Divorce is difficult whatever the situation, but when there are children involved it is particularly sensitive. When parties issue an application for a divorce or for a dissolution of a civil partnership, the Court will want to ensure that the couple have made proper arrangements for any minors for which they have parental responsibility. These arrangements include where the children will live, when they’ll spend time with each parent and who will pay child maintenance.
In most cases, parents usually agree between themselves about the arrangements for children. The law considers that voluntary arrangements between parents are more likely to succeed in the long run than those imposed by the courts. For that reason, the courts will not interfere unless it is in the best interests of the child.
Mediation may be offered as an alternative to the court process if, for example, parents cannot agree on contact arrangements. A mediator is an impartial trained professional who listens to both parents’ wishes and concerns and tries to help you both come to an agreed arrangement. Mediation is also used in disputes regarding where the child should live (‘residence’) and other issues such as finances and property
If the parties don’t agree on arrangements for their children and cannot resolve their issues via an independent mediator, they canapply for a court order. There are four different types or order:
Residence Order – to decide where the child will live, and which parent they’ll live with
Contact Order – to decide when the parent can see the child
Specific Issue Order – to look at specific issues in relation to the child’s upbringing, such as what school they should attend or their religious education
Prohibited Steps Order – to stop the other parent from making a decision about the child’s upbringing
Both parents will be asked to attend a ‘directions hearing’ where a judge or magistrate will listen to what the parties can and can’t agree and assist them in reaching an agreement, providing there are no concerns about the child’s welfare. If the parents are still unable to agree, the judge may instruct them to continue with mediation or attend a course called a ‘Separated Parents Information Programme’.
The court can ask The Children and Family Court Advisory and Support Service (Cafcass) to provide a report on the case to help decide what’s best for the child. This will take into consideration the child’s wishes and feelings, their physical, emotional and educational needs, and the ability of parents to meet the child’s needs, among other things. It is important to remember that the court will always put the child’s best interests first.
Occasionally, in rare cases, communication breakdown between parents can lead to parental abduction of the child. According to figures released by the Foreign & Commonwealth Office and charity Reunite, 616 children were abducted abroad in 2013. The top four countries which children were abducted to were Pakistan, the USA, Poland and Ireland, showing that parental child abduction is not faith or country specific.
While parental abduction is rare, disputes between separating parents are not and it is important to try to minimise the impact divorce has on the children.
The Family & Children department at Simons Muirhead & Burton, led by Jane McDonagh, is currently planning an event with leading child psychologist Penelope Leach to raise awareness and funding for Penelope’s forthcoming book tackling the subject. The event is taking place at these offices on 6 February – please contact us for more details.
Penelope’s book ‘Divorcing Better’ will be published via Unbound, a crowd-funding on-line publisher and the proceeds given to the Mindful Policy Group, a think tank which aims to disseminate research on how children develop, influencing government policy and improving family relationships.
Penelope Leach, who also wrote the multi-million selling ‘Your Baby and Child’, advocates “mutual parenting”, with both parents maintaining a meaningful relationship with their child.
Penelope said statistics showing that only half of today’s children will celebrate their 16th birthdays with their parents still together, had impelled her to write about divorce for the first time. The book is intended to reduce the long-term damage caused to children’s development by break-ups.
If you are currently going through a separation and need assistance making arrangements for your child/children, our Family & Children team can help. We specialise in family mediation, employing an impartial and collaborative model, which has been successful in resolving thousands of child-related disputes.
This article is intended as an easy to understand introduction to some aspects of divorce, free of legal jargon. However, divorce is a complex, and unfortunately sometimes non-intuitive area of law. Please contact us for more specific advice about your individual circumstances and the legal processes which apply.