Children and the law

Divorce law and your children
This period of your life is so emotionally charged that it is not unusual to forget how your children may be feeling. It is vital that any child is reassured that both parents do love him and care for him despite the marriage problems and that this parental responsibility (see below) will continue during all the stages of separation and divorce and afterwards.

Most parents agree
Most parents agree about the arrangements for children although difficulties do arise frequently, especially when matters of finance are also in dispute. The law considers that these voluntary arrangements between parents are more likely to succeed in the long run than those imposed by the courts. It is therefore generally understood that the courts will not intervene unless it is in the best interests of the child. Your child, like the courts, would prefer you both to do your utmost to put him first, to see things through the eyes of your child. Mediation may be offered as an alternative to the court process and details are given below.

When filing for divorce
When filing for divorce, a Statement of Arrangements has also to be filed, giving details of the proposed arrangements for the children. If these are agreed by both of you, the court is unlikely to interfere although you can ask for the court to help at any time. If agreement has not been reached, the Judge may ask for you both to attend a hearing to see if you can agree. Mediation may again be advised. Reports could be requested and further meetings probably with the children in attendance at a CAFCASS (court welfare) office or at home. See below for further details. This is best discussed with your solicitor.

What does the law say?
The Children Act 1989 says that the child's welfare is the most important consideration. The old word 'access' has been replaced by contact. This can refer to contact by letter, phone and actual visits. 'Custody' has been replaced by residence. The Act describes parental responsibility rather than parents' rights. If you were married when the child was born, both of you will have parental responsibility for the child. A father who was not married to the child's mother when the child was born, will not automatically have parental responsibility for that child. But can acquire it by agreement with the child's mother or by applying to the court. He can also acquire it by marrying the child's mother after the birth.

Where a child’s parents are married at the time of birth, the father automatically receives PR as well as the mother and therefore has an entitlement to be involved in decision-making. If the parents marry at a later date the father acquires PR at that stage. The number of unmarried couples who have children together is increasing – statistics suggest that over 40% of children are born to unmarried parents. In this situation a father does not have PR for the child, unless it is specifically acquired. PR can be acquired in one of three always:

  • For children born after 1st December 2003, if the father registers the child’s birth together with the mother and his name appears on the birth certificate, he shares PR with the mother;
  • The mother and father can enter into a Parental Responsibility Agreement – a formal document which is signed by both parties and lodged at court;
  • The father can apply to the court for a Parental Responsibility Order. To gain an order the father has to satisfy the court that he has a sufficient level of commitment and degree of attachment to the child.

Once PR has been obtained by a father, both parents are entitled to be involved in the decision-making process. Obviously, in an ideal world, decisions should be made by agreement on a joint basis, but where this is not possible it is open to either party to make an application to the court to determine issues that are in dispute.

Parental responsibility
Parental responsibility means that you are both responsible for the following but this list is by no means complete:

  • protecting and maintaining your child
  • naming the child -choosing the school
  • making sure he goes to school from age 5 to 16
  • making sure they receive medical treatment
  • appointing a guardian to act after death
  • applying for a passport
  • representing the child
  • deciding where he is to live
  • choosing the child's religion etc.

What about money?
A parent has financial responsibility for the child until he reaches the age of 17 or leaves full-time education, whichever is the later. There is no 'clean break' (an end to providing financial support) between parents and children. This is the law. A child's father (or mother) is obliged to pay for this support whether or not there is any contact. The two issues are entirely separate but in reality disagreements about maintenance sometimes lead to problems with contact. On the other hand, a father who has regular contact is more likely to pay maintenance on a regular basis. Try to keep these two issues separate and discuss them at separate times. For details about obtaining financial support for your child, please refer to our Financial section.

Will continued abuse affect the children?
If violence or psychological abuse caused your separation, this behaviour may continue and even get worse. Controlling behaviour and abuse are also likely to affect the child at contact times and afterwards. Your physical and mental safety is crucial for your child's wellbeing. Please read our article about domestic violence and find out where you can get round-the-clock expert advice and be safe.

Can we avoid going to court about the children?
If under normal circumstances, you are unable to agree on contact arrangements, to put your children first, to compromise, to maintain some stability, to allow your child to continue to love both parents, mediation could be the best option. This is so much better than 'going to court' which may be costly, lengthy and distressing to all concerned.

What is mediation?
A mediator is a trained professional who listens to both parents' wishes and concerns and tries to help you both come to some arrangement about contact. Mediation is also used in disputes regarding where the child should live, 'residence', and other issues such as finances and property.

If you would like a personal referral, please use this link:
Mediation referral

What if it is a violent relationship?
Again, if you are in fear of violence, this is not the course for you to take.

What if mediation and talking fail?
If mediation and all other communication fail, including talking to your child and listening to him, you may have to consider court action but this will not give you an instant solution.
Again, the courts base their decisions on the Children Act which emphasises the welfare of the child. The court will only make an order if it is in the best interests of the child.
It is not your 'access' to the child that is paramount; it is what is best for the child.

The Courts consider the following factors:

  • the child's feelings and wishes, depending on his age and understanding
  • the physical, emotional and educational needs of the child
  • the likely effect of any changes in his circumstances
  • the age, sex and background and any characteristics which the Court considers relevant
  • any harm which the child may have suffered or is at risk of suffering
  • how capable each of the parents is of meeting the child's needs (this may include other involved people).

You will need a solicitor
This legal process requires a family law solicitor. It may become costly unless you are able to receive funding from the Community Legal Service (Legal aid). Details about how to find a family solicitor and other information are in our Legal section. Suggested books are in our Books section. Have you read Children/Teenagers/Parents sections? These may help you both come to some understanding and agreement. If you haven't already read through Emotions and Health sections, these may help you to understand each other's position and concerns. Always look for common ground and try to see things through the eyes of a child.

What if we can't agree where the child should live?
It may be worth remembering that most families do not involve the courts and the courts generally consider that it is the right of each child to have a relationship with both parents.
It is rare for families to disagree about where a child will live - this is referred to as Residence. The court would consider amongst other things, the following:

  • the working parent who must arrange childcare will not be preferred to the parent at home - continuation of the status quo
  • maintenance of family contacts
  • 'normal' family life
  • permanence and stability
  • the child's wishes when able to express these in a mature and balanced way
  • adequate mothering especially for young children
  • avoiding separating siblings

What else can the courts do?
The courts can also deal with specific issues as well as contact and residence orders.
A 'Specific Issue Order' could be sought to decide where a child will go to school or to decide on medical treatment. There is also a 'Prohibited Steps Order' which can stop something from happening. One example would be to stop one parent from taking the child abroad. A solicitor's advice should be sought. Please contact us.

What happens at court?
This will involve CAFCASS, the Children and Family Court Advisory and Support Service for England and Wales. It is a group of professionals, answerable to the Lord Chancellor, who provide advice to the courts about the wellbeing of children and their families. You are both usually requested to attend a meeting with the Judge four to ten weeks after applying for a court order. Your solicitors generally attend too.

CAFCASS and the court welfare report
A CAFCASS officer is normally in attendance too but practices vary from court to court. The purpose of this meeting is for the court to ascertain whether there is any chance of you coming to an agreement. If not, it is normal practice for the Judge to request a CAFCASS (court welfare) report. This can be a lengthy document and is only drawn up after he meets the parents together or individually and he meets with the child/children either on their own or/and with a parent/s.
He can also check whether their schools have any concerns. He can also check with doctors, Social Services, the police etc.; Visits may also be arranged at home. Although you will be dealing with professional people, this can be a very emotional and traumatic time.

Try to agree yourselves
Throughout the whole process, you will be encouraged to come to an agreement that is in the best interests of the child. The hearing would then be arranged for perhaps three to six months later if you haven't already found a solution and the Judge would then deliver his decision which is often in agreement with the welfare report's recommendations. He could also delay his decision for a further period of time and order another hearing in the hope of agreement. An appeal against the decision could also be considered. This could turn out to be a costly and lengthy procedure which could add to the stresses of the divorce and diminish your ability to co-operate as responsible parents.

Please try to remember this
You should both work towards establishing a parenting agreement that will benefit your child. This is not about any other disagreement you may have. Although you may think that 'fighting' over your child shows your child how much you love him, this is not the case. A child, like the courts, will be waiting for you to co-operate together. Arrangements which are agreed between you are more likely to be honoured.

Time is a healer; things will get better if you try to stop hurting each other. Try to do something constructive for your spouse, something that could build trust and co-operation. Stand back and reflect. Remember to see everything through the eyes of your child.

"The talk of the child in the market place is either that of his father or of his mother." Babylonian Talmud Sukkah 56b

Please refer to our Further help section for: Leaflets and Child advice. If you need a family law solicitor to assist you with children's issues, please contact us.

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