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Arrangements for Children
Separation, divorce or the breakdown of any relationship has the potential to cause considerable distress for any children involved.
Our Family Team are committed whenever possible try to negotiate arrangements that not only meet the needs of the children but also provide both parents with the means to adjust to their new situation, without undue disturbance. If agreement cannot be reached though we can represent you on an application for a Child Arrangements Order, which can include restrictions on a child being removed from their country of residence.
CLIENT GUIDE TO DISPUTES REGARDING CHILDREN
On the breakdown of a relationship or at any time after there may be issues relating to the care of a child or children that need to be resolved.
In summary there are three ways in which matters may be resolved. They are:
- By discussion and agreement between the parents
- By a mediated agreement ( please refer to the Client Guide to Mediation for further details)
- By court application
This is a brief guide to the court process.
If matters cannot be agreed between the parties and mediation is either inappropriate or unsuccessful, a court can be asked to make any of the following orders:
Parental Responsibility Order
This is an order which enables an unmarried father to obtain Parental Responsibility for his child. Parental Responsibility is automatically vested in a father who is named on their child's birth certificate or is married to the child's mother.
A birth mother will automatically have Parental Responsibility for her child.
Parental Responsibility is defined a "all the rights and responsibilities of a parent". Having Parental Responsibility allows a parent to have a say in the upbringing of their child, for example which school they attend, their religious upbringing and their medical treatment..
Child Arrangements Order
This is an order defining what time a child shall spend with each of its parents.
The order can specify where the child shall live (previously known as a Residence Order) and what time the child shall spend with any other person (previously known as a Contact Order).
The order can state that the child shall live in more than one household and specify the periods s/he is to live in each (previously known as a Shared Residence Order).
Prohibited Steps Order
This is an order to prevent a person with Parental Responsibility from exercising that responsibility without the consent of the other parent or the Court.
Examples of such an order would be an order prohibiting a person from taking a child out of the country or changing the child's name.
Specific Issue Order
This is an order to determine a specific question relating to a child e.g. what school the child should attend, whether the child should have medical treatment and religious issues if the parents are unable to agree.
Who can apply to the court?
The following people can apply for any of the above mentioned orders without having to obtain the permission of the Court:
- A parent (this includes a father without Parental Responsibility)
- A guardian/special guardian
- A person who already holds a Residence Order
- A step-parent/civil partner who has Parental Responsibility
The following can apply but have to obtain permission from the Court before doing so:
- A step-parent/civil partner who has treated a child as a child of the family but does not have Parental Responsibility
- A person with whom the child has lived for 3 out of the last 5 years
- A person who has obtained consent of all persons whose legal positions would be affected
- A relative/foster parent of a child with whom the child has been living for at least 1 year immediately preceding the application
An application form (Form C100) must be sent to the Court with a fee of £215. If the Applicant alleges that the child has suffered or is at risk of suffering harm, a supplemental application form (Form C1A) must be sent to the court at the same time.
On receipt of the application, the Court will fix a date for a first hearing, known as a First Hearing Dispute Resolution Appointment (FHDRA). That hearing will take place within 6 weeks from the application being made.
A copy of the application, together with a Notice of Proceedings setting out the time and date of the FHDRA must be served upon the other party (Respondent) at least 14 days before the FHDRA along with a Form of Acknowledgement which the Respondent has to complete and return to the court to confirm whether they oppose the application.
A safeguarding check will be carried out on the children and all persons prior to the FHDRA. These checks are carried out by CAFCASS (Children and Family Court Advisory and Support Service), who will telephone the parties prior to the hearing to discuss the application and ascertain whether there are any risk issues. They will then provide the parties and the Court with a brief report setting out their initial recommendations before the FHDRA.
All parties involved in the proceedings (but not the child unless specifically ordered by the Court) must attend the FHDRA. Its purpose is to consider the application and give directions on how the case should proceed. That hearing also gives the parties and their legal representatives time to discuss and try to agree matters.
If matters are not agreed, it is likely that the Court will order the CAFCASS Officer to prepare a full report. These reports take up to 12 weeks to prepare and the Reporting Officer will speak with both parties, and the child if it is considered appropriate. They will then provide the Court with a recommendation as to a final order which will be made based on what they believe is in the best interests of the child.
Whilst this report is being prepared, the Court is able to make holding, or interim, orders as to where the child should live and the time they spend with the other party.
At the FHDRA the Court is also able to request further information by way of experts or other reports if appropriate, e.g. drug/alcohol testing, medical reports and police disclosure.
Once all the information the Court has requested has been provided, statements will need to be prepared by the Applicant and the Respondent, setting out their position and the orders they are asking the Court to make.
Once all this has been done there will be a final hearing. This will be heard by either a Judge or three Magistrates. All parties, witnesses and the CAFCASS Officer must attend. The hearing is held in private; it is not open to members of the public.
There is an overriding presumption in all cases that it is in a child's best interests to have as full a relationship as is possible with all members of their family unless it can be shown that the child would suffer or be at risk of suffering emotional or physical harm as a consequence. The court's paramount consideration is the child's welfare.
Once the Judge or Magistrates have heard all the evidence they will consider all the information provided to them by reference to the following matters known as the welfare checklist:
- The ascertainable wishes and feelings of the child concerned (taking into account their age and understanding)
- The child's physical, emotional and educational needs
- The likely effect on the child of any change in circumstances
- The child's age, sex, background and any characteristics of the child which the Court considers relevant
- Any harm that the child has suffered or is at risk of suffering
- How capable each of the child's parents, and any other person in relation to whom the Court considers the question relevant, of meeting the child's needs
- The range of powers available to the Court under the Children Act 1989 in the proceedings in question
Once all the relevant information has been considered it will be decided what order should be made. A copy of any Order made will be provided by the Court to all parties.
The timescale for an application can vary depending on each individual case but most matters are concluded within 3 to 6 months of an application being issued..
This guide is intended as an outline only of the procedure. For further advice and information please contact any member of the Family Team at Andrew & Co.
To speak to a member of the Family team and make an appointment, please phone us on 01522 512123 (Lincoln) or 01636 673743 (Newark).