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Dealing with separation and child arrangements

20 Apr 2016

Going through a separation or divorce is one of the toughest situations you may ever face as a parent. You will want to make sure that despite whatever adult issues are ongoing, your children are not affected by this and that they can continue to enjoy a relationship with both of their parents.

Unfortunately, it can sometimes be incredibly difficult for parents to come to an agreement  about what is best for their children, and when an agreement can’t be reached, the breakdown of the relationship will inevitably become more difficult and less amicable, impacting upon the children in one way or another.

All professionals involved with children, including your solicitor, will always encourage a resolution outside of the court system. Bringing an application to court for an order can not only be costly and time-consuming but also stressful for those involved and will not help maintain lasting relationships. Generally, agreements reached without court intervention will last longer and be better for the children.

The Children and Families Act 2014 introduced the Child Arrangements Programme (the CAP) which came into force on the 22nd April 2014. It is designed to assist families reach safe and child-focused agreements for their child, where possible out of the court setting. One way in which this can be achieved is through Mediation. The CAP therefore introduced a requirement for any party wishing to make an application to the court to have attended a Mediation Information and Assessment Meeting (known as a MIAM).

If mediation is not appropriate or does not work then you are able to make an application to the court.

The court has the power to make various orders relating to children, as follows:

  • Child Arrangements Order – previously known as contact or residence. This order would set out the arrangements for your child in terms of how much time they would spend with each parent.
  • Prohibited Steps Order – this would be an order prohibiting one parent from doing something, such as removing the child from the UK.
  • Specific Issue Order – this would be an order about a specific issue that parents cannot agree upon, such as the schooling of the child.

The first thing the court will consider  when dealing with children matters is that in making any arrangements with respect to a child, the child’s welfare must be the highest priority. Section 1 of the Children Act 1989 applies to all applications for orders concerning children. This means that:

  1. The child’s welfare is the court’s paramount consideration;
  2. Delay is likely to be prejudicial to the welfare of the child, and;
  3. A court order shall not be made unless the court considers that making an order would be better for the child than making no order at all.

Furthermore when considering the child’s welfare the court will have regard to the Welfare Checklist. The checklist can be found under section 1(3) of the Children Act 1989 and the seven criteria are as follows:

  1. The wishes and feelings of the child concerned;
  2. The child’s physical, emotional and educational needs;
  3. The likely effect on the child if circumstances changed as a result of the court’s decision;
  4. The child’s age, sex, background and any other characteristics which will be relevant to the court’s decision;
  5. Any harm the child has suffered or may be at risk of suffering;
  6. The capability of the child’s parents (or any other person the court finds relevant) meeting the child’s needs; and
  7. The powers available to the court in the given proceedings.

This is a broad check list and with matters relating to children it will usually always depend on the individual facts of each particular case.

If you are struggling to reach an agreement with your ex-partner about the arrangements for your children or you would like to discuss any of the points raised in this article, please contact Stephanie Layton, specialist family law solicitor at Hay & Kilner.

Call: 0191 232 8345

Email: Stephanie.Layton@hay-kilner.co.uk