Children

In all matters relating to children, the children’s welfare comes before anything else.

You should consider the following:

• Trying and co-operate with your partner will benefit your children;

• avoid encouraging the children to take sides;

• consider what you plan to tell your children about the separation;

• consider alternatives to divorce;

• avoid using court action as a way of settling disagreements, except as a “last resort”;

• treat all matters relating to children as confidential

What orders can a court make?

Under S8 of the Children Act 1989 the Court may make one of the following orders:

• Residence 

• Contact

• Prohibited steps

• Specific issue

• Family Assistance 

A “residence order” means an order settling the arrangements to be made as to the person with whom the child is to live.

A “contact order” means an order settling when a child may have contact with another person.  This may be direct or indirect.  Direct contact is seeing the child face-to-face.  This is the usual form of contact. Indirect contact can take a very wide variety of forms such as letters, cards and presents. 

A “prohibited steps order” means an order that no step can be taken by a parent in meeting his parental responsibility which is of a kind specified in the order without the consent of the order.  This may be such things as preventing a parent changing a child’s surname

A “specific issue order” may be necessary to decide such issues as a child’s religious upbringing or which School they are to attend.

A “family assistance order” can only be made if the circumstances of the case are exceptional and appoint a CAFCASS officer to be made available to advise, assist and (where appropriate) befriend any person named in the order.  You and your partner’s consent to the making of the order is required.  Unless a shorter period is specified, the order last for 12 months only.

Which court must an application be issued in?

This depends on whether or not there are continuing matrimonial proceedings.  If there are ongoing proceedings such as divorce, that court may grant an order in respect of the children.  If there are no ongoing proceedings, the application is made to the Court which covers the area where the children reside.  In this instance the application may be made to either the County Court or Family Proceedings Court.

What form does the application take?

The application is made on a prescribed application form which amongst other things sets out the details of the parties, children, the order being sought and why.  This is sent to the court.  The application is then returned, for service on the other party, who is asked file an acknowledgement of service.  At the first hearing, the judge will ascertain the extent of the disagreement between the parties and if appropriate order a full report by CAFCASS.  Someone from CAFCASS will usually be present and speak to you and your partner before you see the District Judge.  After speaking to you a referral for Dispute Resolution may be made.  Dispute Resolution is a form of mediation and may take place over several weeks, the purpose being to see if the dispute can be resolved without the necessity of a formal report being prepared. 

What happens if we reach agreement?

The judge will have to consider whether it is in the interests of the child for an order to be made, in view of the Children Act’s non-intervention principle.  If the judge considers it is in the interests of the child, an order will be made by consent and may set out when contact is to take place.

What if we cannot reach agreement?

If you and your partner cannot agree the arrangements for the children, the Court will decide matters for you, taking into consideration the following such things as the wishes and feelings of the child; his physical, educational and emotional needs; the like effect on him of any change in his circumstances; his age, sex and background; any harm which he has suffered or is likely to suffer and how capable each of his parents is of meeting his needs.

If the Court has to make a decision for you, it may be a decision neither you nor your partner are happy with and it is therefore preferable to try and agree arrangements that suit you both where possible.  However, in certain circumstances your only course of action is to issue an application to the Court, particularly, if your partner is refusing to allow you to see your children.

For more information, please contact Julie Wain at Stafford on 01785 211411 or Shani Carr at Rugeley on 01889 583871

4 August 2010

Disclaimer

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.