Children

There are various options available to you when resolving child custody and welfare. It is important that you are aware of all these at the outset. This way, you can choose the right way forward for you and your own situation. The options are set out below:

Direct Agreements
This is where you come to an agreement by talking to each other directly. Even when you are both happy with the outcome, it is vital that you instruct a solicitor to explain the agreement once agreed. The solicitor can take steps to make the agreement legally binding for you.

Mediation
Prior to any Court proceedings, there is an emphasis on parties trying to seek to resolve matters through mediation. Mediation involves you seeking the assistance of a third person to help you communicate and reach an agreement. The mediator is unable to give legal advice but can help you communicate and reach a fair agreement.

Collaborative Law
Dealing with matters collaboratively, with solicitors trained in collaborative law. This involves a series of open discussions with everyone present and a commitment not to use the Court process.

Family Arbitration
Instructing a solicitor to pursue an out-of-court agreement which would be determined by the Arbitrator.

Going to Court
Instruct a solicitor to deal with proceedings at Court (providing you have attended, at the very least, a Mediation Information meeting).

Each of the options is right for different circumstances – at Harold G Walker, their specialists can explain the different approaches in detail for you and apply it to your own personal circumstances. You will then be in a position to make a well-informed decision as to the way forward.

The Children Act 1989 is the predominant piece of legislation dealing with family disputes about children. The child’s welfare is the paramount consideration when children are involved and a list known as the “Welfare Checklist” is considered. This looks at:

• The child’s wishes and feelings, considered in the light of his/her age and understanding
• Their physical, emotional and educational needs
• Their age, sex, background and any characteristics which the Court considers relevant
• The likely effect of any change in the child’s circumstances
• Any harm which the child has suffered or is at risk of suffering
• How capable each parent is of meeting the child’s needs

Sometimes on the breakdown of a relationship between parents, this can have a wider effect and can lead to grandparents losing contact with their grandchildren. Grandparents can apply for their own Contact Order with leave of the Court. In certain circumstances, where the parents are not capable of looking after the children themselves, grandparents can apply for an Order that the children reside with them.

If you are a Grandparent who wants access to your Grandchildren, please contact us and you can be advised how this can be best achieved.

Where there is a dispute in respect of children, the Court’s starting point is that they will not make an Order unless it is necessary. Furthermore, the Court’s approach in all cases is that if parents can resolve matters between themselves, the Court will not get involved. Parties are encouraged to try mediation to resolve matters, however should this prove to be unsuccessful, or inappropriate in the circumstances, an application to the Court will need to be made sooner rather than later.

If parents are unable to agree who the children should live with, then it may become necessary for one or both of them to make an application to the Court for a Residence Order which will dictate with whom the children are to reside.

Shared residence orders are becoming more common where both parties share the care of the children and can even be made where parents do not necessarily live in the same vicinity.

The Court can also order who children are to spend time with and the times they see parents. (This is called a Contact Order).

Applications can also be made to the Court to resolve specific issues, for example, changing a child’s surname, giving the parent permission to take the child out of the country on holiday if the other parent will not agree, or permission for the child to be taken out of the country indefinitely, where one parent wishes to reside in a different country.

Emergency applications to protect children can be made on the day that we are instructed, where necessary. This will involve attending at Court, without the other party’s knowledge, to secure an Order which is served upon them later that day. The matter is normally then re-listed for a hearing with the other party present, within a matter of days.

Since December 2008, the Courts have had extra powers to deal with parents who do not comply with a Contact Order. The Court can order those parents to undertake unpaid work in the community and can also order financial compensation to be paid to the other parent where they have lost money due to the Order not being complied with, for example, if they had booked to take the children on holiday. Parents with existing Contact Orders can apply for a Warning Notice to be attached to those orders, warning the other parent that if they breach the Order, the Court could use its new powers.

The Courts also have more power over the parent wanting to have contact with their children. They can order that parent to do a “contact activity” to assist with contact, for example, attending parenting classes or a programme to deal with violent behaviour. Their attendance at these “contact activities” can then be monitored by an Officer of the Court.

Where a Child Order application is non-urgent, it will be sent to the Court for the papers to be processed.

Step 1
The application will be served on the other party.

Step 2
The Court will then send a copy of the application to a Court appointed officer, who is experienced in dealing with children cases (known as a CAFCASS Officer). They will carry out safeguarding checks on the parties and any other named person who has care of the child to ensure that no immediate action is required to keep the child safe. They will also try to speak with both parties before the first Court appointment to confirm what issues exist between the parties.

Step 3
A First Appointment for the Court to give Directions will be held. At this first hearing, the Court will consider whether the case may be suitable for mediation. If suitable, the case will be referred to mediation. If the case is not suitable for mediation, a Direction will be given for a CAFCASS Officer to prepare a report.

Step 4
The Court will then list the matter for a Final Directions. At this Directions hearing, the Court will discuss with the parties whether or not a Final Hearing can be avoided.

Step 5
A Final Hearing, if required will be listed, whereby a Judge will make the final decision on the matter.