Children are a solicitor’s invisible client, as even though the parent may be our client, it is of vital importance to consider the effect of our client’s actions on any child of the family involved in the proceedings.  We therefore attend to such issues in the most professional yet sensitive and empathetic way to ensure minimal impact on the child.

 

The Children Act 1989 (“CA1989”) introduced the concept of parental responsibility, which was a deliberate shift away from the idea that “parents have rights over their child towards the idea that they have parental responsibilities” towards their child.

 

Divorce brings with it an emotionally charged period to your life.  It is important that a child receives reassurance of stability that will continue during all the stages of separation and divorce, and thereafter.

 

There are four different types of orders that can be made in relation to children:

 

(a)                Residence Orders - An Order stating the arrangements to be made as to whom the child is to live with.

 

(b)               Contact Orders – An Order requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the Order, or for that person and the child otherwise to have contact with each other.  This Order can authorise all types of contact, i.e. physical, email, telephone etc.  The amount of contact can either be specified in the Order or left as “reasonable contact”, in which case the arrangements are left to the parent’s discretion. 

 

(c)                Prohibitive Steps Order – An Order that can prevent contact with someone or deal with a specific problem for e.g. if you think that your partner is likely to try and take your children from you. 

 

(d)               Specific Issue Order – An Order giving directions for the purpose of determining a specific question which has arisen or which may arise in connection with any aspect of parental responsibility, especially in the event that there has been a disagreement over an issue which cannot be resolved, for e.g. schooling, medical treatment or religion. 

 

These Orders usually last until the child reaches the age of 16 (or 18, in exceptional circumstances). 

 

Other Orders that can be sought are;

 

i) Family Assistance Order, which is an Order requiring, for example, a Children and Family Court Advisory and Support Service Officer (“CAFCASS”) or Local Authority Officer to be made available to advise, assist and befriend any person named in the Order.  The aim of this Order is to support the family in the immediate aftermath of the family breakdown and to help everyone to adjust to the changed circumstances.

 

ii) Special Guardianship Order, that gives the holder parental responsibility which he/she is entitled to exercise this to the exclusion of any person with parental responsibility.  These Orders do not extinguish the parent’s parental responsibility but provide the special guardian with support services including counselling, advice and financial support, for example where a child is being looked after permanently by a member of his/her extended family.

 

The Court considers a child’s welfare as “paramount” in divorce proceedings.  The welfare principle usually determines any contested proceedings, care proceedings and related particular Orders.  There are seven factors to take into account when applying the welfare principle in contested proceedings:

 

(i)                 The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).  This factor reflects the importance of allowing the child’s wishes to be given a place in deciding what is in his or her welfare. It is true that a child’s wishes do not necessarily always take precedent and the Court may sometimes feel that the children’s wishes are not in their best interests (Re: DW (A Minor) [1984] Fam Law 17).

 

(ii)               The child’s physical, emotional and educational needs.  This factor takes into account the accommodation, medical needs and education, as well as how close the child is to any siblings involved with whom the child may lose touch if a particular Order is made.  The Court carefully considers the circumstances before splitting siblings (C v C (A Minor’s Custody) [1988] 2 FLR 291).

 

(iii)             The likely effect on the child of any change in circumstances.

 

(iv)             The child’s age, sex, background and any characteristics of the child which the Court considers relevant.

 

(v)               Any harm that the child has suffered or is at risk of suffering.

 

(vi)             How capable each of the child’s parents and any other person in relation to whom the Court considers the question relevant is of meeting the child’s needs, i.e. any criminal record for violence or dishonesty will be considered.

 

(vii)           The range of powers available to the Court under this Act in the proceedings in question.  This factor encourages the Court to think laterally and considers every option to it, including that of not making an Order at all.  The Court has the power to make any Order in favour of any person, irrespective of who has applied and for what and the deciding factor is the welfare of the child.

 

Procedure

 

At the beginning of the divorce proceedings, the Petitioner files a statement of arrangements for the children with the Court.  A copy of this is sent to the Respondent with the Petition and they are given an opportunity to agree or comment upon the proposed arrangement.

 

It is usually encouraged that all parties reach an agreement in relation to all matters affecting children. 

 

Once the Court receives an application, it will list the case for a first appointment a month later which all parties must attend. 

 

At “the first appointment”, parties will be asked to discuss their respective positions in private with the CAFCASS Officer without legal representation.  The CAFCASS Officer will then decide whether a report will be necessary.  A report usually deals with issues such as arrangements of the children, suitability of future plans, facilities available and housing issues. 

 

You will then be required to attend before the District Judge, where the Judge may make a direction for a report or make any other directions necessary, i.e. filing of further evidence. 

 

Statements are usually exchanged two or three weeks after the first appointment.

 

If appropriate, the Court can also order a medical report to be obtained.

 

The Court will then set the case down for trial or direct that there should be further directions or appointment at a later stage.  If the later has been decided upon, it will usually take place approximately three months later.  This is to ensure all evidence has been gathered and considered before trial.

 

If the Judge is satisfied on the evidence before him, the matter will be listed for trial.  Trial usually takes place approximately two or three months later depending upon the amount of time that the representatives estimate the trial will take.

 

In any event, it is encouraged that most cases are settled by agreement, either at the first appointment or upon the appointment of a CAFCASS Officer.