Family separation can have a big impact on everybody involved, and it’s important to ensure that your children’s best interests are prioritised throughout the process and beyond. As part of negotiations, you’ll need to agree on a number of important issues such as where your child will live and go to school, and what contact arrangements will be in place.  

In terms of financial support, the majority of maintenance matters will be decided by the Child Maintenance Service and there will be no need for intervention by the family court. There are certain circumstances when court intervention will be necessary, for example if the non-resident parent earns more than the limit handled by the Child Maintenance Service, or when additional payments are needed for expenses that fall outside the definition of day to day maintenance. In some circumstances, the family court can also make capital orders for a child’s special needs or for housing.

Family mediation can help to reduce conflict between you and your partner and help you both to stay in control of the final outcome. It can also help with other issues, for example grandparents’ access to your children. We can advise on mediation and refer you to a suitable mediator.  

Whatever your circumstances, we can advise and guide you on all aspects of family law to ensure the best outcome for you and your children.

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Daniel Rushton

Common Questions & Answers

What is the law on childcare arrangements?

The Children Act 1989 provides the statutory basis for the law relating to children.

If parents cannot reach agreement about arrangements, either parent can ask the Court to make decisions about who the children should live with and how much time they spend with the other parent, as well as resolving other issues relating to the children’s care. The range of powers in private law proceedings includes the following: 

Child Arrangement Order

Under this type of Order a Court can determine where and with whom a child should live, but it does not give that parent any additional rights from the other parent who continues to have parental responsibility in equal legal rights. The Court can also make a Child Arrangements Order to determine how much time they spend with the parent they do not live with. The Court can determine specific times.

Prohibited Steps Orders

This is to prevent a parent from exercising some element of their Parental Responsibility for a child, for example to prevent them from taking the child to certain places, abroad, or to prevent the child coming into contact with certain individuals.

Specific Issue Orders

This, as the name suggests, is an application to Court asking it to determine a specific issue, such as whether a child can go abroad, whether a child should go on holiday or whether a child’s name should be changed.

Court Proceedings

Where there is disagreement between parents as to how children should be cared for, or by whom, an application can be made to the court to decide upon these issues. Three days prior to the first hearing, CAFCASS (Child and Family Court Advisory and Support Service) will appoint an Officer for your case and they will have to file by that date a short report called a ‘Schedule 2 Report’ which deals with the following:-

  1. They will have made safeguarding checks with the Police and Social Services to see if there is any record of either parent or any knowledge of the child;
  2. They will speak to both parents to ascertain what the issues are and whether there are any welfare concerns.

Both parents receive that Schedule 2 Report either before or at the hearing. The Report will make a recommendation to the Court as to whether or not CAFCASS needs to be involved in the process and they will make a recommendation to the Court as to an appropriate course of action.

If allegations or concerns are raised by either party, CAFCASS may be asked by the court  to compile a report for the court putting forward their recommendations. Where children are old enough to voice their opinions in terms of contact, their “wishes and feelings” can be taken into account by the court.

At the first hearing, unless there is agreement, the Court will consider the issues and decide what evidence is needed and by when.  Another hearing (known as a Dispute Resolution Appointment) will be arranged for a later date where the Court will consider the evidence and issues and try to narrow them.  Many cases settle at this stage, but if no agreement is reached then another hearing will take place at which the Court will usually hear oral evidence before deciding what the arrangements should be.

Following divorce what rights do mothers have?

The issues regarding children following divorce can be straightforward or problematic and this will often depend on whether or not the split was amicable.

Whilst it is not always the case, the mother tends to be the children’s primary carer and more often than not, the children will remain in the mother’s care after separation, but that does not give the mother more legal rights, as both parents have Parental Responsibility.

A mother will have Parental Responsibility for the children born during or before the marriage and may receive maintenance for those children if she is the primary carer. This can be either by agreement or through the Child Maintenance Service.

Parental Responsibility is a legal phrase for having the legal right to determine important decisions over your child, in relation to his welfare.

You will both continue to have parental responsibility until your child is 18 or in the unlikely event that the Court decides it should be removed but this is very rare.

While the Law does not define in detail what parental responsibility is, the following list sets out the key roles:

  • providing a home for the child
  • having contact with and living with the child
  • protecting and maintaining the child
  • disciplining the child
  • choosing and providing for the child’s education
  • determining the religion of the child
  • agreeing to the child’s medical treatment
  • naming the child and agreeing to any change of the child’s name
  • accompanying the child outside the UK and agreeing to the child’s emigration, should the issue arise
  • being responsible for the child’s property
  • appointing a guardian for the child, if necessary
  • allowing confidential information about the child to be disclosed

The Court can make orders:

  1. to determine which parent the children should live with and how much time they should spend with the parent they do not live with (Child Arrangement Orders),
  2. preventing a parent from taking certain steps, such as changing schools (Prohibited Steps Orders), and
  3. determining a specific issue, such as which school a child should attend (Specific Issue Orders).

The Court exercises its powers really only taking one consideration into account and that is the child’s best interests. In order to determine what is in a child’s best interests, the Court takes into account a list of criteria set out in what is called the Welfare Checklist. The factors that are included within this list are:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of age and understanding);
  • Physical, emotional and educational needs;
  • The likely effect on any change in his circumstances;
  • Age, sex, background and any characteristics which the court considers relevant;
  • Any harm which has been suffered or is at risk of suffering;
  • How capable each parent, and any other person in relation to whom the Court considers the question to be relevant, of meeting the childs needs;
  • The range of powers available to the Court under the Children Act in the proceedings in question.

Generally, it can be said it is more about the child’s rights to have a relationship with both parents, rather than a parent’s rights to see them.

Following divorce what rights do fathers have?

The issues regarding children following divorce can be straightforward or problematic and this will often depend on whether or not the split was amicable.

A Father will have parental responsibility for the children born during the marriage (or if the child is born before and he subsequently marries the mother) and may pay maintenance for those children if the mother remains the primary carer. This can be either by agreement or through the Child Maintenance Service.

Parental Responsibility is a legal phrase for having the legal right to determine important decisions over your child, in relation to his welfare.

You will both continue to have parental responsibility until your child is 18 or in the unlikely event that the Court decides it should be removed but this is very rare.

While the Law does not define in detail what parental responsibility is, the following list sets out the key roles:

  • providing a home for the child
  • having contact with and living with the child
  • protecting and maintaining the child
  • disciplining the child
  • choosing and providing for the child’s education
  • determining the religion of the child
  • agreeing to the child’s medical treatment
  • naming the child and agreeing to any change of the child’s name
  • accompanying the child outside the UK and agreeing to the child’s emigration, should the issue arise
  • being responsible for the child’s property
  • appointing a guardian for the child, if necessary
  • allowing confidential information about the child to be disclosed

The Court can make orders:

  1. to determine which parent the children should live with and how much time they should spend with the parent they do not live with (Child Arrangement Orders),
  2. preventing a parent from taking certain steps, such as changing schools (Prohibited Steps Orders), and
  3. determining a specific issue, such as which school a child should attend (Specific Issue Orders).

The Court exercises its powers really only taking one consideration into account and that is the child’s best interests. In order to determine what is in a child’s best interests, the Court takes into account a list of criteria set out in what is called the Welfare Checklist. The factors that are included within this list are:

  • The ascertainable wishes and feelings of the child concerned (considered in the light of age and understanding);
  • Physical, emotional and educational needs;
  • The likely effect on any change in his circumstances;
  • Age, sex, background and any characteristics which the court considers relevant;
  • Any harm which has been suffered or is at risk of suffering;
  • How capable each parent, and any other person in relation to whom the Court considers the question to be relevant, of meeting the childs needs;
  • The range of powers available to the Court under the Children Act in the proceedings in question.
What are a father's access rights when he is not, and never has been, married to the mother?

A father will have parental responsibility if he is named on the birth certificate. If he is not named on the birth certificate he can ask the court grant him Parental Responsibility, alongside any application he may wish to make.

Can a mother stop a father from seeing his child?

If both parents have parental responsibility, they share equal legal rights in respect of their children. This does not always mean  equal time is spent with each parent as this is not always in the best interests of the children.

Practically speaking however, the day-to-day control of your child will remain the responsibility of the person with whom they live and Parental Responsibility will have no real affect on that

Is there a bias towards granting residence orders to the mother?

If both parents have Parental Responsibility, there is no difference between the father’s rights and the mother’s rights and there is no automatic bias towards mother and the child’s best interests are the primary consideration.

Practically speaking however, the day-to-day control of your child will remain the responsibility of the person with whom they live and Parental Responsibility will have no real affect on that

Can one parent gain sole custody of a child?

The purpose of a Child Arrangements Order is to enable a child to ‘live with’ one parent and ‘spend time’ with another. This is not necessarily dependent on what the parent desires and is a decision made in the best interests of the child.

You will both continue to have parental responsibility until your child is 18 or in the unlikely event that the Court decides it should be removed. This is very rare and the court would need very serious reasons for doing so.

If allegations have been made by one parent about the other, or if one parent has not spent good quality time with their child for a long period of time, the court may order that contact takes place in a Contact Centre on a supervised basis to assess their parenting in light of allegations made.

If there are ongoing safeguarding concerns i.e. if the court finds that a child is at risk of harm from either parent, they can make an order that restricts their rights. If the concerns are serious this may mean that a parent can only have indirect contact with their child through cards or letters.

Practically speaking however, the day-to-day control of your child will remain the responsibility of the person with whom they live and Parental Responsibility will have no real affect on that

What is the role of Cafcass in Family Court proceedings?

Who are Cafcass?

Cafcass stands for Children and Family Court Advisory and Support Service. Cafcass is a government organisation that represents “children’s voices” during court proceedings. Their role is to ensure that courts make decisions which represent the best interests of the children involved. They are independent of organisations such as the courts, social services, education, health authorities and parents.

They are normally involved in matters regarding children involving local authorities and social care and matters regarding adoption, but are also involved with matters of law relating to domestic family issues (“private law”). When parents cannot agree on arrangements for children and an application is made to the family court, Cafcass is asked to provide information that the family court can use to make appropriate decisions regarding arrangements for children.

When do Cafcass become involved?

Following a Divorce or Separation, the family court will become involved to help make suitable arrangements for children if the parents have exhausted all options, such as mediation and negotiations via legal advisors, but still cannot agree on the arrangements for their children.

The family court will request the assistance of Cafcass to provide them with information about the family. They will use this information to assist the Court in making a decision about the children that is purely based on the best interest of the child, or children, involved.  It is worth mentioning that Cafcass can only be instructed by the court and will not become involved at the request of a parent or their solicitor.

How do Cafcass gather their information?

External Checks

When instructed by the court Cafcass will usually carry our some safeguarding checks on all the people involved. This includes checks with the police and the local authority to see if either parent and / or any of the children involved are known to them and if they are, Cafcass will look at the welfare issues involved. Cafcass also check the adult parties to see whether any caution or conviction information is held on the Police National Computer.

The Parents’ Voice

As a parent you have an opportunity to voice your concerns. Cafcass will contact both parents by telephone to ask if either parent has any concerns about the safety and welfare of the children. This is an opportunity to express any concerns about the other parent’s ability to care for the children, whether that is because of issues of violence, drugs or alcohol or just general concerns about parental competency. Any concerns you raise will be reported to the family court at the first hearing and, if an agreement cannot be made at the first hearing, Cafcass may be asked to investigate the allegations at a later date.

The first family court hearing

The aim of the first hearing is to see whether it is possible for you and the other party to make a safe agreement about your children which the court can then endorse.

If you and the other party can reach an agreement, and the court is satisfied that this is safe and in your children’s best interests, it may be possible to end the process at this stage by making a Consent Order that can be approved by the court.

If the first family court hearing fails

The first family court hearing will fail if the parents cannot make an agreement,  if the court feels there are still concerns for the welfare of the child/children, or if the court feels the agreement made between the parents does not protect or promote the best interests of the children involved. Following the first hearing the court may

  • Order a ‘fact finding’ hearing, usually where allegations of violence have been made or, if a fact of violence has been found they may order the violent party to take part in a domestic violence perpetrator programme.

  • Refer the parents to mediation to try to reach an agreement

  • Order both parents to separate parenting classes

  • Order Cafcass to prepare a report (a section 7 report)

  • Where there has been involvement with social services, ask them to prepare a report.

  • List the case for a Dispute Resolution Appointment or, in exceptional circumstances, for  contested final hearing. In either case, each parent will be asked to submit to the Court and other party a written statement, setting out their case and their evidence.

The Section 7 Report

If an agreement cannot be reached Cafcass may be asked to carry out a more detailed investigation about the family which they will use to write a report about the children’s welfare this is known as a Section 7 report. To make this report the Cafcass worker may wish to talk to the children involved, depending on their age and understanding, talk to both parents and possibly other relatives involved as well as teachers and other relevant parties associated with the children.

The Second Hearing and Beyond

The second Family Court hearing is called a Dispute Resolution Hearing. At that hearing, the Court will see the section 7 report (if there is one) and both parties written statements and will try to whittle down the issues to reflect what the Court considers to be important. Cases often settle at this point, as it allows the parents to realise what is truly important and to appreciate how their concerns will be considered by the Court. If an agreement is reached, a consent order can be made. If no agreement is reached, the case will be adjourned to a contested hearing later on, where the Court will impose a decision on the parents by making an order. Failure to adhere to the Court Order can result in fines and even imprisonment and breaches can also result in community service orders and sometimes financial compensation for the other party, if there has been a financial loss caused by the breach. However, appeals can be made to a higher Family Court in exceptional circumstances.

Do grandparents have rights to see their grandchildren?

Grandparents have no automatic legal rights to spend time with their grandchildren, nor do they have any automatic rights akin to parental responsibility.

A grandparent wishing to spend time with a grandchild can make an application to the court, but will need to ask permission or ‘leave’ from the court before doing so and the court will consider:

  • The grandparent’s connection with the child
  • The nature of the application the grandparent wishes to make
  • Whether any application may be harmful to the child’s wellbeing in any way i.e. any risk of emotional, physical, psychological harm.

If permission is granted, the court can make a variety of orders in a similar way as it can between parents. The court may need to hear evidence from you if the parents object to the application. The court will only make an order if they feel it is in the best interests of the child, and that making an order will be better for the child than making no order at all, however the courts do respect the important role a grandparent may play in a child’s life.

What are step-parents' rights to see step children following divorce?

A step-parent even if married to a parent of children does not acquire Parental Responsibility for a child automatically.

In the absence of agreement, a step-parent can apply to the court for parental responsibility. A step-parent who is a party to a marriage where the child was treated as a child of the family is also entitled to apply for a Child Arrangements Order with respect to the child.

What happens when parents cannot agree a maintenance amount?

If you and the child’s other parent cannot agree the appropriate level of child support, the parent who lives with the child or children can apply to the Child Maintenance Service. A fee may be payable. The body previously responsible for managing child support, the Child Support Agency, now deals only with existing maintenance assessments. Although the formulas applied to income are worked out differently depending on which scheme your family falls under, the process for determining how much the non-resident parent should be paying as child support is broadly the same:

  1. child support is assessed on a percentage of the non-resident parent’s income, depending on the number of children they have to support
  2. there is a reduction of 1/7 for each night per week, averaged over a year, that the child or children stay with the paying parent, and
  3. there is a reduction applied if the paying parent has any other children in their own household or if they are paying child support to more than one other parent

The child support scheme only operates up to a certain amount of the non-resident parent’s income, which again, differs depending on the scheme you fall under. If the non-resident parent earns more the court can make a top-up order under the provisions of Schedule 1 to the Children Act 1989 (see below).
As the system is changing, your family lawyer will be able to assist you in working out the right arrangements.

You could also look at the website www.cmoptions.org, which contains a child maintenance calculator.

How can a parent make an application for additional financial provision for children?

Sometimes the resident parent may require additional finance for costs that fall out side of ‘day to day’ maintenance payments.

Where the parents of a child are married or are civil partners, the courts have the power to order the transfer of property to a child or to order the payment of a lump sum of money to a child within divorce or dissolution proceedings. Your family lawyer can advise you on whether an application under this provision may be appropriate in your case.

Is the application for additional provision application different for parents who have never been married or civil partners?

Under Schedule 1 to the Children Act 1989, a parent, step-parent, guardian, special guardian or person with a residence order may be able to apply to the court for other financial provision for a child, usually from that child’s other parent.

In some cases it may be appropriate for the application to be made by the child themselves (see question below). Often, this law is used for one parent to make an application against the other when they have not been married or civil partners. In these circumstances, the court does not have the wider powers it has on divorce or dissolution of a civil partnership to make financial orders that consider the children’s needs outside of day-to-day maintenance. For parents who have never married the day to day maintenance payments will still be dealt with by the Child Maintenance Service or Child Support Agency.

Your family lawyer can advise you on whether an application for additional financial support under this provision may be appropriate in your case.

What orders can the court make under Schedule 1 to the Children Act 1989?

The court can order:

  1. a lump sum or sums to be paid, at once or in instalments, by one parent to the other, e.g. to reimburse expenses connected with the birth and to meet future expenses such as the purchase of a family car or to pay school fees, with no limit on the number of lump sum applications that can be made
  2. that a property should be transferred or held in trust for the benefit of a child until a certain event occurs, e.g. the child reaching the age of 18 or completing full-time secondary or university education, when the property will either be transferred back to the payer or sold and the proceeds given back to the payer
  3. regular payments of child maintenance where:
    • the non-resident parent’s income is higher than the limit where the Child Support Agency/Child Maintenance Service deals with maintenance, or
    • in respect of educational expenses, or
    • for expenses connected with a child’s disability

The court can also make an interim orders for child maintenance while the main application is being dealt with. Regular payments of child maintenance may, in some circumstances, include an element of ‘carer’s allowance’ for the parent with whom the child lives. The duration of the maintenance order is fixed by the court.

Child Maintenance and Property

Where an application concerns property, consideration may also be given to a separate application.  Your family lawyer will be able to provide specific advice in relation to this.

Can a child apply for maintenance?

If a child is receiving, or is intending to receive, instruction at an educational establishment or training, or if there are special circumstances such as a disability or illness, and the parents do not live together, a child over 18 can apply to the court for maintenance or a lump sum from one or both parents.

What is the procedure for making a court application for child maintenance?

The person applying for an order from the court is called the applicant, and the other person is the respondent. The applicant will complete a court form that is sent to the court, and then sent to the respondent, who must let the court know it has been received. After that, a court date is set and both the applicant and respondent have to complete a financial disclosure form (a Form E1) setting out all of their financial circumstances.

How does the court decide?

When deciding what order to make, the court will consider:

  1. the income, earning capacity, property and other financial resources that each of the parent has or is likely to have in the foreseeable future
  2. the financial needs, obligations and responsibilities that each parent has or is likely to have in the future
  3. the financial needs of the child
  4. the income, earning capacity (if any), property and other financial resources of the child
  5. any physical or mental disability of the child, and
  6. the manner in which the child was being or is expected to be educated or trained

There are certain additional considerations if the person whom the application is against is not the child’s other biological parent. It is also worth remembering that the judge has a wide discretion depending on the circumstances of the case and the level of orders can be difficult to predict.

How do I book an appointment with a family law solicitor?

If you would like to discuss your specifc circumstances with a family law solicitor we offer fixed fee appointments. Please contact us to view our appointment options or call us on 01782 840 542.

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