The law relating to disputes between parents over their children is almost entirely contained within the Children Act 1989. The thread running throughout the Act is that when a court is asked to decide a matter concerning children, the child’s welfare will be their paramount concern. The concepts of custody care, control and access are abolished, and rather than considering the ‘rights’ of parents, the Act talks of parental responsibility.When parents no longer live together, the children are not ‘awarded’ to one of the parents, as was once the case, by the making of a custody order. Contact and residence orders are no longer made, and instead parents are encouraged to agree the arrangements for their children and make a parenting agreement.Only when this is not possible will the court intervene and make a child arrangements order deciding such issues as where the children will live for most of their time and the time spent with a non-resident parent. This will often be helped by the use of mediation, and the court will expect parents to have attempted mediation and only resort to court proceedings when it has failed. Before applying to the court for an order, parents are required to attend a mediation information and assessment meeting (MIAM).
When making any order, the court will be required to apply the ‘welfare checklist’ in Section 1(3) of the Children Act. They will not make an order unless it is considered to be in the child’s best interest to do so. As any delay could affect the child’s well being, this must be avoided.
Embedded in the Law is the belief that children are generally best looked after by their parents, with both parents playing a full part in their upbringing. Parents are encouraged to make every effort to agree the arrangements for their children between themselves, using mediation when necessary, and only resorting to the courts when everything else has failed. Parental rights and parental responsibility will be shared equally between parents, whenever possible.
We have an e-book Children in the Family Court available for download, which fully explains the law and procedure relevant to disputes between parents over their children. We also have downloadable law guides on Appointing a Guardian for your children and Removing a Child from England and Wales.
How can I help my child deal with the family breakup?
- give as much reassurance to your children as possible;
- explain appropriately what is happening in ways that they can understand;
- maintain the family routine and rules as much as possible;
- be receptive to their feelings, concerns and questions;
- encourage them to have a relationship with both of you;
- reassure them that you as parents can manage your own affairs, that they need not be responsible for helping you;
- encourage them to talk about their feelings, particularly about the other parent, in a way that avoids them feeling divided loyalties.
- be critical of the other parent;
- do anything that would undermine the child’s relationship with the other parent;
- ‘lean on’ older children or ask them for advice;
- ignore children’s feelings or questions;
- assume that children who are quiet or placid on the outside are not suffering – they still need reassurance and tolerance;
- involve the children in your own battles.
What happens if we cannot agree the arrangements for the children?
Help is available to enable parents to agree the arrangements for their children and, before issuing an application for a judge to decide, you will be required to attend a mediation information assessment meeting, unless it is clear that mediation will not work or the application is urgent. You may then issue your application, which will be listed for a short first hearing in around six weeks.
What do I need to think about if our relationship is over and it looks like we are going to split up?
Before deciding finally that your relationship is over you should discuss this with family and friends and consider very carefully what life will be like as a single person. It may not be as rosy as you’d think, especially as a single parent. If having taken your time and thought things through carefully your decision is final, it will be time to tell your partner and children. How you tell particularly the children is most important. You will need to explain the practical arrangements to the children and whenever possible this should be done together by both parents.
At what age can a child choose which parent they will live with?
A Court is required to consider the wishes and feelings of a child with a consideration of his age and understanding of the situation. The older and more mature the child becomes, the more notice will be taken of his or her wishes. Understanding is equally important as age, and if the expressed wishes and feelings are irrational and possibly the result of pressure by the resident parent, they will not be taken into consideration.
Do children always live with their mother when their parents separate?
The court will look carefully at which parent is best able to meet the child’s day to day needs, physically and emotionally, now and in the future. At one time it was presumed, especially with young children, that these needs were best met by a mother. This presumption no longer applies, and both a mother and father are on an equal footing when being considered as the primary carers for their children..
Can I take my child abroad on holiday?
Unless a residence order or child arrangements order has been made, a parent may not take a child out of England and Wales without the permission of the other parent with parental responsibility. It does not matter whether the time abroad is for only a short period such as a family holiday.
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