) if you are a step parent and you have a Residence Order* in your favour, and the child has been living in your care within the past six months, or

[* Residence Orders are dealt with at 3.4.3 below].

(iv) the child has been adopted by you.

Once granted, Parental Responsibility will last until the child reaches adulthood. So, even though you may have separated or divorced after the child was born you should continue to share Parental Responsibility of your child.

Where will my children live?

It may be that when you reach the decision to separate you are also able to make arrangements for the care of your children which prove to be acceptable to both of you, in which case these can continue on an informal basis, being re-arranged by fresh agreement as and when it suits you (and the children) to do so.

It may be that you are generally able to discuss arrangements with your spouse, but that there are some points which you have not been able to agree, and that these points may be stopping you from achieving a workable overall agreement. To break such a deadlock, one answer may be to arrange a meeting with a local Mediator: you can obtain details of local mediation services from either your Solicitor, the local Court or your local CAB.

If your disagreement is more fundamental, and you simply cannot achieve an agreement, then you can apply to the Court for a decision to be imposed. Please look at Section 3.4.6 of this guide for an outline of the Court procedure involved if you apply for a Court Order.

Types of Order that you can ask the Court to make:

(a) Residence Order – this replaces the old “custody”Order. It simply states with whom a child should live. It gives Parental Responsibility to the holder of the Order , for the life time of the order only, except Fathers. A Father who does not already have Parental Responsibility will need to ask the Court to grant him a Parental Responsibility Order as well, when seeking a Residence Order.

(b) Parental Responsibility Order – this confers such responsibility on the applicant.

(c) Contact Order – this replaces the old “access” Order. A contact Order can state who a child is to see, how often, when, where, and whether for example, that contact should be supervised.

(d) Prohibited Steps Order -such an Order can require a person with Parental Responsibility to refrain from taking a particular action or step with regard to the child without the Court’s consent e.g. changing a child’s name or taking a child outside England and Wales for a period of in excess of 28 days

(e) Specific Issue Order – here the Court makes an Order concerning a specific question that has arisen in relation to a child e.g. deciding which School a child should attend.

These Court proceedings are intended to be “non-adversarial”, that is to say, the Court will endeavour at all stages to assist you to achieve an agreement, thereby avoiding a full hearing. In only very exceptional cases will a child be invited to attend a Court hearing. Sometimes, the Court may ask either the Court Welfare Officer (CWO) or Social Services to look into the case and to prepare a report. In the report the child’s views and the views of the parents, and of any other interested person will be relayed to the Court, and this will assist the Court in coming to a decision when the parents cannot agree.

The “Welfare Checklist”

When deciding the case, the Court will apply the “Welfare Checklist”, which is a list of the criteria the Court must consider when coming to a decision.

It includes:

(a) the wishes and feelings of the child concerned in light of the child’s age and understanding

(b) the child’s physical, emotional and educational needs

(c) the likely effect on the child of any change in their circumstances

(d) the child’s age, sex, background, and any characteristics the Court considers relevant

(e) any harm the child has suffered or is at risk of suffering

(f) how capable each of the child’s parents (and any other relevant person in relation to whom the Court considers the question to be relevant) is of meeting the child’s needs

(g) the range of powers available to the Court.

The No-Order Principle

Within divorce proceedings it is now highly unusual for any orders to be made in respect of the children, save for a “S41 Declaration of Satisfaction for the Arrangements for the Children”, which simply recites that the Court is happy with the proposed general arrangements for the care of the children.

This is because the law presumes that generally no Order should be made in relation to the children unless the Court considers in the particular case that making an Order would be better for the children than making no Order at all.

How often will the children see the other parent?

There are no hard and fast rules as to how often, where or when contact should take place between the children and the parent who is not residing with them. It is presumed that all children have the right to know both of their parents and contact will therefore be ordered unless contact is not in the best interest of the child’s welfare. The Court will need strong and cogent reasons before ruling that contact is not in a child’s best interests. If you have any doubts you should consult a Solicitor.

Can I apply to the Court for Maintenance or do we need to use the Child Support Agency?

The Court generally speaking no longer has the right to hear cases for child maintenance. There are exceptions. You can contact the Child Support Help Line or your local DSS for further information and you can refer to Section 3.3.5 of this Guide (above). You can in many, but not all, cases agree child maintenance payments without referring to the CSA or the Court. You cannot enforce either through the Court or through the CSA an agreement for child maintenance; therefore if you believe that your (former) spouse may be an unreliable payer you should give serious consideration to applying to the CSA – or, indeed, to the Court for a Consent Order, if the payer will agree to such an Order being made.

An outline of Court procedure on residence and contact applications to the Court

A. Leave

If you are making an application for a Residence Order or Contact Order in respect of a child and you are not one of the child’s parents, you may need to ask the permission of the Court to make the application. This is known as Leave.

B. The Application 

The application form is intended to introduce the Court to the people involved and to give the Court a thumb nail sketch of the child’s circumstances. If the Court requires further details from the person either making the application (the Applicant) or from the person receiving the application (the Respondent) then it may ask that they file a statement at a later date.

C. The First Court Appointment 

When the Court receives the application it will fix a date for a directions appointment. It is unusual for a final order for residence or contact to be made at this appointment unless the application can be agreed and the Court agrees that an Order is necessary.

The purpose of the first directions appointment is for the Court to see if any agreement can be reached between the parties and if not to identify the issues in the case and direct what further steps need to be taken to enable the Court to make a decision. Procedures vary from Court to Court. Sometimes an officer from the Children and Family Court Advisory and Support Services (CAFCASS) is on hand at Court to meet the parties and help them resolve their difficulties. In every case the Court will direct whether expert reports should be ordered, statements filed and further Court dates fixed.

D. CAFCASS Officer 
At the first directions appointment you may, depending on the procedure of your local Court, be introduced to a CAFCASS officer.

(i) If you manage to agree some or all issues and the CAFCASS officer is satisfied that there are no matters that need investigation, then it may be that the application will be adjourned for a period of between eight and twelve weeks to see if the arrangements work, or

(ii) If you cannot reach agreement and the CAFCASS officer thinks it necessary, then a Welfare Report may be ordered by the Court

The CAFCASS Officer is not an employee of the Court, but of the CAFCASS Service. The CAFCASS Officer is specially trained to deal with Court applications for Residence and Contact.

E. Children and Family Report

The CAFCASS Officer as an independent expert will prepare the report. Sometimes, if Social Services are involved with the child’s family a Social Worker may be asked to prepare the report instead.

The Children and Family Report usually takes twelve weeks to prepare. The date for filing the report will be set by the Court.

A copy of the report will be sent to the Solicitors acting on behalf of each of the parties and to the Court. The Children and Family Report is a confidential document and cannot be shown to anyone else other than the Court, the parties and their Solicitors.

F. Witness Statements

If agreement cannot be reached either whilst the report is being prepared or afterwards, it is usually at this stage that the Court will order you and your witnesses to file their witness statements. Your Solicitor will help to prepare your statement.

Sometimes the Court may order witness statements be filed before the report is finished.

G. Hearing

Only if no agreement can be reached will the case proceed to a hearing at Court, when an order may be made.

H. Order

The Court will only make an order if it is in the best interest of the welfare of the child to do so.

The Court’s objective, with the help of the CAFCASS Officer, is to try to help everyone to reach agreement instead of imposing an order upon the parties.

Please note that not every application follows the same route. It may, for example, be that the Court does not feel it necessary that a Children and Family Report be produced in your case. It may be that the Court will feel there needs to be more than one Court hearing to deal with your case.