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Parenting separately series: Know the law

29 May 2019

One of the most frequently asked questions I receive from parents who are separating is, ‘How much time should I be able to spend with the children?’, a question to which there is no straight answer. There is no specific formula which tells us how children’s time should be divided upon separation and inevitably what works for one family will not work for another. The best approach is to sit down and seriously consider a schedule which will work well for your family life, ensuring that the children get to maintain a good relationship with both of their parents. You will often hear the phrase, ‘It is not the quantity of time, but the quality of time which is most important’.  This can sometimes get lost when trying to agree the arrangements for children.

As a starting point both parents are to likely have ‘Parental Responsibility’ for the children. This is automatically acquired by mothers, and fathers will have Parental Responsibility if they are married to the mother at the time of birth, or named on the child’s birth certificate (if registered after December 2003.) If you are unsure whether you have Parental Responsibility then please speak with a member of our family team who will be able to advise you.

Parental Responsibility is the legal mechanism in which parents are able to make decisions regarding their child, such as consent to medical treatment, enrolling them in school, take them on holiday etc. It is important to remember that both parents have equal responsibility for the child regardless of how much time a child may spend with one parent. Therefore any decision regarding the child must be made together with approval from both parents.

When parents are unable to agree on a decision regarding their child the court may have the power to make that decision on the parents’ behalf.  It is of course better for a child if a decision has been made by their parents rather than a Judge and for this reason parents will often be strongly encouraged to try to reach an agreement.

Should the court be asked to make a decision regarding any child then that child’s welfare will be the Court’s paramount consideration. In order for the court to determine what is in the best interests of the child it refers to the ‘welfare checklist’.

Know the Law

This is a series of factors which the court will consider when making any decision regarding a child. These factors are:

(a) The ascertainable wishes and feelings of the child concerned (considered in light of their age and understanding);

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

(c) The likely effect on the child of the change in circumstances;

(d) The child’s age, sex, background and any characteristics which the court considers relevant;

(e) Any harm which the child has suffered or is at risk of suffering;

(f) How capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) The range of powers open to the court under the Children Act 1989.

Legal advice will therefore focus on what the court may consider being in the child’s best interests with attention to the above checklist. This is a very wide set of criteria and advice will greatly differ depending on each family situation. Therefore if you are having difficulty reaching an agreement with your ex-partner about any matter in relation to the children it is a good idea to obtain legal advice early on so that we can assist you in reaching an agreement which is likely to be approved by the court and is in the best interests of the child.

If you would like to arrange a confidential appointment with one of our experienced solicitors to discuss any of the issues raised please contact Stephanie Layton on 0191 232 8345.