Separating Parents – Making Child Arrangements
7 January 2025 | Family Law |
When a couple separate, emotions are always running high and there is usually much distress and upset or, at the very least, regret and confusion about what the future holds. There is often a temptation to see the separation arena as a battleground where points are to be scored and victories won. Unfortunately, though it is often the last thing that the parents want, the children can become embroiled in this and can be viewed as prizes to be won or lost. Unfortunately, such an approach by either or both parents is always harmful to the children and almost always makes a bad situation worse.
The way the law is framed, the hope is that the two parents will continue to negotiate and cooperate with one another in relation to the children’s upbringing in much the same way that they did before the split. This is codified in the law in several ways. Section 1(5) of the Children Act makes clear that “a court…shall not make an order unless it considers that doing so would be better for the child than making no order at all”. This is called the “no order principle” and provides for an in-built assumption that courts (and indeed lawyers) should not need to be involved.
Additionally, section 2 of the Children Act makes clear that, ordinarily, both parents will share “parental responsibility” for the children. Parental Responsibility is a legal concept which defines that bundle of rights and responsibilities which one would normally associate with being a parent, that is, the right to have a say in the child’s upbringing. This obviously includes having a say in what the arrangements for their care will be and it is worth pointing out that, on separation, neither parent is in the stronger position from a legal point of view. My experience is that parents often perceive that:-
- a court order specifying arrangements for the children’s care is required; and
- that it is open for one parent to dictate to the other what the arrangements should be.
Neither of these assumptions are correct.
In fact, whilst a court application to set out Child Arrangements remains a necessary and crucial option for separating parents in dispute, it is absolutely clear that this should increasingly be seen as a last resort. Indeed, the relevant rules of procedure now clearly set out the steps the court will expect parents to take before starting court proceedings. This includes accessing various resources available online and otherwise to assist parents in reaching their own agreement, attending a meeting with a mediator to assess whether mediation is a suitable alternative to court and considering other means of resolving the dispute without court.
Specific information has to be given to the court in this respect as part of the application process and it is no longer unusual for courts to refer parents back to alternatives such as mediation rather than letting them pursue their claims if insufficient efforts are considered to have been made by the parents to avoid a court fight.
In view of that, any parents considering separation should do their level best to put their differences aside in order to make appropriate arrangements for their children’s care. This is not only because that is likely to be in the children’s best interests but it is also because it is an expectation of the law. Much time and money can be wasted by parents determined to take a more confrontational approach.
All of the above serves to emphasise that taking advice at an early stage is absolutely crucial so that the various options available can be properly explored.
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