Sarah Evans, Partner and Family lawyer at Coodes Solicitors, lays the myth of child custody to rest and explains modern thinking around child arrangements.
“The Children Act came into being in 1989 and dispensed with the concept of child custody. 28 years on, however, we still see headlines in the press about celebrities fighting for custody of their children. Before the Children Act the Court was required upon divorce to award one parent with ‘Custody, care and control’ of the children while the other had ‘Access’ to them. The Act changed all of this and arrangements for children are now dealt with separately from a divorce. So what is the current approach to finding new arrangements for children when parents separate or divorce?
The child’s best interests
“The general principle is that it is in the child’s best interests to spend time with both parents. Unless there is a very good reason, a Court will want to promote this. Sadly many parents are unable to agree what those arrangements should be and of course what is in a child’s best interests varies depending on the circumstances and the age of the child.
“There is a helpful ‘checklist’ in the Children Act which Courts refer to whenever making decisions about child arrangements. This covers a range of considerations, from the wishes and feelings of the child, in light of his or her age and level of understanding, to how capable the parents are of meeting the child’s needs.
Reaching an agreement together
“Anything a divorcing couple can agree is likely to be better and more sustainable than something forced on them by the Court. There is no need to go to Court of course and separating couples can make whatever arrangements they consider appropriate for the children. This varies from children spending one week with each parent on an alternating basis to children only seeing one parent during school holidays where they live some distance apart.
“With modern communication options such as Skype, Facetime, text and email, even where one parent is permitted to leave the UK with the children, this does not necessarily lead to meaningful contact being lost by the other parent.
Going through the Courts
“To start the process of making arrangements for their children through the Courts, one parent applies for an order. A Child Arrangements Order outlines who the children live and spend time with. Prohibited Steps Orders prevent something from happening such as removing a child from the country. Specific Issue Orders deal with particular concerns such as where the child attends school.
“Except in very urgent cases or if there has been domestic abuse, the parents must have attempted mediation before being able to issue an application. The Children and Family Courts Advice and Support Service (CAFCASS) are directed to undertake a safeguarding check and advise the Court. CAFCASS will contact the parties and any other professionals, such as social services, to get their views. They will then write to the Court and the divorcing couple setting out the results of the enquiries, any safeguarding concerns and suggesting next steps.
“At the first hearing the Court will give directions as to what needs to happen to enable the case to be resolved. A Duty CAFCASS officer is usually available and can assist with in-Court mediation where appropriate. There may be a direction for a further report from either CAFCASS or the Local Authority if they are involved with the family. The case is normally then listed for a Dispute Resolution Hearing to see if the parties can reach agreement once the report has been received.
“If there are no serious concerns, no report will be ordered and instead the parties will be asked to file statements and a relatively short final hearing listed. At the final hearing the parties and CAFCASS Officer or Social Worker will give evidence and be cross-examined and the Court will make orders.”
The golden rule
“Whether you are coming to an agreement together or going through the courts, there is one ‘golden rule’ to remember: contact is the right of the child and not of the parent. Keeping that in mind will help you focus on the needs of your children.”
For more information or advice on family legal issues contact Coodes Solicitors on 01726 874700.