When your relationship breaks down and you have children with your ex-partner, it is important to make arrangements regarding who the children will live with and how often they will spend time with the other parent. Previously known as seeking child custody, the process of organising residence for children post-separation of the parents is now referred to as Child Arrangements or Child Arrangement Disputes.
The safety and wellbeing of your child should always be the priority when making these arrangements. In some circumstances, parents may not agree on the arrangements for the children. When this occurs, it is important that the parent who is seeking contact with their children follows the process correctly to ensure that there is no delay in continuing or resuming an active role in their children’s lives.
The Court has the power to make the following Orders in respect of contact arrangements:
- ‘Lives With’ Order: an Order determining with whom the children shall live.
- ‘Spends Time With’ Order: an Order determining how often the children shall spend time with the non-resident parent.
- ‘Shared Care’ Order: an Order determining that the children live with both parents.
How to apply for Child Custody or Child Arrangements needn’t be a complicated question to answer. There are essentially three stages in the Child Arrangement or Child Custody process, each acting as an alternative for when the one prior is unsuccessful. Keep reading to learn about the three main stages.
Parenting Plans
A parenting plan is an understanding between parents that sets out where the child should live. If the child lives with one parent, rather than both, the parenting plan will confirm how often they should spend time with non-resident parent. As this is agreed between both parents, the arrangement will be far more suited to the family’s unique dynamic.
The parenting plan may also include agreed terms regarding the child’s education, treatment of their physical and mental health, the logistics of financial support, which decisions will need consultation in the future, and any other essential topics relating to the children.
Whilst a parenting plan is not legally binding, you can obtain a court order to make it so. If an Order of the Court is necessary, perhaps because one party has not followed the agreement or because both parents seek a more formal arrangement, you should seek legal advice on the terms agreed.
Financial issues can often cause animosity between parents, so it is important that both parents understand their financial obligations to the children as early as possible following separation. The Child Maintenance Service has a calculator on their website that can guide parents on the amount payable based on income and the number of overnight stays between the children and the non-resident parent. Having this calculation within a parenting plan can ease issues in the future.
If you and your ex-partner are planning to share residence (custody) of the children, you will need to decide which parent will claim child benefit. More information on this can be found on the Gov.uk website.
Mediation
If the parents cannot agree on the parenting plan, mediation can be a good next step when discussing Child Arrangements or Child Custody. A mediator can assist parents in reaching an agreement on the arrangements for the children in a neutral venue.
If parents are concerned that mediation may not be suitable, perhaps due to a hostile or acrimonious separation, the mediator can arrange for “shuttle” mediation where they will move between the parents in separate rooms.
In some instances, mediation may not be suitable, especially where there has been domestic abuse or abuse towards the children. If this is a concern, legal advice should be sought as soon as possible.
During mediation, the mediator can assist the parents in agreeing the arrangements for the children. The parents can discuss their concerns, if any, and the mediator can assist each parent in understanding the issues raised by the other. Communication is often difficult after separation, but it is important to facilitate this when there are children involved.
At Howells Solicitors, we can also advise on other forms of Alternative Dispute Resolution (ADR) such as Collaborative Law; please get in touch to discuss this further. If the mediation or ADR process fails, the parents will need to consider requesting a Child Arrangements Order from the Court.
Child Arrangements Orders
Mediation must be attempted before applying for a Child Arrangements Order, as confirmed by Section 10 of the Children and Families Act 2014.
If the mediation process fails, your mediator will provide you with a Mediation, Information and Assessment Meeting (MIAM) form. This form confirms that mediation took place, either jointly or singularly, and it was deemed unsuitable. This form will need to be attached to the C100 application for a Child Arrangements Order.
If mediation is not attempted before making an application, the Court will want to know why. In some instances, such as domestic abuse or other urgent court matters, mediation will not be necessary, and you may be able to go straight to court.
You should always seek the advice of a solicitor if you are unsure whether you will need to attend mediation, as there is a risk that your application will be rejected.
Serving
Once the application has been sent to the Court, the Court will serve a copy of the application on the other parent (the ‘Respondent’). The Respondent parent will be given the opportunity to respond to the application. The Court will confirm in an Order when the First Hearing Dispute Resolution Appointment (FHDRA) will be held.
CAFCASS Reports
Prior to the FHDRA, the Court and Family Court Advisory and Support Service (CAFCASS) will carry out checks with the Local Authority and the local Police force. They will collate any information held by either of these agencies in respect of the children and/or the parents. This information will assist the Court in making an Order for the children that is safe and appropriate. CAFCASS will also hold appointments with both parents and confirmation of their calls, along with the information from the relevant agencies, will be included in a report to be sent to the Court and both parents.
In the initial report, CAFCASS will recommend the appropriate next steps for the case. CAFCASS can recommend a further session of mediation during the FHDRA, known as conciliation. If this is not appropriate, they can recommend that a second, more detailed report is carried out.
If there are serious allegations against either parent, CAFCASS can recommend that a hearing take place to decide whether the alleged incidences took place. As every case is different, the Court has multiple options and resources at hand to make decisions in the best interest of the children.
The Length of the Process
When making any decisions regarding the children involved, the Court must always consider the Welfare Checklist found within Section 1 of the Children Act 1989. The welfare of the children is often referred to as the “Paramountcy Principle”.
In most cases, parents reach an agreement within 6-8 months if not agreed at the FHDRA. In complex cases, this can take significantly longer. The FHDRA should be heard within 6-8 weeks of the initial application being made.
It can take 6-12 months for the complete process, but most will begin 6-8 weeks after the initial application for a court order. A summary of the main stages is as follows:
- File your application with the Court.
- The Court will serve the Respondent Parent with a copy of the application and an Order confirming the date of the FHDRA.
- Before the FHDRA, CAFCASS will carry out the necessary checks and interviews with both parents.
- During the FHDRA, the Court will consider the recommendations of CAFCASS and the proceedings will usually go ahead in line with those recommendations.
From here, each case is entirely different, and the next steps will depend entirely on your individual circumstances.
Let Howells Help You With Your Child Arrangements
Whether you’re wondering how get contact with my child, how to apply for contact or residence, or another legal matter, Howell’s family law solicitors can provide you with advice and representation in respect of your Child Arrangement dispute. We can also advise you upon Legal Aid and can assess your eligibility efficiently and sensitively.
For more information, or to discuss your options, talk to the team today.
